PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1071
GEORGE COOPER, SR.,
Plaintiff – Appellee,
and
GEORGE COOPER, JR.,
Plaintiff,
v.
JAMES SHEEHAN; BRIAN CARLISLE,
Defendants – Appellants,
and
BRUNSWICK COUNTY SHERIFF’S DEPARTMENT; SHERIFF RONALD
HEWETT; DAVID CROCKER; GENE CAISON; KEVIN HOLDEN; JOHN
INGRAM,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:10-cv-00014-D)
Argued: September 20, 2013 Decided: November 7, 2013
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Wilkinson and Judge Wynn joined.
ARGUED: Christopher J. Geis, WOMBLE CARLYLE SANDRIDGE & RICE,
PLLC, Winston-Salem, North Carolina, for Appellants. Laura
Conner, Robert M. Tatum, TATUM & ATKINSON, PLLC, Raleigh, North
Carolina, for Appellee. ON BRIEF: James R. Morgan, Jr., James
A. Dean, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem,
North Carolina, for Appellants.
2
KING, Circuit Judge:
Late in the evening of May 2, 2007, George Cooper, Sr., was
alerted to the sound of unknown persons outside his mobile home
in rural Leland, North Carolina. Lowered shotgun in hand,
Cooper stepped out onto his back porch to investigate. Seconds
later, he was struck by gunfire. The shots were fired by
Brunswick County deputy sheriffs James Sheehan and Brian
Carlisle (the “Officers”), who were investigating a reported
domestic disturbance on Cooper’s property. Cooper survived, and
he subsequently initiated this civil action in the Eastern
District of North Carolina, alleging claims under 42 U.S.C.
§ 1983, as well as state law claims, arising from the shooting
incident.
The Officers moved for summary judgment, which was granted
in part and denied in part. See Cooper v. Brunswick Cnty.
Sheriff’s Dep’t, 896 F. Supp. 2d 432 (E.D.N.C. 2012). In
pertinent part, the district court denied the Officers’
assertions of qualified and public officers’ immunity from,
respectively, Cooper’s federal and state excessive force claims.
Invoking the collateral order doctrine, the Officers seek
appellate relief from the immunity aspects of the court’s
decision. As explained below, we affirm.
3
I.
A.
On the day of the shooting, Cooper and his cousin Paul
Herring spent several hours repairing the floor of a nearby
relative’s home. 1 Upon finishing the work, Herring agreed to
join Cooper for dinner. At around 9:00 p.m., Herring arrived at
Cooper’s residence, and the two men enjoyed the evening in the
backyard, talking about “[f]ootball games [and] old fights.”
Cooper, 896 F. Supp. 2d at 436. 2 Cooper may have enjoyed the
mid-spring evening a little too much, smoking marijuana laced
with cocaine, and chasing “three or four beers” with a pint of
brandy. Id. at 437. Afterward, the men retired to Cooper’s
mobile home to prepare the meal.
Just after 11:00 p.m., a neighbor called 911 “to report
that an altercation was occurring at the Cooper property.”
Cooper, 896 F. Supp. 2d at 437 n.2. The 911 dispatcher relayed
the call to the Officers, reporting that the disturbance
“sound[ed] like two males screaming at each other.” Id. at 437.
1
In light of our limited jurisdiction over collateral
orders denying claims of qualified immunity, see infra Part II,
we are obliged to accept the facts “as the district court viewed
them.” See Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997)
(en banc).
2
All internal quotation marks from the district court’s
opinion are omitted.
4
The dispatcher did not indicate whether the men were armed or
otherwise dangerous. Around 11:30 p.m., the Officers arrived in
the vicinity of Cooper’s mobile home, Carlisle driving a
standard patrol car and Sheehan in an unmarked vehicle. Neither
of the Officers activated his blue lights or siren. As Carlisle
approached in his vehicle, he “could hear screaming . . . coming
from [the] property.” Id. He also saw “a black male” — not
Cooper — “standing on the [mobile home’s] back porch.” Id.3
Carlisle perceived that the man on the porch observed the
approaching police cars, after which he went inside the mobile
home. Sheehan also saw a man standing on the porch.
The Officers parked on the grass at the edge of Cooper’s
property and approached the mobile home on foot. They could
hear what sounded like a heated argument inside, but could not
make out any words. Carlisle also heard “screaming” and “people
walking around inside the [mobile home].” Cooper, 896 F. Supp.
