Filed: Apr. 04, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2248 TERRY A. GANDY, Individually and as Administrator of the Estate of David Charles Gandy, Deceased, Plaintiff - Appellant, v. NEAL PATRICK ROBEY, c/o Stafford County Sheriff’s Office; JOHN DOES 1-25; JANE DOES 1-25; JOSEPH D. PITTMAN, Defendants – Appellees, and CHARLES E. JETT, c/o Stafford County Sheriff’s Office; COMMONWEALTH OF VIRGINIA, Defendants. Appeal from the United States District Court for the Eastern Distric
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2248 TERRY A. GANDY, Individually and as Administrator of the Estate of David Charles Gandy, Deceased, Plaintiff - Appellant, v. NEAL PATRICK ROBEY, c/o Stafford County Sheriff’s Office; JOHN DOES 1-25; JANE DOES 1-25; JOSEPH D. PITTMAN, Defendants – Appellees, and CHARLES E. JETT, c/o Stafford County Sheriff’s Office; COMMONWEALTH OF VIRGINIA, Defendants. Appeal from the United States District Court for the Eastern District..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2248
TERRY A. GANDY, Individually and as Administrator of the
Estate of David Charles Gandy, Deceased,
Plaintiff - Appellant,
v.
NEAL PATRICK ROBEY, c/o Stafford County Sheriff’s Office;
JOHN DOES 1-25; JANE DOES 1-25; JOSEPH D. PITTMAN,
Defendants – Appellees,
and
CHARLES E. JETT, c/o Stafford County Sheriff’s Office;
COMMONWEALTH OF VIRGINIA,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:10-cv-00065-LMB-TCB)
Argued: October 24, 2012 Decided: April 4, 2013
Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and R. Bryan
HARWELL, United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
ARGUED: Peter Christopher Grenier, BODE & GRENIER, LLP,
Washington, D.C., for Appellant. Jeff W. Rosen, PENDER &
COWARD, PC, Virginia Beach, Virginia; Robert R. Musick, THOMPSON
MCMULLAN PC, Richmond, Virginia, for Appellees. ON BRIEF: Andre
M. Gregorian, BODE & GRENIER, LLP, Washington, D.C., for
Appellant. Robert A. Dybing, THOMPSON MCMULLAN PC, Richmond,
Virginia, for Appellee Joseph D. Pittman.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Terry A. Gandy (“Terry”) brought this action under 42
U.S.C. § 1983 alleging that Sergeant Joseph D. Pittman and
Deputy Sheriff Neal P. Robey of the Stafford County, Virginia,
Sheriff’s Office (“SCSO”) used constitutionally excessive force
in the shooting death of her husband David Gandy (“Gandy”).
Terry also asserted wrongful death claims against Sergeant
Pittman and Deputy Robey under Virginia law. The district court
granted Sergeant Pittman’s motion for summary judgment on both
the § 1983 and the wrongful death claims.
The court denied Deputy Robey’s summary judgment motion,
however, and Terry’s claims against him proceeded to trial. The
jury answered special interrogatories, concluding that Deputy
Robey used excessive force against Gandy, but that Deputy Robey
“had a reasonable belief” that Gandy “posed an imminent threat
of causing death or serious bodily injury” to himself or others.
Based on the jury’s responses, the district court concluded
Deputy Robey was entitled to qualified immunity and entered
judgment in his favor on the § 1983 claims. As for the wrongful
death claims against Deputy Robey, the jury returned a defense
verdict.
Terry appeals on several grounds. We affirm the order of
the district court granting summary judgment to Sergeant Pittman
but vacate the district court’s entry of judgment in favor of
3
Deputy Robey and remand Terry’s excessive force claim against
Deputy Robey for a new trial.
I.
A.
On June 29, 2008, following an argument with his son
Matthew, Gandy told his wife Terry that he was going to get a
gun from his neighbor Jordan Von Schwanitz and kill himself.
Gandy told Von Schwanitz that he “was having a problem out back”
and needed a gun. J.A. 528. Von Schwanitz gave him a loaded
Sig Sauer 380. That evening, Terry saw Gandy sitting at a table
in their basement with a holstered gun in front of him. Terry
tried to grab the gun from the table, but Gandy pulled it away
and went into the backyard with the gun and a beer. Both Terry
and Von Schwanitz followed Gandy outside and pleaded for him to
turn over the gun, but Gandy refused. During this time, Gandy
was seated on a brick retaining wall a short distance from the
door to the basement; Terry could not see the gun but assumed it
was behind him.
