Taft v. Vines

1/4/96 -- order filed granting rehearing in banc.
Published opinion filed 11/16/95 is vacated.
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEANETTE TEEL TAFT, individually
and as guardian ad litem for minor
children, Onte Taft and Kimberly
Taft; ONTE TAFT, minor; KIMBERLY
TAFT, minor; HARRY TEEL, SR., as
guardian ad litem for minor
children, Harry Teel, Jr., and
Shamesa Teel; HARRY TEEL, JR.,
minor; SHAMESA TEEL, minor,
Plaintiffs-Appellants,

v.

TERRY VINES, Deputy Sheriff of Pitt
County, in his position as Deputy
Sheriff and in his individual
capacity; TROY BOYD, in his official
No. 94-2293
and individual capacity as a law
enforcement officer in and for the
City of Greenville; TIM PEADEN, in
his official and individual capacity
as a law enforcement officer in and
for the City of Greenville; JOHNNY
CRAFT, in his official and individual
capacity as a law enforcement
officer in and for the City of
Greenville; BENNY DOBBS, in his
official and individual capacity as a
law enforcement officer in and for
the City of Greenville,
Defendants-Appellees,

and
BILLY L. VANDERFORD, Sheriff of
Pitt County in his capacity as
Sheriff and in his individual
capacity; CITY OF GREENVILLE;
NANCY JENKINS, Mayor, in her
official and individual capacity;
CHARLES HINMAN, Chief of Police,
City of Greenville, in his official
capacity; KEVIN M. SMELTZER,
Police Officer of the City of
Greenville, in his official and
individual capacity,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
James C. Fox, Chief District Judge.
(CA-93-109-4-F)

Argued: May 2, 1995

Decided: November 16, 1995

Before MURNAGHAN and MOTZ, Circuit Judges, and YOUNG,
Senior United States District Judge for the District of Maryland,
sitting by designation.

_________________________________________________________________

Affirmed in part and reversed in part by published opinion. Judge
Murnaghan wrote the opinion, in which Senior Judge Young joined.
Judge Motz wrote an opinion concurring in part and dissenting in
part.

_________________________________________________________________
COUNSEL

ARGUED: Robert Lee White, WHITE & SHEARIN-WHITE,
Greenville, North Carolina, for Appellants. Kenneth Ray Wooten,

2
John Randolph Green, Jr., WARD & SMITH, P.A., New Bern, North
Carolina, for Appellees.

_________________________________________________________________
OPINION

MURNAGHAN, Circuit Judge:

The case before us presents issues arising from allegations by
Appellants, Jeanette Teel Taft, Onte Taft, Kimberly Taft, Harry Teel,
Jr., and Shamesa Teel, that they were harassed by local law enforce-
ment officials in violation of their civil rights, when their car was mis-
takenly stopped and searched in Greenville, North Carolina. On July
30, 1993, the Appellants filed a pro se complaint in the United States
District Court for the Eastern District of North Carolina, alleging vio-
lations of 28 U.S.C. §§ 1331, 1343, 1651, and 2201, and of 42 U.S.C.
§ 1983. The Appellants filed an amended complaint on August 20,
1993 adding a Fifth Amendment due process claim. The named
defendants at that initial stage of the litigation were the Sheriff of Pitt
County, North Carolina; a Deputy Sheriff of Pitt County; the City of
Greenville, North Carolina through its Mayor, Nancy Jenkins; the
Chief of Police of the City of Greenville; and the six individual
Greenville police officers personally involved in the vehicular stop,
the Appellees here.

On September 13, 1993, the defendants filed a motion to dismiss
the case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Proce-
dure. By an order dated October 22, 1993, the district court dismissed
all of the Appellants' claims except for their § 1983 claims. The dis-
trict court also gave the Appellants an opportunity to file another
amended complaint to describe more particularly the alleged conduct
of each of the named defendants. Additionally, the district court ruled
that the remaining § 1983 claims against the defendants in their indi-
vidual capacities for money damages, and in their official capacities
for injunctive relief, would be held in abeyance pending the expira-
tion of the 20 days within which the Appellants could amend their
complaint.

The Appellants filed a second amended complaint on November 5,
1993. By an order dated December 13, 1993, the district court held

3
that the amended claim sufficiently stated claims of excessive force
against the six police officers in their individual capacities for mone-
tary damages, and that the motion to dismiss was therefore denied as
to them. However, the court dismissed the claims against Sheriff Billy
Vanderford, the City of Greenville, Mayor Jenkins, and Police Chief
Charles Hinman, and held that any claims for injunctive relief were
also dismissed.

On May 2, 1994, the six remaining defendants -- Terry Vines,
Kevin Smeltzer, Tim Peaden, Benny Dobbs, Johnny Craft, and Troy
Boyd ("Appellees") -- filed a motion for partial summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure, alleging
entitlement to qualified immunity. On May 18, 1994, the Appellants
filed a motion for continuance, asking for an order postponing the
hearing on the partial summary judgment motion until such time as
the Appellants had taken depositions, interrogatories, and requests for
admissions from the Appellees regarding their qualified immunity
defense. On that date, the Appellants also filed a memorandum in
response to the Appellees' motion for partial summary judgment. On
May 23, 1994, the district court filed an order allowing the Appel-
lants' motion to compel discovery for production of certain docu-
ments which had been filed on February 16, 1994, but stayed all other
discovery until it ruled on the motion for partial summary judgment;
the court held that its order staying discovery therefore rendered moot
the Appellants' earlier motion for continuance.

By order filed July 8, 1994, the district court granted the Appel-
lees' motion for summary judgment as to certain of the claims arising
from their execution of the actual stop and search. However, the dis-
trict court further found that the Appellants had not sufficiently
responded to the motion for partial summary judgment, and thus
directed the Appellants to file, within 15 days, a brief and memoran-
dum of law, supported by proper affidavits or other competent docu-
mentation, particularizing (1) their allegations of sexual abuse of the
minor Appellants, and (2) their charges that the Appellees cocked
and clicked loaded weapons against the minor Appellants' heads.

On July 25, 1994, the affidavits were filed. By order filed August
5, 1994, the court denied the Appellees' motion for partial summary
judgment as to their conduct in frisking the Appellants, as to whether

4
such conduct amounted to sexual abuse, and as to the various gun-
pointing allegations. On August 5, 1994, the Appellees filed an objec-
tion to the affidavits and to the Appellants' memorandum of law. On
August 9, 1994, the court filed an order that superseded and withdrew
its previous August 5 order, and granted the Appellees' motion for
summary judgment on qualified immunity as to all of the § 1983
claims, thereby disposing of all of the issues in the case against the
Appellees.1
_________________________________________________________________

1 The dissenter would return us a hundred years or so to say that lan-
guage must be excessively parsed and accorded an unrealistically
restricted interpretation to reach the conclusion that there was no material
dispute of relevant fact. Here the district judge had first refused to grant
qualified immunity, but thereafter required the Appellants adequately to
support by affidavits or otherwise the allegations of sexual abuse and of
cocking and clicking loaded weapons against the minors' heads. Jeanette
Teel Taft's verification of the second amended complaint had been
deemed inadequate, not as to assertions made, but as not being shown to
have been based on personal knowledge. However, her affidavit cured
that insufficiency. That brought the case directly into the holding in
Johnson v. Jones, 115 S. Ct. 2151, 2159 (1995) (". . . a defendant, enti-
tled to invoke a qualified-immunity defense, may not appeal a district
court's summary judgment order insofar as that order determines
whether or not the pretrial record sets forth a`genuine' issue of fact for
trial").