2d at 438. To alert the occupants of the Officers’ presence,
Sheehan “tapp[ed] on the window” with his flashlight, but
neither of the Officers announced his presence or identified
himself as a deputy sheriff. Id.
3
Cooper was in the mobile home’s kitchen when the Officers
arrived, and he never saw the Officers’ police vehicles.
5
In response to the sound at his window, Cooper uttered some
obscenities, which the Officers heard. Cooper then peered out
the back door (the mobile home’s primary entrance), but saw
nothing. Cooper called out for anyone in the yard to identify
himself, but no one responded. Electing to venture outside to
investigate the noise, Cooper retrieved the twenty-gauge shotgun
he kept by the door. With the butt of the firearm in his right
hand and its muzzle pointed toward the ground, Cooper “opened
the back door and took two or three steps on to his darkened
porch.” Cooper, 896 F. Supp. 2d at 437. By that time, the
Officers had progressed to an adjacent area and were advancing
toward the porch. Within a few feet of the porch steps, Sheehan
stumbled over a concrete block. As Sheehan regained his
balance, Cooper emerged with his shotgun.
Reacting to the sight of Cooper and his shotgun, the
Officers drew their service weapons and commenced firing without
warning. 4 Cooper felt two bullets hit his body and then turned
toward the mobile home’s door. The Officers continued shooting,
4
The district court observed that the parties had presented
“dramatically different accounts” of the moments immediately
preceding the shooting. Cooper, 896 F. Supp. 2d at 438. In the
Officers’ version, the back door “flew open,” after which Cooper
immediately “raise[d] [the shotgun] up to his hip and fire[d]
one time.” Id. For purposes of the qualified immunity
analysis, however, the court concluded that it had to accept
Cooper’s account — that the shotgun was unloaded and he did not
shoot. Id. at 446.
6
and Cooper felt himself hit “a couple of more times” before
collapsing to the ground. Cooper, 896 F. Supp. 2d at 439. The
Officers discharged between eleven and fourteen rounds, and
Cooper was hit five or six times, incurring wounds in the elbow,
ankle, back, buttocks, and stomach.
B.
On January 29, 2010, Cooper filed this lawsuit, naming as
defendants the Brunswick County Sheriff’s Department, the
current and former Sheriffs, plus several deputies, including
the Officers. 5 The Complaint included eighteen counts, alleging
violations of both state and federal law. 6 The claims against
the Sheriff’s Department were dismissed early in the litigation.
Following discovery, on February 1, 2012, the remaining
defendants moved for summary judgment. In addition to various
defenses, the Officers asserted qualified immunity from Cooper’s
federal claims, as well as public officers’ immunity from
5
Cooper’s eight-year-old son, George Cooper, Jr., was
present in the mobile home when the shooting occurred, and he
was a named plaintiff in the Complaint. Because the necessary
procedural steps to pursue the case on Cooper Jr.’s behalf were
never taken, the elder Cooper proceeds as the sole plaintiff.
6
The federal claims were that the defendants violated
Cooper’s Fourth and Fourteenth Amendment rights, made actionable
by 42 U.S.C. § 1983, and that the defendants were motivated to
do so by racial animus, as proscribed by 42 U.S.C. § 1981. The
state law claims included several common law torts, violations
of North Carolina’s constitution, and civil conspiracy.
7
Cooper’s state law claims. By its September 27, 2012 decision,
the district court granted summary judgment to all defendants on
most counts. The only claims reserved for trial were asserted
against the Officers — Cooper’s Fourth Amendment excessive force
claims and his state law assault, battery, negligence, and gross
negligence claims.
In allowing those claims to go forward as to the Officers,
the district court specifically rejected their assertions of
federal and state immunity. The court relied heavily on our
unpublished opinion in Pena v. Porter, 316 F. App’x 303 (4th
Cir. 2009). There, a pair of officers searching for a fugitive
came to Pena’s door late at night, but did not identify
themselves. Pena awoke to the sound of his dogs barking and,
with no knowledge that the police were outside, opened his door
while holding a rifle pointed toward the ground. One of the
officers saw the firearm and immediately fired two shots that
struck Pena. Pena sued under § 1983 and North Carolina law, and
the officers asserted qualified and public officers’ immunity.
