Melissa Knibbs v. Anthony Momphard, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 20-2243

MELISSA B. KNIBBS, as Personal Representative of the Estate of Michael Scott Knibbs,

Plaintiff – Appellant,

v.

ANTHONY MOMPHARD, JR., Individually and in his official capacity as a Deputy
Sheriff of the Macon County Sheriff's Department; ROBERT HOLLAND, in his Official
capacity as the Sheriff of Macon County; WESTERN SURETY COMPANY, a South
Dakota Corporation; THE OHIO CASUALTY INSURANCE COMPANY, a New
Hampshire Corporation,

Defendants – Appellees.

Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Max O. Cogburn, Jr., District Judge. (1:19-cv-00130-MOC-WCM)

Argued: October 28, 2021 Decided: March 30, 2022
Amended: April 19, 2022

Before NIEMEYER, AGEE, and RUSHING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Agee wrote
the opinion, in which Judge Rushing joined. Judge Niemeyer wrote a dissenting opinion.

ARGUED: Mark R. Melrose, MELROSE LAW, PLLC, Waynesville, North Carolina, for
Appellant. Steven Andrew Bader, CRANFILL SUMNER LLP, Raleigh, North Carolina,
for Appellees. ON BRIEF: Adam R. Melrose, MELROSE LAW, PLLC, Waynesville,
North Carolina; Joshua D. Nielsen, NIELSEN LAW, PLLC, Waynesville, North Carolina,
for Appellant. Patrick H. Flanagan, Stephanie H. Webster, CRANFILL SUMNER LLP,
Charlotte, North Carolina, for Appellees.

2
AGEE, Circuit Judge:

In the course of responding to a dispute between neighbors just after midnight on

April 30, 2018, Deputy Sheriff Anthony Momphard, Jr., of the Macon County, North

Carolina, Sheriff’s Office fatally shot Michael Knibbs while Knibbs was standing inside

his home holding a loaded shotgun. Knibbs’ widow, Melissa Knibbs, as personal

representative of his Estate (“the Estate”), subsequently brought this action, asserting that

Deputy Momphard used excessive force in violation of Knibbs’ Fourth Amendment rights,

along with various related state law claims. The district court held that Deputy Momphard

was entitled to qualified immunity from the Estate’s 42 U.S.C. § 1983 claim and that the

Estate’s state law claims against Deputy Momphard, Macon County Sheriff Robert

Holland, and the insurance companies that issued the Sheriff’s Office a liability insurance

policy and a surety bond (collectively, “Defendants”) necessarily failed. For the reasons

set forth below, we affirm the district court’s judgment in part, vacate it in part, and remand

for further proceedings.

I.

Because this case was decided at the summary judgment stage, we review the facts

in the light most favorable to the Estate as the non-moving party. Walker v. Donahoe, 3

F.4th 676, 682 (4th Cir. 2021). That means that “we may not credit [Defendants’] evidence,

weigh the evidence, or resolve factual disputes in . . . [D]efendants’ favor.” Hensley ex rel.

North Carolina v. Price, 876 F.3d 573, 579 (4th Cir. 2017).

3
 A.

1.

Mr. Knibbs lived in a standalone home on Pheasant Drive in Macon County, North

Carolina, with his wife, their minor son, their adult daughter, and her infant son. Pheasant

Drive is a one-lane, private, dead-end, dirt road in a rural area without streetlights.

Shelton Freeman and his two roommates rented a house at the end of Pheasant Drive,

which they could only access by driving past Knibbs’ home. On the evening of Sunday,

April 29, 2018, Freeman hosted a bonfire for several guests. One guest, Tanner, mistakenly

pulled into Knibbs’ driveway thinking it was Freeman’s, and asked Knibbs for directions.

A verbal altercation ensued in which Knibbs asked Tanner if he was going to his neighbor’s

house “to buy drugs” or “buy pills.” J.A. 819. Knibbs then kicked Tanner’s bumper “and

told him to leave, get out of the driveway.” Id. Knibbs had formed the belief that Freeman

and his roommates posed a danger to his family in part because he suspected that they dealt

drugs out of their home.

Sometime after sunset, one of Freeman’s guests left the bonfire and began driving

on Pheasant Drive towards Knibbs’ home when she came upon several wooden boards laid

in the middle of the road that appeared to have nails sticking up. She returned to Freeman’s

house to report what she saw. Based on his prior interactions with Knibbs, 1 Freeman called

911 at 11:41 p.m. to request police assistance.

1
About one month before the incident in question, Knibbs approached Freeman
regarding Freeman’s dog’s constant barking and allegedly told him to “shut your dog up
or I’m going to shut your dog up.” J.A. 811. Knibbs later came to Freeman’s house to
(Continued)
4
 Deputy Momphard was dispatched to the scene at 11:47 p.m. and arrived at 11:55

p.m. in his marked patrol vehicle. He wore his full standard issue uniform, which included

his tactical vest, belt, handcuffs, firearm, and “everything [else] that a law enforcement

officer has.” J.A. 415. He parked his vehicle on Pheasant Drive––not in Knibbs’

driveway—because of the wooden boards, which had “nails that could catch [his] tire and

pop it.” J.A. 231. Deputy Momphard did not activate his blue emergency light equipment. 2

Seeing a light on in Knibbs’ home, and thinking that the 911 call originated from

that house, Deputy Momphard approached it. He recalled that “some form of light” was on

in what he believed was the living room area, but there is no evidence that any of the

house’s exterior lights were on. J.A. 239. Deputy Momphard went to the home’s northern-

most entrance and announced “sheriff’s office . . . two or three times.” J.A. 238. No one

responded, so he tried knocking on a door on the eastern side of the home and again twice

announced, “sheriff’s office.” J.A. 239. He heard a dog bark inside, but no one answered

the door.

Deputy Momphard then saw lights coming from Freeman’s home, so he went there

and made contact with Freeman, who explained the reason he called. While talking with

apologize. Freeman noted that Knibbs “was very obviously intoxicated.” J.A. 812. After
Knibbs apologized, he “persisted on trying to come in and look at the place,” J.A. 813, but
Freeman and his roommates declined to let him inside.
2
The record does not reflect that Deputy Momphard was wearing a bodycam that
night or that his patrol vehicle had any dashcam footage.

5
the officer, Freeman saw the lights inside Knibbs’ home go off. He pointed this out to

Deputy Momphard to underscore that Knibbs and his family were home.

Deputy Momphard then decided to return to Knibbs’ home to investigate further.

He admitted that initially he “did not know one way or the other” whether a crime had been

committed. J.A. 233. But in his view, “[i]f Mr. Knibbs said, ‘I threw those boards out there

to pop tires,’ that would be a criminal matter,” J.A. 234, specifically attempted willful and

wanton injury to personal property, a misdemeanor under North Carolina law, see N.C.

Gen. Stat. § 14-160 (crime of willful damage to personal property); id. § 14–2.5 (crime of

attempt).

2.

As Deputy Momphard approached the southernmost entrance to Knibbs’ home,

Freeman followed behind and began removing boards from Pheasant Drive approximately

20 to 30 feet away from Deputy Momphard. Both men observed that there were no lights

on inside the house, and there were no lights illuminating the outside of the house. To that

end, Mrs. Knibbs explained that prior to her and her husband retiring to their bedroom, as

part of her nightly routine she turned out all of the lights in the home. She later indicated

that there was a “little lamp” in their dining room that “gave off a little light,” so “[y]ou

could see a little bit.” J.A. 526. The record is not clear, however, whether that light was on

during the events in question. Deputy Momphard repeatedly testified at his deposition that

there were no lights on inside the house.

Deputy Momphard came upon a small rectangular porch that led to what Freeman

told him was the most trafficked entrance and exit to Knibbs’ home, the southern entrance.

6
The porch was approximately 11’ long and 13’ wide. As Deputy Momphard stood at the

bottom of the porch’s four stairs, a doorway was directly in front of him. Both the door and

the exterior storm door were closed. There were two large (51” x 31”) windows

immediately to the left of the doorway. To Deputy Momphard’s right––and running all

along the eastern portion of the porch––was one of the exterior walls of the home. On the

other side of that wall were Mr. and Mrs. Knibbs’ bedroom and a laundry room. According

to Deputy Momphard, the following events occurred over the span of about one minute.

Deputy Momphard stood on the first step of the porch and announced, “sheriff’s

office.” J.A. 266–67. He then immediately heard someone “walk[] around inside of the

room next to [him].” J.A. 280. Mrs. Knibbs later confirmed that she and her husband were

awake in their bedroom and heard Deputy Momphard’s announcement. The blinds on their

bedroom window, which overlooked the porch, were closed, so they could not see who was

outside. Mr. Knibbs reacted by grabbing the all-black, pump-action shotgun he kept by his

bed. He told his wife before leaving their bedroom, “[a]nybody can say they are a sheriff.”

J.A. 518. He then walked towards the porch door.

Meanwhile, outside, Deputy Momphard could hear Knibbs’ footsteps as he

approached the front door, but then he heard them “stop[] briefly,” J.A. 290, so he paused

on “the second step or third step,” J.A. 281. At this point, Deputy Momphard heard “a rack

of a shotgun,” id., which was also loud enough for Mrs. Knibbs to hear in her bedroom.

While Deputy Momphard recognized that Knibbs “ha[d] a right to come to the door

with [a] firearm,” he believed that the act of racking it meant that he was “going to use the

shotgun on me.” J.A. 308–09. In an interview with an investigator from the North Carolina

7
State Bureau of Investigation (“NCSBI”) about thirty-six hours after the incident, Deputy

Momphard stated that he recalled thinking that Knibbs was “going to shoot me through the

door.” J.A. 1342 at 45:17–22.

Instead of stepping back into the yard, Deputy Momphard proceeded onto the porch

to seek cover in its northeast corner, where there was a 40” gap between the door and the

porch’s eastern wall. From there, he yelled out, “Drop it.” J.A. 319. There was no audible

response.

Deputy Momphard testified that he thought at the time that no matter what move he

made next, “I was going to get shot either way. . . . I’m stuck on the porch, which is—it’s

a common understanding that the porch is a bad place for law enforcement. Law

enforcement get shot on the porch.” J.A. 330–31. Or, as Deputy Momphard more

specifically phrased it during his NCSBI interview: “I felt like I was being hunted.” J.A.

1342 at 48:55–49:02; see also J.A. 303 (Deputy Momphard testifying at his deposition that

he believed he was being “hunted” once Knibbs racked his shotgun).

Standing in cover in the porch’s northeast corner, Deputy Momphard observed three

“fatal frontals,” or places from which Knibbs could shoot him: the door, and the two

windows to the left of the door. J.A. 331, 349. His plan at this point was to “get off the

porch” and “seek cover.” J.A. 349–50. He “hop[ed] not to” engage Knibbs, but “was

willing if [he] needed to.” J.A. 352–53.

Deputy Momphard saw two ways of getting off the porch. First, he could retreat via

the stairs, but he thought this was dangerous because “[a]ll [Knibbs] had to do was open

up the door [and] shoot me.” J.A. 349. Second, he could cross the windows and move

8
towards the western portion of the porch. He believed this “was safer than going [towards

the stairs] because [the stairs were] a straight shot, it doesn’t take a marksman to be able to

shoot somebody in the back running in a straight line.” Id. He did not know, though, that

there was no exit off the porch on its western side. There were no stairs; there was only a

railing enclosing the porch.

Deputy Momphard decided to move across the porch past the windows to the

western edge of the porch. He unholstered his firearm with his right hand and took out his

flashlight with his left. Assuming a tactical stance, he began moving from right to left

across the door to the windows. Either just before or right as he started to move, Deputy

Momphard yelled “[d]rop it” a second time. Again, there was no response. At some point,

Deputy Momphard turned the flashlight on. “Automatically” or “[d]irectly after” this

second and final order, Mrs. Knibbs heard gunfire. J.A. 546. Deputy Momphard had

crossed the threshold of the first window and saw Mr. Knibbs holding his shotgun. Deputy

Momphard fired six shots, two of which fatally wounded Knibbs.

A subsequent autopsy revealed that one of the bullets entered the outside of Knibbs’

upper right arm, traveling from right to left through his body with a slight downwards angle.

The bullet went through his humerus and armpit and into his chest cavity, where it damaged

his right lung and aortic artery, causing internal bleeding. The second entered just below

the middle of his right clavicle (collarbone), with a similar right-to-left trajectory at a

slightly downwards angle. This bullet injured both of Knibbs’ lungs. The medical examiner

also noted the presence of “stippling” on Knibbs’ upper chest, neck, and his right forearm.

“Stippling” refers to, inter alia, a pattern of very small red or brown dots that appear on

9
the skin “if a bullet is fired through an intermediate target, most commonly glass, which

projects multiple tiny fragments of that target toward the area of the entrance wound.” J.A.

1108. The medical examiner observed that the pattern of stippling on Knibbs’ forearm was

consistent with the pattern on his chest.

The Macon County Sheriff’s Office did not administratively discipline Deputy

Momphard for his use of force. The local prosecutor’s office similarly declined to bring

any criminal charges.

3.