The verified amended complaint had been deemed sufficient to estab-
lish that the allegations took "defendants' actions well outside the realm
of objective reasonableness under the circumstances." The district judge,
however, required affidavits that detailed the basis of "personal knowl-
edge" of sexual abuse and cocking and clicking loaded weapons against
the children's heads. The sufficiency of the allegations in the amended
complaint had previously been acknowledged, and they were verified
(i.e., under oath). Their insufficiency was said to be lack of personal
knowledge. Jeannette Teel Taft's affidavit when added to the allegations
in the amended complaint made them sufficient for defeating summary
judgment purposes (they already had been deemed sufficient for pleading
purposes). She by affidavit claimed personal knowledge of the sexual
abuse and improper cocking and clicking as stated in the amended com-
plaint because, by affidavit, during the entire stop she had an unob-
structed view of the children from her vantage point in the patrol car (i.e.,
personal knowledge).

5
On August 19, 1994, the Appellants filed a "motion for a new trial
or to amend findings and judgment" pursuant to Rule 59(a) of the
Federal Rules of Civil Procedure. The court denied that motion on
September 14, 1994. The Appellants filed a notice of appeal on Sep-
tember 30, 1994.

On appeal, the Appellants put forth two arguments: (1) that the
district court erred in finding that there existed no genuine issues of
material fact as to the Appellees' entitlement to qualified immunity;
and (2) that the district court erred in denying the Appellants' motion
to continue the summary judgment hearing until discovery on the
issue of qualified immunity was completed. We affirm the district
_________________________________________________________________
The affidavits which the Appellants in response did produce further
contained assertions by Jeanette Teel Taft that her breasts, buttocks, and
the private parts between her legs were touched. Similar affidavits were
produced by the minor Appellants. While cocking and clicking was
sworn to, the touching of the minors' heads went unmentioned. How-
ever, handcuffing of the minor Appellants, after frisking and finding no
weapon, was. Why was it incumbent on the Appellants to make the same
sworn statement based on personal knowledge more than once?

How the breasts, buttocks and private parts were touched is not partic-
ularized one way or the other in the affidavits though they were in the
verified second amended complaint of which personal knowledge had
subsequently been established. The language employed in the affidavits
and the second amended complaint expanded by them would support a
factual finding of sexual harassment. Similarly, a finding of excessive
force (again the Jeanette Teel Taft second amended complaint verifica-
tion is strengthened by her affidavit) could follow from proof of cocking
and clicking even if the weapons were not allowed by an inch or more
actually to touch the minor appellants' heads.

Immunity is necessary for police officers properly conducting what are
often dangerous tasks, but the public is too entitled to some protection
from the law. To find, so early in the proceedings as a matter of law, that
the verified allegations here could not establish improper conduct
amounting to sexual harassment or excessive force would incorrectly
limit the right of a party to plead and prove his or her case. On summary
judgment the non-moving party's case is viewed in the most favored
light.

6
court's decision to grant summary judgment as to those claims arising
from the Appellees' actual decision itself, based on reasonable suspi-
cion, to stop the vehicle and frisk its occupants, but reverse the district
court's decision to grant summary judgment as to the claims that the
Appellees used excessive force in conducting the actual search. We
also reverse the district court's decision in effect denying the Appel-
lants' motion for continuance by staying discovery until it had ruled
on the Appellees' motion for summary judgment.

I. Statement of Facts

On January 29, 1993, Vincent Wooten ("Wooten") shot and
wounded a person with whom he had a disagreement. Wooten was
charged with assault with a deadly weapon and with intent to kill, but
was released on bond. On February 9, 1993, Wooten shot and killed
another individual, Maurice Wilson, while on release. The police
began a search for Wooten immediately thereafter.

On February 9, 1993, at approximately 10:25 p.m., Appellant, Jea-
nette Teel Taft, an African-American female, was driving with her
children, Appellants, Onte Taft and Kimberly Taft, and her niece and
nephew, Appellants, Shamesa Teel and Harry Teel, Jr., all minors.
They were travelling in Greenville, North Carolina in a light blue
Oldsmobile, on their way from a basketball game. The minor Appel-
lants were ages 10 to 16.

At that time, the Appellees were requested over the police radio to
stop the Appellants' car. The reason was that the vehicle was believed
to carry Wooten. The radio request was based on the fact that the
Appellants' car had left the same mobile home park in which Wooten
resided.

As the Appellants' car turned from Green Street onto Highway 33,
the police officers, Appellees Terry Vines, Kevin Smeltzer, Troy
Boyd, Tim Peaden, Johnny Craft, and Benny Dobbs, initiated the stop
of the vehicle. In response, Jeanette Taft stopped the car at the side
of the road.

Appellee Dobbs, over the P.A. system, ordered Jeanette Taft to
throw her keys onto the road. She did so. Dobbs also ordered each

7
individual in the car, including the minor Appellants, to get out of the
car with their hands up. Jeanette Taft was the first to step out of the
vehicle; Taft stated in her affidavit that, as she tried to get out of the
car, the Appellees clicked and cocked the barrels of their police weap-
ons.

Jeanette Taft's son, Appellant Onte Taft, was next to get out of the
car. Appellee, Lieutenant Vines, who had previously seen Wooten,
conceded in his affidavit that he realized as soon as Onte Taft walked
toward the police, that Onte was not Vincent Wooten.

By their own admission, the police officers had their guns drawn
at this time, and pointed toward to the car. Their explanation for this
behavior was that they feared that if Wooten was still in the car, bul-
lets from his assault rifle would be able to pierce their bullet-proof
vests. In their affidavits, the Appellees stated that as each minor
exited the car, they lowered their weapons to let them pass; the
Appellees claimed that they resumed aiming their guns at the car only
after the minors were out of the line of fire. The minor Appellants,
by contrast, stated in their affidavits that the officers did not lower
their guns as they exited the car, that the officers had their guns drawn
and pointed at them at all times, and that the officers cocked and
clicked the weapons in an intimidating manner. The minor Appellants
additionally stated in their affidavits that they were handcuffed and
searched, and that the Appellees clicked the guns against their heads.
In contrast, the officers, in their affidavits, claimed never to have
made any cocking or clicking sounds with their guns which may have
scared the Appellants.

Meanwhile, Jeannette Taft had advised the Appellees that she was
the mother of two of the minors, that they had just come from a bas-
ketball game, and that she was driving on Highway 33 for the sole
purpose of dropping off her son's friend, Shawn Tyson, at his home.
Despite her explanation, both Jeanette Taft and Onte Taft were
frisked and handcuffed. Jeanette Taft alleged that during that pat-
down search, she was sexually abused; in particular, she stated that
the officer conducting the search touched her breasts and buttocks,
and that he inappropriately touched her between her legs and on her
"private parts." She also stated that she observed similar physical

8
touching of the minor Appellants. In contrast, the officers claimed in
their affidavits that they at no time sexually abused the Appellants.

