Filed: Dec. 10, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6256 JAMES ERICK JONES, Plaintiff - Appellant, v. MULLINS POLICE DEPARTMENT; OFFICER BAILEY, Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Beaufort. Joseph F. Anderson, Jr., District Judge. (9:07-cv-00497-JFA) Argued: October 28, 2009 Decided: December 10, 2009 Before WILKINSON and NIEMEYER, Circuit Judges, and Anthony J. TRENGA, United States District Judge for
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6256 JAMES ERICK JONES, Plaintiff - Appellant, v. MULLINS POLICE DEPARTMENT; OFFICER BAILEY, Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Beaufort. Joseph F. Anderson, Jr., District Judge. (9:07-cv-00497-JFA) Argued: October 28, 2009 Decided: December 10, 2009 Before WILKINSON and NIEMEYER, Circuit Judges, and Anthony J. TRENGA, United States District Judge for t..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6256
JAMES ERICK JONES,
Plaintiff - Appellant,
v.
MULLINS POLICE DEPARTMENT; OFFICER BAILEY,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Joseph F. Anderson, Jr., District
Judge. (9:07-cv-00497-JFA)
Argued: October 28, 2009 Decided: December 10, 2009
Before WILKINSON and NIEMEYER, Circuit Judges, and Anthony J.
TRENGA, United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant. Mason Abram Summers, RICHARDSON, PLOWDEN & ROBINSON,
PA, Columbia, South Carolina, for Appellees. ON BRIEF: Seth M.
Jessee, Third Year Law Student, John F. Anderson, Third Year Law
Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate
Litigation Clinic, Charlottesville, Virginia, for Appellant.
Douglas C. Baxter, RICHARDSON, PLOWDEN & ROBINSON, PA, Columbia,
South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellant James Erick Jones (“Jones”) filed a claim under
42 U.S.C. § 1983 against Officer Larry Bailey (“Bailey”), a
police officer in the Mullins, South Carolina Police Department
(the “Department”), and also against the Department itself.
Jones alleges that Bailey used excessive force in violation of
the Fourth Amendment in connection with his arrest on November
1, 2006 and that the Department is also liable for that use of
excessive force based on its hiring of Bailey. The District
Court entered summary judgment against Jones on both of these
claims, and Jones has appealed from that ruling. We affirm.
I.
As set forth in his verified complaint, 1 Jones alleges that
on November 1, 2006, at approximately 2:30 a.m., 2 Bailey
“maliciously, recklessly and unlawfully” tailgated Jones’
vehicle with his police cruiser’s high beams on, thereby
“concealing his identity” for approximately one half mile as
1
The District Court’s record for the purposes of appellees’
motion for summary judgment consists of Jones’ verified
complaint, Bailey’s affidavit, and Jones’ subsequently filed
affidavit.
2
In a subsequently filed unverified “Correction in
Evidence,” Jones states that the encounter occurred at 12:30
a.m.
3
Jones drove to “a secluded area.” JA at 8. Feeling “endangered,”
Jones “proceed[ed] to flee wrecking [his] vehicle.” Id. Bailey
then rammed his vehicle into the rear driver’s side of Jones’
vehicle. Jones continues:
Upon apprehending me (James Jones) and rendering me
unarmed, Officer Larry Bailey then did unjustly and
without cause pull his firearm and shot me (James
Jones) once in the left side adominal[sic] area at
close range. Officer Larry Bailey then did shove me
(James Jones) into the driver[’s] side door of his
vehicle[,] point his firearm a second time in the
upper area of the left side of my face, firing a
second shot. Which I (James Jones) avoid because upon
noticing Officer Larry Bailey[’s] intentions and Gods
Mercy I grab and pushed the weapon away and began to
struggle with Officer Bailey in fear of my life.
JA at 8-9. Jones also alleges that “there is probable cause to
believe that the Mullins Police Department did knowingly employ
Officer Bailey whom had a tarnished and unsatisfactory record.”
Id.