Terry called Matthew and asked him to come home, explaining
that Gandy was in possession of a gun and was threatening
suicide. Matthew returned and went into the backyard to talk
with his father and Von Schwanitz, who was still trying to
convince Gandy to give up the gun. Like Terry, Matthew did not
4
see the gun but assumed it was behind Gandy because Gandy kept
putting his hand behind his back.
Shortly before 11:00 p.m., Matthew called 911. He told the
dispatcher that Gandy had a gun and was in the backyard with Von
Schwanitz and Terry, and that Gandy was upset following a family
argument earlier in the day. Matthew further revealed that
Gandy was a nightly drinker, struggled with anger issues, and
was under a doctor’s care for psychological difficulties.
Matthew also indicated that Gandy was taking “quite a bit of
medication.” J.A. 746. He advised that authorities should
approach with caution and that if Gandy saw or heard police
officers, he would shoot himself.
The dispatcher sent officers to the scene based on the
information Matthew provided during his 911 call. Sergeant
Pittman responded to the scene along with Deputies Robey, Ed
McCollough and Brian Davis. Sergeant Pittman was the shift
supervisor and ranking law enforcement officer present. He
concluded that the situation was highly dangerous and that
immediate action was required to protect Gandy and the others
with him. Sergeant Pittman considered calling for the SWAT
Team, but he rejected that option because he feared it would
take too long for SWAT to deploy. He also rejected the option
of calling in a hostage negotiator, given Matthew’s admonition
5
that Gandy might shoot himself if he saw or heard any police
officers.
According to Matthew, when the law enforcement officers
arrived at the Gandy house, Matthew explained to Sergeant
Pittman that Gandy was calm. Nonetheless, Sergeant Pittman went
forward with his immediate action plan pursuant to which
Sergeant Pittman and Deputy McCullough would enter the backyard
rapidly to surprise Gandy, announce themselves and, if Gandy
failed to surrender immediately, subdue him using tasers.
Deputy Robey’s assignment was to carry his M-4 rifle and provide
deadly force if warranted. Sergeant Pittman did not
specifically direct Deputy Robey when and under what
circumstances to use deadly force. He assumed that Deputy
Robey, with whom he had worked for more than a year, understood
that SCSO policy permitted an officer to use deadly force in the
face of a threat involving the risk of serious bodily harm or
death to the officer or others. Deputy Davis was to serve as
Deputy Robey’s backup in the event lethal force was required and
Deputy Robey was unable to act.
As planned, the officers entered Gandy’s backyard through
the privacy fence gate. According to Sergeant Pittman, he
loudly announced “Sheriff’s Office. Let me see your hands.
Drop the gun. Drop the gun.” J.A. 403. Almost immediately
after entering, both Sergeant Pittman and Deputy McCullough
6
fired their tasers at Gandy, who was seated near the gate on a
brick retaining wall. Both attempts were unsuccessful. The
officers then shouted “Drop your gun,” but Gandy ran toward a
door in the rear of the house. It appeared to Deputy Robey that
Gandy had a gun in his left hand and was reaching for the door
with his right hand. According to Deputy Robey, Gandy looked
towards him and raised his left hand in the direction of Deputy
Robey and McCullough. Believing that Gandy was about to shoot
either him or McCullough, Deputy Robey fired and struck Gandy
three times—once on the left side of the chest, once on the left
side of his back, and once on the right side of his back. Gandy
fell forward through the door into the basement and came to rest
on his stomach. Officers removed Terry, Matthew, and Von
Schwanitz from the scene and then examined Gandy. Sergeant
Pittman and Deputy Davis recovered the Sig Sauer 380, still
holstered, from under Gandy’s torso. Deputy McCollough
testified that he saw the gun under Gandy as well. Sergeant
Pittman indicated in a post-incident debriefing that he noticed
a significant amount of blood pooling under Gandy’s upper chest
where he had an exit wound, but subsequent tests revealed no
blood on the gun.
The civilian witnesses, however, presented a dramatically
different version of the officers’ conduct. According to
Matthew, Terry and Von Schwanitz, the officers did not announce
7
themselves when entering the backyard. Terry and Von Schwanitz
conceded that the officers yelled “drop the gun,” but they claim
the officers did so only after having fired their tasers. All
three witnesses claimed that Gandy was shot immediately after
the officers ordered him to drop the gun and deny that Gandy had
time to glance, turn his body, or raise his arm in Deputy
Robey’s direction.
B.