By their own admission, the police officers, even after frisking the
Appellants and finding no weapons, placed Jeanette Taft in the back-
seat of a patrol car with the handcuffs in front of her, and placed Onte
Taft, handcuffed and on his knees, on the road facing the headlights
of a patrol car. They claimed that such "inconveniences" were
undertaken to protect the officers, to prevent the Appellants from
assisting Vincent Wooten to escape, and to protect the Appellants in
case Wooten opened fire. In fact, Wooten was not present in the car.

After all of the Appellants had exited the vehicle, Appellees Dobbs
and Craft approached the light blue Oldsmobile and conducted a
visual search for Wooten. They confirmed that Wooten was not in the
vehicle, and the Appellants were thereafter released. A short time
later, Wooten was captured in another vehicle, a black Sterling,
driven by Wooten's father.

II. Grant of Summary Judgment on Issue of Qualified Immunity

First, the Appellants allege that the district court erred in granting
summary judgment to the Appellees on the basis of qualified immunity.2
_________________________________________________________________
2 As a preliminary matter, the Appellees allege that the Appellants have
appealed only from the district court's denial of their Rule 59(a) "motion
for a new trial or to amend the findings and judgment," and that this
Court should therefore refuse to review the district court's Rule 56 sum-
mary judgment determinations on qualified immunity. Several consider-
ations, however, suggest that the district court's summary judgment
determinations should be reviewed on appeal.

First, the Appellants' notice of appeal stated expressly that the Appel-
lants were appealing "from the decision by the court granting defen-
dant's motion for summary judgment entered in this action on the 14th
day of September, 1994." (emphasis added). Thus, although the order
entered on September 14th was the district court's denial of the Rule
59(a) motion, the actual language of the notice of appeal clearly evi-
dences that the Appellants meant to appeal the district court's summary
judgment determination, and not the Rule 59(a) determination. To ignore
this would be to lend an excessively formalistic construction to the notice

9
In particular, the Appellants contend: (1) that there existed genuine
issues of material fact concerning whether the police were entitled to
qualified immunity on the stop and frisk claim; and (2) that there
existed genuine issues of material fact as to whether the police were
entitled to qualified immunity on the excessive force claims.
Although the Appellees' original decision to stop the Appellants' car
was clearly supported by reasonable suspicion, thus suggesting that
the officers were entitled to qualified immunity on the claims arising
from the Appellees' decision to stop and frisk, the record just as
clearly evidences the existence of genuine disputes of material fact
concerning the reasonableness of the police officers' conduct for pur-
poses of the excessive force claims. Accordingly, we (1) affirm the
district court's grant of summary judgment on the basis of qualified
immunity as to the claims arising from the officers' initial decision to
stop the car and frisk the occupants, but (2) reverse the district
court's grant of summary judgment based on qualified immunity to
the Appellees on the excessive force claims. We therefore remand for
trial only the excessive force claims.

A. Qualified Immunity on the Stop and Frisk Claim

The Fourth Circuit has definitively held that the qualified immunity
doctrine protects police officers who mistakenly make an arrest, so
long as that arrest is supported by probable cause. Because those
_________________________________________________________________
of appeal which would circumvent the true intent of the Appellants. See
Brookens v. White, 795 F.2d 178, 180 (D.C. Cir. 1986) (finding that a
mistake in designating the judgment appealed from should not result in
loss of appeal so long as an intent to appeal can be inferred). Second, the
proceedings below were initiated pro se by the Appellants, and although
they eventually retained counsel, some leeway should be afforded to
them here in the interest of justice. See, e.g., Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978), cert. denied, 439 U.S. 970 (1978) (finding
that pro se complaints should be construed liberally). Third, the Appel-
lants' Brief clearly evidences their intent to appeal the district court's
summary judgment determinations, and not its denial of the Rule 59(a)
motion. See Foman v. Davis, 371 U.S. 178, 181 (1962) (finding that
although the form of a notice of appeal may be "inept," it is sufficient
to appeal an order where the appellant's intent to appeal that order is
"manifest").

10
cases logically suggest that qualified immunity should similarly be
afforded to police officers who make vehicular stops, so long as those
stops are supported by reasonable suspicion, we affirm the district
court's grant of summary judgment to the Appellees on the § 1983
claims arising from their initial decision to execute the vehicular stop;
because the stop and frisk was supported by reasonable suspicion,
qualified immunity was properly afforded to the Appellees.

In Pritchett v. Alford, 973 F.2d 307 (4th Cir. 1992), we addressed
a case in which a wrecker driver brought a § 1983 action against high-
way patrolmen, alleging that the patrolmen had arrested him without
probable cause for allegedly violating South Carolina laws governing
the solicitation of towing businesses by wrecker companies. We held
that qualified immunity was properly denied to the police officers in
that case, setting forth the now familiar three-part test for determining
entitlement to qualified immunity:

Ruling on a defense of qualified immunity [ ] requires
(1) identification of the specific right allegedly violated;
(2) determining whether at the time of the alleged violation
the right was clearly established; and (3) if so, then deter-
mining whether a reasonable person in the officer's position
would have known that doing what he did would violate that
right. The first two of these present pure questions of law for
the courts. The third, which involves application of
Harlow's objective test to the particular conduct at issue,
may require factual determinations respecting disputed
aspects of that conduct.

973 F.2d at 312. In applying the first and second prongs of the test,
we found that the proper focus is upon ascertaining the constitutional
right not at its most general or abstract level, but rather determining
the right at the level of its application to the specific conduct being
challenged. Id. In elucidating the third prong, we held that the deter-
mination of the reasonableness of the action taken must be made on
the basis of information actually possessed by the officer at the criti-
cal time, or that was then reasonably available to him, and in light of
any exigencies of time and circumstance that reasonably may have
affected the officer's perceptions. Id. Additionally, in describing how

11
such determinations should be reviewed when the qualified immunity
claim is made at the summary judgment stage, we found:

Because qualified immunity is designed to shield officers
not only from liability but from the burdens of litigation, its
establishment at the pleading or summary judgment stage
has been specifically encouraged.

This does not mean, however, that summary judgment
doctrine is to be skewed from its ordinary operation to give
special substantive favor to the defense, important as may
be its early establishment. Here, as in any context, summary
judgment for the movant is appropriate only if (1) there are
no genuine issues of material fact, and (2) on the undis-
puted facts the defendant as movant is entitled to judgment
as a matter of law. As indicated, the narrow threshold ques-
tion whether a right allegedly violated was clearly estab-
lished at the appropriate level of inquiry and at the time of
the challenged conduct is always a matter of law for the
court, hence is always capable of decision at the summary
judgment stage. Whether the conduct allegedly violative of
the right actually occurred or, if so, whether a reasonable
officer would have known that conduct would violate the
right, however, may or may not be then subject to determi-
nation as a matter of law. If there are genuine issues of his-
torical fact respecting the officer's conduct or its
reasonableness under the circumstances, summary judgment
is not appropriate, and the issue must be reserved for trial.