In response to the verified complaint, Bailey and the
Department filed a motion for summary judgment. In an affidavit
filed in support of that summary judgment motion, Bailey gives
the following account of his encounter with Jones. On November
11, 2006, 3 while on patrol, Bailey noticed a vehicle recklessly
3
The conflict in the stated dates of Jones’ arrest
(November 1 compared to November 11, 2006) is not addressed in
the record, either in the District Court or this Court.
Nevertheless, this conflict is not a material one for the
purposes of the District Court’s summary judgment ruling that is
before us for review.
4
traveling in excess of the posted speed. After he activated his
patrol car’s blue lights, the vehicle failed to stop,
accelerated for a distance, and then suddenly slammed on its
brakes, causing the vehicles to collide. Jones then exited this
vehicle and attacked Bailey, causing both to fall to the ground.
While on the ground, Jones grabbed Bailey from behind, placed a
weapon to the side of his head, and told Bailey that if he
moved, Jones would kill him. Bailey was able to unholster his
weapon with his right hand and reach across his body to fire his
weapon from behind and to his left side, hitting Jones in the
stomach. At the time he fired his weapon, “[Bailey] feared for
his life,” believing that Jones was going to kill him and “that
his actions were reasonable under the circumstances.” JA at 23.
In response to Bailey’s affidavit, Jones filed an affidavit
in which he repeats much of his original account, 4 without
disputing the core facts stated in Bailey’s affidavit.
Specifically in this regard, Jones does not dispute, as Bailey
affirmed, that the blue lights on Bailey’s police cruiser had
been activated during the encounter or that, during the struggle
4
There appears to be some non-material differences in
Jones’ description of events as between the verified complaint
and Jones’ supplemental affidavit. In Jones’ affidavit, Jones
attributes the damage to his car entirely to the collision that
occurred when Bailey rammed him, while in the verified
complaint, the “wrecking” of the car is described within the
context of Jones’ attempt to flee from Bailey.
5
leading up to the shooting, Jones grabbed Bailey from behind,
placed a gun to Bailey’s head, and threatened to kill Bailey if
he moved. Moreover, Jones does not dispute, and his own version
of the facts is not inconsistent with, Bailey’s description of
how he and Jones were positioned relative to each other when
Bailey discharged his gun. While Jones states that Bailey shot
him after he “was rendered unarmed,” he does not claim that
Bailey knew he had been “rendered unarmed” when Bailey shot him
during the struggle. Jones also does not claim that Bailey knew,
or even that he should have known, that at some point during the
continuous struggle that ensued from the moment Jones exited his
vehicle up until the gunshot to Jones’ abdomen, Jones no longer
presented a threat to Bailey.
II.
The motion for summary judgment was initially considered by
the Magistrate Judge who, on January 3, 2008, issued his Report
and Recommendation, recommending that Bailey’s and the
Department’s motion for summary judgment be granted. In his
Report and Recommendation, the Magistrate Judge found that
Bailey’s use of force was objectively reasonable in light of the
circumstances at the time and that Jones’ constitutional rights
were therefore not violated. He also found that Bailey was
entitled to qualified immunity, that the Department could not be
6
liable under the theory of respondeat superior, and that Jones
had not come forward with any evidence to otherwise establish
liability on the part of the Department.
Jones timely filed objections to the Report and
Recommendation and the District Court reviewed the motion for
summary judgment de novo pursuant to 28 U.S.C. § 636(b)(1).
Based on that review, the District Court overruled Jones’
objections, adopted the recommendations set forth in the Report
and Recommendation, and granted Bailey’s and the Department’s
motion for summary judgment. We review a grant of summary
judgment de novo, viewing the facts in the light most favorable
to plaintiff, the non-prevailing party. See Holland v.
Washington Homes, Inc., 487 F.3d 208, 213 (4th Cir. 2007).
III.
A.