Terry filed this action under 42 U.S.C. § 1983 alleging
that Deputy Robey used constitutionally excessive force in
shooting and killing Gandy and that Sergeant Pittman is also
liable for the use of such force on Gandy. Terry also asserted
a wrongful death claim under Virginia law, alleging that the
conduct of Sergeant Pittman and Deputy Robey was willful and
wanton or at least grossly negligent. Both defendants moved for
summary judgment. The district court granted summary judgment
to Sergeant Pittman, concluding that he was entitled to
qualified immunity because his discretionary tactical decision
was reasonable under the circumstances. The district court
denied summary judgment to Deputy Robey, however, concluding
that there was a genuine issue of fact as to whether Gandy
turned and raised his arm toward Deputy Robey. The district
court explained that
8
if you believe the testimony of the Gandy family
members and if you believe the forensic experts that
the plaintiffs have presented, [who] painted a picture
in which it’s dark, Mr. Gandy is running towards the
house, his back is to the officer, and he does not
turn to the officer to threaten him or McCullough[,] .
. . there would be no proper justification for Robey
to have fired at Mr. Gandy . . . .
. . .
. . . [T]here is evidence through the testimony
of the family members who say that Gandy’s left hand
was never pointing towards the officers, [and] that he
was running towards the door . . . .
J.A. 1070-71.
The claims against Deputy Robey thus proceeded to trial.
Following the presentation of evidence, the district court
instructed the jurors that “[a] law enforcement officer has the
right to use such force as is necessary under the
circumstances,” and that “[w]hether the force used was
reasonable or unreasonable is a question to be determined by
[the jury] in light of all of the evidence received in this
case.” J.A. 1208. The district judge further explained to the
jury the following:
You must determine the degree of force that a
reasonable and prudent police officer would have
applied under the facts and circumstances shown from
the evidence . . . . In determining whether or not
Deputy Robey used excessive force, you may consider
the extent of the injury suffered, the need for
application of force, the relationship between the
need and the amount of force used, the threat
reasonably perceived by Deputy Robey, and any efforts
made to temper the severity of a forceful response.
. . .
9
The reasonableness of a particular use of force
must be judged from the perspective of a reasonable
officer on the scene, rather than with hindsight . . .
[and] must allow for the fact that police officers are
often forced to make split-second judgments under
circumstances that are tense, uncertain, and rapidly
evolving about the amount of force that is necessary
in a particular situation.
This reasonableness inquiry is an objective one.
The question is whether Deputy Robey’s actions were
objectively reasonable in light of the facts and
circumstances confronting him without regard to his
underlying intention or motivation.
J.A. 1208-09.
The district court then gave the jury a special verdict
form, to which Terry agreed. The jury answered these special
interrogatories as follows:
1. Has the plaintiff, Terry A. Gandy, established
by a preponderance of the evidence that defendant Neal
Patrick Robey was grossly negligent in the performance
of his duties when he shot David Charles Gandy?
Answer: No
2. Has the plaintiff, Terry A. Gandy, established by a
preponderance of the evidence that defendant Neal
Patrick Robey engaged in willful and wanton misconduct
and with conscious disregard when he shot David
Charles Gandy?
Answer: No
3. Has the plaintiff, Terry A. Gandy, established by a
preponderance of the evidence that defendant Neal
Patrick Robey violated David Charles Gandy’s Fourth
Amendment right to be free from excessive use of
force, or his Fourteenth Amendment [right] not to be
deprived of life without due process of law, when he
shot David Charles Gandy?
Answer: Yes
10
4. Do you find that at the time that he shot
David Charles Gandy, Deputy Neal Patrick Robey had a
reasonable belief that Mr. Gandy posed an imminent
threat of causing death or serious bodily injury to
Deputy Robey or to other persons present at the scene?
Answer: Yes
J.A. 961-62. The jury awarded Terry $267,000 in compensatory
damages but did not award punitive damages. The parties
declined the district court’s invitation to have the jury
polled, and the court discharged the jurors.
Immediately after dismissing the jury, the district court
set aside the jury’s verdict awarding compensatory damages to
Terry on her § 1983 claim. The district court explained that
because the jury found that Deputy Robey “had a reasonable
belief that Mr. Gandy posed an imminent threat of causing death
or serious bodily injury to Deputy Robey or to other persons
present at the scene,” J.A. 962, he was entitled to qualified
immunity. The district court concluded it was compelled to set
aside the verdict, and Terry did not object. 1
1
The district court stated the following:
There is a legal inconsistency to some degree in
this verdict in that . . . the jury . . . answer[ed]
“yes” to the 1983 [question], but they also answered
“yes” to question No. 4, which is clearly the factual
predicate finding as to liability on the 1983 matter,
that is, whether or not the officer would be entitled
to qualified immunity. That question we’ve all agreed
pertained to that issue.