Id. at 313 (emphasis added). Under that analysis, we found that the
officers were not entitled to qualified immunity in that case because:
(1) the right not to be arrested without probable cause was clearly
established; and (2) a reasonably competent officer in the defendant's
position would have known that charging the driver would violate that
right. Id. at 314-15. See also Anderson v. Creighton, 483 U.S. 635
(1987).

Similarly, in Mensh v. Dyer, 956 F.2d 36 (4th Cir. 1991), we
addressed a case in which a homeowner brought a§ 1983 action when
he was mistakenly detained by an arrest team in the middle of the

12
night. 956 F.2d at 37. In holding that the police officers should have
been afforded qualified immunity at the summary judgment stage, this
Court held that the officers were entitled to summary judgment if they
could establish that reasonable officers "could have believed that their
actions were lawful in light of both clearly established law and the
information the officers possessed at the time." Id. at 39. In so hold-
ing, the Court explicitly found that an arrest based on probable cause
does not violate the Fourth Amendment even if the wrong person is
arrested. Id. Applying that principle to the case, the Court held that
because the police were executing a facially valid warrant, their
actions were supported by probable cause, and that they were thus
entitled to qualified immunity. Id. at 40.

Applying those principles to the case at bar, it is clear that the
Appellees here were entitled to qualified immunity as to the § 1983
claims arising from their actual decision to stop Appellant Taft's car
and to frisk the occupants. Indeed, although the case law described
above deals expressly with probable cause arrests, the principles set
forth therein apply equally to vehicular stops under the reasonable
suspicion standard. Several considerations compel an affirmance here.

First, the law is well settled that a vehicular stop is justified where
the police officers have a reasonable suspicion of criminal activity
based on articulable facts. Pennsylvania v. Mimms, 434 U.S. 106
(1977) (finding that a vehicular stop and frisk of the car's occupants
is governed by the reasonable suspicion standard set forth in Terry v.
Ohio, 392 U.S. 1 (1968)); United States v. Taylor, 857 F.2d 210, 213
(4th Cir. 1988) (finding that a brief investigative stop of a vehicle is
permissible when the investigating officers have a reasonable suspi-
cion grounded in articulable facts that the person stopped is involved
in criminal activity). In the instant case, the police officers were
expressly directed over the radio to stop the Appellants' car because
it was believed that the car was carrying the suspected murderer,
Wooten. Thus, the reasonable suspicion standard was certainly met
since the Appellees' decision to stop the car was based expressly on
an order from police headquarters. See United States v. Moore, 817
F.2d 1105, 1107 (4th Cir. 1987), cert. denied , 484 U.S. 965 (1987)
(finding that a call made by a dispatcher suggests the existence of rea-
sonable suspicion, and finding that a police officer is not constitution-
ally required to be "certain" that a crime has occurred when he makes

13
a stop). Indeed, as noted by the Appellees, to have refused to act on
the radio dispatch order to stop the car, would have been to be negli-
gent in their duties.

Second, in light of the fact that the stop itself was certainly sup-
ported by reasonable suspicion, the police officers were entitled to
qualified immunity on any claim alleging that such a stop violated the
Appellants' Fourth Amendment rights against unreasonable seizures.
Indeed, in conducting the three-step qualified immunity analysis set
forth by the Supreme Court and followed by this Circuit in Pritchett,
supra, it is clear that the district court did not err. Under the first two
prongs of the qualified immunity analysis, it is plain that the specific
right in question -- the right not to be stopped and frisked without
reasonable suspicion -- was indeed clearly established at the time of
the alleged violation. See, e.g., Pennsylvania v. Mimms, supra. The
third prong of the qualified immunity analysis, however -- whether
reasonable people in the officers' position would have known that
doing what they did would violate that right -- was not met here.
Indeed, this Court held in Pritchett that such a reasonableness deter-
mination must be made on the basis of information actually possessed
by the officers at the critical time, or that was then reasonably avail-
able to them, and in light of any exigencies of time and circumstance
that reasonably may have affected the officers' perceptions; in the
instant case, the information actually possessed by the officers at the
time of the stop was that the radio dispatcher had suspected that the
Appellants' car carried Wooten, and the exigencies of the circum-
stances compelled them to act immediately before the car could get
away. Thus, a reasonable officer in those circumstances would have
certainly felt justified in stopping the car on such information.

Third, in Pritchett, it was held that applying the third prong of the
qualified immunity analysis at the summary judgment stage may be
inappropriate "[i]f there are genuine issues of historical fact respect-
ing the officer's conduct or its reasonableness under the circum-
stances." 973 F.2d at 313. In the instant case, however, there is no
dispute as to the actual conduct of the officers in making the initial
decision to stop the car and to frisk the occupants ; the Appellants do
not contest on appeal that the officers stopped the car because they
were told to do so by the radio dispatcher, or that the stop was exe-
cuted in a genuine effort to search for Wooten. Nor do the Appellants

14
effectively challenge the district court's conclusion that stopping a car
in response to a police dispatch call is generally supported by reason-
able suspicion.

Last, it is irrelevant for qualified immunity purposes that Wooten
was not actually hiding in the Appellants' car. Indeed, this Court held
in Mensh v. Dyer, supra, that the mistaken seizure of an individual is
not pertinent to a proper qualified immunity analysis. Indeed, it is pre-
cisely in such a case of genuinely mistaken identity that the doctrine
of qualified immunity is designed to protect police officers from civil
liability.

For the foregoing reasons, the district court did not err in finding
that the police officers were entitled to qualified immunity with
respect to the Appellants' claim that the actual decision to stop the
Appellants' car was violative of their civil rights. Because the stop
was supported by reasonable suspicion, the police officers were prop-
erly entitled to qualified immunity as to that claim.

B. Qualified Immunity on the Excessive Force Claims

By contrast, the Appellees' entitlement to qualified immunity as to
the Appellants' excessive force claims was incorrectly granted by the
district court at the summary judgment stage. Indeed, in light of the
genuine disputes of material fact concerning the actual conduct of the
police officers in executing the seizure and search, we reverse the dis-
trict court's grant of summary judgment on this issue, and remand the
case for trial on the § 1983 excessive force claims.

The Supreme Court, in Graham v. Connor, 490 U.S. 386 (1989),
fully addressed the constitutional standard which governs § 1983
claims arising from a police officer's alleged use of excessive force
in making an arrest, investigatory stop, or other seizure of an individ-
ual's person. In Graham, the petitioner sought to recover damages for
injuries allegedly sustained when the officers used physical force
against him during the course of an investigatory stop. 490 U.S. at
388. The Supreme Court, reversing a decision of the Fourth Circuit,
articulated an "objective reasonableness standard" for addressing such
cases. Id. at 392. In particular, the Court held that in addressing a
§ 1983 excessive force claim, proper analysis begins by identifying

15
the specific constitutional right allegedly infringed by the challenged
application of force; in the context of an arrest or investigatory stop,
the Court found that an excessive force claim is most properly charac-
terized as invoking the Fourth Amendment. Id. at 394. The Court held
that in judging the reasonableness of a stop or seizure under the
Fourth Amendment, three factors should be considered: (1) the sever-
ity of the crime at issue, (2) whether the suspect posed an immediate
threat to the safety of the officers or others, and (3) whether the sus-
pect actively resisted arrest by flight. Id. at 396. Additionally, the
Court held:

The "reasonableness" of a particular use of force must be
judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight. . . .

