UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1353
RAINA CONNOR, Administratrix of the Estate of Adam Wade
Carter,
Plaintiff - Appellee,
v.
TAVARES THOMPSON, in his official and individual capacities;
WAKE COUNTY SHERIFF DONNIE HARRISON, in his official and
individual capacities; THE OHIO CASUALTY INSURANCE COMPANY,
Defendants – Appellants,
and
XYZ CORPORATION, in its capacity as Surety on the official
bond of the Sheriff of Wake County; JOHN AND JANE DOES 1-10,
individually and in their official capacities as Deputy
Sheriffs of Wake County; WAKE COUNTY; ASHLEY STEINBERGER;
KELLY MITCHELL,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:12-cv-00701-H)
Argued: January 26, 2016 Decided: May 2, 2016
Before AGEE and THACKER, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
ARGUED: James Nicholas Ellis, POYNER SPRUILL LLP, Raleigh, North
Carolina, for Appellants. Huntington MacCallum Willis, MARTIN &
JONES, PLLC, Raleigh, North Carolina, for Appellee. ON BRIEF:
Caroline P. Mackie, POYNER SPRUILL LLP, Raleigh, North Carolina;
Roger A. Askew, Jennifer McGuire Jones, WAKE COUNTY ATTORNEY’S
OFFICE, Raleigh, North Carolina, for Appellants. Hoyt G.
Tessener, G. Christopher Olson, MARTIN & JONES, PLLC, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Todd McElfresh called 911 to request help transporting
his nephew, Adam Carter, to a local psychiatric hospital because
Carter was threatening to kill himself. Tavares Thompson, a
Wake County, North Carolina, Sheriff’s Deputy, was the first to
respond. When Thompson encountered Carter, the latter was
holding what appeared to be a paring knife. Thompson, upon
seeing the knife, instructed Carter to drop it. When Carter
failed to comply, Thompson fired his gun twice. Both shots
struck Carter, resulting in his death.
Raina Connor, 1 acting as the administratrix of Carter’s
estate, (“Appellee”) subsequently sued Thompson, along with Wake
County Sheriff Donnie Harrison and the Ohio Casualty Insurance
Company (collectively, “Appellants”). 2 Appellee’s complaint
alleges, inter alia, that Thompson’s actions constitute
excessive force and assault and battery, and that the Wake
County Sheriff failed to provide adequate training and
1 Appellee’s name is spelled “Conner” in the third amended
complaint below, and that spelling has been used by the parties
in numerous documents submitted to both the district court and
this court. But her name appears as “Connor” in the initial
complaint and on the district court’s and this court’s dockets.
It is unclear which version of Appellee’s name is a misspelling,
so we use the spelling consistent with the docketing notice that
initiated this appeal.
2 The complaint also names a number of additional defendants
who do not join in this appeal.
3
supervision to its employees and is liable for Carter’s death
pursuant to Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978). The district court denied
Appellants’ motion for summary judgment on each of these claims,
and Appellants filed this appeal in response. We affirm in part
and dismiss in part.
I.
A.
On February 11, 2012, Adam Carter was living with his
uncle, Todd McElfresh, in Raleigh, North Carolina, along with a
third roommate, Tom Boykin. When McElfresh and Boykin woke that
morning, they found Carter drunk and suicidal. Carter, who
struggled with alcoholism, indicated that he was willing to
speak to a doctor. Carter told his uncle that he
“need[ed] . . . help,” J.A. 574, 3 and later asked McElfresh to
“[c]all Holly Hill,” id. at 586, which is a psychiatric hospital
in Raleigh. McElfresh made the call, but nobody answered.
McElfresh then called a friend, who, after listening
to an explanation of Carter’s situation, advised McElfresh to
call 911. McElfresh did get an answer there, and after
3Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
4
emergency responders were en route, the dispatcher stayed on the
line and tried to talk Carter out of attempting suicide.
