Raina Connor v. Tavares Thompson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:12-cv-00701-H. Copies to all parties and the district court. [999809449]. [15-1353]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1353

RAINA CONNOR,
Carter,

Administratrix

of

the

Estate

of

Adam

Wade

Plaintiff - Appellee,
v.
TAVARES THOMPSON, in his official and individual capacities;
WAKE COUNTY SHERIFF DONNIE HARRISON, in his official and
individual capacities; THE OHIO CASUALTY INSURANCE COMPANY,
Defendants – Appellants,
and
XYZ CORPORATION, in its capacity as Surety on the official
bond of the Sheriff of Wake County; JOHN AND JANE DOES 1-10,
individually and in their official capacities as Deputy
Sheriffs of Wake County; WAKE COUNTY; ASHLEY STEINBERGER;
KELLY MITCHELL,
Defendants.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Malcolm J. Howard,
Senior District Judge. (5:12-cv-00701-H)

Argued:

January 26, 2016

Decided:

May 2, 2016

Before AGEE and THACKER, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.

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Affirmed in part and dismissed in part by unpublished per curiam
opinion.

ARGUED: James Nicholas Ellis, POYNER SPRUILL LLP, Raleigh, North
Carolina, for Appellants. Huntington MacCallum Willis, MARTIN &
JONES, PLLC, Raleigh, North Carolina, for Appellee.
ON BRIEF:
Caroline P. Mackie, POYNER SPRUILL LLP, Raleigh, North Carolina;
Roger A. Askew, Jennifer McGuire Jones, WAKE COUNTY ATTORNEY’S
OFFICE, Raleigh, North Carolina, for Appellants.
Hoyt G.
Tessener, G. Christopher Olson, MARTIN & JONES, PLLC, Raleigh,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Todd McElfresh called 911 to request help transporting
his nephew, Adam Carter, to a local psychiatric hospital because
Carter was threatening to kill himself.

Tavares Thompson, a

Wake County, North Carolina, Sheriff’s Deputy, was the first to
respond.

When

Thompson

encountered

Carter,

holding what appeared to be a paring knife.

the

latter

was

Thompson, upon

seeing the knife, instructed Carter to drop it.

When Carter

failed to comply, Thompson fired his gun twice.

Both shots

struck Carter, resulting in his death.
Raina Connor, 1 acting as the administratrix of Carter’s
estate, (“Appellee”) subsequently sued Thompson, along with Wake
County Sheriff Donnie Harrison and the Ohio Casualty Insurance
Company

(collectively,

alleges,

inter

excessive

force

County

Sheriff

alia,
and

“Appellants”). 2
that

assault

failed

to

Appellee’s

Thompson’s
and

battery,

provide

actions
and

adequate

that

complaint
constitute
the

Wake

training

and

1

Appellee’s name is spelled “Conner” in the third amended
complaint below, and that spelling has been used by the parties
in numerous documents submitted to both the district court and
this court.
But her name appears as “Connor” in the initial
complaint and on the district court’s and this court’s dockets.
It is unclear which version of Appellee’s name is a misspelling,
so we use the spelling consistent with the docketing notice that
initiated this appeal.
2

The complaint also names a number of additional defendants
who do not join in this appeal.

3

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supervision to its employees and is liable for Carter’s death
pursuant

to

Services,

Monell

436

U.S.

v.
658

New

York

City

(1978).

The

Department
district

of

Social

court

denied

Appellants’ motion for summary judgment on each of these claims,
and Appellants filed this appeal in response.

We affirm in part

and dismiss in part.
I.
A.
On February 11, 2012, Adam Carter was living with his
uncle, Todd McElfresh, in Raleigh, North Carolina, along with a
third roommate, Tom Boykin.

When McElfresh and Boykin woke that

morning,

drunk

they

struggled
speak

found

with

to

a

Carter

alcoholism,

and

doctor.

indicated
Carter

suicidal.
that

told

he

his

Carter,

was
uncle

willing
that

who
to
he

“need[ed] . . . help,” J.A. 574, 3 and later asked McElfresh to
“[c]all Holly Hill,” id. at 586, which is a psychiatric hospital
in Raleigh.

McElfresh made the call, but nobody answered.

McElfresh then called a friend, who, after listening
to an explanation of Carter’s situation, advised McElfresh to
call

911.

McElfresh

did

get

3

an

answer

there,

and

after

Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.

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emergency responders were en route, the dispatcher stayed on the
line and tried to talk Carter out of attempting suicide.
The

efforts

were

not

entirely

successful.

After

speaking to the dispatcher for a few minutes, Carter handed the
phone

back

to

McElfresh,

and

walked

to

the

kitchen.

He

retrieved a paring knife and attempted, unsuccessfully, to cut
his wrist while Boykin tried to talk him out of it.
Deputy Thompson arrived shortly thereafter.

He met

McElfresh outside the house and followed him into an entrance
foyer.