As in other Fourth Amendment contexts, however, the
"reasonableness" inquiry in an excessive force case is an
objective one: the question is whether the officers' actions
are "objectively reasonable" in light of the facts and circum-
stances confronting them, without regard to their underlying
intent or motivation. An officer's evil intentions will not
make a Fourth Amendment violation out of an objectively
reasonable use of force; nor will an officer's good intentions
make an objectively unreasonable use of force constitu-
tional.

Id. at 396-97. Therefore, the Court explicitly rejected an approach in
which the police officer's "good faith" would be relevant. Id. at 397.

The Fourth Circuit, in Rowland v. Perry, 41 F.3d 167 (4th Cir.
1994), recently applied that test in a § 1983 excessive force case in
which the district court had denied an officer's claim of entitlement
to qualified immunity on a motion for summary judgment. 41 F.3d at
171. In that case, the actual amount of force used by the police was
in dispute. Id. at 172. In affirming the denial of qualified immunity
by the district court, we outlined the proper inquiry that should be
undertaken in addressing claims of qualified immunity in excessive
force cases:

The reasonableness inquiry is an objective one. To gauge
objective reasonableness, a court examines only the actions

16
 at issue and measures them against what a reasonable officer
would do under the circumstances. Subjective factors
involving the officer's motives, intent, or propensities are
not relevant. The objective nature of the inquiry is specifi-
cally intended to limit examination into an officer's subjec-
tive state of mind, and thereby enhance the chances of a
speedy disposition of the case.

Though it focuses on the objective facts, the immunity
inquiry must be filtered through the lens of the officer's per-
ceptions at the time of the incident in question. Such a per-
spective serves two purposes. First, using the officer's
perception of the facts at the time limits second-guessing the
reasonableness of actions with the benefit of 20/20 hind-
sight. Second, using this perspective limits the need for
decision-makers to sort through conflicting versions of the
"actual" facts, and allows them to focus instead on what the
police officer reasonably perceived. In sum, the officer's
subjective state of mind is not relevant to the qualified
immunity inquiry but his perceptions of the objective facts
of the incident in question are.

Id. at 172-73. Under that standard, it was found that, in evaluating a
police officer's entitlement to qualified immunity against excessive
force claims, the proper inquiry is "whether a reasonable officer could
have believed that the use of force alleged was objectively reasonable
in light of the circumstances. The test is not rigid or mechanical but
depends on the `facts and circumstances of each particular case.'" Id.
at 173, quoting Graham, 490 U.S. at 396. As part of the reasonable-
ness analysis, the Court urged that the three Graham factors be con-
sidered together: (1) the severity of the suspected crime at issue,
(2) whether the suspect posed an immediate threat to the safety of the
officers or others, and (3) whether the suspect actively attempted to
evade arrest by flight. Id. Under that rubric of analysis, the Court
found that the police officer in the case was not entitled to qualified
immunity because (1) the offense of stealing five dollars was minor,
(2) the suspect posed no threat to the officer, and (3) the facts sug-
gesting resistance by the suspect were disputed. Id. at 174. In so find-
ing, the Court held that although disputed versions of the facts alone
are not enough to warrant denial of summary judgment, such disputed

17
facts combined with unfavorable Graham factors, suggest that grant-
ing summary judgment to a police officer on the issue of qualified
immunity is inappropriate. Id. Cf. Slattery v. Rizzo, 939 F.2d 213 (4th
Cir. 1991) (finding that a narcotics officer participating in a sting
operation could have believed that the arrestee posed a deadly threat,
and was thus entitled to qualified immunity in an excessive force
case, where past incidents involving weapons and violence had
occurred at the location of the arrest and where the arrestee ignored
the officer's order to raise his hands and instead turned toward the
officer with an object in his hand).

In applying the case law of the Fourth Circuit and the Supreme
Court to the instant case, it appears that the behavior of the police
officers here was sufficiently in dispute that qualified immunity
should not have been granted on the excessive force claims at the
summary judgment stage. Indeed, in the instant case, the application
of the third prong of the qualified immunity analysis -- whether a
reasonable police officer in the same circumstances would have
known he was violating a clearly established right-- suggests that
qualified immunity was improperly granted. Several considerations,
in particular, compel a reversal of the district court's decision as to
the excessive force claims.

First, as expressly stated by the Supreme Court in Graham v. Con-
nor, supra, and reaffirmed by the Fourth Circuit in Rowland, supra,
it is well established that in judging the reasonableness of a stop or
seizure, three factors must be considered: (1) the severity of the
crime at issue, (2) whether the suspect poses an immediate threat to
the safety of the officers or others, and (3) whether the suspect is
actively resisting arrest by flight. In the instant case, the application
of these three factors suggest that the force used by Appellees was
unreasonable, taking the facts in the light most favorable to the non-
movants, the Appellants. First, it is undeniable that the crime at issue
-- Wooten's murder of an individual -- was a severe and gruesome
crime. Second, however, the Appellants, by their behavior, certainly
did not pose an immediate threat to the safety of the officers or others;
indeed, it is undisputed that they were extremely compliant through-
out the stop. Third, the Appellants certainly did not actively resist
arrest by attempting to flee the scene; indeed, even under the police
officers' version of the facts, the Appellants in no way resisted the

18
police's efforts to get them out of the car, handcuff them, and search
them, unlike in Slattery v. Rizzo, supra. Thus, the three-factor
Graham test suggests that the facts in this case do not support the
degree of force allegedly used by the Appellees.

Second, and related, Graham expressly held that the "reason-
ableness" inquiry in an excessive force case is an objective one: the
question is whether the officers' actions were "objectively reason-
able" in light of the facts and circumstances confronting them, with-
out regard to their underlying intent or motivation; indeed, the Court
expressly held that an officer's good intentions do not make an objec-
tively unreasonable use of force constitutional. Graham, 490 U.S. at
397. Accordingly, the Appellees cannot claim entitlement to qualified
immunity here simply by arguing that the police in this case acted in
good faith in order to protect the Appellants. Indeed, under the
express standard put forth by the Supreme Court, it is clear that the
officer's subjective good faith is irrelevant to the analysis; it is the
objective reasonableness of the officers' actions under the three-factor
Graham test that is dispositive here.