The efforts were not entirely successful. After
speaking to the dispatcher for a few minutes, Carter handed the
phone back to McElfresh, and walked to the kitchen. He
retrieved a paring knife and attempted, unsuccessfully, to cut
his wrist while Boykin tried to talk him out of it.
Deputy Thompson arrived shortly thereafter. He met
McElfresh outside the house and followed him into an entrance
foyer. McElfresh then proceeded alone up a four-step stairwell
leading to the living room where Carter was waiting. McElfresh
told Carter that his ride had arrived, and both men started
downstairs toward the foyer. Carter was still holding the
paring knife he had used to try to cut his wrist.
Thompson saw the knife when Carter was about halfway
down the four stairs. He drew his gun and told Carter to drop
the knife. The command was repeated several times, by Thompson
as well as McElfresh and Boykin, but Carter did not comply.
When Carter reached the bottom of the stairs, Thompson fired
twice, killing him.
B.
Aside from this general description, the parties
dispute what exactly happened between the time Thompson saw the
knife and the time he fired his weapon. The district court
5
properly recognized that, at the summary judgment stage, all
disputes of material fact must be resolved in favor of Appellee,
the non-moving party. Given the posture of this appeal, we must
accept, 4 and therefore incorporate, the district court’s
characterization of the disputed facts:
[T]he details of the brief time (mere
second[s] to minutes) between Deputy
Thompson entering the residence and the
firing of his weapon[] are disputed. . . .
Chief among the disputes are (1) exactly
where Deputy Thompson was standing in
relation to the front door (whether back
against a wall or directly in front of the
door); (2) the position of the knife during
Carter’s descent on the stairs (whether he
changed hands, raised the knife, etc.); and,
(3) Carter’s speed and agility in descending
the stairs (whether falling down drunk or
lunging at the deputy). However, viewing
the evidence in the light most favorable to
the non-moving party, here the plaintiff,
the court notes the following
evidence: Thompson testified that he saw
Carter with the knife in his hand while
Carter was on the second step and while
Thompson had just crossed the threshold of
the front door. The front door remained
opened at all times. The knife Carter had
in his hand was a small paring knife.
Carter slowly staggered down two steps while
holding on to the wall to support himself.
McElfresh testified that Carter never rushed
toward Thompson or made any aggressive moves
or steps.
Conner ex rel. Carter v. Wake Cty., No. 5:12-cv-701, 2015 WL
1125065, at *2 (E.D.N.C. Mar. 12, 2015).
4 See infra Part III.A.
6
C.
Based on the foregoing, Appellee sued Appellants, on
October 25, 2012, in the United States District Court for the
Eastern District of North Carolina. Appellee’s Third Amended
Complaint asserts in relevant part causes of action for
excessive force, inadequate training and supervision, and Monell
liability pursuant to 42 U.S.C. § 1983, as well as assault and
battery pursuant to North Carolina state law.
On May 30, 2014, Appellants moved for summary
judgment. The district court denied the motion with respect to
each claim at issue in this appeal. It found “substantial fact
questions in dispute which preclude the entry of summary
judgment as to the excessive force claim.” Conner, 2015 WL
1125065, at *3. It further reasoned, “[a]s summary judgment on
the excessive force claim is precluded because of disputed
facts, so also is a decision on qualified immunity at this stage
of the litigation,” id., and the court went on to deny summary
judgment on the Monell liability, inadequate training and
supervision, and assault and battery claims as well. Appellants
timely appealed.
II.
“We review de novo a district court’s decision to deny
a summary judgment motion asserting qualified immunity. Summary
judgment is appropriate ‘if the movant shows that there is no
7
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Smith v. Ray, 781
F.3d 95, 100 (4th Cir. 2015) (citation omitted) (quoting Fed. R.
Civ. P. 56(a)). “In reviewing [a] district court’s decision
denying qualified immunity, we generally accept the facts as the
court viewed them.” Danser v. Stansberry, 772 F.3d 340, 345
(4th Cir. 2014).