Viewing the facts in the light most favorable to Pena, the
district court denied the officers’ immunity claims, and we
affirmed. We agreed that, under the circumstances, Pena had a
“perfectly reasonable” rationale for holding the rifle, which
“should have been apparent to [the officers] at the time of the
shooting.” Id. at 312. For purposes of summary judgment, we
8
concluded that Pena’s rights had been violated because “[a]bsent
any additional factors which would give the [officers] probable
cause to fear for their safety or the safety of others, the mere
presence of a weapon is not sufficient to justify the use of
deadly force.” Id.
Finding Pena’s facts analogous and its reasoning
persuasive, the district court here concluded that “Pena
supports [Cooper’s] argument” against the Officers’ claims of
qualified immunity. Cooper, 896 F. Supp. 2d at 446. “Accepting
[Cooper’s] account as true,” the court resolved that “the
totality of the circumstances [did] not establish that [the
Officers] had probable cause to believe that [Cooper] was
dangerous when [he] stepped onto his unlit porch at 11:30 p.m.,
holding a shotgun pointing down, asked who was there, heard
nothing, and then was shot a few seconds later.” Id. The court
acknowledged that “if [Cooper] had . . . stepped onto a dark
porch armed despite knowing law enforcement officers were
approaching his door, that certainly could affect a reasonable
officer’s apprehension of dangerousness.” Id. at 447.
Critically, however, the court determined that “no reasonable
officer could have believed that [Cooper] was aware that two
sheriff deputies were outside” when he stepped onto the porch.
Id.
9
Thus, “[a]bsent a threatening act, like raising or firing
the shotgun,” the district court ruled that the Officers’
decision to use deadly force was not objectively reasonable.
Cooper, 896 F. Supp. 2d at 447-48. Moreover, after reviewing
the applicable legal principles, the court observed that
Cooper’s “Fourth Amendment right to remain free from the
unreasonable use of deadly force was clearly established” at the
time of the shooting incident. Id. at 448. On the basis of
those conclusions, the court decided that the Officers were not
entitled to qualified immunity from Cooper’s § 1983 excessive
force claims. 7 The Officers thereafter timely noted this appeal,
asserting jurisdiction under the collateral order doctrine.
II.
Because this is not a typical final order appeal, we first
satisfy ourselves of our jurisdiction in this proceeding. See
Mort Ranta v. Gorman, 721 F.3d 241, 245 (4th Cir. 2013). Absent
7
The district court determined that Cooper’s state law
excessive force claims “arise out of the same facts” as his
Fourth Amendment excessive force claims. Cooper, 896 F. Supp.
2d at 453. Recognizing that resolution of the state law claims
likewise turned on the “reasonableness” of the Officers’ use of
deadly force, the court denied summary judgment on those claims
by reference to its analysis of the federal claims. Id. at 453-
54.
10
jurisdiction, we would be constrained to dismiss the Officers’
appeal, regardless of its merits.
Pursuant to the collateral order doctrine, we are
authorized to review an appeal from a district court’s denial of
qualified immunity, see Mitchell v. Forsyth, 472 U.S. 511, 530
(1985), unless the order determined only a question of “evidence
sufficiency,” see Johnson v. Jones, 515 U.S. 304, 313 (1995).
Put another way, “we possess no jurisdiction over a claim that a
plaintiff has not presented enough evidence to prove that the
plaintiff’s version of the events actually occurred, but we have
jurisdiction over a claim that there was no violation of clearly
established law accepting the facts as the district court viewed
them.” Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997) (en
banc). 8
8
Inasmuch as every denial of summary judgment, by
definition, involves a determination that the evidence is
sufficiently disputed to raise triable issues, the mere
existence of disputed facts — even critical facts — does not
deprive us of jurisdiction. See Winfield, 106 F.3d at 529. As
long as the appellants do not argue the sufficiency or validity
of the facts on appeal, but rather, as in Mitchell v. Forsyth,
seek to apply clearly established law to a given set of facts,
we are properly vested with jurisdiction. See Johnson, 515 U.S.
at 313. Indeed, “[i]f this central question, whether given
facts show a violation of established law, is not subject to
immediate appeal, a public official’s right to appeal denials of
qualified immunity will be of less than little worth.”
Winfield, 106 F.3d at 535 (Wilkinson, J., concurring).
