MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JOE L. WEBSTER, Magistrate Judge.

This matter is before the court on the motion of Defendants Greensboro Police Department ("GPD") Officers Ernest K. Wrenn, Gerald Jones, Jason Randazzo, Justin Flynt, Kristen Bennett and Matthew Phillip O'Hal (collectively "Defendants") for summary judgment. (Docket Entry 95). Plaintiff Christopher O'Neal Patterson ("Plaintiff or "Patterson") has filed a response. (Docket Entry 117.) Also pending is Defendants' Motion to Dismiss. (Docket Entry 82). For the reasons that follow, Defendants' motion for summary judgment should be granted and Defendants' motion to dismiss should be denied as moot.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November 2010, Plaintiff pled guilty to multiple criminal charges stemming from a bank robbery and subsequent shootout with law enforcement in which his co-defendant was killed. Plaintiff was sentenced by the Honorable Thomas D. Schroeder to a 744-month prison sentence. (See United States v. Christopher O'Neal Patterson, No. 1:09CR54-1, Docket Entry 39) (the "criminal case").

Plaintiff, acting pro se, subsequently filed this civil suit against the seven Greensboro Police Department officers involved in the shootout. In his second amended complaint, Plaintiff alleged that Defendants used excessive force during his arrest in violation of the Fourth, Eighth, and Fourteenth Amendments to the Constitution. (Docket Entry 35.) Patterson challenged the entirety of GPD's use of force on the day of the shootout. (Id.)

On July 26, 2012, Defendants moved to dismiss the amended complaint on several grounds, including qualified immunity. (Docket Entry 39.) By order dated September 30, 2013, the Court granted Defendants' motion as to Plaintiffs Eighth Amendment claim, his Fourteenth Amendment substantive due process claim, and all claims against Defendants in their official capacities. (Docket Entry 54.) The Court further granted Defendants' motion to dismiss Plaintiffs Fourth Amendment excessive force claim against Defendants in their individual capacities as to all claims predicated on conduct that precedes the time that Plaintiff surrendered, remained subdued and unarmed, and no longer posed a threat, but denied the motion "in all other respects . . . without prejudice to it being raised upon a further showing." (Id. at 23.) Thus, the only remaining claim is one portion of Plaintiffs Fourth Amendment claim brought under 42 U.S.C. § 1983, against Defendants in their individual capacities.

In the second amended complaint and its attachments, Plaintiff alleged that on February 9, 2009, at about 5:15 pm he was driving a black Infiniti vehicle which GPD officers suspected was fleeing a bank robbery. (Am. Compl. ¶ 1, Docket Entry 35.) When Plaintiffs vehicle did not stop for law enforcement, police set out "stop sticks." (Id.) Plaintiff alleged that he "lost control" of the vehicle, "swerved," and hit Defendant O'Hal, pinning the officer under the car. (Id. ¶ 2.) Plaintiff alleged that Defendants "willfully, maliciously, and sadistically" used excessive force by firing into his vehicle repeatedly such that they had to reload their weapons. (Id. ¶ 3.) Plaintiff alleged that he was not hit in the gunfire (which he alleged lasted "several minutes"), but that he exited the vehicle "with his hands up" and surrendered, "both physically and verbally." (Id. ¶¶ 4-6.) Plaintiff alleged that Defendants shot him at least seven times while he was lying on the ground, totally disregarding Plaintiff s demands that the officers "stop shooting." (Id. ¶ 8, 11.) Plaintiff was shot several times. He alleged that he sustained severe injuries, necessitating several surgeries and resulting in permanent impairment. (Id. ¶ 11.)

Plaintiff pled guilty to the underlying bank robbery which led to the police chase and shootout described in the amended complaint. The factual basis for Plaintiff's guilty plea, which at the time of sentencing he agreed was accurate, stated:

(Crim. Case, Docket Entry 20 at 4.) Thus, Plaintiff admitted under oath that after hitting an officer with the escape vehicle he fired a weapon at the officers attempting to apprehend him.