(Continued)
11
Following trial, Terry obtained new counsel who then moved
to alter or amend the judgment and reinstate the jury award.
Terry contended that the special verdict form, to which she did
not object at trial, was flawed in that it incorrectly stated a
subjective qualified immunity standard and that it was drafted
in such a way as to permit the jury to award damages even if it
answered “yes” to the qualified immunity question. She argued
that the only reasonable way to harmonize the jury’s apparently
inconsistent answers was for the district court to reinstate the
jury’s award of damages or order a new trial altogether. The
district court denied the motion to alter or amend the judgment,
and this appeal ensued.
II.
Terry’s fundamental claim is that Sergeant Pittman and
Deputy Robey used constitutionally excessive force against Gandy
. . . I do believe that the Court is required
under [these] findings to set aside this verdict, and
I think [plaintiff’s counsel is] acknowledging that
with the nodding of [his] head and the body language .
. . .
. . .
Anything further we need to address at this time?
[PLAINTIFF’S COUNSEL]: No, Your Honor.
J.A. 1240-41.
12
that resulted in his death. The Fourth Amendment guarantees the
“right to be free from unreasonable searches and seizures, which
encompasses the right to be free of arrests, investigatory
stops, or other seizures effectuated by excessive force.”
Schultz v. Braga, 455 F.3d 470, 476 (4th Cir. 2006); see Graham
v. Connor,
490 U.S. 386, 388 (1989). 2 Whether a law enforcement
officer used excessive force depends on the “objective
reasonableness” of the action in question. Graham, 490 U.S. at
388 (internal quotation marks omitted). The force used by an
officer is not excessive if the officer’s “actions are
‘objectively reasonable’ in light of the facts and circumstances
confronting [him], without regard to [his] underlying intent or
motivation.” Id. at 397; Schultz, 455 F.3d at 477. “To gauge
objective reasonableness, a court examines only the actions at
issue and measures them against what a reasonable police officer
would do under the circumstances.” Rowland v. Perry,
41 F.3d
167, 172 (4th Cir. 1994). The use of deadly force is
2
Terry also challenges the dismissal of her excessive force
claim under the Due Process Clause of the Fourteenth Amendment.
This challenge is without merit. “The Fourth Amendment governs
claims of excessive force during the course of an arrest,
investigatory stop, or other seizure of a person.” Riley v.
Dorton, 115 F.3d 1159, 1161 (4th Cir. 1997) (en banc) (internal
quotation marks omitted)). The Fourteenth Amendment, by
contrast, provides the framework for deciding the excessive
force claims of arrestees or pretrial detainees. See Orem v.
Rephann,
523 F.3d 442, 446 (4th Cir. 2008).
13
constitutionally reasonable “[w]here the officer has probable
cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others.” Tennessee
v. Garner, 471 U.S. 1, 11 (1985).
Civil liability, however, does not automatically attach to
every constitutional violation. Government officials are
entitled to qualified immunity as a matter of law so long as
they have not violated “clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In
other words, courts ask “whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz,
533 U.S. 194, 202
(2001). Qualified immunity extends to government officials'
objectively reasonable mistakes, “regardless of whether the
government official's error is a mistake of law, a mistake of
fact, or a mistake based on mixed questions of law and fact.”
Pearson v. Callahan,
555 U.S. 223, 231 (2009) (internal
quotation marks omitted). “[T]he immunity inquiry must be
filtered through the lens of the officer’s perceptions at the
time of the incident in question.” Rowland, 41 F.3d at 173.
Such a perspective serves two purposes. First, using
the officer’s perception of the facts at the time
limits second-guessing the reasonableness of actions
with the benefit of 20/20 hindsight. Second, using
this perspective limits the need for decision-makers
14
to sort through conflicting versions of the “actual”
facts, and allows them to focus instead on what the
police officer reasonably perceived. In sum, the
officer’s subjective state of mind is not relevant to
the qualified immunity inquiry but his perceptions of
the objective facts of the incident in question are.
Id. (citations omitted). The qualified immunity defense
“protects all but the plainly incompetent or those who knowingly
violate the law,” and it “protects law enforcement officers from
bad guesses in gray areas and ensures that they are liable only
for transgressing bright lines.” Waterman v. Batton, 393 F.3d
471, 476 (4th Cir. 2005) (citation and internal quotation marks
omitted).
With these principles in mind, we consider Terry’s specific
challenges to the district court’s rulings.
III.
