UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6316
HERMAN HARRIS,
Plaintiff – Appellant,
v.
ZACHERY PITTMAN, Fayetteville Police Department,
Defendant – Appellee,
and
MOOSE BUTLER,
Defendant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:13-ct-03087-BO)
Submitted: July 14, 2016 Decided: September 1, 2016
Before FLOYD and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Herman Harris, Appellant Pro Se. Lisa Yvette Harper, Assistant
Attorney General, Fayetteville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Herman Harris appeals the district court’s order granting
Officer Zachery Pittman’s summary judgment motion on Harris’
excessive force claim, brought pursuant to 42 U.S.C. § 1983
(2012). The district court determined that no genuine issues of
material fact existed as to whether Pittman was entitled to
qualified immunity when he effectuated Harris’ arrest.
The relevant inquiry on summary judgment is “whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). In determining
whether an officer is entitled to summary judgment on the basis
of qualified immunity, a district court is required to ask
“whether the facts, viewed in the light most favorable to the
plaintiff, show that the officer’s conduct violated a federal
right.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015).
The parties offered different versions of the salient facts
surrounding Pittman’s arrest. In particular, Harris’ and
Pittman’s versions of events critically differ over what
occurred when Pittman fired the final shots at Harris (e.g,
whether Harris was standing or lying down). Thus, the question
for the district court was whether, construing the facts in the
light most favorable to Harris (i.e., Harris was lying on the
2
ground when Pittman, still on top of him, fired the final
shots), a reasonable officer would have probable cause to
believe that Harris posed a significant threat of death or
serious physical injury to the officer or others. See
Tennessee v. Garner, 471 U.S. 1, 3, 11-12 (1985).
Because it does not appear that the district court
construed the facts in the light most favorable to Harris, we
vacate the district court’s judgment and remand to the district
court for further proceedings. We leave it to the district
court to determine, in the first instance, if construing the
salient facts in the light most favorable to Harris, Pittman is
entitled to qualified immunity. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
VACATED AND REMANDED
3