Third, the issue of qualified immunity on this claim was not appro-
priate for disposition at the summary judgment stage. This Court in
Rowland v. Perry, supra, recently held that although disputed ver-
sions of the facts alone are not sufficient to warrant denial of sum-
mary judgment, such disputed facts combined with unfavorable
Graham factors, suggest that granting summary judgment to police
officers on the basis of qualified immunity is inappropriate. 41 F.3d
at 174. In the instant case, as discussed above, the application of the
Graham factors was unfavorable to the police since the factors sug-
gest that the degree of force used was unreasonable. Moreover, in the
instant case, the facts concerning the amount of force used were
expressly disputed; indeed, the two parties disagreed on almost every
claim made, including (1) whether the police had their guns trained
on the minor Appellants when they exited the car, (2) whether the
police clicked and cocked their guns in an intimidating way,
(3) whether the police sexually fondled the Appellants during the pat-
down searches, and (4) whether guns were held against the minor
Appellants' heads. Remembering that on summary judgment the non-
movant's version of disputed facts is accepted, and applying the
Graham factors, summary judgment on qualified immunity should

19
have been denied because there clearly existed genuine disputes of
material fact. Indeed, taking the Appellants' allegations in the light
most favorable to them, as a court should on a motion for summary
judgment, the Appellees' actions clearly would have amounted to
excessive force.3 See Pritchett v. Alford, 973 F.2d at 313 ("[i]f there
are genuine issues of historical fact respecting the officer's conduct
or its reasonableness under the circumstances, summary judgment is
not appropriate, and the issues must be reserved for trial.").

Fourth, even under the police officers' version of the facts, the
amount of force used may have been unreasonable. First, the Appel-
lees concede that they knew that Onte Taft, although of a heavy build,
was not Wooten as soon as he stepped out of the car, see Appellees'
Brief at 9; thus, it is unclear why they searched Onte, handcuffed him,
and forced him to kneel on the road in front of a patrol car. Second,
the Appellees clearly knew that Jeanette Taft was a female, and thus
that she could not be the suspected murderer; again, therefore, it is
unclear why they searched her, handcuffed her, and forced her into
the back seat of a police car.4 Third, and related, the Appellees con-
cede that Jeanette Taft was placed in the backseat of the patrol car
with the handcuffs in front of her, while Onte Taft was placed on his
knees facing the headlights of a patrol car; they allege, however, that
these "inconveniences" were undertaken to"protect" the Appellants.
It is unclear, however, how handcuffing and restraining Onte and Jea-
nette in the fashion employed would in any way protect them. Finally,
it is unclear why the minor Appellants were handcuffed in light of the
fact that they clearly did not pose a threat to the police officers, and
in light of the fact that they plainly did not match Wooten's descrip-
tion.
_________________________________________________________________
3 The Appellees argue in their Brief that because the Appellants do not
allege that the pat-down ever extended underneath their clothing or
undergarments, there is no genuine issue of material fact that the force
used was excessive or sexually abusive. There is no support in the case
law, however, that a pat-down search has to extend beneath the clothing
in order for it to be sexually abusive.
4 This case is distinguishable from United States v. Taylor, 857 F.2d
210 (4th Cir. 1988), because in Taylor, the actual suspect was known to
be in the car when the police stopped the car. In the instant case, by con-
trast, the Appellants clearly could not have been Wooten.

20
For the foregoing reasons, we reverse the district court's finding of
qualified immunity on the excessive force claims, and remand the
case for trial only on those particular claims. Although the officers
were entitled to qualified immunity as to their actual decision to stop
the vehicle, they were not entitled to such a determination as to their
alleged use of excessive force in carrying out the seizure and search.
Of course, at a trial, the reasonableness of what the Appellees actually
did may be established, in which case qualified immunity could then
be deemed proper.

III. Denial of Motion for Continuance

The Appellants additionally assert on appeal that the district court
erred in denying their motion for continuance of the summary judg-
ment hearing in order to allow for time to conduct discovery on the
issue of qualified immunity.5 Because the case law suggests that dis-
covery should have been afforded, we find that the district court erred
in staying discovery into the Appellees' entitlement to qualified
immunity or lack thereof.

The Supreme Court, in Anderson v. Creighton, 483 U.S. 635
(1987), expressly addressed the standard under which discovery on
the issue of qualified immunity should be afforded, when qualified
immunity is claimed at the summary judgment stage of litigation. In
that case, the district court had granted summary judgment to the
police officers before any discovery occurred. In a footnote, the Court
addressed the plaintiffs' claim that because no discovery had yet
taken place, some discovery would be required before the defendants'
summary judgment motion could be granted. 483 U.S. at 646 n. 6. In
particular, the Court held:
_________________________________________________________________

5 The Appellants had filed, on May 18, 1994, a motion for continuance,
asking for an order postponing the summary judgment hearing until such
time as they had taken depositions, interrogatories, and requests for
admissions from the six police officers involved in the stop. On May 23,
1994, the district court filed an order staying all discovery until the court
ruled on the motion for summary judgment; the court noted that the order
therefore rendered moot the Appellants' motion to continue.

21
 One of the purposes of the Harlow qualified immunity stan-
dard is to protect public officials from the "broad-ranging
discovery" that can be "peculiarly disruptive of effective
government." For this reason, we have emphasized that
qualified immunity questions should be resolved at the earli-
est possible stage of litigation. Thus, on remand, it should
first be determined whether the actions the [plaintiffs]
allege [the officer] to have taken are actions that a reason-
able officer could have believed lawful. If they are, then [the
officer] is entitled to dismissal prior to discovery. If they are
not, and if the actions [the officer] claims he took are differ-
ent from those the [plaintiffs] allege (and are actions that
a reasonable officer could have believed lawful), then dis-
covery may be necessary before [the officer's] motion for
summary judgment on qualified immunity grounds can be
resolved. Of course, any such discovery should be tailored
specifically to the question of [the officer's] qualified
immunity.

Id. (citations omitted) (emphasis added).

Similarly, the Fourth Circuit, in DiMeglio v. Haines, 45 F.3d 790
(4th Cir. 1995), in reversing a district court's denial of qualified
immunity on a motion for summary judgment, recently articulated the
circumstances under which discovery should be afforded when one
party in a § 1983 suit has moved for summary judgment on the issue
of qualified immunity. In particular, we held that ordinarily, a ques-
tion of qualified immunity involves an inquiry of a pure question of
law, and hence is capable of decision at the summary judgment stage.
45 F.3d at 794. Indeed, the Court held that because the inquiry is
purely legal, questions of qualified immunity should ordinarily be
decided "long before trial," and that "even such pretrial matters as dis-
covery are to be avoided if possible, as `[i]nquiries of this kind can
be peculiarly disruptive of effective government.'" Id. at 795 (cita-
tions omitted). However, we also expressly held:

A district court may deny a motion for summary judgment
based on qualified immunity and allow discovery to proceed
only if it has addressed the threshold immunity question,
and concluded (1) that the plaintiff alleged a violation of a

22
 clearly established right, but (2) that there existed a material
factual dispute over what actually occurred, and (3) under
the defendant's version, a reasonable official could have
believed that his conduct was lawful. In instances where
there is a material dispute over what the defendant did, and
under the plaintiff's version of the events the defendant
would have, but under the defendant's version he would not
have, violated clearly established law, it may be that the
qualified immunity question cannot be resolved without dis-
covery. In such circumstances, it simply may be impossible
to protect the defendant from all of the burdens that attend
the pretrial process. Of course, after discovery and upon a
proper motion, the district court may reconsider the question
of qualified immunity. "[I]f discovery fail[ed] to uncover
evidence sufficient to create a genuine issue as to whether
the defendant in fact committed those acts," the defendant
will yet be entitled to summary judgment, even though the
acts alleged by the plaintiff constitute a violation of clearly
established rights.