Terry raises several challenges to the district court’s
entry of summary judgment in favor of Sergeant Pittman. We
briefly address them below.
A.
Terry first contends that Sergeant Pittman violated Gandy’s
Fourth Amendment rights when he fired his taser at Gandy. We
disagree. For a plaintiff to prevail on an excessive-force
claim under the Fourth Amendment, there must first have been a
seizure. See County of Sacramento v. Lewis, 523 U.S. 833, 843-
45 & n.7 (1998). “[A] Fourth Amendment seizure requires ‘an
15
intentional acquisition of physical control’ which occurs ‘only
when there is a governmental termination of freedom of movement
through means intentionally applied.’” Melgar v. Greene, 593
F.3d 348, 354 (4th Cir. 2010) (quoting Brower v. Cnty. of Inyo,
489 U.S. 593, 596-97 (1989) (emphasis omitted)). Thus, no
seizure occurs when a law enforcement officer shoots at a
fleeing suspect but fails to hit him and halt his movement.
See, e.g., Cameron v. City of Pontiac,
813 F.2d 782, 785 (6th
Cir. 1987). Because it is uncontroverted that Sergeant Pittman
missed Gandy when firing his taser, Terry’s claim clearly fails.
See Lewis, 523 U.S. at 845 n.7 (“Attempted seizures of a person
are beyond the scope of the Fourth Amendment.”).
B.
Next, Terry contends that even if Sergeant Pittman did not
personally use excessive force directly on Gandy, his conduct
nevertheless effectively caused the deprivation of Gandy’s
Fourth Amendment rights. See Sales v. Grant, 158 F.3d 768, 776
(4th Cir. 1998) (applying the “principle of effective causation
by indirect means” in a § 1983 action alleging First Amendment
violations in the public employment context). Under an
effective causation theory, the “requisite causal connection can
be established . . . by setting in motion a series of acts by
others which the actor knows or reasonably should know would
cause others to inflict the constitutional injury.” Id.
16
(quoting Gutierrez–Rodriguez v. Cartagena, 882 F.2d 553, 560–61
(1st Cir. 1989)). Thus, Terry argues that Sergeant Pittman is
liable for formulating a plan that “set in motion” a series of
events that Sergeant Pittman knew or should have known would
cause the other officers to use constitutionally excessive force
against Gandy. Terry argues, moreover, that Sergeant Pittman’s
plan to taser Gandy without first trying to calm him down by
communicating with him or trying other less drastic measures was
unreasonable and in violation of various police training
procedures.
Terry’s “effective causation” or “setting-in-motion” theory
strikes us as highly dubious in the excessive force context. In
determining whether an officer was justified in using deadly
force based on “probable cause to believe that the suspect
pose[d] a threat of serious physical harm,” Garner, 471 U.S. at
11, we must focus on the moment when such force was employed.
See Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996)
(“Graham requires us to focus on the moment force was used;
conduct prior to that moment is not relevant in determining
whether an officer used reasonable force.”); Carter v. Buscher,
973 F.2d 1328, 1332 (7th Cir. 1992) (“[P]re-seizure conduct is
not subject to Fourth Amendment scrutiny.”). A police officer’s
pre-seizure conduct, regardless of whether it was ill-advised or
violative of law enforcement protocol, is generally not relevant
17
for purposes of an excessive force claim under the Fourth
Amendment which looks only to the moment force is used. See
Greenidge v. Ruffin, 927 F.2d 789, 791 (4th Cir. 1991)
(explaining that “evidence of the officer’s alleged violation of
police procedures immediately preceding the arrest” was
irrelevant to whether officer’s use of deadly force was
constitutionally excessive). Thus, the mere decision itself to
make a surprise entry as opposed to other alternatives affords
no basis for liability against Sergeant Pittman. Additionally,
there is no evidence that Sergeant Pittman ordered Deputy Robey
to shoot Gandy or intended him to do so regardless of
circumstances. Since a Fourth Amendment seizure requires “an
intentional acquisition of physical control,” Melgar v. Greene,
593 F.3d at 354 (emphasis added) (internal quotation marks
omitted), Terry cannot rely on Sergeant Pittman’s pre-seizure
plan to establish her excessive force claim.
Moreover, even if this theory is viable in the excessive
force context, we agree with the district court that Sergeant
Pittman’s decision to employ a quick, dynamic entry that he
believed would permit the officers to subdue Gandy with non-
lethal force was reasonable under the circumstances. Sergeant
Pittman’s plan—adopted after considering and rejecting several
other alternatives—was a thoughtful approach that took into
account the specific risk factors known to exist, particularly
18
that Gandy was armed and had threatened to kill himself if he
saw or heard the police. The aim of the plan was to surprise and
subdue Gandy before he could harm himself or others. There was
nothing before the district court to suggest that Sergeant
Pittman knew or should have known that the course of action he
chose would in fact lead to the use of deadly force against
Gandy. In sum, we conclude that this theory was properly
rejected at the summary judgment stage.