McElfresh then proceeded alone up a four-step stairwell

leading to the living room where Carter was waiting.

McElfresh

told Carter that his ride had arrived, and both men started
downstairs

toward

the

foyer.

Carter

was

still

holding

the

paring knife he had used to try to cut his wrist.
Thompson saw the knife when Carter was about halfway
down the four stairs.
the knife.

He drew his gun and told Carter to drop

The command was repeated several times, by Thompson

as well as McElfresh and Boykin, but Carter did not comply.
When Carter reached the bottom of the stairs, Thompson fired
twice, killing him.
B.
Aside

from

this

general

description,

the

parties

dispute what exactly happened between the time Thompson saw the
knife and the time he fired his weapon.
5

The district court

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properly recognized that, at the summary judgment stage, all
disputes of material fact must be resolved in favor of Appellee,
the non-moving party.
accept, 4

and

Given the posture of this appeal, we must

therefore

incorporate,

the

district

court’s

characterization of the disputed facts:
[T]he details of the brief time (mere
second[s]
to
minutes)
between
Deputy
Thompson entering the residence and the
firing of his weapon[] are disputed. . . .
Chief among the disputes are (1) exactly
where
Deputy
Thompson
was
standing
in
relation to the front door (whether back
against a wall or directly in front of the
door); (2) the position of the knife during
Carter’s descent on the stairs (whether he
changed hands, raised the knife, etc.); and,
(3) Carter’s speed and agility in descending
the stairs (whether falling down drunk or
lunging at the deputy).
However, viewing
the evidence in the light most favorable to
the non-moving party, here the plaintiff,
the
court
notes
the
following
evidence: Thompson testified that he saw
Carter with the knife in his hand while
Carter was on the second step and while
Thompson had just crossed the threshold of
the front door.
The front door remained
opened at all times.
The knife Carter had
in his hand was a small paring knife.
Carter slowly staggered down two steps while
holding on to the wall to support himself.
McElfresh testified that Carter never rushed
toward Thompson or made any aggressive moves
or steps.
Conner ex rel. Carter v. Wake Cty., No. 5:12-cv-701, 2015 WL
1125065, at *2 (E.D.N.C. Mar. 12, 2015).
4

See infra Part III.A.

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C.
Based on the foregoing, Appellee sued Appellants, on
October 25, 2012, in the United States District Court for the
Eastern District of North Carolina.
Complaint

asserts

in

relevant

Appellee’s Third Amended

part

causes

of

action

for

excessive force, inadequate training and supervision, and Monell
liability pursuant to 42 U.S.C. § 1983, as well as assault and
battery pursuant to North Carolina state law.
On
judgment.

May

30,

2014,

Appellants

summary

in

dispute

which

It found “substantial fact

preclude

the

judgment as to the excessive force claim.”
1125065, at *3.
the

for

The district court denied the motion with respect to

each claim at issue in this appeal.
questions

moved

excessive

entry

of

summary

Conner, 2015 WL

It further reasoned, “[a]s summary judgment on
force

claim

is

precluded

because

of

disputed

facts, so also is a decision on qualified immunity at this stage
of the litigation,” id., and the court went on to deny summary
judgment

on

the

Monell

liability,

inadequate

training

supervision, and assault and battery claims as well.

and

Appellants

timely appealed.
II.
“We review de novo a district court’s decision to deny
a summary judgment motion asserting qualified immunity.

Summary

judgment is appropriate ‘if the movant shows that there is no
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genuine

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dispute

as

to

any

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material

fact

entitled to judgment as a matter of law.’”

and

the

movant

is

Smith v. Ray, 781

F.3d 95, 100 (4th Cir. 2015) (citation omitted) (quoting Fed. R.
Civ. P. 56(a)).

“In reviewing [a] district court’s decision

denying qualified immunity, we generally accept the facts as the
court viewed them.”

Danser v. Stansberry, 772 F.3d 340, 345

(4th Cir. 2014).
III.
A.
“[W]e

first

satisfy

ourselves

before proceeding to decide this case.

of

our

jurisdiction”

Cooper v. Sheehan, 735

F.3d 153, 157 (4th Cir. 2013).

Appellee has argued that we are

without

this

jurisdiction

disputes of fact.

because

appeal

turns

solely

on

We disagree with that characterization.

“[D]enial of a claim of qualified immunity, to the
extent that it turns on an issue of law, is an appealable ‘final
decision’

within

the

meaning

of

28

U.S.C.

§ 1291 . . . .”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
hand,

a

“District

Court’s

determination

that

On the other
the

summary

judgment record . . . raised a genuine issue of fact . . . [i]s
not a final decision.”
(1995)
these

(internal
two

rules

Johnson v. Jones, 515 U.S. 304, 313

quotation

marks

allow

to

us

omitted).

review

the

In
legal

combination,
conclusions

underlying a district court’s denial of qualified immunity in an
8

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interlocutory

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appeal

but

do

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not

permit

us

to

reconsider

any

“determin[ation] . . . of . . . which facts a party may, or may
not, be able to prove at trial.”