Deputy Momphard explained at his deposition that he shot Knibbs because his

flashlight revealed that Knibbs was holding his shotgun right-handed in a firing position

with the barrel aimed “toward [his] face or [his] upper chest area.” J.A. 321, 369–70. The

Estate contests these claims. 3

As an initial matter, the Estate challenges the need for Deputy Momphard to have

confronted Knibbs at all. It has proffered the report of Jon Blum, a law enforcement training

expert, in which he opined that Deputy Momphard’s decision to seek cover on the porch

after hearing Knibbs rack his shotgun was “reckless and contradicted his training.” J.A.

1081. Blum also averred that, based on various statements Deputy Momphard made in his

deposition, he went into an “emotional panic” that “led to a series of reckless decisions”

3
There was no evidence Deputy Momphard could see anything inside the house
before he illuminated his flashlight. He also claimed that when he did see Knibbs, the two
were standing so close to each other that they could touch. Hal Sherman, the Estate’s crime
scene reconstruction expert, opined to the contrary that “it is more likely than not[] [that]
the distance between Mr.’s [sic] Knibbs and Momphard exceeded 6 [feet].” J.A. 1055.

10
causing Knibbs’ death. J.A. 1085. Indeed, during his NCSBI interview, Deputy Momphard

explained that after he heard Knibbs rack his shotgun, he believed that Knibbs would kill

everyone on scene: “He gave me no other option. He was going to murder me. He was

gonna murder me, and then he was gonna go over [to where Freeman was standing] and

kill [Freeman], over a freakin’ right of way.” J.A. 1342 at 49:51–50:12. Deputy Momphard

also remarked how, in his view, Knibbs shut the light off inside his house before he

approached “on purpose,” and that Knibbs “knew exactly what he was fucking doing.” J.A.

1342 at 51:45–52:30. These statements, Blum opined, demonstrate the “emotional panic”

that led to Knibbs’ death. J.A. 1085.

The parties also dispute the positioning of Knibbs’ shotgun at the time Deputy

Momphard shot him. There is no evidence that Knibbs made any furtive movements while

holding his gun. The pertinent factual dispute is whether Knibbs in fact pointed the weapon

at Deputy Momphard.

The Estate offered the report of forensic pathology expert Dr. Jonathan Arden, M.D.,

who proffered that it is more likely that Knibbs “was holding his shotgun left-handed with

his right hand and arm across his chest in a safe stance with the barrel pointed upward, and

the muzzle of the shotgun was not aimed at [Deputy] Momphard.” J.A. 1109. Dr. Arden

based his conclusion on the autopsy report and photographs, which showed evidence of

stippling “along the radial aspect of the [right] forearm,” that is, “the edge of the forearm

aligned with the thumb.” J.A. 1108. Dr. Arden asserted that this was significant for two

reasons.

11
 First, he explained that the presence of stippling on the right side of Knibbs’ body,

coupled with the entrance wounds there, made it more likely than not that Knibbs was

holding his shotgun left-handed. Disputing Deputy Momphard’s claim that Knibbs was

holding his shotgun right-handed, Dr. Arden opined that the presence of entry wounds on

the right side of Knibbs’ body is “the exact opposite of what would have obtained had he

been in a right-handed shooting stance.” J.A. 1108. In addition to Dr. Arden’s opinion, the

Estate proffered the affidavits of two of Knibbs’ hunting companions, both of whom

averred that Knibbs always held and shot his shotgun left-handed.

Second, Dr. Arden opined that the pattern of stippling present on Knibbs’ forearm

demonstrated he was not aiming his shotgun at Deputy Momphard. Dr. Arden explained

that if Knibbs had been aiming his shotgun at Deputy Momphard, his right hand would

have been extended forward supporting the barrel of the shotgun, which would have

exposed the back of his forearm (the “dorsal aspect”) to the window. Id. If that were the

case, Dr. Arden elaborated, one would expect there to be stippling on the back of Knibbs’

forearm, not on the edge of the forearm aligned with the thumb. Indeed, the autopsy report

reflected that, when placed across his chest, the pattern of stippling on the inside of Knibbs’

right forearm (the “radial aspect”) was consistent with that on his chest. Given the totality

of this evidence, Dr. Arden concluded that it was more likely than not that Knibbs’ right

arm was across his chest while holding the shotgun pointed up at the ceiling. “In this

positioning, his right upper arm could easily be slightly extended at the shoulder, away

from the torso, as is necessary to fulfill the known wound path of the bullet that entered his

right arm,” and would “position the radial aspect of his forearm (but not the dorsal aspect)”

12
to be “exposed to the glass particles.” J.A. 1109. In his opinion, this positioning of the

shotgun accounts for the stippling on both Knibbs’ forearm and chest.

Some of Deputy Momphard’s own statements during his NCSBI interview could be

taken as consistent with this theory. While he initially claimed that the shotgun was pointed

at him, at another point during his interview Deputy Momphard stated that he did not know

if the shotgun was “shouldered” or “under [Knibbs’] armpit”; he could only see that Knibbs

“was standing canted to me in a position that somebody usually shoots when they’re not

used to combat-style shooting or the way that we shoot––like somebody that’s hunting.”

J.A. 1342 at 48:37–49:00.

Deputy Momphard counters this evidence by pointing to crime-scene reconstruction

expert Rod Englert, who opined that the forensic evidence is more consistent with Knibbs

having pointed his shotgun at Deputy Momphard. He posited that the stippling that the

medical examiner and Dr. Arden claimed to have observed on Knibbs’ right arm was not

stippling at all; it was blood spatter. In his opinion, that pattern of blood spatter matched

the pattern on Knibbs’ gun, which was “consistent with [Knibbs’] shotgun being in a raised

horizontal position, below the upper chest wound, allowing the back-spatter to spray the

right side of the shotgun” and the edge of his right forearm aligned with his thumb. J.A.

1256–57.

B.

The Estate brought suit in the Western District of North Carolina against Deputy

Momphard, Sheriff Holland, the Western Surety Company (“Western Surety”), and the

Ohio Casualty Insurance Company (“Ohio Casualty”). The Estate’s Amended Complaint

13
raised six claims under federal and North Carolina law: (1) a § 1983 claim against Deputy

Momphard in his individual capacity for violations of Knibbs’ Fourth and Fourteenth

Amendment rights; (2) a wrongful death claim under North Carolina law against Sheriff

Holland in his official capacity; (3) a wrongful death claim under North Carolina law

against Deputy Momphard in his individual and official capacities; (4) a claim for

deprivation of rights under the North Carolina Constitution against Sheriff Holland in his

official capacity; (5) a claim for deprivation of rights under the North Carolina Constitution

against Deputy Momphard (individual or official capacity unspecified); and (6) a claim for

punitive damages against Deputy Momphard in his individual capacity. 4

Defendants moved for summary judgment on all claims, which the district court

granted. It first found that Deputy Momphard was entitled to qualified immunity from the

§ 1983 claim because he had probable cause to believe that Knibbs posed an immediate

threat of serious physical harm, and therefore acted reasonably in shooting him. The court

initially recognized the parties’ disputes regarding the distance between Knibbs and Deputy

Momphard at the time of the shooting and whether Knibbs was actually aiming his shotgun

at Deputy Momphard. But the court found these disputes immaterial:

[E]ven assuming that Deputy Momphard misperceived that Knibbs’ gun was
pointed directly at him, and assuming that, in fact, the gun was pointed more
toward the ceiling, Deputy Momphard did not have to detect that Knibbs was

4
The Estate also brought a § 1983 claim against Sheriff Holland, and argued as a
part of its § 1983 claim against Deputy Momphard that Deputy Momphard violated Knibbs’
Second Amendment rights to bear arms in his own home. The district court granted
summary judgment in favor of Deputy Momphard and Sheriff Holland on these claims,
and the Estate does not challenge either ruling on appeal.

14
 actually aiming and pulling the trigger before Deputy Momphard used deadly
force to protect his own life.

J.A. 82. The court also found as “undisputed fact” that “Deputy Momphard was in uniform

and readily recognizable as a law enforcement officer.” J.A. 83. Based on these facts, the

court concluded that “[a]ny objective officer . . . would have [had] sound reason to believe

that Knibbs posed a threat of death or serious physical harm to him.” J.A. 84.

Addressing the Estate’s state law claims, the court first found that Deputy

Momphard was entitled to public official immunity from the wrongful death claim because

his use of force was reasonable. Next, to the extent that the Estate sued Deputy Momphard

and Sheriff Holland in their official capacities, the court determined that neither the Macon

County Sheriff’s Office’s insurance policy with Ohio Casualty nor its surety bond issued

by Western Surety operated as a waiver of governmental immunity. Finally, the court

rejected the Estate’s claims brought directly under the North Carolina Constitution. While

noting that such claims could proceed if the Estate had no other adequate remedy for a

violation of state constitutional rights, the court held that the Estate’s ability to bring a

wrongful death claim on the merits––even if ultimately barred by public official

immunity—was an adequate remedy.

The Estate timely noted an appeal. We have jurisdiction under 28 U.S.C. § 1291.

II.

We review de novo the district court’s grant of summary judgment. Henry v. Purnell,

652 F.3d 524, 531 (4th Cir. 2011) (en banc). That de novo review extends to the district

15
court’s determinations regarding qualified immunity, Adams v. Ferguson, 884 F.3d 219,

226 (4th Cir. 2018), “public official immunity[,] and other state law defenses,” Hensley,

876 F.3d at 579.

Summary judgment is only appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under

the governing law.’” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine”

if “a reasonable jury could return a verdict for the non-moving party.” Strothers v. City of

Laurel, 895 F.3d 317, 326 (4th Cir. 2018) (quoting Anderson, 477 U.S. at 248).

In our de novo review, we must “take the facts in the light most favorable to the

[Estate] to determine the applicable questions of law and ignore any contrary factual

claims,” even if “a jury could well believe the evidence forecast by the [Defendants].”

Hensley, 876 F.3d at 579. That entails drawing “all reasonable inferences” from those facts

in the Estate’s favor, Henry, 652 F.3d at 531, and refraining from weighing the evidence

or making credibility determinations, Hensley, 876 F.3d at 584 n.6.

Finally, to the extent this appeal requires us to decide questions of North Carolina

law, we must utilize case law from that State’s appellate courts to “predict” how the

Supreme Court of North Carolina would rule on that issue. Rhodes v. E.I. du Pont de

Nemours & Co., 636 F.3d 88, 96 (4th Cir. 2011). We “respond conservatively when asked

to discern governing principles of state law” and take care to avoid interpreting that law in

a manner that “has not been approved” by the Supreme Court of North Carolina. Id.

16
 III.

On appeal, the Estate argues that the district court failed to follow these well-

established summary judgment standards. In particular, the Estate contends that the district

court was required to accept its best evidence, from which a reasonable jury could find

facts that would not entitle Deputy Momphard to qualified immunity for § 1983 purposes.

For similar reasons, the Estate argues that public official immunity under North Carolina

law is not available to Deputy Momphard. Finally, the Estate asserts that the district court

erred in holding that Deputy Momphard and Sheriff Holland were entitled to governmental

immunity from its state law official capacity claims, and in finding that its state

constitutional claims were precluded. We address each contention in turn.

A.

We begin with the district court’s conclusion that Deputy Momphard was entitled

to qualified immunity from the Estate’s § 1983 claim against him in his individual capacity.

“Section 1983 ‘creates a cause of action against any person who, acting under color

of state law, abridges a right arising under the Constitution or laws of the United States.’”

Hensley, 876 F.3d at 580 (quoting Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013)).

When, as here, a law enforcement officer is sued in his individual capacity, he is “entitled

to invoke qualified immunity, which is . . . immunity from suit itself.” Cooper, 735 F.3d at

158. “Qualified immunity protects officers who commit constitutional violations but who,

in light of clearly established law, could reasonably believe that their actions were lawful.”

Henry, 652 F.3d at 531. In determining whether an officer is entitled to qualified immunity,

17
we look to: (1) “whether a constitutional violation occurred”; and (2) “whether the right

violated was clearly established,” though we need not decide the issues in that precise order.

Id.; see Pearson v. Callahan, 555 U.S. 223, 236 (2009).

1.

We start with the first prong of the qualified immunity analysis, whether there was

a violation of Knibbs’ constitutional rights.

“The use of deadly force is a seizure subject to . . . the Fourth Amendment.”

Tennessee v. Garner, 471 U.S. 1, 7 (1985). The Fourth Amendment permits the use of

deadly force when a police officer “has probable cause to believe that a suspect poses a

threat of serious physical harm, either to the officer or to others.” Cooper, 735 F.3d at 159

(cleaned up). “To determine whether such probable cause existed here, we ask whether the

Deput[y’s] use of deadly force was ‘objectively reasonable in light of the facts and

circumstances confronting [him], viewed in the light most favorable to the [Estate], without

regard to the Deput[y’s] underlying intent or motivation.’” Hensley, 876 F.3d at 582

(cleaned up). Three factors, established in the seminal Supreme Court case Graham v.

Connor, generally inform this analysis: (1) “the severity of the crime”; (2) “whether the

suspect posed an immediate threat to the safety of the officers or others”; and (3) “whether

he is actively resisting arrest or attempting to evade arrest.” 490 U.S. 386, 396 (1989). We

focus on “the totality of the circumstances” based on the “information available to the

Deput[y] ‘immediately prior to and at the very moment [he] fired the fatal shots.’” Hensley,

876 F.3d at 582 (citations omitted). Ultimately, “the question of whether the officer’s

actions were reasonable is a question of pure law.” Henry, 652 F.3d at 531.