C.
Terry also contends the district court should have
permitted her excessive force claim against Sergeant Pittman to
go to trial on a theory of supervisory liability.
“[S]upervisory officials may be held liable in certain
circumstances for the constitutional injuries inflicted by their
subordinates.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
1994). To succeed on a supervisory liability claim under §
1983, a plaintiff must establish
(1) that the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct
that posed “a pervasive and unreasonable risk” of
constitutional injury to citizens like the plaintiff;
(2) that the supervisor’s response to that knowledge
was so inadequate as to show “deliberate indifference
to or tacit authorization of the alleged offensive
practices,”; and (3) that there was an “affirmative
causal link” between the supervisor’s inaction and the
particular constitutional injury suffered by the
plaintiff.
19
Id. at 799. “Establishing a pervasive and unreasonable risk of
harm requires evidence that the conduct is widespread, or at
least has been used on several different occasions and that the
conduct engaged in by the subordinate poses an unreasonable risk
of harm of constitutional injury.” Id. (internal quotation
marks omitted). Terry has not identified what evidence, if any,
she proffered to show that Sergeant Pittman’s subordinates were
engaged in widespread unconstitutional conduct by using lethal
force under circumstances where the suspect posed no threat or
that he was aware but deliberately indifferent to such conduct.
Therefore, no triable issue was created on Terry’s supervisory
liability theory.
D.
Finally, Terry challenges the district court’s entry of
summary judgment against her on the state law tort claims
alleging wrongful death as a result of Sergeant Pittman’s gross
negligence or willful and wanton conduct. The district court
concluded that on the evidence before it, as a matter of law
“there [was] no standard of care that’s been violated” by
Sergeant Pittman. J.A. 1069. On appeal, Terry contends that
Sergeant Pittman was at least grossly negligent when he
instructed Deputy Robey to shoot Gandy if the tasers were
ineffective or it otherwise became necessary to do so.
20
We disagree. Under Virginia law, gross negligence is “the
utter disregard of prudence amounting to complete neglect of the
safety of another. It is a heedless and palpable violation of
legal duty respecting the rights of others which amounts to the
absence of slight diligence, or the want of even scant care.”
Chapman v. City of Va. Beach, 475 S.E.2d 798, 800-01 (Va. 1996)
(emphasis added) (citation and internal quotation marks
omitted). Unquestionably, Sergeant Pittman exercised at least
some care in designing a plan that was intended to permit the
officers to disable Gandy and protect others (and Gandy himself)
using non-lethal force. As the district court concluded in
granting summary judgment on Terry’s § 1983 excessive force
claim, in light of the facts and circumstances known to Sergeant
Pittman at the time, his plan to respond was reasonable. Thus,
we cannot conclude that a jury question existed as to whether
Sergeant Pittman exercised even slight diligence in formulating
his plan to ensure that Gandy hurt neither himself nor others.
That Sergeant Pittman’s plan failed—in the sense that lethal
force was in fact used—does not mean that the plan was
unreasonable.
IV.
Terry also challenges the district court’s entry of
judgment in favor of Deputy Robey. Although Terry’s argument is
not entirely clear, the thrust of it is that: (1) special
21
interrogatory #4 did not incorporate the proper qualified
immunity standard; and (2) even if it did incorporate the proper
standard, the jury’s response to special interrogatory #4 was
inconsistent with and could not trump its response to special
interrogatory #3 that Deputy Robey violated Gandy’s Fourth
Amendment right to be free of the use of excessive force or the
jury’s concomitant award of damages.
A.
Terry contends that the language used by the district court
in special interrogatory #4 improperly directed the jury to
determine the reasonableness of Deputy Robey’s conduct under a
subjective rather than objective standard. Although Terry now
takes exception to the substance of special interrogatory #4,
she failed to do so at trial. In fact, Terry’s trial counsel
actually agreed to the district court’s proposed language:
THE COURT: I’m more concerned about question 4. I
think that is all that’s needed for the qualified
immunity.
[DEFENSE COUNSEL]: Yeah, I think –
[PLAINTIFF’S COUNSEL]: We agree.
[DEFENSE COUNSEL]: I think that’s on target.