Plaintiff attached to the amended complaint what he represents to be an excerpt of an interview of Defendant Flynt, one of the responding GPD officers, conducted by the SBI. (Sec. Am. Compl. Ex. A, Docket Entry 35.) The interview quotes Officer Flynt as saying that during the chase he heard officers say that they were being shot at, and Flynt himself saw the driver point a gun and shoot toward the position of Defendants O'Hal and Randazzo as well as Defendant Cranford and another officer. (Id.) Officer Flynt is quoted as saying:

(Id.) Defendant Randazzo's alleged statement to the SBI notes that "Patterson got out of the car and got on the ground with his hands up and said `stop shooting.'" (Id.) Defendant Wrenn allegedly told the SBI that Patterson "got out of the car and la[id] down on the ground after spinning around and falling down." (Id.) Plaintiff was then approached by officers and handcuffed. (Id.)

One of the GPD vehicles at the scene had a dashboard camera that recorded the scene and some of the encounter between Plaintiff and law enforcement. (See Decl. of Ernest Wrenn ¶ 7, Exhibit A, Docket Entry 103.) Plaintiff alleges that the dashboard camera recording referenced in Exhibit B contradicts Defendant Flynt's account and provides evidence that he was shot excessively after he had surrendered and was lying on the ground unarmed. (Docket Entry 54 at 5; see also Sec. Am. Compl. ¶ 9, Docket Entry 35.) The Court has viewed the dashcam video in its entirety and will address it more fully later in the discussion.

In support of their motion for summary judgment, Defendants have each filed declarations as to the events of February 9, 2009, including the robbery, high speed chase, shootout and arrest of Plaintiff. Four of the Defendants, Officers Jones, Cranford, Wrenn and Bennett, all state in their declarations that they did not engage Plaintiff during the terminal moments of the encounter. (Decl. of Gerald Jones ¶ 10, Docket Entry 99; Decl. of Joel Cranford ¶ 9, Docket Entry 102; Wrenn Decl. ¶¶ 11-12; Decl. of Kristen Bennett ¶ 10, Docket Entry 100.) The other three Defendants, Officers Randazzo, O'Hal and Flynt, were involved in the terminal moments of the encounter. Defendant O'Hal states that Plaintiff was shooting at him both before and after he exited the vehicle. (Decl. of Matthew O'Hal ¶ 11, Docket Entry 98.) Officer O'Hal further stated:

(Id. ¶¶ 12-16.) Officer Flynt similarly described the terminal moments of the encounter with Plaintiff:

(Decl. of Justin Flynt ¶ 13, Docket Entry 101.) Officer Randazzo's declaration relates the same series of events, noting that "[o]nce Mr. Patterson went to the ground and was not aiming his handgun at anyone, I adjudged the threat to have ended, and I immediately ceased firing my service weapon." (Decl. of Jason Randazzo ¶ 13, Docket Entry 97.)

Defendants served a series of interrogatories on Plaintiff, asking him to "[s]tate with particularity the action taken by [each officer] on 9 February 2009 of which you are complaining and the evidence you have of that action." (See Defs.' Br., Ex. A, Interrogs. Nos. 5-11, Docket Entry 96-1.) Plaintiff served a single response to the seven interrogatories, stating: "[PJrior to the shooting, plaintiff knew not any defendants by name. [SJecond, plaintiff knew not where shots were coming from for he also never faced defendants. [L]astly all defendants admitted to being directly involved with the shooting and at this time that determination [redacted by Plaintiff] cannot be made." (Id. Ex. B, Docket Entry 96-2.)

Plaintiff has submitted various documents. One document, entitled `Affidavit of Truth," contains Plaintiffs statement regarding the events of the day in question. In pertinent part, Plaintiff states:

(PL's Aff. ¶¶ 11-13, Docket Entry 115.)

II. STANDARD OF REVIEW

Summary judgment is warranted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Zahodnick v. Int'l Bus. Mads. Corp., 135 F.3d 911, 913 (4th Or. 1997). The party seeking summary judgment bears the burden of initially coming forward and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate the presence of a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When making a summary judgment determination, the court must view the evidence and justifiable inferences from the evidence in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913. However, the party opposing summary judgment may not rest on mere allegations or denials, and the court need not consider "unsupported assertions" or "self-serving opinions without objective corroboration." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); Anderson v. liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

III. DISCUSSION

A. Excessive Force and Qualified Immunity

A Fourth Amendment claim that a police officer employed excessive force must be analyzed under an "objective reasonableness" standard. Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). "The officer's actions do not amount to excessive force if they are objectively reasonable in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation." Smith v. Raj, 781 F.3d 95, 101 (citing Graham v. Connor, 490 U.S. 386, 397 (1989)). In considering the reasonableness of an officer's actions, the court examines the facts at the moment that the challenged force was employed. Smith, 781 F.3d at 101. Such an examination involves a balancing of the "nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. (citing Graham, 490 U.S. at 396). As stated by the Fourth Circuit,

