United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2014 Decided February 13, 2015
No. 13-5130
MICHAEL FENWICK,
APPELLEE
v.
ANDREW PUDIMOTT AND JEREMY FISCHER,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-02330)
W. Mark Nebeker, Assistant U.S. Attorney, argued the
cause for appellants. With him on the briefs were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
David L. Shurtz argued the cause and filed the briefs for
appellee Michael Fenwick.
Before: HENDERSON, TATEL, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Concurring opinion filed by Circuit Judge HENDERSON.
2
TATEL, Circuit Judge: In this damages action against three
deputy federal marshals, the plaintiff alleges that the officers
violated the Fourth Amendment when they used deadly force
against him. The officers moved for summary judgment based
on qualified immunity, the district court denied the motion, and
the officers now appeal. We reverse. Under the circumstances
of this case, we conclude that the deputies violated no clearly
established law and are therefore entitled to qualified
immunity.
I.
In January 2007, then sixteen-year-old Michael Fenwick
pulled into the parking lot of an apartment complex in
southeast Washington, D.C. Close by were three deputy
marshals—Andrew Pudimott, Jeremy Fischer, and John
Mickle—waiting to enforce an eviction order. The deputies
watched as Fenwick struggled and failed to properly park his
car before entering an apartment building to look for his
girlfriend. Given Fenwick’s youthful appearance and difficulty
at the wheel, and observing that the car’s door lock was broken,
the officers suspected that he was underage and driving a stolen
vehicle. Before they could confirm as much, however,
Fenwick reappeared and headed towards his car. Surveillance
footage from nearby security cameras shows that, at that time,
pedestrians were entering and exiting the apartment buildings,
a car was pulling out of the apartment complex, and several
other vehicles were passing on the adjacent street. The officers,
still across the parking lot, called to Fenwick and asked to
speak with him. Fenwick responded by pointing to his chest as
if saying, “Who, me?” But instead of stopping to speak with
the deputies, Fenwick got into his car and began backing up.
The deputies rushed to surround the vehicle and, with guns
drawn, ordered Fenwick to halt. Fenwick ignored the order.
3
Instead, although Deputy Pudimott was visible near the
driver-side front of the vehicle, Fenwick drove forward
towards the parking lot exit, clipping Pudimott with the car’s
side mirror. Fearing for “the safety of themselves, fellow
officers, and/or possibly other bystanders,” Mot. to Dismiss
and/or for Summ. J. 26, Pudimott and Fischer opened fire,
striking Fenwick with four bullets.
After Fenwick recovered from his wounds, he was
charged as a juvenile with three counts of felony assault on a
police officer—one for each of the deputies on the scene. See
D.C. Code § 22-405(c). Pursuant to D.C. Code
Section 22-4502, the District also sought a sentence
enhancement on each charge “for committing [the] crime when
armed.” The enhancement was based not on possession of a
pistol or any of the statute’s other enumerated weapons, such
as machine guns, rifles, or switchblades, but rather on
Fenwick’s operation of the vehicle itself. Following a bench
trial in Superior Court, the judge acquitted Fenwick of the
charges with respect to Mickle and Fischer, but found that
Fenwick committed armed assault on Pudimott when he
endangered the officer by accelerating forward while the
officer was near the front of the car. The District of Columbia
Court of Appeals affirmed the “adjudication” (labeled as such
because Fenwick was a juvenile), concluding that “[w]hen
operated with the intention to make one’s getaway, and without
evident regard for the safety of officers who were trying to
persuade the driver to stop, a moving car may well constitute a
dangerous weapon capable of causing death or grave injury.”
See In re M.T.F., 10 A.3d 1158 (D.C. 2010).
Several months later, Fenwick sued the three officers in
their individual capacities in the U.S. District Court for the
District of Columbia, alleging that their use of deadly force
was excessive and thus violated the Fourth Amendment. See
4
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
(establishing damages action against federal officials for
violations of constitutional rights). The deputies moved for
summary judgment, contending that in light of Fenwick’s
juvenile assault adjudication, his Fourth Amendment claim
was barred both by collateral estoppel and Heck v. Humphrey,
512 U.S. 477, 487 (1994) (holding that district courts must
dismiss damages suits against law enforcement officials that
would “necessarily imply the invalidity of [an underlying]
conviction”). Mot. to Dismiss and/or for Summ. J. 14.