Id. (citations omitted) (emphasis added). Under that standard, we
found that the district court erred in denying a motion for summary
judgment before discovery was complete, despite discrepancies
between the parties' factual allegations. Id. at 803. In particular, this
Court found that the district court erred in failing first to address
whether, based on the plaintiff's allegations, the official's actions
indeed violated clearly established law. Id. at 803.

Applying those principles to the instant case, it is clear that in this
case, the district court should have afforded more time for discovery
before the motion for summary judgment was determined by the court.6
The cases above suggest that discovery should be afforded when
(1) the actions that the plaintiffs allege the police to have taken are
determined not to be actions that a reasonable officer could have
believed lawful, and (2) the actions the officers claim they took differ
_________________________________________________________________
6 At the time of the motion, no discovery had been conducted by either
party into the issue of qualified immunity. The only evidence before the
district court were affidavits, submitted by both sides, which generally
described the incident.

23
from those the plaintiffs allege (and are actions that reasonable offi-
cers could have believed lawful). Anderson v. Creighton, 483 U.S. at
646 n. 6. The instant case presents precisely that situation: (1) the
actions that the Appellants allege the officers to have taken (including
sexual abuse and cocking of guns against the minor Appellants'
heads) are not actions that a reasonable officer could have believed
to be lawful under the circumstances, and (2) the actions the officers
claim they took (simply patting down and handcuffing the Appel-
lants) are different from those the Appellants allege and are actions
that a reasonable officer could have believed to be lawful. Thus, in
this case, discovery on the issue of qualified immunity should have
been afforded before summary judgment on the issue of qualified
immunity was finally determined. Indeed, the instant case presents
precisely the type of situation, envisioned by the Supreme Court in
Anderson and by this Court in DiMeglio, in which there is a material
dispute over what the defendants did, and under the plaintiffs' version
of the events the defendants would have, but under the defendants'
version they would not have, violated clearly established law. As
stated in DiMeglio, in such cases, it may be that the qualified immu-
nity question cannot be resolved without discovery, and in such cir-
cumstances, it simply may be impossible to protect the defendants
from all of the burdens that attend the pretrial process. Such a result
does not mean that unrestricted discovery will follow; indeed, discov-
ery should be confined to the qualified immunity question only.

Therefore, in the case at bar, the district court should not have
mooted the Appellant's motion for continuance by staying discovery
prematurely. We find that the district court erred.

Accordingly, the judgment is

AFFIRMED IN PART AND REVERSED IN PART.

DIANA GRIBBON MOTZ, Circuit Judge, concurring in part and dis-
senting in part:

I agree with the majority that the district court properly granted the
officers summary judgment with regard to the claim that the stop was
unlawful and so concur in that holding. However, because I believe
that the district court was also correct in finding that the officers were

24
entitled to summary judgment on the excessive force claim, I respect-
fully dissent from that portion of the majority's opinion concluding
to the contrary.

In their second amended complaint, appellants alleged that the
police officers: (1) conducted illegal body searches of the "female
minor children" that involved "fondling and mishandling" their "but-
tocks, breasts and private body parts," (2) used excessive extreme
force on a minor male "by grabbing him in the groin and private body
areas, causing him great pain and physical harm coupled with extreme
mental distress," and (3) "violate[d] the rights" of the children "by
placing guns to their heads and cocking and clicking the weapons."
The complaint was verified by Ms. Jeanette Taft, individually and as
guardian ad litem for two of the minors, and by Harry Teel, Sr.,
guardian ad litem for the other two.

The officers, asserting qualified immunity, moved for summary
judgment on all claims; attached to that motion were numerous
detailed affidavits in which the officers categorically denied the above
allegations. The district court granted the officers summary judgment
on the claim that the stop of Ms. Taft's automobile was illegal but
denied it as to the excessive force claims asserted in the language
quoted above. The district court opined:

plaintiffs' additional allegations that defendants"cocked and
clicked" loaded firearms, pointed them at the minor plain-
tiffs' heads, and sexually abused those children by fondling
their private parts during a "frisk for weapons" are
extremely serious. If true, they take defendants' actions well
outside the realm of objective reasonableness under the cir-
cumstances.

The district court noted, however, that these allegations of "cocking
and clicking" and "sexual abuse," which had been denied under oath
by defendants, had been verified only by Mr. Teel and Ms. Taft and
it was "not apparent" how either of them "came to acquire personal
knowledge of these allegations." This was so because Mr. Teel was
not present during the incident and because the record did not reflect
how Ms. Taft was able to hear or see the events that occurred during
the stop from her vantage point in the backseat of the patrol car. For

25
this reason, the district court directed the appellants to file "proper
affidavits or other competent documentation" that"detailed" the basis
of "personal knowledge" of "(i) their allegations of sexual abuse of
the minor children and (ii) their charges that defendants cocked and
clicked loaded weapons against the children's heads."

In response to this order, Ms. Taft, the minor appellants, and some
third persons filed affidavits.1 Although the minor appellants did not
address the body searches or "sexual abuse" at all, Ms. Taft asserted
that police officers searched her by "touch[ing]" her "breasts and but-
tocks" and "between [her] legs in [her] private parts." She also
asserted that police similarly searched the minor female passengers by
"patt[ing]" their "breast area[s]" and searching "inside and outside of
[their] legs and private parts," and searched her son "between his legs
in his groin area." These assertions appear totally consistent with a
typical police pat-down search; no witness provided an affidavit indi-
cating that the search was other than typical or that it actually
involved, as had earlier been alleged, "fondling and mishandling."
Furthermore, while all appellants averred in their respective affidavits
that the officers drew their guns and pointed them at the children dur-
ing the incident, and that the "cocking and clicking sounds of the guns
scared" the children "very much," no affiant claimed that the guns
were placed against the children's heads.

Upon receiving these submissions, the district court ultimately con-
cluded that the appellants had not offered any evidentiary support for
the allegations in their complaint that the officers had "sexually
abused" the minors. The court noted that, #7F 79AD#f]risking' a person to
determine if he or she is secreting a weapon necessarily involves pat-
ting down -- touching -- all parts of the body" but "[f]risking a car-
load of individuals whom law enforcement officers reasonably
believe may be involved with a very recent homicide is a far cry from
`sexual abuse.'" Further, the district court found that the appellants
had not supplied a "factual basis for the contention" that the officers
"pointed loaded and cocked weapons directly at the heads of the
minor plaintiffs." The court explained that "[p]ointing a weapon in the
_________________________________________________________________
1 Ms. Taft explained that she had personal knowledge of these events
because during the entire stop she had an unobstructed view of the chil-
dren from her vantage point in the patrol car.