III.
A.
“[W]e first satisfy ourselves of our jurisdiction”
before proceeding to decide this case. Cooper v. Sheehan, 735
F.3d 153, 157 (4th Cir. 2013). Appellee has argued that we are
without jurisdiction because this appeal turns solely on
disputes of fact. We disagree with that characterization.
“[D]enial of a claim of qualified immunity, to the
extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291 . . . .”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). On the other
hand, a “District Court’s determination that the summary
judgment record . . . raised a genuine issue of fact . . . [i]s
not a final decision.” Johnson v. Jones, 515 U.S. 304, 313
(1995) (internal quotation marks omitted). In combination,
these two rules allow us to review the legal conclusions
underlying a district court’s denial of qualified immunity in an
8
interlocutory appeal but do not permit us to reconsider any
“determin[ation] . . . of . . . which facts a party may, or may
not, be able to prove at trial.” Id. “In other words, . . . we
have jurisdiction over a claim that there was no violation of
clearly established law accepting the facts as the district
court viewed them.” Winfield v. Bass, 106 F.3d 525, 530 (4th
Cir. 1997) (en banc).
For this reason, we do not consider Appellants’
assertions that Carter had his knife extended in a thrusting
position or that Deputy Thompson had his back to a wall at the
time of the shooting. The district court identified both issues
as disputed, writing, “Chief among the [factual] disputes are
(1) exactly where Deputy Thompson was standing in relation to
the [open] front door . . . [and] (2) the position of the knife
during Carter’s descent on the stairs.” Conner ex rel. Carter
v. Wake Cty., No. 5:12-cv-701, 2015 WL 1125065, at *2 (E.D.N.C.
Mar. 12, 2015). The district court’s articulation of these
disputes in the light most favorable to the Appellee -- that
Carter never raised the knife or “made any aggressive moves” and
that “Thompson had just crossed the threshold of the front
door[,] [which] remained opened at all times,” id. -- binds us.
Nonetheless, the appeal need not be dismissed
outright. The crux of Appellants’ argument is the legal
contention that Thompson is entitled to qualified immunity on
9
any view of the factual record -- including the view adopted by
the district court. Resolving that contention is within our
jurisdiction, and occasional reference to alternative views of
the facts does not strip the jurisdictionally appropriate claim
from the case. See Cooper, 735 F.3d at 158 (“Although the
Officers mention evidence that they believe will ultimately
disprove Cooper’s version of the facts, for purposes of this
appeal they have accepted the facts as viewed by the district
court. Proceeding from that foundation, the Officers make the
legal argument that they did not contravene Cooper’s
constitutional rights. In these circumstances, we are satisfied
of our jurisdiction under the collateral order
doctrine . . . .”).
Accordingly, we proceed to resolve the question of
whether the facts, as viewed by the district court, entitle
Thompson to qualified immunity. After doing so, we will address
whether our jurisdiction extends to the remaining issues on
appeal.
B.
We turn, then, to Appellants’ primary contention --
that Thompson is entitled to qualified immunity from the
excessive force claim raised in this case.
“Qualified immunity protects officers who commit
constitutional violations but who, in light of clearly
10
established law, could reasonably believe that their actions
were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc). A “qualified immunity analysis,” therefore,
“typically involves two inquiries: (1) whether the plaintiff has
established the violation of a constitutional right, and (2)
whether that right was clearly established at the time of the
alleged violation.” Raub v. Campbell, 785 F.3d 876, 881 (4th
Cir. 2015). We consider each inquiry in turn, beginning with
the question whether Appellee could establish before a trier of
fact that Thompson used unconstitutionally excessive force when
he shot Carter.
1.