Critically for our purposes, the deputies also asserted qualified
immunity. Id. 19–20.
The district court granted summary judgment to Mickle,
who never fired his weapon, but denied the motion with respect
to Pudimott and Fischer. Beginning with the deputies’
preclusion arguments, the court explained that under District of
Columbia law, “collateral estoppel ‘precludes the relitigation
of issues actually litigated and necessary to the outcome of a
prior case involving the party against whom estoppel is
asserted.’” Fenwick v. United States, 926 F. Supp. 2d 201, 210
(D.D.C. 2013) (quoting Carr v. Rose, 701 A.2d 1065, 1076
(D.C. 1997)). Similarly, the district court observed, Heck v.
Humphrey bars Bivens suits “that, if successful, would
necessarily imply the invalidity of the plaintiff’s conviction or
sentence.” Id. at 219 (quoting Taylor v. U.S. Probation Office,
409 F.3d 426, 427 (D.C. Cir. 2005)). But recognizing that the
excessive force issue was neither litigated nor necessary to the
outcome of Fenwick’s assault prosecution, and that a ruling in
Fenwick’s favor on his excessive force claim would not
“necessarily imply the invalidity” of the assault judgment, the
district court determined that the assault judgment did not
altogether bar Fenwick’s excessive force claims against
Pudimott and Fischer. Id. at 216–17, 222. The court explained,
however, that collateral estoppel and Heck v. Humphrey did
5
preclude Fenwick from asserting, as alleged in his complaint,
(1) that the deputies were never in any danger of being hit by
the vehicle, or (2) that they opened fire before Fenwick began
accelerating forward with Pudimott near the front of the car,
since findings to the contrary were necessary to Fenwick’s
juvenile adjudication. Id. at 217–18, 220–22.
As to the officers’ assertion of qualified immunity, the
district court determined that genuine issues of material
fact—in particular, whether the officers shot Fenwick while
Pudimott was still in danger from Fenwick’s car—precluded
summary judgment. Noting that claims of qualified immunity
are assessed through the Fourth Amendment’s objective
reasonableness lens, the court explained that officers may use
deadly force only when a “suspect poses a threat of serious
physical harm” to others. Id. at 225–26 (quoting Tennesse v.
Garner, 471 U.S. 1, 11 (1985)). In the court’s view, then, the
officers’ use of deadly force could be “justified only as a
response to the threat Mr. Fenwick posed to Deputy Pudimott,”
id. at 226, and a reasonable jury could find that the deputies
shot Fenwick after it had become clear that the danger to
Pudimott had passed, id. at 225. “If so,” the district court
concluded, “then under the circumstances of this case[,] the
deputies violated Mr. Fenwick’s clearly established
constitutional rights.” Id. at 225.
On appeal, the deputies challenge the district court’s
denial of their motion for summary judgment, renewing their
assertion of qualified immunity. See Plumhoff v. Rickard, 134
S. Ct. 2012, 2018–19 (2014) (officers denied qualified
immunity on summary judgment may immediately appeal
when the appeal “raise[s] legal issues”). We review de novo the
district court’s denial of summary judgment. Arrington v.
United States, 473 F.3d 329, 333 (D.C. Cir. 2006).
6
II.
In order to protect officers “from undue interference with
their duties and from potentially disabling threats of liability,”
qualified immunity shields federal officials from damages suits
for actions taken while carrying out their official duties.
Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). To defeat a
defense of qualified immunity, a plaintiff must show not only
that an official “violated a constitutional right” but also that
“the right was clearly established” at the time of the violation.
Saucier v. Katz, 533 U.S. 194, 200–01 (2001). The Supreme
Court has clarified, however, that courts “have discretion to
decide which of the two prongs of qualified-immunity analysis
to tackle first.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080
(2011). As the Court has explained, the two-step protocol is
ill-suited to certain cases, including those in which the
clearly-established-law analysis is cut and dried while the
constitutional question presents a close, heavily fact-bound
inquiry. See Pearson v. Callahan, 555 U.S. 223, 237 (2009).