J.A. 1122. By specifically affirming the district court’s
qualified immunity special interrogatory, Terry’s counsel
arguably invited the district court to use the very language
Terry now challenges on appeal, which would render this issue
22
unreviewable on appeal. See, e.g., United States v. Bennafield,
287 F.3d 320, 325 (4th Cir. 2002) (recognizing that invited
errors are necessarily waived errors that are not reviewable on
appeal).
Out of an abundance of caution, however, we will review the
substance of special interrogatory #4 for plain error. See In
re Celotex Corp., 124 F.3d 619, 631 (4th Cir. 1997) (adopting
plain error review framework under United States v. Olano,
507
U.S. 725 (1993), in the civil context). Terry bears the
substantial burden of demonstrating that (1) there is an error;
(2) the error is plain; (3) the error affects the appellant’s
substantial rights; and (4) the error affects the fairness,
integrity or public reputation of judicial proceedings. See
Olano, 507 U.S. at 732-37.
We conclude that Terry’s challenge falters on the first
prong. Terry contends that special interrogatory #4 “went only
to the subjective belief of Robey, and thus [asked the jury to
make] a finding [not] pertinent to qualified immunity.” Brief
of Appellant at 49. Terry contends the district court should
have asked the jury to determine whether “a reasonable officer
on the scene” would have believed that Gandy posed an imminent
deadly threat rather than whether “Robey had a reasonable
belief” that Gandy posed such a threat. Id. According to
23
Terry, the language used by the court improperly asked the jury
to determine Deputy Robey’s subjective state of mind.
We disagree. Although the special interrogatory itself did
not expressly ask whether “a reasonable officer” would have
perceived an imminent threat of grave danger from Gandy or
whether such a perception was “objectively reasonable,” the
district court’s jury charge as a whole made abundantly clear
that the inquiry is objective not subjective. Terry would have
us divorce the special interrogatory from the context of the
accompanying jury instructions issued by the district court. As
we have often observed, however, “we do not view a single
instruction in isolation; rather we consider whether taken as a
whole and in the context of the entire charge, the instructions
accurately and fairly state the controlling law.” United States
v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996). Similarly, “jury
interrogatories are considered in conjunction with the general
jury charge to determine if the interrogatories adequately
presented the contested issues to the jury.” Sikes v. Gaytan,
218 F.3d 491, 493 (5th Cir. 2000) (internal quotation marks
omitted). Because the court’s instructions as a whole
24
repeatedly conveyed the idea that the relevant inquiry was an
objective one, we reject this argument. 3
B.
Finally, Terry contends that she is entitled to a new trial
under Rule 49 of the Federal Rules of Civil Procedure which
governs issues relating to special verdicts and general verdicts
with answers to written questions. The Rule specifies in
subsection (b)(4) that “[w]hen the answers are inconsistent with
each other and one or more is also inconsistent with the general
verdict, judgment must not be entered; instead, the court must
direct the jury to further consider its answers and verdict, or
must order a new trial.” Fed. R. Civ. P. 49(b)(4). Terry
asserts that the jury's response to special interrogatory #4 was
inconsistent with both its response to special interrogatory #3
that Deputy Robey violated Gandy's Fourth Amendment right to be
free of the use of excessive force and its concomitant award of
damages. For the following reasons, we agree and are
3
For the same reasons, we also reject Terry’s argument that
the form of special interrogatory #4 constituted plain error
because it did not include its own burden of proof instruction.
In charging the jury, the district court explained that Deputy
Robey denied that he employed excessive force “because under the
facts and circumstances confronting him when he shot Mr. Gandy,
he had a reasonable belief that Mr. Gandy posed an imminent
threat of death or serious physical injury to himself or others”
and that “Deputy Robey has the burden of proving the
reasonableness of that belief by a preponderance of the
evidence.” J.A. 1201-02.
25
constrained to remand Terry's excessive force claim against
Robey for a new trial.
The district court submitted interrogatories #3 and #4 to
the jury in an effort to sort out the question of qualified
immunity. Under the approach established in Saucier, analysis
of a qualified immunity claim involves a two-step procedure
“that asks first whether a constitutional violation occurred and
second whether the right violated was clearly established.”
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc)
(internal quotation marks omitted)). 4 As previously suggested,
the district court intended interrogatory #3 to resolve the
first question of whether Robey committed a constitutional
violation by asking the jury:
Has the plaintiff, Terry A. Gandy, established by a
preponderance of the evidence that defendant Neal
Patrick Robey violated David Charles Gandy’s Fourth
Amendment right to be free from excessive use of
force, or his Fourteenth Amendment [right] not to be
deprived of life without due process of law, when he
shot David Charles Gandy?