A “claim that law enforcement officials used excessive
force in the course of making an arrest, investigatory stop, or
other ‘seizure’ of [a] person” is “properly analyzed under the
Fourth Amendment’s ‘objective reasonableness’ standard.” Graham
v. Connor, 490 U.S. 386, 388 (1989). Consequently, we evaluate
the facts “from the perspective of a reasonable officer on the
scene, and the use of hindsight must be avoided. Additionally,
the reasonableness of the officer’s actions . . . [must be]
determined based on the information possessed by the officer at
the moment that force is employed.” Waterman v. Batton, 393
F.3d 471, 477 (4th Cir. 2005) (citations omitted).
11
The objective reasonableness standard “requires a
careful balancing of the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Smith v. Ray,
781 F.3d 95, 101 (4th Cir. 2015) (quoting Graham, 490 U.S. at
396). To perform this balancing, we look to “the facts and
circumstances of each particular case,” with an eye toward three
factors: “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
In this case, Thompson deployed deadly force, which
requires that a particular governmental interest be at stake to
satisfy our balancing test. Because “[t]he intrusiveness
of . . . deadly force is unmatched,” it may only be used when an
“officer has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the
officer or others.” Tennessee v. Garner, 471 U.S. 1, 3, 9
(1985).
Our task, then, is to determine whether the facts and
circumstances found by the district court establish this
requisite probable cause. We hold that they do not.
The first and third Graham factors plainly favor
Appellee here. Neither provides a basis on which a reasonable
12
officer could conclude that Carter posed a threat of death or
serious injury to others.
As to the first factor, Carter had committed no crime
known to Thompson. His uncle called 911 because Carter was
suicidal and needed help. “When the subject of a seizure ‘ha[s]
not committed any crime, this factor weighs heavily in [the
subject’s] favor.” Estate of Armstrong ex rel. Armstrong v.
Vill. of Pinehurst, 810 F.3d 892, 899 (4th Cir. 2015) (quoting
Bailey v. Kennedy, 349 F.3d 731, 743-44 (4th Cir. 2003)).
As to the third factor, nothing in the district
court’s view of the facts supports a conclusion that Carter
intended to flee, nor was he actively resisting arrest. Viewed
in the light most favorable to Appellee, the evidence would show
that Carter slowly staggered down the steps in the general
direction of the Deputy after his uncle said to follow him
because Carter’s ride to Holly Hill had arrived. Such behavior
imparts no indication that would create a governmental interest
in inflicting deadly force. See Smith, 781 F.3d at 102-03
(Where an arrestee “did not strike at [the arresting officer],
attempt to flee the scene, or even turn her back to him,” the
third Graham factor did not authorize use of force.).
Here, the parties’ arguments center on whether the
second factor nonetheless favored the use of force, namely,
whether Carter’s actions are reasonably believed to have
13
constituted an immediate threat to Thompson or another person.
Viewing the record in the light most favorable to Appellee,
Carter possessed a paring knife, refused to comply with repeated
commands to drop the weapon, and continued down the stairs (and
thus closer to Thompson) rather than stopping. As for the
knife, we have held “the mere possession of a [deadly weapon] by
a suspect is not enough to permit the use of deadly force. . . .
Instead, deadly force may only be used by a police officer when,
based on a reasonable assessment, the officer or another person
is threatened with the weapon.” Cooper, 735 F.3d at 159
(emphasis in original). 5 And while Carter stubbornly maintained
possession of his knife, the assumed circumstances Thompson
confronted do not establish that Carter threatened anyone with
it.
For the present inquiry, the district court
appropriately assumed that Carter never raised his knife,
changed hands, or acted aggressively with it. We have held that
holding a weapon in a non-threatening position while “ma[king]
no sudden moves[] . . . fail[s] to support the proposition that
a reasonable officer would have had probable cause to feel
5
See also Pena v. Porter, 316 F. App’x 303, 312 (4th Cir.
2009) (“Absent any additional factors which would give the
Officers probable cause to fear for their safety or for the
safety of others, the mere presence of a weapon is not
sufficient to justify the use of deadly force.”).