18
 As the Estate views the record, Deputy Momphard approached Knibbs’ home in the

middle of the night to investigate what was, at most, an attempted crime against property.

There were no lights on inside or outside the house, and Deputy Momphard never activated

the blue emergency lights on his vehicle, so Knibbs could not see who was outside saying

“sheriff’s office.” To protect himself, his wife, his daughter, his son, and his infant

grandchild, Knibbs armed himself with a shotgun, loaded it, and stood at his front door

with the barrel safely pointed towards the ceiling. The person outside then shouted to drop

the gun, and seconds later shined a flashlight on him and shot him. Knibbs never made

any verbal threats or movements with the shotgun. He was shot simply because he stood

in his living room holding a shotgun. If a jury accepted those facts, the Estate then posits

that under our decisions in Cooper, Hensley, and Betton v. Belue, 942 F.3d 184 (4th Cir.

2019), Deputy Momphard’s use of force was unreasonable. The Estate contends that the

district court’s contrary analysis was tainted because it made factual findings and

inferences in the light most favorable to Deputy Momphard instead of the Estate as the

nonmovant.

Deputy Momphard responds that this case is straightforward: when he approached

Knibbs’ home the second time, he clearly announced his presence such that anyone inside

the home would have known a law enforcement officer was outside. Notwithstanding,

Knibbs decided to arm himself with a shotgun and racked it loud enough for Deputy

Momphard to hear outside. Racking that shotgun, Deputy Momphard argues, would have

caused any reasonable officer to fear for his life. He then made the split-second decision to

take cover on the porch, and determined that the safest way off was to cross the windows

19
overlooking it. To try and defuse the situation, Deputy Momphard again ordered Knibbs to

drop his firearm, but there was no indication that Knibbs complied. Instead, as Deputy

Momphard crossed the porch and shined his flashlight inside the house, he saw Knibbs

aiming the shotgun at him, compelling him to use deadly force. Echoing the district court,

he contends that even if Knibbs was not aiming the gun at him, that is immaterial because

his immunity “is dependent on whether [he] acted reasonably based on the information

available to him; not whether [Knibbs], in fact, pointed a shotgun at him.” Resp. Br. 14.

He further relies upon our decisions in Anderson v. Russell, 247 F.3d 125 (4th Cir. 2001),

and Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991), which he argues demonstrate that “a

reasonable officer in [his] situation would have a reasonable and objective belief that

Knibbs posed a serious threat of physical harm to him.” Resp. Br. 22.

We find that the parties’ factual disputes are quintessentially “genuine” and

“material.” Assuming that a jury would credit the Estate’s expert evidence over Deputy

Momphard’s competing testimony and expert evidence, as we must at the summary

judgment stage, an application of the Graham factors leads to the conclusion that Deputy

Momphard’s use of force was objectively unreasonable.

a.

The first Graham factor counsels us to consider the severity of the crime the officer

was investigating. At first blush, this would seem to favor the Estate. Under its evidence,

Deputy Momphard reapproached Knibbs’ home to investigate what was either a civil

dispute between neighbors or at most an attempted misdemeanor property crime. But our

analysis must focus “on the circumstances as they existed at the moment the force was

20
used.” Anderson, 247 F.3d at 132. Here, Knibbs’ racking of his shotgun is what initially

caused Deputy Momphard to fear for his life. That action was unrelated to the original

reason that he approached the home that night (to investigate the boards with nails in the

road). So, even when reading the facts in the light most favorable to the Estate, this factor

is not particularly germane to our analysis. See id. at 131–32 (assuming that a suspected

violation of a concealed weapons ban was a minor infraction but nonetheless deeming it

irrelevant because at the moment the officer used deadly force, the suspect made furtive

movements causing the officer to reasonably believe that the suspect “posed a deadly threat

to himself and others”).

b.

Taking the other factors in reverse, the third focuses on whether the suspect was

actively resisting or evading arrest at the time the officer used deadly force. When analyzed

in the light most favorable to the Estate as the nonmoving party, this factor favors the Estate,

as Deputy Momphard conceded that he was not trying to arrest Knibbs at the time. He was

only trying to investigate a dispute between neighbors that may have involved an attempted

misdemeanor property crime.

c.

As the first and third Graham factors offer only limited probative guidance, Deputy

Momphard’s claim to qualified immunity rests on the strength of the second––whether

Knibbs posed an immediate threat to his life. As explained below, at the summary judgment

stage, genuine disputed issues of material fact preclude finding that Knibbs posed an

objectively immediate threat to Deputy Momphard’s life as a matter of law.

21
 i.

“[S]pecial difficulties can arise during summary judgment” in use of deadly force

cases like this one because Deputy Momphard “has killed the only other potential witness”

that can directly refute his account of what happened on the porch. Stanton v. Elliott, 25

F.4th 227, 234 (4th Cir. 2022). Without Mr. Knibbs’ account, it can “be easy to overvalue

the narrative testimony of [Deputy Momphard] and to undervalue potentially contradictory

physical evidence.” Id. We are therefore mindful of Rule 56’s demand “to avoid simply

accepting [Deputy Momphard’s] self-serving statements and . . . consider all contradictory

evidence.” Id. (emphasis added). A holistic review of the record reflects at least two

genuinely disputed and material facts: (1) whether Knibbs aimed his gun at Deputy

Momphard; and (2) whether Deputy Momphard was “readily recognizable as a law

enforcement officer” on Knibbs’ porch, J.A. 83.

First, the Estate has produced competent evidence that would allow a jury to find

that Knibbs did not aim his shotgun at Deputy Momphard. Dr. Arden opined that the

stippling present on Knibbs’ body was consistent with Knibbs having held the gun up

towards the ceiling. Moreover, a jury could find Deputy Momphard’s credibility

impeached by his admission during his NCSBI interview that he could not tell if Knibbs

had the gun shouldered or under his armpit. Thus, whether Knibbs aimed his gun at Deputy

Momphard is a genuinely disputed fact that goes directly to whether he posed an

objectively immediate threat. See Strothers, 895 F.3d at 326.

The district court’s finding that Deputy Momphard was “readily recognizable” as

law enforcement is also genuinely disputed. J.A. 83. In ordinary circumstances of daily life,

22
Deputy Momphard likely was readily recognizable as such. But this case concerns the

darkened conditions on Knibbs’ porch. The record, when read in the light most favorable

to the Estate as the nonmoving party, shows Deputy Momphard conceded there were no

exterior or interior lights on at Knibbs’ home during the encounter. E.g., J.A. 353

(conceding that he was “on a darkened porch with no exterior lights”). And Deputy

Momphard acknowledged that he never activated his police cruiser’s blue emergency light

equipment. J.A. 304. While he contends that there was a full moon that night providing

enough light to see outside, J.A. 374, Blum contrarily opined that “[e]ven with a full moon

on [the night in question], Pheasant Drive was still very dark,” J.A. 1068. The pictures of

the scene outside Knibbs’ house from the night of the incident that Blum included in his

report are so dark that it is difficult to discern precisely what they depict. See J.A. 1068–

69. In other words, the record does not conclusively establish that Knibbs could have

visually identified Deputy Momphard as a law enforcement officer on his porch that night.

Our application of these basic summary judgment standards lays the groundwork

for our disagreement with our dissenting colleague. Without citation to Rule 56 or the

record, the dissent accepts essentially all of Deputy Momphard’s self-serving assertions

and reads the record in the light most favorable to him, the party moving for summary

judgment. See, e.g., Diss. Op. 57 (“The moon was full, though, which, according to Deputy

Momphard, made it easy for anyone to see him or the marked vehicle.” (emphasis added));

Diss. Op. 61 (“[D]uring the entire time Deputy Momphard was investigating the incident . . .

Knibbs would have been able to see Momphard and recognize he was in uniform.”). We

routinely reverse district courts that have granted summary judgment based on this

23
“misapplication of the summary judgment standard[s].” Jacobs v. N.C. Admin. Off. of the

Cts., 780 F.3d 562, 569–70 (4th Cir. 2015). With respect to our dissenting colleague, we

once again decline to endorse the district court’s misapplication of those standards in this

case.

ii.

These genuinely disputed facts are also material because a jury’s acceptance of the

Estate’s proffered evidence would “affect the outcome of the suit under the governing law.”

Libertarian Party of Va., 718 F.3d at 313 (citation omitted). Specifically, those factual

findings would permit the conclusion that Deputy Momphard unreasonably believed that

Knibbs posed an imminent danger of deadly harm.

Accepting the Estate’s version of events, as we must at this stage, Knibbs was shot

inside his own home while holding a loaded shotgun that was not aimed at Deputy

Momphard. There is no record evidence that Knibbs, while holding his shotgun, made any

furtive movement towards Deputy Momphard that would indicate his intent to cause

physical harm. Further, as noted above, it is debatable whether Deputy Momphard was

readily recognizable as a law enforcement officer in the middle of the night on Knibbs’

unlit porch. These contested material facts, when viewed in their totality, bear a strong

resemblance to our previous rulings in Cooper, Hensley, and Betton––all of which held

that a police officer used unconstitutionally excessive force in shooting a man holding a

firearm on his own property who was neither pointing the weapon at the officer nor giving

some other indicator of an immediate intent to harm.

24
 In Cooper, officers approached Cooper’s mobile home on foot to investigate a

reported “altercation” at approximately 11:00 p.m. 735 F.3d at 155. When they did, they

could hear people arguing inside, so they tapped on the mobile home’s window with their

flashlight, but did not identify themselves as deputy sheriffs. Id. Cooper looked outside to

investigate, but could see nothing, so he retrieved his twenty-gauge shotgun and stepped

onto “his darkened porch.” Id. “Reacting to the sight of Cooper and his shotgun,” and

without giving any warning or identifying themselves, the officers shot Cooper. Id. at 156.

Accepting this evidence at the summary judgment stage, we held that the officers

unreasonably feared for their safety because “the mere possession of a firearm by a suspect

is not enough to permit the use of deadly force.” Id. at 159.

[A]n officer does not possess the unfettered authority to shoot a member of
the public simply because that person is carrying a weapon. Instead, deadly
force may only be used by a police officer when, based on a reasonable
assessment, the officer or another person is threatened with the weapon.

Id. Without evidence that Cooper made any “sudden moves” or threats, or that he ignored

any commands, we explained that a reasonable juror could find that the officers had no

“probable cause to feel threatened by Cooper’s actions.” Id.

Similarly, in Hensley, the plaintiff’s evidence at the summary judgment stage

showed that Hensley held a handgun in his hand as he walked off his porch towards law

enforcement officers. 876 F.3d at 578. The handgun was pointed down towards the ground

during the entire incident, and Hensley “never raised the gun toward the Deputies or made

any overt threats toward them.” Id. Nor did the deputies order him to stop, drop the gun, or

“issue[] any type of warning” before shooting him. Id. Under these facts as proffered by

25
Hensley––despite contrary factual assertions from the deputies––we reversed the district

court’s grant of summary judgment to the deputies on qualified immunity grounds because

a jury could reasonably conclude that Hensley posed no reasonable danger to the deputies,

and that they “shot Hensley simply because he had a possession of a firearm.” Id. at 583. 5

Finally, in Betton, officers entered Betton’s home pursuant to a search warrant

without announcing their presence. 942 F.3d at 188. Betton drew a handgun from his

waistband and held it by his hip pointing down. Id. at 188–89. Once he entered the living

room where the police officers were located––with his gun still pointing down––officers

shot him without giving any instructions or warning. Id. at 189. We held that a reasonable

juror could conclude that these actions constituted excessive force, noting that “Betton

could not have known that members of law enforcement caused the noise that he heard on

his property, because the officers had failed to announce their presence at any time before

firing their weapons.” Id. at 193. And Betton made no “‘sudden moves’ to reach for

potential weapons in disregard of officers’ verbal commands.” Id. at 192.

These cases substantially inform our analysis here. Under the Estate’s evidence,

(which, again, we are required to credit at this stage), Knibbs “never pointed the [shot]gun

at anyone.” Hensley, 876 F.3d at 582. So, “[i]f a jury credited [this] evidence, it could

conclude that [Deputy Momphard] shot [Knibbs] only because he was holding a gun,

5
The record in Hensley did not establish whether Hensley in fact recognized the
Deputies as police officers or whether they were readily recognizable as such. Hensley’s
evidence did establish, however, that the deputies never identified themselves as law
enforcement officers. Id. at 578.

26
although he never raised the gun to threaten [him].” Id. The use of deadly force is not

justified as a matter of law in these circumstances. “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. Accepting the Estate’s evidence,

a reasonable juror could conclude that Knibbs made no such threats to Deputy Momphard,

rendering the use of deadly force unconstitutionally excessive.

Deputy Momphard urges a contrary result based on what he views are three legally

significant facts distinguishing this case from Cooper, Hensley, and Betton: (1) he

announced his presence upon reapproaching Knibbs’ home; (2) Knibbs racked his shotgun

after that announcement; and (3) Knibbs ignored two commands to drop the weapon. These

factors collectively are not the talismans he proffers.