4
Terry argues that the Supreme Court overruled Saucier’s
two-part test and made the qualified immunity and
constitutionally excessive force inquiries identical in Pearson
v. Callahan, 555 U.S. 223 (2009). It most certainly did not.
Pearson abrogated Saucier only to the extent that Saucier made
it mandatory for courts to follow the two-step procedure in
order—courts may now address the Saucier prongs in any order at
their discretion. See Pearson, 555 U.S. at 236.
26
J.A. 961 (emphasis added). The jury answered “yes” to this
question. In interrogatory #4, which the district court
intended to resolve the second question of whether Robey was
entitled to qualified immunity despite the constitutional
violation, the jury was asked:
Do you find that at the time that he shot David
Charles Gandy, Deputy Neal Patrick Robey had a
reasonable belief that Mr. Gandy posed an imminent
threat of causing death or serious bodily injury to
Deputy Robey or to other persons present at the scene?
J.A. 962 (emphasis added). The jury answered “yes” to this
question as well, but then reached a general verdict in Terry’s
favor, awarding her $267,000 in compensatory damages.
In responding affirmatively to special interrogatory #3,
the jury concluded as a factual matter that Deputy Robey’s act
of shooting David constituted excessive force, in violation of
the Fourth Amendment. This finding is inconsistent with the
jury’s answer to special interrogatory #4, in which the jury
concluded that Deputy Robey had a reasonable belief that David
posed an imminent threat of causing death or serious bodily
injury to persons present at the scene of the incident.
The inconsistency between the answers to these two
questions is apparent because the factual question presented in
interrogatory #4, whether Deputy Robey reasonably believed that
David posed a threat of imminent harm, is a core component of
the issue addressed by special interrogatory #3, namely, whether
27
the force employed by Deputy Robey was excessive. As the
Supreme Court held in Graham v. Connor, 490 U.S. 386 (1989), an
analysis of the reasonableness of a particular use of force
“requires careful attention to the facts and circumstances of
each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id.
at 396 (emphasis added). This court, too, has made clear that
the question of whether a suspect posed an immediate threat of
harm to an officer is a factor relevant to the analysis of an
excessive force claim under the Fourth Amendment. See Waterman
v. Batton,
393 F.3d 471, 477 (4th Cir. 2005) (holding that
officers were not entitled to judgment as a matter of law on
merits of underlying excessive force claim because "a reasonable
jury could conclude . . . that a perception by the officers that
[plaintiff] posed a threat of serious physical harm to them
would have been unreasonable,” but nonetheless awarding
qualified immunity because the unconstitutionality of the
officers' conduct was not clearly established); Jones v.
Buchanan,
325 F.3d 520, 529 (4th Cir. 2003) (concluding that an
excessive force claim survived summary judgment because, under
the factors set forth in Graham, “[a] fact finder could conclude
that [the] evidence demonstrates that [the suspect] posed no
28
immediate threat to anyone before [law enforcement] entered the
processing room and used force"); Gray-Hopkins v. Prince
George's County, Md., 309 F.3d 224, 231 (4th Cir. 2002)
(affirming denial of qualified immunity where, “[b]ased on the
plaintiff’s version of the events giving rise to this case, . .
. he was not posing a threat to the safety of the officers or
others. . . . [A] trier of fact could clearly conclude that a
Fourth Amendment violation occurred”).
Accordingly, the factual question of whether an individual
poses a threat of danger is a component of, and is subsumed by,
the broader question of whether the officer’s use of force to
seize an individual was excessive in violation of the Fourth
Amendment. Unfortunately, special interrogatories #3 and #4
permitted the jury to answer these interrelated questions in an
inconsistent manner. According to the jury, Deputy Robey
reasonably believed that David posed an imminent threat of
serious harm, yet the jury concluded that Deputy Robey used
excessive force in preventing David from carrying out such a
threat of harm.
In addition to being inconsistent with each other, of
course, these interrogatory answers are inconsistent with the
general verdict awarding Terry $267,000 in compensatory damages.
Despite its conclusion that Robey reasonably perceived an
immediate threat from Gandy, it awarded damages as a result of
29
his conduct. These inconsistencies implicate Fed. R. Civ. P
49(b)(4) and leave us no choice but to remand for a new trial.
V.
For these reasons, we affirm the order of the district
court granting summary judgment to Sergeant Pittman but vacate
the district court’s entry of judgment in favor of Deputy Robey
and remand Terry’s excessive force claim against Deputy Robey
for a new trial and other proceedings consistent with this
opinion.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
30