Smith, 781 F.3d at 101 (internal quotations and citations omitted) (alteration in original). Because `"police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain and rapidly evolving — about the amount of force that is necessary,'" courts must evaluate facts from the perspective of a reasonable officer on the scene without the use of hindsight. Plumhoff v. Rickard, 134 S.Ct. 2012, 2020 (2014) (quoting Graham, 490 U.S. at 396-97); see also Waterman v. Button, 393 F.3d 471, 476-77 (4th Or. 2005) (quoting Graham, 490 U.S. at 397).

"Qualified immunity shields government official performing discretionary functions from personal-capacity liability for civil damages under § 1983, insofar as their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known." Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011) (internal citation and quotation omitted). Officials will receive immunity unless the § 1983 claim satisfies a two-pronged test: (1) the allegations, if true, substantiate a violation of a federal statutory or constitutional right and (2) the right was clearly established such that a reasonable person would have known his acts or omissions violated that right. Id.; see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (setting up the two-pronged framework). Summary judgment on qualified immunity grounds is appropriate if the answer to either prong is "no." Smith 781 F.3d at 101.

Under the prior order of this Court, the only issue left for consideration in this case is whether there is a genuine issue of material fact as to the reasonableness of the actions of the Defendants during the terminal moments of the shootout. Plaintiff argues that Defendants used excessive force in shooting him after he was on the ground and had surrendered. Defendants contend that the officers acted reasonably, without excessive force, and further, that they are entitled to qualified immunity on the excessive force claim. Thus, to receive qualified immunity, Defendants must prove either (1) that their conduct did not violate the constitutional right at issue (here, the Fourth Amendment's prohibition on excessive force) or (2) that the right was not "clearly established" at the time of the incident. Pearson 555 U.S. at 236.

B. Excessive Force — Defendants Jones, Cranford, Wrenn and Bennett

Plaintiff has submitted no evidence as to which officers' rounds allegedly struck him during the terminal moments of the shootout and he has stated in an interrogatory response that he cannot identify the officers involved. Four of the defendants have stated that they were not engaged in the final moments of the shootout. In his declaration, Defendant Jones stated that after Plaintiff exited the vehicle Defendant Jones could no longer see Plaintiff so he did not fire his weapon after that point. (Jones Decl. ¶¶ 9-10, Docket Entry 99.) Defendants Cranford and Bennett also stated that they stopped firing at Plaintiff after he exited the vehicle. (Bennett Decl. ¶ 10, Docket Entry 100; Cranford Decl. ¶ 9, Docket Entry 102.) Defendant Wrenn stated that he had emptied a magazine by the time Plaintiff was exiting the vehicle and had turned away to reload. When he resumed position, he saw Plaintiff fall to the ground, out of Officer Wrenn's sight, and so he did not fire any shots from the second magazine. (Wrenn Decl. ¶ 12, Docket Entry 103.)

As such, as to his claim that he was shot after exiting the car, falling to the ground and surrendering, the evidence is undisputed that Defendants Jones, Cranford, Wrenn and Bennett could not have shot Plaintiff as he lay on the ground in a vulnerable position because they had stopped firing before the terminal moments of the encounter. Thus, as to these Defendants, because the evidence does not show "a violation of a federal statutory or constitutional right," summary judgment is proper.

C. Excessive Force — Defendants Flynt, Randazzo and O'Hal

Defendants Flynt, Randazzo and O'Hal admittedly fired shots at Plaintiff during the terminal moments of the encounter. Thus, the analysis as to these Defendants is somewhat different, requiring the court to examine the evidence and determine whether the use of deadly force at the time of the encounter was reasonable under the totality of the circumstances. Plumhoff, 134 S. Ct. at 2020.

Plaintiff contends that he was shot by Defendants as he lay on the ground and had surrendered. The record evidence, even taken in the light most favorable to Plaintiff, does not support this contention. Defendant Randazzo stated in his declaration that Plaintiff aimed a gun at him and Defendant O'Hal while Plaintiff was still in the vehicle, and that Plaintiff continued to do so after he exited the vehicle. (Randazzo Decl. ¶¶ 8-11, Docket Entry 97.) Defendant Randazzo further stated that "[o]nce Mr. Patterson went to the ground and was not aiming his handgun at anyone, I adjudged the threat to have ended, and I immediately ceased firing my service weapon." (Id. ¶ 13.)