First, it is uncontested that Deputy Momphard announced his presence at least once

when he approached Knibbs’ home the second time. To be sure, our decisions have noted

that an officer “might” be objectively justified under particular circumstances in fearing for

his life upon observing an individual holding a firearm after making his presence as an

officer known. Cooper, 735 F.3d at 159 (“If the Officers had [identified themselves], they

might have been safe in the assumption that a man who greets law enforcement with a

firearm is likely to pose a deadly threat.” (emphasis added)); see also Betton, 942 F.3d at

193. But an officer’s announcement of his presence is not dispositive in assessing whether

an officer reasonably feared for his or her life before using deadly force. Rather, it must be

considered under the totality of the circumstances.

27
 Under the circumstances proffered by the Estate’s evidence, there was no lighting

either inside or outside of Knibbs’ home. And it is undisputed that Deputy Momphard’s

blue emergency lights were not operating. Against this backdrop, a reasonable officer

would have recognized that it was unknown whether Knibbs could discern who was outside

on his porch before answering the door. 6 Such an officer would have also recognized that

Knibbs, in turn, was within his lawful rights to arm himself to “investigat[e] a nocturnal

disturbance on his own property.” Cooper, 735 F.3d at 160 (quoting Pena, 316 F. App’x

at 312). That decision would have been, and in fact was, “perfectly reasonable,” and it

“should have been apparent to [Deputy Momphard] at the time of the shooting” that Knibbs

could do so. Id. (quoting Pena, 316 F. App’x at 312). After all, “the need for defense of

self, family, and property is most acute” in one’s home. District of Columbia v. Heller, 554

U.S. 570, 628 (2008). Deputy Momphard readily acknowledged this premise at his

deposition, admitting that Knibbs “ha[d] a right to come to the door with his firearm” and

that “[i]t wouldn’t have been an issue” if Knibbs opened the door while holding his

shotgun––“I would have had a casual conversation with him just as I had a million different

times with a lot of other people.” J.A. 308–09.

What escalated the situation, in Deputy Momphard’s view, was Knibbs’ act of

racking his shotgun after Deputy Momphard announced his presence. But, as we stated in

6
This is not to say that a claim of qualified immunity will depend on the subjective
beliefs of the individual with whom a police officer interacts. “[T]he crucial fact is not what
[Knibbs] subjectively believed,” but rather what Deputy Momphard “reasonably perceived
in light of the circumstances known to [him] at the time.” Pena v. Porter, 316 F. App’x
303, 312 n.8 (4th Cir. 2009).

28
Cooper, “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.” 735 F.3d at 159.

Racking a shotgun inside one’s home, without more, is no more threatening than coming

to the door with any other loaded firearm. Indeed, any reasonable officer would presume

that an individual carrying a firearm has already loaded it. See McLaughlin v. United States,

476 U.S. 16, 17 (1986) (“[T]he law reasonably may presume that [a gun] is always

dangerous even though it may not be armed at a particular time or place.”). Our case law

focuses not on the fact that an individual is armed in his own home, but on his movements

while holding the firearm that objectively indicate that he imminently plans to use it to

harm the officers or a third party. See Hensley, 876 F.3d at 585–86 (collecting cases).

Here, under the particular facts proffered by the Estate, Deputy Momphard could

not see Knibbs rack his shotgun, see J.A. 1054 (Sherman opining that Deputy Momphard

could not have seen Knibbs “while standing at the top of the [porch] stairs” when he heard

the shotgun racked), and he had not heard Knibbs make any verbal threats at any point. 7

Viewing the evidence in the light most favorable to the Estate, a jury could find that Knibbs

only racked his shotgun in order to load it while investigating who was on his porch in the

middle of the night. Accepting that factual premise, Knibbs’ act of racking a shotgun within

7
The dissent echoes Deputy Momphard’s claim that he heard Knibbs mutter an
expletive right after Deputy Momphard announced his presence. Mrs. Knibbs contrarily
testified at her deposition that she only heard her husband say to her that “[a]nybody can
say they are a sheriff.” J.A. 518; see J.A. 516–18. Taking the evidence in the light most
favorable to the Estate, we must again disregard Deputy Momphard’s claim. We express
no opinion as to how that conflicting testimony would be resolved by a jury or impact the
ultimate decision in this case.

29
his own home without any other gesture would not have caused a reasonable officer to fear

for his life.

Underscoring this point, Sheriff Holland unequivocally testified at his deposition

that Deputy Momphard would not have been justified in using deadly force based on

Knibbs’ decision to rack his shotgun alone. Specifically, he testified:

SHERIFF HOLLAND: [Deputy Momphard] said he heard the racking of
a shotgun.

ESTATE’S COUNSEL: All right. At that point in your opinion would Mr.
Momphard have been justified shooting through
the door at Mr. Knibbs?

SHERIFF HOLLAND: No. . . . It’s not illegal to rack a shotgun.

J.A. 739–40.

Lastly, Deputy Momphard asserts that his fear for his life became reasonable under

the totality of the circumstances after Knibbs ignored his two commands to drop the

shotgun. That argument rests primarily on our decisions in Slattery and Anderson, two

cases involving an officer’s reasonable––but ultimately incorrect––belief that an individual

possessed a firearm and was about to use it. Most importantly, the suspects in those cases

made furtive movements toward a perceived firearm while disobeying the officer’s

command not to do so. Such actions, we held, would rightfully cause a reasonable officer

to fear that the suspect intended to cause imminent deadly harm. See Slattery, 939 F.2d at

215–16 (holding an officer reasonably feared for his life after he twice ordered the suspect

to put his hands up, but the suspect ignored those commands, instead reaching down to an

area out of the officer’s sight and grabbing an object that turned out to be a beer bottle);

30
Anderson, 247 F.3d at 128, 131 (holding that an officer reasonably feared for his life during

an investigation of a man thought to be armed after the officer ordered the man to get down

on his knees and put his hands up, but the man began reaching in his back left pocket for

what turned out to be a Walkman radio).

In Hensley, we explained the import of our holdings in Slattery and Anderson:

In both cases, once the officer issued a verbal command, the character of the
situation transformed. If an officer directs a suspect to stop, to show his hands
or the like, the suspect’s continued movement will likely raise in the officer’s
mind objectively grave and serious suspicions about the suspect’s intentions.
Even when those intentions turn out to be harmless in fact, as in Anderson
and Slattery, the officer can reasonably expect the worst at the split-second
when he acts.

876 F.3d at 585 (emphasis added). In other words, the focus in those cases was on the

suspects’ furtive movements after readily recognizable law enforcement officers ordered a

suspect to drop a weapon outside the confines of his own home. See also Elliott v. Leavitt,

99 F.3d 640, 641–43 (4th Cir. 1996) (holding officers reasonably feared for their lives

when a handcuffed suspect pointed a gun at them and ignored commands to drop it);

McLenagan v. Karnes, 27 F.3d 1002, 1005–08 (4th Cir. 1994) (holding an officer

reasonably feared for his life in shooting an unarmed man running towards him in an office

building, even though he had no time to issue a command to drop the weapon, because

another officer was yelling, “The man has got a gun!,” so the officer reasonably perceived

in a “split-second judgment” that the man was armed).

These principles distinguish Slattery and Anderson from this case. As we have

explained, a reasonable officer would have anticipated both that Knibbs would be armed

and may not readily ascertain the fact that a police officer was outside his home. Commands

31
to drop a shotgun under these circumstances stand in stark contrast to the commands issued

to the individuals in Slattery and Anderson, both of whom were ordered to cease engaging

in behavior that a reasonable officer would have perceived as life-threatening. Instead, here,

a reasonable officer would have perceived Knibbs’ decision to remain armed as a means

of self-defense until he was able to ascertain whether the individual outside his home was

in fact a law enforcement officer. See also Pauly v. White, 874 F.3d 1197, 1203–05, 1219

(10th Cir. 2017) (police officers approached the home of two brothers after 11:00 p.m. on

a dark and rainy night about two hours after the brothers were the victims of a road-rage

incident, but the officers “provided inadequate police identification by yelling out ‘State

Police’ once”; the court held that a reasonable officer would have concluded “that [the

plaintiff] could believe that persons coming up to his house at 11:00 p.m. were connected

to the road rage incident,” and so would have interpreted the brothers’ decision to arm

themselves as one “to protect their home from ostensible home invaders”), cert. denied,

138 S. Ct. 2650 (2018). 8

That observation compels us to respectfully disagree with the district court, and our

dissenting colleague, that it was immaterial whether Knibbs was aiming his firearm at

Deputy Momphard the moment the fatal shots were fired. The positioning of the shotgun

is material because it is the only fact under the present record that should have caused a

8
We do not rely on this out-of-circuit authority for the proposition that Deputy
Momphard violated a clearly established right, see infra Section III.A.2, but instead only
to demonstrate what a reasonable officer would have logically inferred from the
circumstances that Deputy Momphard encountered.

32
reasonable officer in Deputy Momphard’s position to fear for his life. Deputy Momphard

conceded that Knibbs never made any furtive movements in the few brief moments he saw

Knibbs holding his shotgun. And if a jury credits Dr. Arden’s expert opinion at trial, it

could also find, based on the stippling present on Knibbs’ chest and right forearm, that

Knibbs never aimed the gun at Deputy Momphard. That finding would make this case

fundamentally indistinguishable from our prior precedents concerning the use of deadly

force upon an individual possessing a firearm in a non-threatening manner inside his own

home. As in Hensley, “[i]f a jury credited [the Estate’s] version of the facts, it could

reasonably conclude that because [Knibbs] never raised the gun to [Deputy Momphard],

and because [Knibbs] never otherwise threatened [him], [Deputy Momphard] shot [Knibbs]

simply because he had possession of a firearm” within the confines of his own home.

Hensley, 876 F.3d at 583; accord Cooper, 735 F.3d at 159–60. “[S]uch conduct violates

the Fourth Amendment.” Hensley, 876 F.3d at 583. 9

We do not mean to say that an officer must wait until a gun is pointed at him before

he is entitled to use deadly force when other factors (like furtive movement) indicate an

imminent threat to life. To the contrary, “[t]his Circuit has consistently held that an officer

does not have to wait until a gun is pointed at the officer before the officer is entitled to

take action.” Anderson, 247 F.3d at 131 (collecting cases). But there is a line that our case

9
Alternatively, a jury could believe Deputy Momphard’s account of the events and
find as a fact that Knibbs was pointing the gun at him after ignoring his commands. This
very well could “affect the outcome of the suit under the governing law,” Libertarian Party
of Va., 718 F.3d at 313 (citation omitted), because “[n]o citizen can fairly expect to draw a
gun on police without risking tragic consequences,” Elliott, 99 F.3d at 644.

33
law has drawn between lawfully possessing a firearm for self-defense in one’s own home,

and possessing a firearm (or other object) in a manner that objectively threatens an officer’s

life or the life of another person. Under the totality of the circumstances as proffered by

the Estate, a reasonable officer would have recognized that there was no imminent threat

to his life simply because Knibbs refused to drop a loaded shotgun that he was pointing

safely towards the ceiling while standing inside his own home peering onto his unlit porch

to investigate a nocturnal disturbance. Compare with Sigman v. Town of Chapel Hill, 161

F.3d 782, 787–88 (4th Cir. 1998) (holding that officers acted reasonably in fearing for their

lives before shooting an individual who the officers knew had made threats to his own life

and to the officers’ lives after the individual exited his home while appearing to hold a

knife, walked towards the officers, and disobeyed an officer’s commands to stop).

Our core disagreement with the district court and our dissenting colleague on this

issue is not caused by our alleged failure to analyze the totality of the circumstances. See

Diss. Op. 63–64. We instead analyze a different totality of disputed facts altogether. The

material underlying factual issues––whether Deputy Momphard was readily recognizable

as a law enforcement officer and whether Knibbs aimed his gun at Deputy Momphard––

are disputed at the summary judgment stage. Because Deputy Momphard is the moving

party, we are constrained to assume that the jury will not credit his evidence and will

instead accept the Estate’s proffered evidence on disputed fact questions. But the dissent,

like the district court, contravenes Rule 56 by accepting Deputy Momphard’s self-serving

statements and reading the evidence in the light most favorable to him. See Tolan v. Cotton,

572 U.S. 650, 660 (2014) (per curiam) (summarily vacating the grant of summary judgment

34
to the movant-police officer because the court below “weigh[ed] the evidence and reach[ed]

factual inferences contrary to [the nonmovant-plaintiff’s] competent evidence,” thereby

“neglect[ing] to adhere to the fundamental principle that at the summary judgment stage,

reasonable inferences should be drawn in favor of the nonmoving party”).

Viewing this case in the light most favorable to the Estate, there is sufficient

evidence for a reasonable jury to find that Knibbs never pointed his weapon at Deputy

Momphard or made any furtive movements, thereby rendering unjustified the deadly force

used against Knibbs. The district court therefore erred in finding that there were no genuine

issues of disputed material fact, and ultimately erred in finding that Deputy Momphard’s

use of force was reasonable as a matter of law at this stage in the proceedings.

2.