Section 1983, by its own terms, prohibits constitutional
violations under color of state law. In this case, Jones claims
that his constitutional rights under the Fourth Amendment were
violated when Bailey used excessive force. In order to survive a
motion for summary judgment, Jones was required to present facts
sufficient to allow a reasonable fact finder to conclude that
Bailey used excessive force under the circumstances. Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986) (explaining that a
7
non-moving party must come forward with facts sufficient to
establish a genuine issue of material fact for trial). In
assessing claims of excessive force under the Fourth Amendment,
the Court must apply a “reasonableness standard.” See Graham v.
Connor, 490 U.S. 386, 395 (1989). This standard of review is an
objective one, and the question is whether an objectively
reasonable officer under the same circumstances would have
concluded that a threat existed to justify the particular use of
force. Anderson v. Russell,
247 F.3d 125, 129 (4th Cir. 2001).
To determine the reasonableness of a particular use of force, it
is important for a court to assess the situation “from the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396-
397. A police officer may use lethal force if the police officer
has “probable cause to believe that the suspect poses a threat
of serious physical harm, either to the officer or others.”
Tennessee v. Garner,
471 U.S. 1, 11 (1985).
In this case, Bailey shot Jones during what both men
describe as a life and death struggle, during which Jones placed
his own gun to Bailey’s head and threatened to kill him. Whether
Bailey acted reasonably must be assessed under these
circumstances. See Elliot v. Leavitt, 99 F.3d 640, 642 (4th Cir.
1996) (“The court’s focus should be on the circumstances at the
moment force was used and on the fact that officers on the beat
8
are not often afforded the luxury of armchair reflection.”).
Jones contends that he was “rendered unarmed” before Bailey shot
him, but there is no contention that Bailey knew that Jones was
disarmed and no longer constituted a threat when Bailey shot
Jones. Indeed, within the context of the struggle that followed
Jones’ exit from his vehicle with a gun, late at night, in a
secluded area, the facts, as described by Jones himself,
demonstrate that Bailey had a reasonable fear that Jones was
armed and dangerous at the time he shot Jones. Even if Jones’
description of the struggle were accepted as true, no reasonable
jury could find that Bailey was not under a reasonable
apprehension of serious physical harm at the hands of Jones when
he shot Jones. See Garner, 471 U.S. at 11.
Jones urges us to place the struggle and the shooting
within the context of what Jones claims was Bailey’s initial use
of excessive force in running Jones’ car off the road. Again,
even accepting as true Jones’ account of the events leading up
to the shooting, it remains uncontested that upon seeing Jones
drive by, Bailey activated his police cruiser’s blue lights to
signal Jones to pull over, and Jones not only failed to stop,
but also attempted to flee. Jones’ own description of the
encounter places Bailey’s police cruiser next to Jones’ vehicle
before the two vehicles collided. By the time the collision
between the two vehicles occurred and Jones exited his vehicle,
9
it would have been obvious to any reasonable observer in Jones’
situation that the other vehicle was a police cruiser and that
Bailey was a uniformed police officer. For that reason, Bailey
would have reasonably thought that his status as a police
officer was known to Jones and that Jones’ conduct could not be
explained by anything other than an intention to harm him. In
any event, whether or not Jones was under some misapprehension
as to Bailey’s identity, the fact remains that Bailey needed to
respond instantaneously to Jones’ imminent threats to kill him.
Viewed from the point of view of the objectively reasonable
officer as required by Graham, Bailey was confronted by a man
who emerged from his car with a firearm threatening to use it
after attempting to flee a police cruiser with its blue lights
flashing. The District Court correctly concluded that there were
no genuine issues of material fact and Bailey was entitled to
judgment as a matter of law on Jones’ Fourth Amendment claim
under Section 1983.
B.
The District Court was also correct in concluding that
Bailey was entitled to qualified immunity from any Fourth
Amendment violation. When government officers are performing a
discretionary function, they are entitled to a defense of
qualified immunity unless their conduct clearly violates an
established constitutional right that the officer reasonably
10
would have known to exist. Harlow v. Fitzgerald, 457 U.S. 800
(1983)(granting qualified immunity in the Section 1983 context).