Defendant O'Hal stated in his declaration that after hearing radio traffic about a high speed chase in which shots were fired from the suspect vehicle, he proceeded to a location on Patterson Street near Interstate 40. (O'Hal Decl. ¶¶ 4-5, Docket Entry 98.) As the vehicle approached, Officer O'Hal deployed "stop sticks" in an attempt to puncture the tires of the suspect vehicle and end the pursuit. (Id. ¶ 5.) The suspect vehicle approached and swerved to avoid the sticks, skidding off the road. (Id. ¶6.) Officer O'Hal then observed the vehicle approach him and accelerate in his direction, striking Defendant O'Hal and pinning him against his police vehicle. (Id.) The vehicle than spun away off the road and came to a stop 35-40 feet away, at which point Defendant O'Hal saw Plaintiff open the driver's side door and point a handgun in his direction. (Id. ¶ 7.) When Plaintiff exited the car, Officer O'Hal, fearing for his own safety, shot at him. (Id. ¶ 9.) Plaintiff fired at Defendant O'Hal several times, hitting him twice. (Id. ¶ 11.) After Plaintiff exited the car, he was crouched on his knees and continued to aim his gun in the direction of Officer O'Hal. (Id. ¶ 12.) Defendant O'Hal stated that "[a]t no time did [he] see Mr. Patterson stand up, raise his arms or take any other physical act that could be construed as an attempt to surrender" nor did he make "any statement that could be construed as an attempt to surrender." (Id. ¶¶13-14.) Defendant O'Hal further stated that once Plaintiff fell to the ground and was not aiming his handgun at any of the officers, Officer O'Hal ceased firing his weapon. (Id. ¶ 16.) He did not see or hear any other officers engage Plaintiff after that time. (Id.)

Defendant Flynt was also involved in the chase and shootout. He stated in his declaration that he observed Plaintiff engaging other officers with a handgun, while Plaintiff was still in the vehicle. (Flynt Decl. ¶¶8-19, Docket Entry 101.) He also saw Plaintiff aim the handgun at Officers O'Hal and Randazzo after Plaintiff exited the vehicle. (Id. ¶ 13.) Officer Flynt stated that Plaintiff never stood straight up after exiting the vehicle, and Flynt never saw Plaintiff "raise his arms over his head or take any other action that could be interpreted as an attempt to surrender." (Id. ¶ 11.) Officer Flynt stated that he recalled Plaintiff saying something like "stop f—ing shooting" but even as he shouted that he continued to aim his handgun in the direction of the officers. (Id. ¶ 12.) Defendant Flynt stated that once Plaintiffs whole body, including his arms, came to a rest on the ground Officer Flynt immediately ceased firing, as did the other officers. (Id.)

The dashboard camera video shows a loud and chaotic scene, as to be expected in a quickly developing situation involving fleeing bank robbers, a high-speed chase, and a shootout between suspects and police officers. (See Wrenn Decl. ¶ 9 and Ex. A thereto, Docket Entry 103.) While Plaintiff contends that the dashboard camera provides evidence that he was shot excessively after he had surrendered and while lying on the ground unarmed, this Court's viewing of the video suggests that it does not support Plaintiff's claim. The vehicle in which the camera was located was parked some distance from where Plaintiffs vehicle came to a stop. The camera's view was obstructed by a civilian vehicle which was caught in all the confusion, and thus does not show Plaintiff during the terminal moments of the encounter. The video does not reveal a surrender by Plaintiff because the view was blocked. The gunshots can be heard on the video (and indeed gunsmoke is visible in the air on the other side of the civilian vehicle), but the gunfire lasts at most sixty seconds, perhaps less, and there does not seem to be a significant break in the shooting. Moreover, the video does not contain any admission by any Defendant of a violation of Plaintiff's constitutional rights.1

In light of the facts and circumstances of this quickly developing situation, "it is beyond serious dispute that [Plaintiffs] flight posed a grave public safety risk, and . . . [that] the police acted reasonably in using deadly force to end that risk." Vlumhoff, 134 S. Ct. at 2022. Moreover, there is clear evidence that Plaintiff continued to shoot at the officers even as his vehicle was surrounded and he began to exit the vehicle. Conversely, there is no evidence, other than Plaintiffs self-serving contention, that he exited the vehicle in a manner which would suggest a desire to surrender. Indeed, Plaintiff's actions all indicated a desire to flee the police and seriously wound the officers who stood in his way. All the officers who were involved in the pursuit and shootout believed Plaintiff was still brandishing a firearm, threatening their safety and the safety of other citizens, when the officers fired their final rounds.