Deputy Momphard would still be entitled to qualified immunity if he could show

that the constitutional right he violated was not “‘clearly established’ at the time of [his]

alleged misconduct.” Pearson, 555 U.S. at 232; see Stanton, 25 F.4th at 233 (noting that in

this Circuit, a defendant-officer bears the burden to prove that a right was not clearly

established). “A right is clearly established when it is ‘sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.’” Rivas-

Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam) (quoting Mullenix v. Luna, 577

U.S. 7, 11 (2015) (per curiam)). “It is not enough,” the Supreme Court has cautioned, “that

a rule be suggested by then-existing precedent.” City of Tahlequah v. Bond, 142 S. Ct. 9,

11 (2021) (per curiam). Instead, “the rule’s contours must be so well defined that it is clear

to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id.

35
(internal quotation marks omitted) (quoting District of Columbia v. Wesby, 138 S. Ct. 577,

590 (2018)). “[W]e have long held that it is case law from this Circuit and the Supreme

Court that provide notice of whether a right is clearly established.” Hill v. Crum, 727 F.3d

312, 322 (4th Cir. 2013) (citation omitted).

Before deciding if a right was clearly established, we must first define the right at

issue with specificity. See id. “[S]pecificity is especially important in the Fourth

Amendment context, where . . . it is sometimes difficult for an officer to determine how

the relevant legal doctrine, here excessive force, will apply to the factual situation the

officer confronts.” Mullenix, 577 U.S. at 12 (alterations and internal quotation marks

omitted). Thus, it is not enough to say in this case that Deputy Momphard violated Knibbs’

clearly established right to be free from the use of excessive force, because that right is

defined at too “high [a] level of generality.” Rivas-Villegas, 142 S. Ct. at 8 (quoting

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)).

Utilizing these principles, the question is whether it was clearly established in April

2018 that an officer may not use deadly force against a homeowner who possesses a firearm

inside his own home while investigating a nocturnal disturbance but does not aim the

weapon at the officer or otherwise threaten him with imminent deadly harm. This is so

even after the homeowner hears the officer announce himself––but cannot visually verify

that to be true––and ignores commands to drop the weapon.

We recognize that neither the Supreme Court nor this Circuit has considered a

qualified immunity case with a fact pattern precisely identical to the instant one, but that

does not preclude a finding that the right was clearly established. White v. Pauly, 137 S. Ct.

36
548, 551 (2017) (per curiam) (“While this Court’s case law does not require a case directly

on point for a right to be clearly established, existing precedent must have placed the . . .

constitutional question beyond debate.” (cleaned up)); accord Hill, 727 F.3d at 322. As

explained below, our case law demonstrates that the contours of Knibbs’ constitutional

right were clearly established in April 2018.

Cooper and Hensley are clear regarding an individual’s right to arm himself in his

own home without fear of being shot by police, so long as he does not threaten the officer

with the weapon. 10 Cooper first established, at a higher level of generality, that “an officer

does not possess the unfettered authority to shoot a member of the public simply because

that person is carrying a weapon.” 735 F.3d at 159. Indeed, we reasoned that this right was

evident from the very cases the dissent now relies on to assert Deputy Momphard violated

no clearly established right. Compare id. at 159–60 (explaining that “[t]he precedent

discussed herein,” which included only Anderson, McLenagan, Slattery, Elliott, and Pena

(an unpublished case), “amply demonstrates that the contours of the constitutional right at

issue . . . were clearly established”), with Diss. Op. 67 (arguing that Slattery, Anderson,

Elliott, and Sigman compel the conclusion that Knibbs’ right was not clearly established).

Hensley applied that right more directly to the particular situation presented in this

appeal, observing that “[t]he lawful possession of a firearm by a suspect at his home,

without more, is an insufficient reason to justify the use of deadly force.” 876 F.3d at 583

10
Betton also establishes that right, but because that case was decided after the
events at issue here took place, we do not factor it into our analysis.

37
(emphasis added). Moreover, Hensley’s ultimate holding encapsulates the violation of

constitutional rights asserted here:

If a jury credited the plaintiff’s version of the facts, it could reasonably
conclude that because Hensley never raised the gun to the officers, and
because he never otherwise threatened them, the Deputies shot Hensley
simply because he had possession of a firearm. As we held in Cooper, such
conduct violates the Fourth Amendment.

Id. (emphasis added).

That said, Hensley did not expound upon what qualifies as “without more” or

“otherwise threatened” to justify the use of deadly force against a homeowner possessing

a weapon in his home. Deputy Momphard argues that something “more” existed here: “[A]

reasonable officer would not have believed that a suspect has a clearly established right to

be free from seizure by deadly force, after the suspect racked his shotgun and ignored

commands to drop the weapon.” Resp. Br. 22–23. Seizing onto that premise, our dissenting

colleague asserts that Deputy Momphard’s announcement of his presence at the outset of

the encounter makes this case so different as to justify granting him qualified immunity.

See Diss. Op. 66–67. But if the jury accepted the Estate’s proffered evidence, none of these

facts would take this case outside the contours of the constitutional right that Cooper and

Hensley clearly established.

Deputy Momphard’s announcement of his presence is not dispositive when

considered in the context of all of the Estate’s evidence. While that fact was absent in both

Cooper and Hensley, a core principle of our holding in Cooper is present here. Booker v.

S.C. Dep’t of Corr., 855 F.3d 533, 538 (4th Cir. 2017) (explaining that our “clearly

established” analysis “must consider not only ‘specifically adjudicated rights,’ but also

38
‘those manifestly included within more general applications of the core constitutional

principles invoked.’” (citation omitted)). Namely, given the lack of lighting on Knibbs’

porch and Deputy Momphard’s failure to activate the blue emergency light equipment on

his patrol vehicle, a reasonable officer would not have believed Knibbs unquestionably

knew a law enforcement officer was on his porch. See Cooper, 735 F.3d at 159–60.

Further, if a jury accepts the Estate’s evidence, Knibbs’ decision to rack his shotgun

also does not impact the totality of the circumstances. Given Cooper’s holding that a

homeowner is entitled to possess a firearm during his investigation of a nocturnal

disturbance on his premises, a reasonable officer would have logically inferred that a

homeowner is entitled to load his firearm before conducting that investigation for his own

protection without fear that an officer will use deadly force against him. See Williams v.

Strickland, 917 F.3d 763, 770 (4th Cir. 2019) (“[A]lthough we must avoid ambushing

government officials with liability for good-faith mistakes made at the unsettled peripheries

of the law, we need not—and should not—assume that government officials are incapable

of drawing logical inferences, reasoning by analogy, or exercising common sense.”); see

also Rivas-Villegas, 142 S. Ct. at 9 (“Precedent involving similar facts can help move a

case beyond the otherwise hazy border between excessive and acceptable force and thereby

provide an officer notice that a specific use of force is unlawful.” (citation and internal

quotation marks omitted)).

Nor are the two commands that Knibbs ignored legally significant at this point

under the Estate’s proffered facts. Cooper, Hensley, Slattery, Anderson, Sigman,

McLenagan, and Elliott together clearly establish that the failure to obey commands by a

39
person in possession of, or suspected to be in possession of, a weapon only justifies the use

of deadly force if that person makes some sort of furtive or other threatening movement

with the weapon, thereby signaling to the officer that the suspect intends to use it in a way

that imminently threatens the safety of the officer or another person. If a jury finds that

Knibbs was not aiming or otherwise directing his gun at Deputy Momphard––the only fact

that would have given him probable cause to fear for his life considering the totality of the

Estate’s evidence––this case would fall squarely within the contours of those clearly

established precedents.

Underscoring this conclusion is Sheriff Holland’s own testimony:

ESTATE’S COUNSEL: And is it your contention or belief, Sheriff, that
if a sheriff’s deputy announces “sheriff’s office”
from outside a residence, that the occupants must
disarm?

SHERIFF HOLLAND: No, I didn’t say that.

ESTATE’S COUNSEL: Okay. So they don’t have to disarm. If the
sheriff’s deputy is outside the residence and
somebody’s lawfully possessing a shotgun and
the sheriff’s deputy says, Drop it, from outside
the house, must the occupant of the house in your
opinion drop their firearm?

SHERIFF HOLLAND: If an officer gives a lawful command to an
individual who’s armed, who’s holding a gun,
there’s nothing wrong with that officer asking
them to put that gun down, to drop that gun. . . .

If that individual refuses to drop that gun, as long
as that individual doesn’t point it at my officer or
an officer, then that officer’s not going to shoot
that individual. . . .

ESTATE’S COUNSEL: If a lawful command is given to a person to drop
a firearm and they don’t comply, you’re saying

40
 that’s still not a basis for deadly force unless it’s
used in an aggressive manner or pointed?

SHERIFF HOLLAND: Correct.

J.A. 755–57 (emphasis added).

Therefore, if a jury accepts the Estate’s version of the events, Deputy Momphard

could be found to have violated Knibbs’ clearly established Fourth Amendment right to

possess a firearm in his own home in a non-threatening manner while investigating a

nocturnal disturbance on his premises.

Our dissenting colleague asserts that our analysis runs contrary to the Supreme

Court’s recent summary reversals in City of Tahlequah and Rivas-Villegas. Not so. In those

cases, the lower courts relied on precedents that were “dramatically different,” City of

Tahlequah, 142 S. Ct. at 12, and “materially distinguishable” in “several respects,” Rivas-

Villegas, 142 S. Ct. at 8, to find a violation of a clearly established constitutional right. As

the dissent would have it, Deputy Momphard would be held liable for his conduct only if

one of our prior cases addressed the same facts presented here. But as noted, even the

Supreme Court does not require as much. See also Hope v. Pelzer, 536 U.S. 730, 741 (2002)

(“[O]fficials can still be on notice that their conduct violates established law even in novel

factual circumstances.”). In fact, even “cases involving ‘fundamentally similar’” or

“materially similar” facts are not prerequisites for concluding that a constitutional right is

“clearly established.” Id.

As we have explained, assuming that the jury accepts the Estate’s evidence, Cooper

and Hensley are materially indistinguishable from what happened here. And for the few

41
factual differences that do exist, it would not have taken more than Deputy Momphard

“drawing logical inferences, reasoning by analogy, or exercising common sense” from

those two cases to realize that his use of deadly force against a homeowner possessing a

firearm in a non-threatening manner in his own home while investigating a nocturnal

disturbance was unconstitutional. Williams, 917 F.3d at 770. Under these circumstances,

the contours of Knibbs’ constitutional right were “beyond debate” in April 2018.

Accordingly, we vacate the district court’s award of summary judgment to Deputy

Momphard on the Estate’s § 1983 claim against him in his individual capacity.

B.

The Estate also claims error in the district court’s summary judgment award to

Deputy Momphard on its § 1983 claim that his use of force violated Knibbs’ Fourteenth

Amendment due process rights. This claim, however, has been foreclosed by the Supreme

Court since 1989. See Graham, 490 U.S. at 395 (“Today we . . . hold that all claims that

law enforcement officers have used excessive force—deadly or not—in the course of an

arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the

Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due

process’ approach.”). We therefore affirm the award of summary judgment to Deputy

Momphard on this claim.

C.

We turn now to the Estate’s state law wrongful death claim against Deputy

Momphard in his individual capacity.

42
 North Carolina’s wrongful death statute provides a remedy to the personal

representative of a decedent’s estate when the decedent would have otherwise been entitled

to damages caused by another person’s “wrongful act, neglect[,] or default.” N.C. Gen.

Stat. § 28A–18–2(a). This statutory right supersedes all common law claims that could

have been asserted. Christenbury v. Hedrick, 234 S.E.2d 3, 5 (N.C. Ct. App. 1977).

One such wrongful act that can subject law enforcement officers to civil liability

under the North Carolina wrongful death statute is the use of unreasonably excessive force.

See Wilcox v. City of Asheville, 730 S.E.2d 226, 231–32 (N.C. Ct. App. 2012); see also

Hensley, 876 F.3d at 587–88. Instead of utilizing general negligence principles, the North

Carolina General Assembly has “codif[ied] and clairf[ied] those situations in which a

police officer may use deadly force without fear of incurring criminal or civil liability” in

a separate statute. State v. Irick, 231 S.E.2d 833, 846 (N.C. 1977). Relevant here, that

statute provides that an officer is justified in using deadly force if it is “reasonably

necessary . . . [t]o defend himself or a third person from what he reasonably believes to be

the use of Imminent deadly physical force.” N.C. Gen. Stat. § 15A-401(d)(1)–(2).

But even if a police officer acting under the color of state law violates North

Carolina’s use of deadly force statute, that officer still may be entitled to public official

immunity from a wrongful death suit brought against him in his individual capacity. See

Mills v. Duke Univ., 759 S.E.2d 341, 344 (N.C. Ct. App. 2014). Distinct from qualified

immunity under § 1983, which is a purely objective analysis, North Carolina’s public

official immunity doctrine “involves a determination of the subjective state of mind of the

governmental actor.” Andrews v. Crump, 547 S.E.2d 117, 123 (N.C. Ct. App. 2001). Under

43
this framework, “a public official is immune from suit unless the challenged action was (1)

outside the scope of official authority, (2) done with malice, or (3) corrupt.” Wilcox, 730

S.E.2d at 230. The Estate only alleges that Deputy Momphard acted with malice, J.A. 42,

so our analysis is accordingly limited.