Our concurring colleague would have us decide this case
at the first step and hold that, pursuant to Plumhoff v. Rickard,
134 S. Ct. 2012 (2014), the deputies’ actions plainly complied
with the Fourth Amendment. In our view, however, the
constitutional question is hardly clear, and Plumhoff—a case in
which the fleeing suspect led police on a protracted high-speed
chase, id. at 2017—has little to say about the quite different
situation the deputies faced here. The officers in Plumhoff
resorted to deadly force only after the suspect placed in peril
the lives of dozens of innocent civilians during his 100
mile-per-hour flight and only after they sought to end the chase
through non-lethal means. Id. In this case, by contrast,
although the deputies opened fire after Fenwick clipped
Officer Pudimott with the car’s side-view mirror, Fenwick
posed no immediate threat to either officers or bystanders at the
7
time of the shooting. See infra at 8–9; Garner, 471 U.S. at 11.
Given these significant differences between this case and
Plumhoff, we think the constitutional question is “far from
obvious,” Pearson, 555 U.S. at 237, and that this case is
therefore best resolved at the second step. We thus proceed
directly to consider whether the deputies’ use of deadly force
violated law that was clearly established at the time of the
shooting.
“The relevant, dispositive inquiry in determining whether
a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier, 533 U.S. at 202. Because
this inquiry “must be undertaken in light of the specific context
of the case, not as a broad general proposition,” id. at 201, it
requires that we take a closer look at the facts. And since the
district court decided this case on a motion for summary
judgment, we must take the facts and draw reasonable
inferences in the light most favorable to the party opposing
summary judgment—here, in the light most favorable to
Fenwick. See Scott v. Harris, 550 U.S. 376, 378 (2007).
This case features an “added wrinkle”: a videotape
capturing the incident in question. Id. In Scott v. Harris, the
Supreme Court instructed that we must “view[] the facts in the
light depicted by the videotape.” Id. at 381. But in contrast to
the videotape in Scott, which “quite clearly” portrayed the
events at issue, id. at 378, the surveillance footage here does no
such thing. True, it shows that a few pedestrians and vehicles
were on the scene in the minutes before the officers opened
fire, but it sheds almost no light on the shooting itself. As both
the District Court and the D.C. Superior Court observed, the
video is blurry and soundless, and the shooting occurs while
Fenwick’s vehicle and all of the officers are obscured by the
dark shadow of an adjacent building. Fenwick, 926 F. Supp. 2d
8
at 226–27 (noting Superior Court’s description of the footage
and outlining video evidence in detail). The videotape thus
provides no “ready answers to the factual dispute” and does
little to affect our analysis. Id. at 227.
But other important wrinkles—namely, the Heck bar and
collateral estoppel—constrain how we view the facts. As the
district court explained, the Superior Court Judge, in finding
that Fenwick committed felony assault on Pudimott,
“necessarily determined that [Fenwick] created ‘a grave risk of
causing significant bodily injury’ to Deputy Pudimott when,
‘without justifiable [and] excusable cause,’ he drove the car
forward in a manner that put the deputy in danger of being hit.”
Id. at 215 (quoting D.C. Code § 22-405(b) & (c)) (internal
quotation marks added). Although Fenwick urges us to ignore
these “bad facts,” Appellee’s Br. 50, we are bound by Heck v.
Humphrey and the Supreme Court’s admonishment that “a
federal court must give to a state-court judgment the same
preclusive effect as would be given that judgment under the
law of the State in which the judgment was rendered.” Migra v.
Warren City School District Board of Education, 465 U.S. 75,
81 (1984); see also supra at 4 (explaining requirements of
collateral estoppel under D.C. law).
That said, several facts weigh in Fenwick’s favor,
including (1) the deputies’ concession in this court that
Pudimott and Fischer fired on Fenwick only after the vehicle
struck Pudimott, when Pudimott was no longer in the car’s
path, Appellants’ Br. 7, 12, (2) the Superior Court’s findings
that Fenwick did nothing to endanger Mickle or Fischer during
his flight, see Fenwick, 926 F. Supp. 2d at 215 (reproducing
Superior Court findings), and (3) the surveillance footage
showing no bystanders in the path of Fenwick’s car.