11
The Officers’ contentions on appeal fall squarely within
the category of claims, described in Winfield, that we are
permitted to review. Although the Officers mention evidence
that they believe will ultimately disprove Cooper’s version of
the facts, for purposes of this appeal they have accepted the
facts as viewed by the district court. Proceeding from that
foundation, the Officers make the legal argument that they did
not contravene Cooper’s constitutional rights. In these
circumstances, we are satisfied of our jurisdiction under the
collateral order doctrine, and we proceed to the merits of the
Officers’ qualified immunity claims.
III.
A.
Section 1983 of Title 42 creates a cause of action against
any person who, acting under color of state law, abridges a
right arising under the Constitution or laws of the United
States. Nevertheless, a government official sued under § 1983
is entitled to invoke qualified immunity, which is more than a
mere defense to liability; it is immunity from suit itself. See
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). As we have
explained, “qualified immunity protects officers who commit
constitutional violations but who, in light of clearly
established law, could reasonably believe that their actions
12
were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc).
The Officers maintain that the district court erred in
denying them qualified immunity from Cooper’s excessive force
claims under § 1983. We review de novo the legal issues arising
from a district court’s denial of qualified immunity.
Washington v. Wilmore, 407 F.3d 274, 281 (4th Cir. 2005). In
assessing whether a defendant is entitled to qualified immunity,
a court must “use the two-step procedure of Saucier v. Katz, 533
U.S. 194 (2001), that asks first whether a constitutional
violation occurred and second whether the right violated was
clearly established.” Melgar ex rel. Melgar v. Greene, 593 F.3d
348, 353 (4th Cir. 2010). A constitutional right is “clearly
established” when “its contours [are] sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(internal quotation marks omitted).
The Complaint alleges that the Officers violated Cooper’s
constitutional rights through the use of excessive force. See
Waterman v. Batton, 393 F.3d 471, 476 (4th Cir. 2005)
(explaining that seizure effectuated by excessive force
contravenes Fourth Amendment). We have instructed that
“[w]hether an officer has used excessive force is judged by a
standard of objective reasonableness.” Clem v. Corbeau, 284
13
F.3d 543, 550 (4th Cir. 2002). As further explained in Clem,
“recognizing that police officers are often forced to make
split-second judgments — in circumstances that are tense,
uncertain, and rapidly evolving — we take care to consider the
facts from the perspective of a reasonable officer on the scene,
and avoid judging the officer’s conduct with the 20/20 vision of
hindsight.” Id. (internal quotation marks omitted).
A reasonable officer is entitled to use deadly force
“[w]here the officer has probable cause to believe that [a]
suspect poses a threat of serious physical harm, either to the
officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11
(1985). Nevertheless, as the Officers concede, the mere
possession of a firearm by a suspect is not enough to permit the
use of deadly force. Thus, an officer does not possess the
unfettered authority to shoot a member of the public simply
because that person is carrying a weapon. Instead, deadly force
may only be used by a police officer when, based on a reasonable
assessment, the officer or another person is threatened with the
weapon. See id. at 11-12. 9
9
To be clear, an armed suspect need not engage in some
specific action — such as pointing, aiming, or firing his weapon
— to pose a threat. Pursuant to Tennessee v. Garner and its
progeny, there are many circumstances under which a police
officer could reasonably feel threatened.
14
The Officers rely on several decisions concluding that a
police officer was entitled to qualified immunity after shooting
an individual whom the officer mistakenly believed to be armed.
In Anderson v. Russell, for example, the officers ordered a
detainee to his hands and knees, and then shot him when he
reached for a bulge in his waistband that turned out to be a
radio. See 247 F.3d 125 (4th Cir. 2001). In an earlier
decision, McLenagan v. Karnes, a bystander was shot as he ran
toward a police officer moments after the officer learned that
an armed arrestee was on the loose in the area. See 27 F.3d
1002 (4th Cir. 1994). And in Slattery v. Rizzo, an officer shot
a suspect who ignored commands to show his hands before turning
quickly toward the officer with what turned out to be only a
beer bottle in a clinched fist. See 939 F.2d 213 (4th Cir.
1991). If deadly force was justified in such circumstances, the
Officers contend, it is even more appropriate in this setting,
where Cooper wielded a shotgun in plain view. Instead of
supporting the Officers’ contentions, however, those decisions
emphasize why the use of deadly force against Cooper was not
constitutionally permissible: in each of the above scenarios,
the objective basis for the threat was real, but the gun was
not. Here, the shotgun was real, but — taking the facts as the
district court viewed them — the threat was not.