“[E]lementally, a malicious act is an act (1) done wantonly, (2) contrary to the

actor’s duty, and (3) intended to be injurious to another.” Wilcox, 730 S.E.2d at 230. The

intent to injure can either be “actual” or “constructive.” Id. at 231. North Carolina law

“presumes ‘that public officials will discharge their duties in good faith and exercise their

powers in accord with the spirit and purpose of the law,’” so evidence of malice “must be

sufficient by virtue of its reasonableness, not by mere supposition.” Doe v. City of Charlotte,

848 S.E.2d 1, 12 (N.C. Ct. App. 2020) (quoting Strickland v. Hedrick, 669 S.E.2d 61, 68

(N.C. Ct. App. 2008)).

Deputy Momphard argues that he could not have acted maliciously, and thus is

entitled to public official immunity, because there is no evidence that he acted with “some

type of personal animosity” towards Knibbs. Resp. Br. 27. In rejoinder, the Estate contends

that Blum’s opinions regarding the recklessness of Deputy Momphard’s actions would

allow a reasonable jury to conclude that he acted with “reckless or heedless indifference”

to Knibbs’ rights. Opening Br. 40. Bolstering this concept, the Estate points to Deputy

Momphard’s statements in his NCSBI interview and his deposition as evidence that he

“incorrectly[] believed that Knibbs was hunting him,” and thus maliciously “took the most

aggressive approach at every opportunity.” Reply Br. 10. As with the § 1983 claim

44
discussed earlier, genuine issues of material fact preclude us from affirming the district

court’s grant of summary judgment to Deputy Momphard.

We begin with the requirement that the officer not take an action that a reasonable

man would know is contrary to his duty. In that regard, we have previously held that the

use of deadly force in violation of North Carolina’s deadly force statute, N.C. Gen. Stat.

§ 15A–401(d), is an act done contrary to an officer’s known duties, see Hensley, 876 F.3d

at 587–88. The same facts that a jury could find that would permit the conclusion that

Deputy Momphard’s use of force was unreasonable under the Fourth Amendment would

also permit a finding that he acted contrary to his duties as a law enforcement officer

because he violated the use of deadly force statute. See Hensley, 876 F.3d at 587–88.

Next, Deputy Momphard’s actions must not have been taken “wantonly,” that is,

they must not have been committed “needlessly, manifesting a reckless indifference to the

rights of others.” Grad v. Kaasa, 321 S.E.2d 888, 890–91 (N.C. 1984). Blum has opined

on behalf of the Estate that Deputy Momphard’s decision to seek cover on the porch after

hearing Knibbs rack his shotgun was “reckless and contradicted his training.” J.A. 1081.

He also averred that, based on various statements Deputy Momphard made in his

deposition, Deputy Momphard went into an “emotional panic” that “led to a series of

reckless decisions” causing Knibbs’ death. J.A. 1085. Deputy Momphard’s rebuttal law

enforcement training expert, Chad Thompson, opined the exact opposite—that Deputy

Momphard’s actions were entirely reasonable. J.A. 1269–70. This presents a classic jury

question. Assuming that a jury would credit the Estate’s evidence, as we must at the

summary judgment stage, it could find that Deputy Momphard acted wantonly.

45
 The closer question is whether Deputy Momphard acted with the requisite intent to

injure Knibbs. The Estate has not specifically argued that there is evidence of actual intent,

so we will presume that it relies on a constructive intent theory.

The North Carolina Court of Appeals has emphasized that “mere reckless

indifference is insufficient” to show a constructive intent to injure. Wilcox, 730 S.E.2d at

232. Instead, a plaintiff must also show that the defendant’s actions were “so reckless or

so manifestly indifferent to the consequences, where the safety of life or limb is involved,

as to justify a finding of [willfulness] and wantonness equivalent in spirit to an actual intent.”

Id. at 231 (alteration in original) (quoting Foster v. Hyman, 148 S.E. 36, 38 (N.C. 1929)).

This question is a factual one, id. at 232, which North Carolina courts typically reserve for

a jury, see, e.g., Leiber v. Arboretum Joint Venture, LLC, 702 S.E.2d 805, 813 (N.C. Ct.

App. 2010).

Persuasive in this analysis is the North Carolina Court of Appeals’ decision in Hart

v. Brienza, 784 S.E.2d 211 (N.C. Ct. App. 2016). In that case, officers responded to a

domestic dispute at a home just before 3:00 a.m., believing that there was an active shooter

on the scene. Id. at 213–14. They witnessed the suspect, Hart, trying to climb into the house

through a window. Id. Officers ordered him to get out of the window and onto the ground.

Id. at 214. When he did so, one of the officers fired three shots, hitting Hart once. Id. The

officers claimed that they saw him reach for a shotgun that was near him resting against

the house. Id. However, Hart claimed that he never reached for the gun and instead put his

hands up. Id. This “conflicting evidence,” the court explained, gave rise to “genuine issues

of fact concerning whether” the officer acted with malice. Id. at 216. Accepting Hart’s

46
evidence that he was unarmed with his hands raised when he was shot, the court held that

this could be sufficient to “pierce the cloak of official immunity.” Id. (citation omitted).

Similarly, here, conflicting evidence regarding (1) whether Knibbs was aiming his

firearm at Deputy Momphard at the time of the shooting, and (2) whether Deputy

Momphard “jeopardized his own safety to confront Mr. Knibbs at all costs for what was a

‘civil matter’ between neighbors” for which he had “no intent to arrest” Knibbs, J.A. 1086

(Blum’s expert opinion), presents triable issues of fact regarding Deputy Momphard’s

constructive intent to injure Knibbs. The Estate’s version of events, if accepted by a jury,

would support a finding that Deputy Momphard acted with the requisite malice in shooting

Knibbs. See Hart, 784 S.E.2d at 216. We therefore vacate the district court’s grant of

summary judgment to Deputy Momphard on the Estate’s individual capacity claims against

him under the North Carolina wrongful death statute. 11

D.

The Estate also asserted state law claims against Sheriff Holland and Deputy

Momphard in their official capacities. Official capacity actions against sheriffs and deputy

sheriffs are, in effect, suits against the county sheriff’s office. See Boyd v. Robeson County,

621 S.E.2d 1, 5 (N.C. Ct. App. 2005). Such official capacity actions that arise out of the

11
The Estate also seeks to overturn the district court’s award of summary judgment
to Deputy Momphard on its claim for punitive damages against him in his individual
capacity. Deputy Momphard offers no rebuttal on this point, which we construe as a waiver.
See Alvarez v. Lynch, 828 F.3d 288, 295 (4th Cir. 2016) (“[S]uch an outright failure to join
in the adversarial process . . . ordinarily result[s] in waiver.”). Therefore, the judgment on
this claim must be vacated, and the claim is remanded for further proceedings.

47
torts allegedly committed by the sheriff or his employees while performing a

“governmental function” are barred by the county’s governmental immunity, absent a

waiver of that immunity. Greene v. Barrick, 680 S.E.2d 727, 730–31 (N.C. Ct. App.

2009). 12

Relevant here, a county sheriff’s office may waive its governmental immunity by

purchasing liability insurance, Wright v. Gaston County, 698 S.E.2d 83, 87 (N.C. Ct. App.

2010), or a surety bond (as it is statutorily mandated to do), see N.C. Gen. Stat. § 162–8;

White v. Cochran, 748 S.E.2d 334, 339–40 (N.C. Ct. App. 2013). The district court granted

summary judgment to Defendants on all official capacity claims, finding that neither the

Macon County Sheriff’s Office’s liability insurance policy nor its surety bond waived its

governmental immunity. We agree with the former conclusion, but disagree with the latter.

1.

It is well established under North Carolina law that a county agency may waive its

governmental immunity from suits for damages caused by an employee’s negligent

conduct “by purchasing liability insurance, but only to the extent of the insurance coverage.”

Estate of Earley ex rel. Earley v. Haywood Cnty. Dep’t of Soc. Servs., 694 S.E.2d 405, 408

(N.C. Ct. App. 2010) (quoting Dickens v. Thorne, 429 S.E.2d 176, 179 (N.C. Ct. App.

12
It is uncontested that Deputy Momphard was performing a “governmental
function” on the night in question. We also note that while the parties’ briefs at times use
the phrases “sovereign immunity” and “governmental immunity” interchangeably, the two
concepts are distinct under North Carolina law. Whereas sovereign immunity applies to the
State and its agencies, governmental immunity applies to a county and its agencies, such
as the Macon County Sheriff’s Office. See Meyer v. Walls, 489 S.E.2d 880, 884 (N.C.
1997).

48
1993)); see N.C. Gen. Stat. § 153A–435(a). That said, a county does not waive

governmental immunity “[i]f the liability policy, by its plain terms, does not provide

coverage for the alleged acts.” Ballard v. Shelley, 811 S.E.2d 603, 606 (N.C. Ct. App.

2018). To determine the extent of a policy exclusion, North Carolina courts employ the

“traditional rules of contract construction,” strictly construing the exclusion in favor of

coverage and enforcing its unambiguous plain language. Patrick v. Wake Cnty. Dep’t of

Hum. Res., 655 S.E.2d 920, 924 (N.C. Ct. App. 2008) (citations omitted).

The Estate argues that the district court erred in finding that the Macon County

Sheriff’s Office retained governmental immunity, despite the fact that it obtained a liability

insurance policy with Ohio Casualty. While the Sheriff’s Office had a liability insurance

policy at the time of this incident, the policy contained a “North Carolina Immunity Non-

Waiver Endorsement.” J.A. 1320. Defendants urge us to adopt the reasoning of the district

court, which found that the portion of this policy endorsement specifying that the policy

“shall not be deemed a waiver of any statutory immunities” preserved the County’s

governmental immunity. J.A. 89 (citation omitted).

Even if we assume, without deciding, that the district court erred in this regard, 13

we would nonetheless affirm based on other provisions of the “North Carolina Immunity

13
The district court may have erred as governmental immunity is a common law,
not statutory, immunity. E.g., Orange County v. Heath, 192 S.E.2d 308, 309 (N.C. 1972).
The provision relied on by the district court (and by Defendants on appeal) does not refer
to common law immunities in general, or to governmental immunity in particular; it only
refers to statutory immunities. The plain language of this particular provision, then, could
counsel against finding a preservation of governmental immunity. But, as indicated above,
it is unnecessary to resolve that issue.

49
Non-Waiver Provision.” See United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 375

(4th Cir. 2015) (“[O]f course, we may affirm a district court’s ruling on any ground

apparent in the record.”). Specifically, that provision also stated that the policy “[d]oes not

apply to any . . . ‘suit’ . . . for any amount for which any insured would not be liable under

any applicable governmental or sovereign immunity but for the existence of this policy.”

J.A. 1320; see J.A. 1293 (Section III of the policy, defining “insured” to include the County,

“[a]ll of [its] full or part-time ‘employees,’ and [its] lawfully elected, appointed or

employed officials”). This provision thus plainly establishes that the policy does not cover

lawsuits from which the County would have governmental immunity absent the policy.

Accordingly, the County’s liability insurance policy does not operate as a waiver of

governmental immunity from the Estate’s official capacity wrongful death claims. The

district court correctly granted summary judgment on this claim.

2.

The Estate also seeks to recover damages from Deputy Momphard and Sheriff

Holland in their official capacities pursuant to Sheriff Holland’s surety bond. North

Carolina requires sheriffs to purchase such a bond “for the . . . faithful execution of his

office.” N.C. Gen. Stat. § 162–8. That bond, by statute, renders the sheriff and his sureties

liable “for all acts done by [the sheriff] by virtue or under color of his office” to “[e]very

person injured by the neglect, misconduct, or misbehavior.” N.C. Gen. Stat. § 58–76–5.

Liability under the bond also extends to the acts of a sheriff’s deputy, for “[t]he acts of the

deputy are acts of the sheriff.” Styers v. Forsyth County, 194 S.E. 305, 308 (N.C. 1937).

50
 Nonetheless, the district court found that the Estate’s surety bond claim failed as a

matter of law “[b]ecause [the Estate] has failed to produce evidence sufficient to support a

tort claim against Defendants.” J.A. 90. That conclusion appears to solely rest on the

court’s finding that Deputy Momphard was entitled to public official immunity from the

Estate’s state law wrongful death claim. See J.A. 88–89.

Echoing this point during oral argument, Deputy Momphard, Sheriff Holland, and

Western Surety argued that the Estate’s surety bond claim necessarily fails because Deputy

Momphard is entitled to public official immunity from those individual capacity claims.

As discussed above, however, Deputy Momphard is not entitled to public official immunity

as a matter of law at this stage in the proceedings. The summary judgment award on the

surety bond claim must therefore be vacated for this reason alone.

Even if Deputy Momphard were entitled to public official immunity from the

individual capacity state law tort claim against him, Defendants’ argument is foreclosed by

our decision in Lee v. Town of Seaboard, 863 F.3d 323 (4th Cir. 2017). In that case, we

considered whether a district court erroneously awarded summary judgment to the

defendant-city as to a plaintiff’s official capacity tort claims under North Carolina law

arising out of the alleged use of excessive force by one of the city’s police officers. On

appeal, the city argued that those official capacity claims were barred by the officer’s

entitlement to public official immunity from the plaintiff’s individual capacity claims

against him. We rejected this argument, explaining that “public official immunity does not

immunize a municipality from liability for torts committed by a municipal employee acting

in his official capacity.” Id. at 330 n.6. Thus, where a county or municipality has waived

51
its governmental immunity––such as pursuant to a sheriff’s surety bond––“and is being

sued for its own conduct and the conduct of [one of its officers] in his official capacity,”

the individual police officer’s public official immunity “is of no consequence.” Id.