9
Thus distilled the record reveals, on the one hand, that the
deputies confronted a fleeing motorist who posed no
immediate threat to either officers or bystanders when they
opened fire, and on the other hand, that the deputies had
observed pedestrians and vehicles close by in the minutes
leading up to the shooting and, just moments before firing, had
seen the fleeing suspect “create[] a grave risk of causing
significant bodily injury to [an] officer.” D.C. Code
§ 22-405(c). With “the specific context of th[is] case” now in
mind, Saucier, 533 U.S. at 201, we turn to the officers’ claim
that their use of deadly force to apprehend Fenwick “to protect
one or more of the deputies or members of the general public
from harm,” Appellants’ Br. 22, violated no clearly established
law.
III.
To assess the officers’ claim of qualified immunity, “we
look to cases from the Supreme Court and this court” and, if
neither provides an answer, “to cases from other courts
exhibiting a consensus view.” Johnson v. D.C., 528 F.3d 969,
976 (D.C. Cir. 2008). We agree with the deputies that our
inquiry begins and ends with Supreme Court precedent—in
particular, Brosseau v. Haugen, 543 U.S. 194 (2004).
In Brosseau, three officers sought to catch a suspect
wanted on drug charges. After pursuing him on foot for the
better part of an hour, one of the officers chased the suspect
back to his car, and, pounding on the driver’s window with her
handgun, ordered the suspect to stop. When the suspect
ignored the order and began to accelerate forward, the officer
fired through the rear driver-side window, striking the suspect
in the back. The officer later testified that she shot the suspect
out of fear for the safety of “other officers on foot” who, she
believed, were close by, and for “occupied vehicles” in the
10
suspect’s path, and for anyone else who “might be in the area.”
Id. at 197. The suspect survived and later pleaded guilty to the
felony of “eluding,” thereby “admitt[ing] that he drove his
[vehicle] in a manner indicating ‘a wanton or willful disregard
for the lives . . . of others.’” Id. (quoting Wash. Rev. Code
§ 46.61.024 (1994)).
Reviewing these facts and relevant precedent, the
Supreme Court “express[ed] no view” on the Fourth
Amendment question, but determined that the officer was
entitled to qualified immunity as her actions “fell in the hazy
border between excessive and acceptable force.” Id. at 201
(citation omitted). For us to reach a different conclusion about
qualified immunity in this case, Fenwick must show either that
the deputies’ conduct was “materially different from the
conduct in Brosseau” or that between the incident in Brosseau
and January 2007—when Fenwick was shot—there “emerged
either controlling authority or a robust consensus of cases of
persuasive authority that would alter our analysis.” Plumhoff,
134 S. Ct. at 2023 (citations and internal quotation marks
omitted).
Fenwick has done neither. He has made no attempt to
distinguish Brosseau, and we doubt he could do so in a
meaningful way. Although record evidence in both Brosseau
and this case reveals a suspect attempting to flee who posed no
immediate threat to any officer or bystander when the officers
fired, see supra at 6–7; Brosseau, 543 U.S. at 204 (Stevens, J.,
dissenting) (describing record evidence in more detail than, but
consistent with, majority opinion), trial courts in both cases
had determined that the suspects were driving in a reckless and
dangerous manner, see D.C. Code § 22-405 (c); Wash. Rev.
Code § 46.61.024 (1994), and the officers in both cases
justified their use of deadly force by claiming concern for the
safety of other officers and bystanders. Nor has Fenwick
11
shown that Brosseau’s analysis had become obsolete at the
time the deputies shot him. In fact, he has failed to point to
“any case—let alone a controlling case or a robust consensus of
cases—decided between [the events in Brosseau] and 200[7]
that could be said to have clearly established the
unconstitutionality of using lethal force” in this situation.
Plumhoff, 134. S. Ct. at 2024. For these reasons, unlike the
district court, we see no genuine issue of material fact that
precludes summary judgment for the deputies based on
qualified immunity. Whether the deputies shot Fenwick while
Pudimott was still in danger from Fenwick’s car, or whether
they shot him in the seconds after that danger had passed,
Brosseau makes clear that the deputies’ use of deadly force
violated no law that was clearly established at the time of the
shooting.