26
direction of a person and failing to lower it as he or she walks past
simply is not comparable to placing that weapon against a child's
head and cocking it." The court concluded that the appellants had
failed to carry their burden in opposing the officers' motion for sum-
mary judgment based on qualified immunity, reasoning:

Being the subject of an armed felony stop at night by
numerous law enforcement officers most certainly would be
a terrifying experience for guilty and innocent alike, regard-
less of their sex or age. However, in exigent circumstances,
the law permits its enforcement officers to conduct such
procedures in order to protect the community from a danger-
ous and violent offender. As frightening as these events
must have been for the plaintiffs, these acts present a text-
book case for the imposition of qualified immunity. Not
every mistaken act by "state actors" is premised on unconsti-
tutional motives.2

In my view, on this record, the district court correctly granted sum-
mary judgment on all claims. Indeed, the care and sensitivity with
which the court below handled this case is to be commended. After
painstakingly examining the complaint and finding it lacking in evi-
dentiary support, the district court afforded appellants an additional
opportunity to support their allegations. Only after taking this step,
which benefited appellants and was certainly well within the district
court's jurisdiction, see Marx v. Gumbinner, 855 F.2d 783, 792 (11th
Cir. 1988) (when "plaintiff's complaint provides an inadequate factual
basis" to determine a defendant's claim of qualified immunity, "the
district court may exercise its inherent power to narrow the issues for
trial and require the plaintiff to state with more specificity the factual
allegations supporting the claim"), did the court conclude that the
officers were entitled to qualified immunity on the excessive force
claims. I believe the case law required this conclusion.
_________________________________________________________________

2 The appellants filed a "motion for new trial or to amend findings in
judgment," which the court construed as a motion to reconsider. Appel-
lants never suggested in that motion, or in this court, that, in fact, they
do claim that the officers sexually abused the minor children or placed
guns to their heads.

27
Government officials performing discretionary functions are gener-
ally "shielded from liability for civil damages insofar as 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). Application of the qualified
immunity defense to a claim of excessive force "requires careful
attention to the facts and circumstances of each particular case."
Graham v. Connor, 490 U.S. 386, 396 (1989). A court must employ
a three-pronged analysis. First, the court must identify the specific
constitutional right allegedly violated. Second, the court must deter-
mine whether the right in question was established so clearly as to
alert a reasonable officer to its constitutional significance. Third, the
court must determine whether a reasonable officer could have
believed that his conduct was lawful. Torcasio v. Murray, 57 F.3d
1340, 1343 (4th Cir. 1995) (citing Collinson v. Gott, 895 F.2d 994,
998 (4th Cir. 1990) (Phillips, J., concurring)).

The sole excessive force claims for which Ms. Taft and the minor
appellants have submitted evidentiary support in their affidavits are
that, during the frisk search, the officers touched them in sensitive
areas and trained weapons on them at close range. Thus, we are not
called upon to determine if the officers enjoy qualified immunity for
strip searches of unarmed minors. Compare Illinois v. LaFayette, 462
U.S. 640, 645 (1983) ("the interests supporting a search incident to
arrest would hardly justify disrobing an arrestee on the street") (dicta)
and Logan v. Shealy, 660 F.2d 1007, (4th Cir. 1981) (no qualified
immunity for policy of strip searching persons detained for minor
offenses), cert. denied, 455 U.S. 942 (1982). See also Kraushaar v.
Flanigan, 45 F.3d 1040, 1054 & n.7 (7th Cir. 1995) (collected cases).
Nor are we confronted with the question of whether police officers
are immune from liability when they hold guns to the heads of
minors. Compare McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992)
(no qualified immunity for holding gun to head of nine-year-old boy
and threatening to pull trigger). Moreover, unlike the plaintiffs in
Graham and Rowland v. Perry, 41 F.3d 167 (4th Cir. 1994), appel-
lants here did not suffer any injuries, let alone grievous ones.
Compare Dixon v. Richer, 922 F.2d 1456, 1463 (10th Cir. 1991)
(while pat-down frisk search was reasonable, it was not reasonable to
hit a suspect "in the stomach with a flashlight, or choke and beat him,
solely on the basis of . . . suspicion" that he was armed).

28
It is well established that "[i]nvestigating officers may take such
steps as are reasonably necessary to maintain the status quo and to
protect their safety during an investigative stop." United States v.
Taylor, 857 F.2d 210, 213 (4th Cir. 1988) (citing United States v.
Hensley, 469 U.S. 221, 235 (1985)). Accordingly, police officers may
conduct "pat-down" searches for weapons, Terry v. Ohio, 392 U.S. 1,
23-27 (1968); see also Taylor, 857 F.2d at 214. Furthermore, "Fourth
Amendment jurisprudence has long recognized that the right to make
an arrest or investigatory stop necessarily carries with it the right to
use some degree of physical coercion or a threat thereof to effect it."
Graham, 490 U.S. at 396. Thus, although "approaching a suspect with
drawn weapons [is an] extraordinary measure[ ], such [a] police pro-
cedure[ ] [has] been justified in this circuit as a reasonable means of
neutralizing potential danger to police and innocent bystanders."
Taylor, 857 F.2d at 214.

The officers had reason to believe that an armed and dangerous
suspect was in Ms. Taft's vehicle; thus, the officers were entitled to
take precautions to ensure their safety and the safety of the passen-
gers. For the purpose of summary judgment, it must be accepted as
true that, as the passengers exited the vehicle, the officers kept their
weapons trained on each of them, including the minor children. How-
ever, these minors could well have secreted weapons-- either will-
ingly or unwillingly -- for the murderer. Moreover, one of the
minors, at least superficially, resembled the suspect; although only
fifteen years old, Onte Taft was 510" and weighed 180 pounds. In
these circumstances, a reasonable police officer"could have believed"
that continuing to point his weapon at the passengers as they left the
car was lawful. See Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir.
1991).

The officers were also justified in frisking Ms. Taft and the minors
for weapons. In her affidavit, Ms. Taft does not allege that the officers
did anything other than "touch" or "pat" her and the other passengers,
on top of their clothing, in certain sensitive areas. The Supreme Court,
in approving of "pat-down" frisks in Terry , recognized that such
searches may be humiliating and embarrassing: "Even a limited
search of the outer clothing for weapons constitutes a severe, though
brief, intrusion upon cherished personal security, and it must surely
be an annoying, frightening, and perhaps humiliating experience."

29
Terry, 392 U.S. at 24-25. Like the officers in Terry, however, the offi-
cers here had "reasonable grounds to believe that[one of the vehicle's
passengers] was armed and dangerous, and it was necessary for the
protection of [the officers] and others to take swift measures to dis-
cover the true facts and neutralize the threat of harm if it material-
ized." Id. at 30; see also United States v. Moore, 817 F.2d 1105,
1107-08 (4th Cir.), cert. denied, 484 U.S. 965 (1987).

As the district court recognized, "[b]eing the subject of an armed
felony stop at night by numerous law enforcement officers most cer-
tainly" is "terrifying." The appellants are entitled to our empathy --
and our sympathy. This is not an experience to be wished on anyone.
However, in other circumstances, for example if the murderer had
commandeered their car, they might well have been grateful for the
safeguards taken by the police. In any event, there is no evidence that
the officers violated any clearly established rights in searching and
restraining Ms. Taft and the children. A reasonable officer under these
circumstances certainly could have believed that his conduct was law-
ful. Accordingly, I would affirm the district court's grant of summary
judgment on the excessive force claims.

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