Here, it is undisputed that the County has waived its governmental immunity from

the Estate’s wrongful death claims to the extent of the County’s surety bond, which is

$25,000. Deputy Momphard’s possible entitlement to public official immunity from the

individual capacity claim against him is thus “of no consequence” to the Estate’s official

capacity claims against the Sheriff’s Office based on his actions. Id. Accordingly, we

vacate the district court’s judgment on the Estate’s surety bond claim. 14

E.

Lastly, we address the Estate’s claims against Sheriff Holland and Deputy

Momphard that arise directly under the North Carolina Constitution based on the alleged

deprivation of Knibbs’ state constitutional rights.

North Carolina courts have interpreted the State’s constitution to provide an

individual “whose state constitutional rights have been abridged” with “a direct claim

against the State under [the North Carolina] Constitution,” but only “in the absence of an

adequate state remedy.” Corum v. Univ. of N.C., 413 S.E.2d 276, 289 (N.C. 1992). In order

for another remedy to be “adequate,” “a plaintiff must have at least the opportunity to enter

14
That the County lacks governmental immunity from the Estate’s surety bond
claim for damages up to $25,000 does not mean that the Estate will prevail on the merits.
The County only sought summary judgment on governmental immunity grounds, so we
have no occasion to consider whether it is entitled to summary judgment on other bases.

52
the courthouse doors and present his claim.” Craig ex rel. Craig v. New Hanover Cnty. Bd.

of Educ., 678 S.E.2d 351, 355 (N.C. 2009). Relevant here, Craig held that the State’s

invocation of sovereign immunity rendered a common law negligence claim an inadequate

remedy because it “precludes” the plaintiff from litigating the claim on the merits. Id.

Relying on Craig, the Estate contends that its state law individual capacity claims cannot

be an “adequate” remedy because Deputy Momphard’s public official immunity precludes

it from litigating those claims on the merits.

The Estate’s argument is precluded by the North Carolina Court of Appeals’ ruling

in Wilcox. In that case, the court rejected the assertion that the doctrine of public official

immunity rendered a state tort law claim an inadequate remedy. That result aligned with

Craig, the court reasoned, because Craig made clear that “adequacy is found not in success,

but in chance.” 730 S.E.2d at 237. The court observed that, unlike sovereign or

governmental immunity, public official immunity does not “absolutely, entirely, or

automatically preclude[]” a plaintiff from presenting a claim on the merits. Id. It is instead

more akin to “a usual affirmative defense” that can be overcome through evidence of

malicious conduct. Id. Accordingly, the court concluded, “it cannot be said that [a

defendant’s] assertion of the public official immunity defense entirely precludes suit and

renders [a plaintiff’s] common law claims inadequate.” The Supreme Court of North

Carolina denied discretionary review of this ruling. 738 S.E.2d 401 (N.C. 2013) (Mem.).

Anticipating our citation to Wilcox, the Estate argues that its holding is

irreconcilable with Craig. The North Carolina Court of Appeals rejected that same

argument in DeBaun v. Kuszaj, 767 S.E.2d 353, 356–57 (N.C. Ct. App. 2014), and the

53
Supreme Court of North Carolina again denied discretionary review, 768 S.E.2d 853 (N.C.

2015) (Mem.).

Because we are a federal court applying state law, we are bound to follow Wilcox

and DeBaun. See Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1002 (4th Cir. 1998).

We can only disregard those decisions if we are “convinced by other persuasive data”

indicating that the Supreme Court of North Carolina would reject those holdings. Id.

(quoting West v. AT&T, 311 U.S. 223, 237 (1940)). No such data exist, and the parties

direct us to none. Quite the opposite: that court denied discretionary review in both cases,

indicating to us its acceptance of these rulings. See, e.g., United States v. Harris, 941 F.3d

1048, 1055 n.2 (11th Cir. 2019) (treating as binding state intermediate appellate court

decisions because the state supreme court denied discretionary review); Nelson v. City of

Irvine, 143 F.3d 1196, 1206–07 (9th Cir. 1998) (same).

We therefore follow Wilcox and DeBaun and hold that the Estate’s direct state

constitutional claims are precluded by the presence of another adequate state remedy. 15

IV.

For the foregoing reasons, we vacate the district court’s grant of summary judgment

on the following claims and remand the case for further proceedings: (1) the § 1983 claim

against Deputy Momphard in his individual capacity; (2) the wrongful death claim for both

15
The district court also found that the Estate’s surety bond claim was an adequate
alternative remedy. We need not consider the Estate’s challenge to this ruling, given our
holding that the Estate’s state law individual capacity claims are an adequate remedy.

54
compensatory and punitive damages under North Carolina law against Deputy Momphard

in his individual capacity; and (3) the claims under the Macon County Sheriff’s Office’s

surety bond against Deputy Momphard and Sheriff Holland in their official capacities, and

against Western Surety, for up to $25,000 in damages. However, we affirm the district

court’s conclusions that: (1) the Estate’s Fourteenth Amendment claim fails as a matter of

law; (2) Macon County’s liability insurance policy preserves the Sheriff’s Office’s

governmental immunity from suit; and (3) the Estate’s claims brought directly under the

North Carolina Constitution are precluded.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

55
NIEMEYER, Circuit Judge, dissenting:

This case presents the unfortunately-too-frequent situation in which a law

enforcement officer is faced with the risk of serious physical harm and, in face of that risk,

makes a split-second decision to shoot the person who created the risk. See, e.g., Sigman

v. Town of Chapel Hill, 161 F.3d 782, 784–85 (4th Cir. 1998); Elliott v. Leavitt, 99 F.3d

640, 641–42 (4th Cir. 1996). If that officer reasonably had “probable cause to believe”

that he was confronted with a risk to him of “serious physical harm,” he cannot be held

liable for addressing the risk with deadly force. See Waterman v. Batton, 393 F.3d 471,

477 (4th Cir. 2005) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). This principle

applies even if the facts, when parsed in hindsight, suggest that the officer made the wrong

judgment. See Pearson v. Callahan, 555 U.S. 223, 231 (2009); Sigman, 161 F.3d at 786–

87. Moreover, if there is no “clearly established” law that would inform a reasonable

officer in the circumstances that using deadly force was, “beyond debate,” a violation of

law, then the conduct is protected by qualified immunity. Rivas-Villegas v. Cortesluna,

142 S. Ct. 4, 8–9 (2021) (per curiam); see also Pearson, 555 U.S. at 231; Sigman, 161 F.3d

at 786.

The facts of this case are tragic, and unfortunately nothing can be done now to undo

the loss. But in the aftermath, we must nonetheless carefully determine whether, under the

governing legal principles, a law enforcement officer who sought to do his job in good faith

should be held responsible for the damages resulting from the loss.

56
 I

The record in this case contains, to be sure, a few disputed facts, but none of them

is material to the legal determination of whether the law enforcement officer violated the

deceased person’s legal rights or whether the officer is entitled to qualified immunity. The

record shows the following.

On April 29, 2018, at 11:44 p.m., the Macon County Sheriff’s Office in Macon

County, North Carolina, received a 911 call from Shelton Freeman, complaining that the

only access road to his house, which was on a dead-end street, was being blocked by Scott

Knibbs, a neighbor who had laid several boards in the street with nails protruding upward.

The boards were laid in front of Knibbs’s house, which had to be passed to get to Freeman’s

house. Deputy Sheriff Anthony Momphard, Jr., was dispatched to investigate the

complaint. He did so while in full uniform and in a marked Sheriff’s Office vehicle.

When Deputy Momphard arrived at the scene, he viewed the boards in the street

and stopped his vehicle short of them, so as not to puncture a tire. He left his headlights

on but did not turn on his vehicle’s flashing blue lights. The moon was full, though, which,

according to Deputy Momphard, made it easy for anyone to see him or the marked vehicle.

He then approached Knibbs’s house, believing that the 911 call had come from his house.

As Deputy Momphard approached and walked around the house, he announced multiple

times that he was from the Sheriff’s Office and, after passing one door, he knocked on a

second door. Notwithstanding his efforts, no one answered, although he did hear a dog

bark after knocking at the door.

57
 Hearing voices from the next house on the street — beyond the boards — Deputy

Momphard walked to that house and encountered Freeman, who turned out to be the

complainant and who was hosting a small party of about eight persons. The attendees were

sitting around a campfire and drinking beer.

Freeman told Deputy Momphard of the problem with the boards, which were

discovered when one of his guests was unable to leave to go home without risking the

puncture of her tires. In their discussion, which took place in view of Knibbs’s house,

Freeman told Deputy Momphard that Knibbs was an “aggressive” person, and he related

how Knibbs had earlier had an altercation with a party guest who had accidentally pulled

into Knibbs’s driveway when looking for Freeman’s house. As the guest pulled out of the

driveway, Knibbs kicked the side of the guest’s vehicle. Freeman told the Deputy that he

thought Knibbs was home because he saw the lights flip on and off when the Deputy was

knocking on Knibbs’s door. While Freeman and the officer were talking, they both saw

the lights in Knibbs’s house again flip on and off, and the two agreed that somebody was

indeed home at Knibbs’s house. Deputy Momphard told Freeman that he was right in not

confronting Knibbs directly but rather in calling for help. The Deputy said that he would

talk to Knibbs, explaining that this was probably a civil matter, but he would try “to do

what he [could] do” “to straighten things out.” Freeman followed Deputy Momphard who

instructed Freeman to stand behind the Sheriff’s Office vehicle.

The two walked together to Knibbs’s house, and once there, Freeman remained in

the street where the boards were while Deputy Momphard walked around the house

announcing loudly, “Sherriff’s Office.” After he knocked on the front porch door in an

58
effort to get a response from Knibbs, he heard Knibbs say, “fuck,” and then heard his

footsteps as Knibbs approached the door. When Deputy Momphard again announced,

“Sherriff’s Office,” he heard Knibbs “rack” his gun to load it. Deputy Momphard testified

that at that moment he feared for his life, and he instructed Knibbs forcefully to “drop” the

gun two or three times — or, as Freeman heard two or three times, “Put it down.” When

Knibbs failed to comply and also said nothing, Deputy Momphard recognized from his

training that this was a “pre-assault indicator.” Believing that he was about to be “shot

over a stupid right of way issue,” Deputy Momphard looked for a way to move away from

the door. Seeking a safer position, he moved across a window and, according to him, then

saw Knibbs staring at him with a gun pointed at him. Deputy Momphard immediately fired

several shots at Knibbs, hitting him twice. The time from the faceoff through the door to

when Deputy Momphard fired his service pistol was only seconds. Deputy Momphard

called for backup and Knibbs was declared dead.

Among these facts, the only dispute is whether Knibbs’s gun was actually pointed

at Deputy Momphard when the Deputy crossed the window. That dispute is based on an

expert’s opinion that, based on the nature of Knibbs’s two bullet wounds, Knibbs was not

aiming his gun at Deputy Momphard at the moment he was shot.

The facts that are undisputed, however, support the conclusion that Deputy

Momphard had probable cause to believe that he was at risk of serious physical injury and

therefore was entitled to use deadly force to protect himself. Garner, 471 U.S. at 11;

Waterman, 393 F.3d at 477; Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir. 1991).

59
 II

The majority denies Deputy Momphard qualified immunity because it concludes

that material facts are in dispute. It relies most heavily on the purported fact that Knibbs

did not “readily recogniz[e]” that it was a law enforcement officer at the door, as opposed

to some unknown person from whom Knibbs was entitled to protect himself. With that

assumption, the majority concludes that Knibbs was only exercising his constitutional right

to protect himself and his family by coming to the door with a loaded gun. While the

majority necessarily acknowledges that “our decisions have noted that an officer ‘might’

be objectively justified under particular circumstances in fearing for his life upon observing

an individual holding a firearm after making his presence as an officer known,” citing

Cooper v. Sheehan, 735 F.3d 153, 159 (4th Cir. 2013) (emphasis added), and Betton v.

Belue, 942 F.3d 184, 193 (4th Cir. 2019), it concludes that there was no objective way for

Knibbs to know “who was outside on his porch before answering the door.” Supra at 28.

This conclusion, however, defies the common-sense reality presented by the facts of record.

First, no one testified that Deputy Momphard did not loudly announce his presence

as a sheriff on numerous occasions during two visits to Knibbs’s house — once before

talking to Freeman and once after. Freeman testified that he heard Deputy Momphard’s

announcements numerous times. And Knibbs’s wife — who was inside the house — said

that both she and Knibbs heard it. Finally, Deputy Momphard testified that he called out

“Sheriff’s Office” as Knibbs was walking to the door. In addition, it is undisputed that

Deputy Momphard pulled his vehicle up to the boards, which, according to Freeman, lay

in front of Knibbs’s house about 20 to 30 feet away — or according to pictures in the record,

60
perhaps even closer than that — and left his headlights on. The vehicle was a typically

marked law enforcement vehicle with a light rack on the roof, and there was a full moon.