In reaching this conclusion, we emphasize that nothing in
this opinion should be read to suggest that qualified immunity
will shield from liability every law enforcement officer in this
circuit who fires on a fleeing motorist out of asserted concern
for other officers and bystanders. Outside the context of a
“dangerous high-speed car chase,” Scott, 550 U.S. at 386,
deadly force, as the Supreme Court made clear in Garner, 471
U.S. at 11, ordinarily may not be used to apprehend a fleeing
suspect who poses no immediate threat to others—whether or
not the suspect is behind the wheel. Here, however, the
Superior Court determined that moments before the shooting,
Fenwick’s driving had posed a “grave risk of causing
significant bodily injury” to an officer, D.C. Code § 22-405(c),
and that conclusion binds us, see supra at 6. Because Fenwick
operated his car in a way that endangered an officer, in an area
recently traversed by pedestrians and other vehicles no less, it
was not clearly established that the deputies violated the Fourth
Amendment by using deadly force to prevent his flight.
Accordingly, we cannot say that Pudimott and Fischer had
12
“fair notice that [their] conduct was unlawful.” Brosseau, 543
U.S. at 198. The deputies are therefore entitled to qualified
immunity.
The judgment of the district court is reversed and the case
is remanded for further proceedings consistent with this
opinion.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in the judgment: I agree with my colleagues that the deputies
are plainly entitled to qualified immunity. Maj. Op. 12. I
further agree that our inquiry starts and ends with United
States Supreme Court precedent. See Maj. Op. 9. But in my
view, it is the Supreme Court’s more recent opinion in
Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), that controls
Fenwick’s case. And, in contrast with Brosseau v. Haugen,
543 U.S. 194 (2004), which speaks only to the second
qualified-immunity inquiry—“whether the deputies’ use of
deadly force violated law that was clearly established at the
time of the shooting,” Maj. Op. 7—Plumhoff establishes that
the deputies’ actions were “objectively reasonable in light of
the facts and circumstances confronting them.” Wardlaw v.
Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993) (internal
quotation marks omitted). Accordingly, their actions did not
violate Fenwick’s Fourth Amendment rights at all.
In Plumhoff, a police officer stopped Rickard’s car
because one of the headlights was out. 134 S. Ct. at 2017.
Rickard appeared nervous and could not produce his driver’s
license on request so the officer asked him to step out of the
car. Id. Instead of complying, Rickard accelerated the car
and led police on a high-speed chase. Id. During his
attempted escape, Rickard repeatedly caused “contact to
occur” between his car and police cruisers. Id. (brackets
omitted). Eventually, Rickard found his car penned in by
police cruisers but he continued to “us[e] the accelerator” in
an attempt to escape. Id. At that point—and even though
Rickard’s car “came temporarily to a near standstill,” id. at
2021—an officer fired three shots into his car. Id. at 2017.
Rickard “then reversed in a 180 degree arc and maneuvered
onto another street, forcing [another officer] to step to his
right to avoid the vehicle.” Id. (internal quotation marks
omitted). And then, after Rickard’s car had passed the officer
and Rickard “continued fleeing,” officers “fired 12 shots
toward Rickard’s car, bringing the total number of shots fired
2
during th[e] incident to 15.” Id. at 2018 (internal quotation
marks omitted). Rickard and his passenger were killed. Id.
The Supreme Court held that the officers were shielded by
qualified immunity because the officers’ use of deadly force
“did not violate the Fourth Amendment.” Id. at 2022. The
Court reached this conclusion because “Rickard’s
outrageously reckless driving posed a grave public safety
risk,” id. at 2021, and when the officers opened fire, the only
thing “a reasonable police officer could have concluded was
that Rickard was intent on resuming his flight and that, if he
was allowed to do so, he would once again pose a deadly
threat for others on the road.” Id. at 2022. Moreover, the
Supreme Court held that firing 15 shots—12 of which
occurred after Rickard had maneuvered past officers and
“continued fleeing,” id. at 2018 (internal quotation marks
omitted)—was reasonable because, “if police officers are
justified in firing at a suspect in order to end a severe threat to
public safety, the officers need not stop shooting until the
threat has ended.” Id. at 2022.