14
threatened.” Cooper, 735 F.3d at 159. Thompson, moreover, had
been informed that Carter was suicidal, which could have
explained the reason for holding the knife. See id. at 160
(concluding that where police officers failed to identify
themselves and had created a “nocturnal disturbance” on the
plaintiff’s property, the plaintiff’s “rationale for bearing a
firearm while investigating [that] disturbance . . . ‘should
have been apparent to [the Officers] at the time of the
shooting.’” (quoting Pena v. Porter, 316 F. App’x 303, 312 (4th
Cir. 2009))).
The district court also assumed that Carter was
“slowly stagger[ing] . . . while holding on to the wall to
support himself.” Conner, 2015 WL 1125065, at *2. Evidence
that an individual can barely walk contravenes a police
officer’s argument that deadly force was necessitated by the
risk that the individual might charge and attack the officer.
See Clem v. Corbeau, 284 F.3d 543, 552 (4th Cir. 2002).
Viewing the district court’s assumed facts in
totality, we fail to see how they would give a reasonable
officer “probable cause to believe that [Carter] pose[d] a
significant threat of death or serious physical injury to the
officer or others.” Garner, 471 U.S. at 3. Those assumed facts
depict a non-aggressive, partially incapacitated, non-criminal
holding a knife in his own residence while providing no
15
indication that the knife was about to be used to harm someone
else. 6 Using deadly force against such an individual is
unconstitutional, and the district court, therefore, did not err
by denying Appellants’ motion for summary judgment on the
question whether Thompson’s actions violated Carter’s
constitutional rights.
2.
We turn, then, to the second inquiry in our qualified
immunity analysis: Was this constitutional violation clearly
established when it occurred?
Even when state officials violate the Constitution,
“[t]he doctrine of qualified immunity shields [the] officials
from civil liability so long as their conduct does not
violate clearly established statutory or constitutional
rights.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per
curiam) (internal quotation marks omitted). A right is
sufficiently clearly established to expose an official to
6
If this case proceeds to trial, the trier of fact would
not be bound to accept this set of assumed facts as we are.
Accordingly, our conclusion that Thompson’s use of force was
objectively unreasonable and our underlying reasoning -- both of
which are expressly based on a set of facts that the ultimate
trier of fact need not accept -- likewise do not bind that trier
of fact on remand. See, e.g., Clem, 284 F.3d at 552 (“Of
course, [the plaintiff] ultimately may not be able to prove
these facts, but, if he can, . . . [the defendant officer]
violated [the plaintiff]’s Fourth Amendment right to be free
from excessive police force.”)
16
liability if “every reasonable official would have understood
that what he is doing violates that right.” Id. (quoting
Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). “This is not
to say that an official action is protected by qualified
immunity unless the very action in question has previously been
held unlawful; but it is to say that in the light of pre-
existing law the unlawfulness must be apparent.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987) (citation omitted). We
evaluate whether the unlawfulness of a particular violation was
apparent “in light of the specific context of the case, not as a
broad general proposition.” Mullenix, 136 S. Ct. at 308
(quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per
curiam)).
In this case, Thompson confronted a suicidal and
obviously impaired but non-aggressive man who refused to drop a
knife held in a non-threatening manner while “slowly
stagger[ing]” down stairs. Conner, 2015 WL 1125065, at *2. The
front door remained open behind Thompson at all times. We think
the unconstitutionality of using deadly force in that specific
context was apparent.
Three decades ago, the Supreme Court set forth the
requirement that police officers limit deadly force to
situations where “probable cause to believe that the suspect
poses a significant threat of death or serious physical injury
17
to the officer or others” exists. Garner, 471 U.S. at 3. And
we have since held that officers who commit a violation
“manifestly included within” the “core constitutional principle”
announced in Garner are not entitled to qualified immunity.