The Supreme Court and the Fourth Circuit have clearly held that in excessive force cases the analysis must focus on the reasonableness of the officer's actions, under the totality of the circumstances. Graham, 490 U.S. at 397; Smith, 781 F.3d at 101. Here, the responding officers had reason to believe that Plaintiff was extremely dangerous, given both the reports of the bank robbery, the attempts to flee and the gun batde which ensued. The gun batde, which involved both suspects and multiple police officers, was over in a minute or less. There is simply no evidence of a break in the shooting, i.e., no evidence that Defendants initiated a second round of shots after the first round had clearly incapacitated Plaintiff and eliminated any threat. See Plumhoff, 134 S. Ct. at 2022 In Plumhoff, the Court held that police officers did not use excessive force in firing shots and killing a suspect who posed a grave public safety risk by engaging in a high speed and reckless car chase, even though the chase had momentarily stopped, reasoning that the suspect was still attempting to flee in his car. Here, the facts are even more compelling. The evidence shows that there was a high speed chase (following an armed bank robbery), which officers unsuccessfully attempted to end by the use of "stop sticks," and which escalated into a gun battie between the fleeing felons and police officers on or near a bust highway. Additionally, officers observed Plaintiff maneuvering his car to hit and pin Officer O'Hal up against his police vehicle, as well as shooting the officer at least twice. Plaintiff exited the car still brandishing his firearm and officers reasonably perceived him to be a continued threat. Under the circumstances at that time, reasonable police officers could have concluded that Plaintiff intended to continue to shoot, endangering other officers or ordinary citizens caught in the melee. Even viewing this claim in the light most favorable to Plaintiff, there are no genuine issues of material fact. The Court finds that Defendants' conduct did not violate Plaintiffs Fourth Amendment rights and Defendants are entided to summary judgment.

Even if this Court were to find that Defendants' conduct violated the Fourth Amendment, Defendants would still be entided to summary judgment based on qualified immunity. "An official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was `clearly established' at the time of the challenged conduct." Plumhoff, 134 S. Ct. at 2023 (citing Ashcroft v. al- Kidd, 131 S.Ct. 2074, 2080 (2011)). In excessive force cases, as noted by the Supreme Court in Plumhoff, "the result depends very much on the facts of each case." Id. "An officer cannot be said to have violated a clearly established right unless the right's contours were sufficiendy definite that any reasonable official in [his] shoes would have understood that he was violating it, meaning that existing precedent . . . placed the statutory or constitutional question beyond debate." City and Cnty. of San Francisco, California v. Sheehan, 135 S.Ct. 1765, 1774 (2015) (internal quotation marks and citations omitted) (alterations in original). "This exacting standard gives government officials breathing room to make reasonable but mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Id. (internal quotation marks, alteration, and citation omitted).

Here, clearly established law does not show the conduct of the police officers was unconstitutional. As noted by the Supreme Court in Plumhoff, no precedent "clearly established that it was unconstitutional to shoot a fleeing driver to protect those whom his flight might endanger." 134 S. Ct. at 2023. The facts here are even more compelling than those in Plumhoff, given the undisputed fact that Plaintiff was fleeing from police following an armed bank robbery (to which he later pled guilty), had exchanged gun fire with police and had struck an officer with his vehicle while attempting to flee, and exited the car still holding and pointing his firearm. Indeed, Plaintiff has presented no evidentiary basis to support his theory that there was a break in the shooting and that therefore Defendants did not genuinely and reasonably believe that Plaintiff posed a threat.

Because it was not clearly established that Defendants' actions were constitutionally unreasonable in these circumstances, the Court holds that Defendants are protected by qualified immunity.2

IV. CONCLUSION

This court finds that there is no genuine issue of material fact and therefore Defendants are entitled to summary judgment. Accordingly, the Court RECOMMENDS that Defendants' motion for summary judgment (Docket Entry 95) be GRANTED. The Court further RECOMMENDS that Defendants' motion to dismiss (Docket Entry 82) be denied as moot.