Although Fenwick’s case lacks the drama of the high-
speed chase in Plumhoff, the factual differences between
Plumhoff and Fenwick’s case do not make the former
inapposite. Rather, the principle animating Plumhoff is
dispositive here. As the district court, in summarizing the
relevant portion of the superior court’s findings, put it,
Fenwick “created a grave risk of causing significant bodily
injury to Deputy Pudimott when, without justifiable or
excusable cause, he drove the car forward in a manner that put
the deputy in danger of being hit.” Fenwick v. United States,
926 F. Supp. 2d 201, 215 (D.D.C. 2013). Based on the “grave
public safety risk” that Fenwick created, Plumhoff establishes
that the deputies “acted reasonably in using deadly force.”
134 S. Ct. at 2022.
3
My colleagues consider “the constitutional question” in
this case to be “close.” Maj. Op. 6. But the “facts [that]
weigh in Fenwick’s favor” are largely immaterial.
Maj. Op. 8. My colleagues also find significant “the deputies’
concession” that they “fired on Fenwick only after the vehicle
struck Pudimott, when Pudimott was no longer in the car’s
path.” Maj. Op. 8 (emphasis in original). But under
Plumhoff, once Fenwick threatened bodily injury to Pudimott,
the deputies were not obligated to stop firing “until the threat
ha[d] ended.” 134 S. Ct. at 2022. And nothing in the record
demonstrates that a reasonable officer would have concluded,
in the few seconds that passed after Fenwick’s car struck
Pudimott, that Fenwick was no longer dangerous. 1
Nor does it matter that “the surveillance footage show[ed]
no bystanders in the path of Fenwick’s car.” Maj. Op. 8. The
Supreme Court has made plain that law enforcement officers
may use deadly force to stop a suspect who poses “an actual
and imminent threat to the lives of any pedestrians who might
[be] present, to other civilian motorists, and to the officers
involved,” Scott v. Harris, 550 U.S. 372, 384 (2007), and not
only to protect civilians who, upon a post hoc review of
security-camera footage, were in fact found to have been in
the path of a fleeing suspect’s car. Here, the deputies had
1
My colleagues distinguish Plumhoff, in part, because the officers in
that case resorted to deadly force only after they “sought to end the chase
through non-lethal means.” Maj. Op. 6. But the Supreme Court has long
held—indeed, since Tennessee v. Garner—that “[w]here the officer has
probable cause to believe that the suspect poses a threat of serious physical
harm, either to the officer or to others, it is not constitutionally
unreasonable to prevent escape by using deadly force.” 471 U.S. 1, 11
(1985). To the extent the majority opinion implies that law enforcement
officers must first try non-lethal means to neutralize a deadly threat or risk
violating the Fourth Amendment, it is irreconcilable with a decades-long
line of U.S. Supreme Court precedent. See Brosseau, 543 U.S. at 197–98
(quoting Garner, 471 U.S. at 11).
4
every reason to believe that civilians “might” be in harm’s
way if the deputies did not neutralize the threat Fenwick’s
reckless behavior posed. See id. As my colleagues recognize,
the deputies “observed pedestrians and vehicles close by in
the minutes leading up to the shooting.” Maj. Op. 9.
We are, of course, bound to analyze the qualified-
immunity question “from the perspective ‘of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight.’ ” Plumhoff, 134 S. Ct. at 2020 (quoting Graham
v. Connor, 490 U.S. 386, 396 (1989)). We must also “allo[w]
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. Although the
videotape of the shooting “sheds almost no light on the
shooting itself,” Maj. Op. 7, it plainly shows that the deputies
had precious few seconds to decide how best to neutralize the
threat Fenwick presented when he ignored the deputies’
commands and instead aimed his motor vehicle towards one
of them. On these facts, the deputies’ actions were
“objectively reasonable in light of the facts and circumstances
confronting them,” Wardlaw, 1 F.3d at 1303 (internal
quotation marks omitted), and I would hold that they are
entitled to qualified immunity because they did not violate the
Fourth Amendment. 2
2
Although this point is necessarily incorporated in the body of my
concurrence, to the extent that my colleagues’ statement that Pudimott and
Fischer did not have “fair notice that [their] conduct was unlawful,”
Maj. Op. 12, can be read as opining that the deputies’ conduct in fact
violated the Fourth Amendment, I disagree.