Clem, 284 F.3d at 553 (quoting Buonocore v. Harris, 65 F.3d 347,
357 (4th Cir. 1995)).
Thompson’s violation fits within that principle. No
reasonable officer could think that a suicidal, non-criminal
individual holding a small paring knife and otherwise acting in
a nonthreatening manner who had difficulty standing and walking
presents justification to deviate from Garner’s bright-line
proscription. Garner, therefore, constitutes sufficient notice
to bar qualified immunity in this case. See Weinmann v.
McClone, 787 F.3d 444, 451 (7th Cir. 2015) (holding that Garner
(and Graham) provided adequate clearly established law to guide
an officer’s conduct when he encountered an armed suicidal
person “who is neither resisting arrest nor threatening anyone
save himself” even where no circuit precedent was more directly
analogous); Mercado v. City of Orlando, 407 F.3d 1152, 1160
(11th Cir. 2005) (Where officers found a suicidal individual
“crying on the floor of his kitchen with a loose cord around his
neck and a kitchen knife placed up to, but not poking into, his
chest,” the decision to use deadly force was “‘so far beyond the
hazy border between excessive and acceptable force that the
18
official had to know he was violating the Constitution [based on
Garner and other broadly stated excessive force articulations]
even without caselaw on point.’” (alterations omitted) (quoting
Willingham v. Loughnan, 321 F.3d 1299, 1303 (11th Cir. 2003)).
There is also existing Fourth Circuit precedent
concerning the use of force against an armed, but non-
threatening individual. Most specifically, we held that
officers who acted in 2007 were not entitled to qualified
immunity after deploying deadly force against an individual who
“stood at the threshold of his home, holding [a] shotgun in one
hand,” but otherwise doing nothing “to support the proposition
that a reasonable officer would have had probable cause to feel
threatened.” Cooper, 735 F.3d at 159; see id. at 160.
Accepting Appellee’s version of events, Thompson, acting in
2012, had no less notice that deadly force was clearly unlawful
when he fired as Carter descended two steps inside his home,
refused to drop a paring knife, but otherwise did nothing to
support the conclusion that he posed an immediate threat to
anyone’s safety.
As the district court recognized, then, summary
judgment in Thompson’s favor is precluded at both steps of the
qualified immunity analysis. The facts, as we must view them
for purposes of summary judgment, would be sufficient to support
a trier of fact’s finding that shooting Carter amounted to
19
excessive force. Moreover, a reasonable officer would know that
shooting Carter under the circumstances presented by Appellee’s
version of the facts would be unlawful.
C.
Appellants challenge the district court’s summary
judgment decision on two other fronts. They assert the decision
erroneously withheld summary judgment on the remaining § 1983
claims and further argue North Carolina’s doctrine of public
officers’ immunity precludes the pending assault and battery
claim. However, our conclusion that Thompson is not entitled to
qualified immunity at this stage of the litigation forecloses
both objections.
1.
Appellants argue they are entitled to summary judgment
on the constitutional claims lodged against the Wake County
Sheriff -- an inadequate training and supervision claim and a
claim brought pursuant to Monell v. New York City Department of
Social Services, 436 U.S. 658 (1978). 7 Having declined to award
qualified immunity to Thompson, however, we lack jurisdiction to
consider these claims.
7For simplicity’s sake, we will refer to these two claims
collectively as “supervisory claims” throughout the remainder of
this opinion. The jurisdictional analysis that follows is the
same for each claim.
20
Generally, “[a]n erroneous ruling on [supervisory]
liability may be reviewed effectively on appeal from final
judgment.” Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 43
(1995). Accordingly, the denial of Appellants’ motion for
summary judgment with respect to the claims against the Wake
County Sheriff “[i]s not an appealable collateral order.” Id.;
see also Evans v. Chalmers, 703 F.3d 636, 654 n.11 (4th Cir.