15
When the Officers fired on Cooper, he stood at the
threshold of his home, holding the shotgun in one hand, with its
muzzle pointed at the ground. He made no sudden moves. He made
no threats. He ignored no commands. The Officers had no other
information suggesting that Cooper might harm them. Thus, the
facts fail to support the proposition that a reasonable officer
would have had probable cause to feel threatened by Cooper’s
actions.
Importantly, the Officers never identified themselves —
even when asked by Cooper. If the Officers had done so, they
might have been safe in the assumption that a man who greets law
enforcement with a firearm is likely to pose a deadly threat.
See Elliot v. Leavitt, 99 F.3d 640, 644 (4th Cir. 1996) (“No
citizen can fairly expect to draw a gun on police without
risking tragic consequences.”). Instead, we are constrained to
agree with the district court that “no reasonable officer could
have believed that [Cooper] was aware that two sheriff deputies
were outside,” as he stepped onto his back porch. Cooper, 896
F. Supp. 2d at 447. 10 As in Pena v. Porter, on which the court
10
The Officers contend that they did not need to announce
their presence while approaching the mobile home, because they
believed the unidentified man on Cooper’s back porch had
observed them in their police vehicles. The Officers surmised
that the unidentified man’s observation led him to perceive that
the vehicles were headed to Cooper’s mobile home, which in turn
prompted him to go inside to warn the occupants. If the
(Continued)
16
relied, Cooper’s “perfectly reasonable” rationale for bearing a
firearm while investigating a nocturnal disturbance on his own
property “should have been apparent to [the Officers] at the
time of the shooting.” See 316 F. App’x 303, 312 (4th Cir.
2009).
With respect to the second part of the Saucier analysis,
the precedent discussed herein amply demonstrates that the
contours of the constitutional right at issue — that is, the
right to be free from deadly force when posing no threat — were
clearly established at the time the Officers shot Cooper.
Accordingly, the district court properly denied, at the summary
judgment stage, the Officers’ invocation of qualified immunity
from Cooper’s § 1983 excessive force claims.
B.
The Officers also seek relief from the district court’s
denial of public officers’ immunity with respect to Cooper’s
state law tort claims. Under the collateral order doctrine, we
possess jurisdiction to review the denial of claims for state
law immunities that provide insulation from suit, as opposed to
those that merely protect an official from liability. See Gray-
Hopkins v. Prince George’s Cnty., Md., 309 F.3d 224, 231 (4th
Officers predicated their use of deadly force on such
assumptions, it was unreasonable for them to do so.
17
Cir. 2002). Indeed, pursuant to the collateral order doctrine,
we have exercised appellate jurisdiction to review a pretrial
order denying North Carolina public officers’ immunity. See
Bailey v. Kennedy, 349 F.3d 731, 738 (4th Cir. 2003).
As the district court properly explained, “[t]he merits of
[Cooper’s] assault, battery, negligence, and gross negligence
claims are tied to the reasonableness of [the Officers’]
actions.” Cooper, 896 F. Supp. 2d at 454. That ruling was
predicated on the proposition that, under North Carolina law,
public officers’ immunity is unavailable to a police officer who
acts with malice. See Bailey, 349 F.3d at 731; see also Grad v.
Kassa, 321 S.E.2d 888, 890 (N.C. 1984). An officer acts with
malice when he “does that which a man of reasonable intelligence
would know to be contrary to his duty,” i.e., when he violates a
clearly established right. Bailey, 349 F.3d at 742. And, at
the time of this incident in May 2007, it was clearly
established that a North Carolina law enforcement officer could
use deadly force only when reasonably necessary to defend
against “the use of or imminent use of deadly physical force.”
N.C. Gen. Stat. § 15A-401(d)(2)(a). Inasmuch as the analysis of
public officers’ immunity is functionally identical to our
discussion of the Officers’ entitlement to qualified immunity
with respect to the § 1983 claims, the state law claims are
“subsumed within the federal excessive force claim[s] and so go
18
forward as well.” See Rowland v. Perry, 41 F.3d 167, 174 (4th
Cir. 1994).
IV.
Pursuant to the foregoing, we reject the Officers’ immunity
claims and affirm the district court.
AFFIRMED
19