Whether or not a police officer is entitled to qualified
immunity is a question of law for the court, and when there are
no relevant disputed material facts, a court should rule on the
qualified immunity issue at the summary judgment stage.
Willingham v. Crooke,
412 F.3d 553 (4th Cir. 2005) (“Ordinarily,
the question of qualified immunity should be decided at the
summary judgment stage.”).
In this case, as we have discussed above, Bailey did not
violate Jones’ Fourth Amendment rights at all, much less violate
a clearly established right that Jones had under the
circumstances. No reasonable law enforcement officer would think
that in the situation that Bailey found himself, he would not be
entitled to protect himself from Jones’ threats of deadly force.
IV.
The District Court also dismissed Jones’ claim against the
Department. The Court must therefore determine whether the
Department was entitled to judgment in its favor based on the
absence of any genuine issues of material fact.
The Court notes initially that there can be no municipal
liability in the absence of an underlying constitutional
violation. Since the Court has found that Jones did not suffer
11
any constitutional violation, there is no basis for imposing
liability on the Department. Nevertheless, the Court will review
the District Court’s decision, which appears to have been issued
on alternative grounds.
Section 1983 does not limit its reach to individual state
actors who violate plaintiffs’ constitutional rights; it also
allows claims against municipalities. In Monell v. Dept. of
Social Servs., 436 U.S. 658 (1978), the Supreme Court
established that a municipality could only be held liable if it
put into effect a policy or custom that caused a deprivation of
federal rights.
Id. at 690-691. Here, Jones bases his Section
1983 claim against the Department solely on its hiring of
Bailey. While a Section 1983 violation can be based on even a
single hiring decision, Board of County Commissioners of Bryan
County (Bryan) v. Brown,
520 U.S. 397 (1967), Jones’ claim is
viable only if the Department was “deliberately indifferent”
towards how its hiring decision could lead to a deprivation of
federal rights.
Id. at 407. The standard is a high one. As the
Supreme Court observed in Bryan:
Only where adequate scrutiny of an applicant’s
background would lead a reasonable policymaker to
conclude that the plainly obvious consequence of the
decision to hire the applicant would be the
deprivation of a third party’s federally protected
right can the official’s failure to adequately
scrutinize the applicant’s background constitute
‘deliberate indifference.’
12
Id. at 411.
In the District Court, Jones did not assert liability
against the Department based on a claim of “deliberate
indifference.” Rather, he based his claim against the Department
only on the theory of respondeat superior. A municipality,
however, is not liable for constitutional deprivations under
Section 1983 based on the doctrine of respondeat superior.
Monell, 436 U.S. at 691 (1978)(“[A] municipality cannot be held
liable solely because it employs a tortfeasor . . . a
municipality cannot be held liable under Section 1983 on a
respondeat superior theory.”) (emphasis in original). For these
reasons, the District Court’s dismissal of Jones’ claim against
the Department must be affirmed. 5
5
On appeal, Jones does assert that the Department may be
liable under the “deliberate indifference” standard articulated
in Bryan. Jones did not raise this argument in the District
Court, and he therefore forfeited it. See Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (1985) (explaining that pro se
litigants still need to raise arguments at the trial level in
order to preserve those issues for appeal). Nevertheless, all
that Jones alleges in connection with his claim against the
Department is that Bailey had been reprimanded in the past while
working for a different police department. That allegation is
clearly insufficient to support a claim under either
Monell, 436
U.S. at 691, or
Bryan, 520 U.S. at 411.
13
V.
The District Court correctly concluded that there were no
genuine issues of material fact and that Bailey and the
Department were entitled to judgment in their favor as a matter
of law on Jones’ Section 1983 claim that he suffered a
constitutional deprivation of his Fourth Amendment rights based
on the alleged use of excessive force and the Department’s
hiring of Bailey. For these reasons, we affirm the judgment of
the District Court.
AFFIRMED
14