Moreover, during the entire time that Deputy Momphard was investigating the incident,

beginning with his visit to Knibbs’s house and then with his visit to Freeman and then back

to Knibbs’s house, Knibbs would have been able to see Momphard and recognize he was

in uniform. It is telling that during the time that Deputy Momphard was conducting the

investigation, the lights in Knibbs’s house flipped on and off at least twice, also suggesting

an awareness by its occupants of Deputy Momphard’s presence. Also, when Deputy

Momphard announced himself during his second visit to Knibbs’s house, that

announcement, according to Knibbs’s wife, prompted Knibbs to grab his shotgun and walk

to the front door. And Knibbs’s wife testified that Knibbs had told her that he laid the

boards in the street to keep people “from going back and forth all night” and that she knew

why the Sheriff’s Office was there — “because someone had called about the boards.”

Finally, when Deputy Momphard identified himself to Knibbs at close range through the

door and ordered him to drop the gun, Knibbs did not respond to express doubt about who

was at the door or to ask any questions. In light of these numerous facts, Knibbs surely

knew that he was facing a law enforcement officer, and none are disputed. Yet,

acknowledging only some of them, the majority concluded that “whether Deputy

Momphard was readily recognizable as a law enforcement officer on Knibbs’ porch” is a

genuinely disputed material fact. Supra at 22 (emphasis added) (cleaned up). Remarkably,

the majority finds that “the record does not conclusively establish that Knibbs could have

visually identified Deputy Momphard as a law enforcement officer on his porch that night,”

61
supra at 23, leading to its conclusion that he was defending his home against an unknown

person.

Even more importantly, however, the question is not what Knibbs knew, but what

Deputy Momphard reasonably believed. The majority correctly acknowledges that the

“crucial fact is not what Knibbs subjectively believed, but rather what Deputy Momphard

reasonably perceived in light of the circumstances known to him at the time.” Supra at 28

n.6 (cleaned up). But then it dedicates its focus on what Knibbs readily recognized and

concludes that the record supports a finding that Knibbs was merely defending himself and

his family from an unknown person. This error lies at the heart of the majority’s wrongful

denial of Deputy Momphard’s qualified immunity.

Based on the undisputed facts in this record, Deputy Momphard undoubtedly had

probable cause to believe — as would any reasonable officer — that Knibbs knew that he

was facing a law enforcement officer; that Knibbs had just loaded his gun in the presence

of the law enforcement officer; that Knibbs had refused to drop his gun in response to the

officer’s commands; and that Knibbs refused to speak or ask questions to resolve any doubt.

Yet, the majority’s analysis fails to account for what a reasonable officer would have

perceived in light of these undisputed facts about what Deputy Momphard saw and

experienced, focusing instead on Knibbs’s subjective beliefs. Moreover, to do so, the

majority discounts Deputy Momphard’s testimony as “self-serving” and therefore turns to

accept the “Estate’s proffered evidence” about what Deputy Momphard saw and

experienced, even while recognizing that the Estate’s only witness to the events was

Knibbs. Supra at 34–35, id. at 22. It then concludes that Knibbs’s Estate legitimately

62
showed that “[Knibbs] was shot simply because he stood in his living room holding a

shotgun.” Supra at 19.

The only other fact that the majority identifies as disputed is whether Knibbs was

actually pointing the gun at Deputy Momphard at the time Deputy Momphard passed the

window and fired his shots. But that fact hardly dispels the risk that Deputy Momphard

reasonably perceived, which must be the focus of the inquiry. In this case, Deputy

Momphard reasonably believed that he was at risk of serious bodily injury when he stood

on the opposite side of the door from Knibbs. Knibbs, after all, did not communicate with

Deputy Momphard and had a shotgun, which he had just racked and refused to drop at the

Deputy’s command. When Deputy Momphard attempted to move to a safer position, he

had to pass the window, where he saw Knibbs holding the gun, prompting Deputy

Momphard’s immediate response. The issue is not whether Deputy Momphard was

actually at risk of harm at that moment, but whether, in the totality of the circumstances,

he reasonably believed that he was at risk of serious bodily injury. Hensley ex rel. North

Carolina v. Price, 876 F.3d 573, 582 (4th Cir. 2017); Anderson v. Russell, 247 F.3d 125,

131–32 (4th Cir. 2001); McLenagan v. Karnes, 27 F.3d 1002, 1006–08 (4th Cir. 1994);

Slattery, 939 F.2d at 216–17. Thus, whether the gun was actually pointing at Deputy

Momphard at that point is irrelevant, because we have “consistently held that an officer

does not have to wait until a gun is pointed at the officer before the officer is entitled to

take action.” Anderson, 247 F.3d at 131.

Apart from the core error in failing to view the circumstances from Deputy

Momphard’s point of view, the majority opinion adds a layer of additional error in

63
addressing, in isolation, each factor that Deputy Momphard relied on and then concluding

that the isolated factor was insufficient to justify Deputy Momphard’s belief. This is boldly

contrary to the majority’s correct observation that it is required to focus on “the totality of

the circumstances.” Supra at 18; see also Hensley, 876 F.3d at 582. Nonetheless, the

majority considered each factor in isolation. It addressed first the factor identified by

Deputy Momphard that Knibbs racked his gun as he approached the door. Addressing this,

the majority concludes simply that merely “[r]acking a shotgun inside one’s home” is not

“threatening.” Supra at 29. After it rejects that factor, it next addresses Deputy

Momphard’s reliance on the fact that Knibbs failed to drop the gun, concluding that

Knibbs’s failure to obey “two commands to drop the shotgun” is not threatening because

Deputy Momphard did not see any furtive movements by Knibbs, and anyway Deputy

Momphard was not “readily recognizable” as a law enforcement officer. Supra at 30–31.

But the majority fails to acknowledge that Knibbs was behind a closed door refusing to

obey a sheriff’s deputy, and therefore, while Deputy Momphard would not be able to see

whether Knibbs engaged in furtive movements, he did know, in the totality of the

circumstances, he was in clear risk of being shot. The majority simply did not assess, as

required, “the totality of the circumstances,” including Knibbs’s failure to communicate

and other contextual circumstances. Hensley, 876 F.3d at 582.

Taking the circumstances in their totality and from the perspective of a reasonable

officer, we have an officer investigating, in good faith, a neighborhood dispute when he

came upon one neighbor, described as aggressive and perhaps unreasonable in laying out

boards with nails, who (1) knows the officer is there; (2) comes to the door with a shotgun;

64
(3) racks it as he approaches the door; (4) refuses to drop it on the officer’s commands; and

(5) refuses to say anything or ask any questions in response to those commands but stands

near the officer out of sight behind the door. The officer, reasonably believing he was

about to be shot through the door, seeks safety from that position and, in doing so, sees the

neighbor holding the gun. Not waiting to be shot, the officer fires his service pistol.

Despite these facts, the majority rules that the officer is not entitled to qualified immunity

because a jury could find that the officer shot Knibbs while he was only “possess[ing] a

firearm in his own home in a non-threatening manner while investigating a nocturnal

disturbance on his premises.” Supra at 41. This makes no sense to me.

III

Moreover, neither party, nor the majority, has uncovered a case that would inform

Deputy Momphard that he should have understood that firing his service pistol in the

circumstances of this case violated clearly established law. As the majority recognizes,

immunity depends on whether every reasonable officer in Deputy Momphard’s situation

would have understood that his conduct was unlawful. See Rivas-Villegas, 142 S. Ct. at

7–8. And despite that clear principle, the majority can only reason from general principles

to argue, as a lawyer would, that Deputy Momphard should have known that he could not

shoot, even in circumstances where he reasonably believed that he was subject to imminent

serious physical harm. Indeed, the majority acknowledges, “We recognize that neither the

Supreme Court nor this Circuit has considered a qualified immunity case with a fact pattern

precisely identical to the instant one.” Supra at 36. But it does not even come close to

65
providing cases from which an officer such as Deputy Momphard would conclude that his

particular conduct was unlawful. Rather, the majority identifies only two cases, which are

clearly distinguishable, Cooper and Hensley, and argues over several pages how a

reasonable officer would be able to deduce that he would be violating the law if he did

what Deputy Momphard did — this without taking account of the numerous cases pointing

the other way. Fundamentally, the majority fails to demonstrate that reasonable officers

would know from clearly established law that what Deputy Momphard did was, beyond

debate, unlawful in the circumstances.

The two cases the majority relies upon for its analysis, Cooper and Hensley, hardly

inform reasonable officers standing in Deputy Momphard’s circumstances. Indeed,

reasonable officers would more likely have recognized the distinguishing facts in them and

concluded that they do not inform the circumstances. In Cooper, unlike in this case, the

officers never announced themselves, even when the victim called out for anyone in the

yard to identify himself, and the officers opened fire on the victim without warning when

he walked out of the home with a shotgun to see who was outside. 735 F.3d at 155–56.

We agreed with the district court that “no reasonable officer could have believed that

[Cooper] was aware that two sheriff deputies were outside,” but we expressly noted that

had the officers identified themselves, “they might have been safe in the assumption that a

man who greets law enforcement with a firearm is likely to pose a deadly threat.” Id. at

159–60. Here, as noted, Deputy Momphard did identify himself, and there were numerous

other undisputed facts that would lead a reasonable officer to believe that Knibbs knew that

it was an officer who was outside the door. Similarly, in Hensley, the deputies “concede[d]

66
that neither of them ever spoke to” the victim; that they never announced their presence;

and that they “never ordered [him] to stop, to drop the gun or issued any type of warning.”

876 F.3d at 578 (emphasis added). Again, this is markedly different from the facts at hand,

where Deputy Momphard announced himself numerous times and also repeatedly ordered

Knibbs to drop his gun prior to shooting.

Thus, while the facts in Cooper and Hensley would not have made clear to a

reasonable officer in Deputy Momphard’s circumstances that his conduct was unlawful,

numerous cases from our court would have more clearly indicated that his use of deadly

force was justified. For example, in Slattery, we concluded that an officer was entitled to

qualified immunity when he shot a suspect who ignored commands to show his hands

before turning toward the officer with what turned out to be only a beer bottle in a clenched

fist. 939 F.2d at 215, 217. Similarly, in Anderson, we concluded that an officer who shot

a suspect had not used excessive force when he told the victim to raise his hands over his

head and instead, without explanation, the man reached down to where the officer believed

he had a gun hidden under his clothing, when the victim was in fact unarmed. 247 F.3d at

127–31. Again, in Elliott, the officers were held to have acted reasonably in shooting a

person who was handcuffed, but had his finger on the trigger of a handgun, and who refused

to drop the gun after being commanded to do so. 99 F.3d at 641–43. And in Sigman, the

officers were held to have acted reasonably in firing at a man who carried a chef’s knife

and refused to drop the knife as he approached the officers, despite several warnings. 161

F.3d at 785, 788; see also City of Tahlequah v. Bond, 142 S. Ct. 9, 10 (2021) (per curiam)

(holding that officers were immune for use of deadly force when a person ignored

67
commands to drop a hammer and instead “raised the hammer higher back behind his head

and took a stance as if he was about to throw the hammer or charge at the officers”).

In this case, Deputy Momphard knew that Knibbs was actually armed; that he had

announced himself loudly and clearly as an officer; and that Knibbs had refused multiple

commands to drop the gun, without providing any explanation or response to the officer.

In such circumstances, it would not be clear to any reasonable officer, based on precedents

from our court or the Supreme Court, that the use of deadly force was unlawful. Instead

of recognizing this, the majority makes the same error as did the lower court in City of

Tahlequah, namely “contravene[ing]” settled principles of law and relying on cases that

have “dramatically different” facts in order to improperly find the officer is not entitled to

qualified immunity. 142 S. Ct. at 12.

Our officers in uniform deserve clearer guidance than this before they are held liable,

especially when they, in good faith, believe that they are performing their jobs lawfully,

albeit in a manner that results in tragic consequences.

IV

Over the years, the Supreme Court has repeatedly admonished courts of appeals to

recognize police officers’ immunity. And only recently, perhaps in some exasperation, it

again reminded courts of appeals of this fact. In City of Tahlequah, the Court reiterated

that “qualified immunity protects all but the plainly incompetent or those who knowingly

violate the law” and noted that it has “repeatedly told courts not to define clearly

established law at too high a level of generality. It is not enough that a rule be suggested

68
by then-existing precedent; the rule’s contours must be so well defined that it is clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.” 142 S. Ct.

at 11 (emphasis added) (cleaned up). The Court determined that officers presented with a

far less serious risk than was presented here were entitled to qualified immunity when the

person they shot looked like he was going to throw a hammer at the officers after the

officers told him to drop it. The Court also stated in Rivas-Villegas what is applicable here

— that “existing precedent must have placed the statutory or constitutional question beyond

debate.” 142 S. Ct. at 8–9 (emphasis added) (quoting White v. Pauly, 137 S. Ct. 548, 551

(2017) (per curiam)). Unfortunately, we continue to violate these repeated admonitions.

I would affirm, concluding both that Deputy Momphard did not violate Knibbs’s

constitutional rights and that, in any event, no existing precedent clearly placed that

conclusion beyond doubt.

69