2012) (“We recognize that because cities do not possess
qualified immunity from § 1983 claims, we do not have appellate
jurisdiction under the collateral order doctrine to hear the
City’s appeal of the Monell claims.” (citation omitted)).
Appellants are nevertheless correct that we have
pendent jurisdiction to review such a denial in certain
interlocutory appeals. Where “our determinations of . . .
individual officers’ qualified immunities fully resolve the
issue of . . . [supervisory] liability, we [may] exercise
pendent appellate jurisdiction over [such] claims.” Evans, 703
F.3d at 654 n.11; see also Altman v. City of High Point, 330
F.3d 194, 207 n.10 (4th Cir. 2003). “[F]ull[] resol[ution]” is
achieved when a qualified immunity analysis results in the
conclusion that no individual officer committed a constitutional
violation. Evans, 703 F.3d at 654. Since supervisory “claims
require a predicate constitutional violation to proceed,”
21
foreclosure of the individual predicate violation necessitates
dismissal of the supervisory claims. Id.
But the full resolution requirement is not met here,
where we concluded that Appellee has articulated a version of
events that would allow the trier of fact to conclude that
Thompson used excessive force. When a predicate constitutional
violation in fact occurs, affirmatively establishing individual
and supervisory liability requires distinct showings. See City
of Canton v. Harris, 489 U.S. 378, 385 (1989); see also Shaw v.
Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (listing the elements
necessary to establish a constitutional violation pursuant to a
supervisory liability theory). And there is no sense in which
confirming the existence of a claim’s prerequisite can be
understood as “fully resolv[ing] the claim[].” Altman, 330 F.3d
at 207 n.10. “[I]n the face of a constitutional violation,”
therefore, “we lack subject-matter jurisdiction to entertain an
appeal of [supervisory] claim[s]” at an interlocutory stage.
Martin v. City of Broadview Heights, 712 F.3d 951, 963 (6th Cir.
2013).
Appellants’ request that we reverse the district
court’s judgment with respect to the pending supervisory claims
is, accordingly, dismissed for lack of jurisdiction.
22
2.
We do have jurisdiction to consider Appellants’ final
challenge -- whether the district court erred by denying their
motion for summary judgment with respect to the state law
assault and battery claim. Dismissal of that claim is required
by North Carolina’s doctrine of public officers’ immunity,
Appellants argue, because the summary judgment record is devoid
of evidence that Thompson acted maliciously, corruptly, or
outside the scope of his authority. “[W]e have jurisdiction
over [a] police officer[’s] appeal of the district court’s
denial of public officers’ immunity” in an interlocutory appeal
“[b]ecause, under North Carolina law, public officers’ immunity
is an immunity from suit.” Bailey v. Kennedy, 349 F.3d 731,
738-39 (4th Cir. 2003) (applying North Carolina law).
But “public officers’ immunity . . . is unavailable to
officers who violate clearly established rights.” Bailey, 349
F.3d at 742. So in cases where “a jury could find that no
reasonable officer could have believed his conduct to be lawful
in light of the circumstances known to him at the time[,] [a]
parallel state law claim of assault and battery is subsumed
within the federal excessive force claim and so goes forward as
well.” Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994)
(applying North Carolina law) (citation omitted).
23
That holding controls this case. Our denial of
summary judgment on Thompson’s qualified immunity defense
necessarily entails our judgment that, on the required view of
the facts, no reasonable officer could have believed Thompson’s
conduct was lawful. The state law assault and battery claim
based on the same conduct is thus “subsumed within the federal
excessive force claim,” Rowland, 41 F.3d at 174, and suffers its
same fate. We affirm the district court’s conclusion that
summary judgment is not appropriate.
IV.
For the foregoing reasons, the judgment of the
district court is affirmed with respect to the excessive force
and assault and battery claims. Appellants’ appeal of the
district court’s determination of the supervisory claims is
dismissed for want of jurisdiction.
AFFIRMED IN PART
AND DISMISSED IN PART
24