Id.

“In other words, . . . we

have jurisdiction over a claim that there was no violation of
clearly

established

law

court viewed them.”

accepting

the

facts

as

the

district

Winfield v. Bass, 106 F.3d 525, 530 (4th

Cir. 1997) (en banc).
For

this

reason,

we

do

not

consider

Appellants’

assertions that Carter had his knife extended in a thrusting
position or that Deputy Thompson had his back to a wall at the
time of the shooting.

The district court identified both issues

as disputed, writing, “Chief among the [factual] disputes are
(1) exactly where Deputy Thompson was standing in relation to
the [open] front door . . . [and] (2) the position of the knife
during Carter’s descent on the stairs.”

Conner ex rel. Carter

v. Wake Cty., No. 5:12-cv-701, 2015 WL 1125065, at *2 (E.D.N.C.
Mar. 12,

2015).

The

district

court’s

articulation

of

these

disputes in the light most favorable to the Appellee -- that
Carter never raised the knife or “made any aggressive moves” and
that

“Thompson

had

just

crossed

the

threshold

of

the

front

door[,] [which] remained opened at all times,” id. -- binds us.
Nonetheless,
outright.

The

crux

the
of

appeal
Appellants’

need

not

be

argument

is

dismissed
the

legal

contention that Thompson is entitled to qualified immunity on
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any view of the factual record -- including the view adopted by
the district court.

Resolving that contention is within our

jurisdiction, and occasional reference to alternative views of
the facts does not strip the jurisdictionally appropriate claim
from the case.

See Cooper, 735 F.3d at 158 (“Although the

Officers

evidence

mention

that

they

believe

will

ultimately

disprove Cooper’s version of the facts, for purposes of this
appeal they have accepted the facts as viewed by the district
court.

Proceeding from that foundation, the Officers make the

legal

argument

that

constitutional rights.
of

our

they

did

not

contravene

Cooper’s

In these circumstances, we are satisfied

jurisdiction

under

the

collateral

order

doctrine . . . .”).
Accordingly,
whether

the

facts,

we

as

proceed

viewed

by

Thompson to qualified immunity.
whether

our

jurisdiction

to
the

resolve

the

district

question

court,

of

entitle

After doing so, we will address

extends

to

the

remaining

issues

on

appeal.
B.
We turn, then, to Appellants’ primary contention -that

Thompson

is

entitled

to

qualified

immunity

from

the

excessive force claim raised in this case.
“Qualified
constitutional

immunity

violations

protects

but
10

who,

officers
in

light

who
of

commit
clearly

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established

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law,

were lawful.”

could

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reasonably

believe

that

their

actions

Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

2011) (en banc).

A “qualified immunity analysis,” therefore,

“typically involves two inquiries: (1) whether the plaintiff has
established the violation of a constitutional right, and (2)
whether that right was clearly established at the time of the
alleged violation.”
Cir. 2015).

Raub v. Campbell, 785 F.3d 876, 881 (4th

We consider each inquiry in turn, beginning with

the question whether Appellee could establish before a trier of
fact that Thompson used unconstitutionally excessive force when
he shot Carter.
1.
A “claim that law enforcement officials used excessive
force in the course of making an arrest, investigatory stop, or
other ‘seizure’ of [a] person” is “properly analyzed under the
Fourth Amendment’s ‘objective reasonableness’ standard.”
v. Connor, 490 U.S. 386, 388 (1989).

Graham

Consequently, we evaluate

the facts “from the perspective of a reasonable officer on the
scene, and the use of hindsight must be avoided.

Additionally,

the reasonableness of the officer’s actions . . . [must be]
determined based on the information possessed by the officer at
the moment that force is employed.”

Waterman v. Batton, 393

F.3d 471, 477 (4th Cir. 2005) (citations omitted).

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The

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objective

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reasonableness

standard

“requires

a

careful balancing of the nature and quality of the intrusion on
the

individual’s

Fourth

Amendment

interests

against

countervailing governmental interests at stake.”

the

Smith v. Ray,

781 F.3d 95, 101 (4th Cir. 2015) (quoting Graham, 490 U.S. at
396).

To perform this balancing, we look to “the facts and

circumstances of each particular case,” with an eye toward three
factors:

“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

attempting to evade arrest by flight.”

resisting

arrest

or

Graham, 490 U.S. at 396.

In this case, Thompson deployed deadly force, which
requires that a particular governmental interest be at stake to
satisfy

our

balancing

test.

Because

“[t]he

intrusiveness

of . . . deadly force is unmatched,” it may only be used when an
“officer has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the
officer or others.”

Tennessee v. Garner, 471 U.S. 1, 3, 9

(1985).
Our task, then, is to determine whether the facts and
circumstances

found

by

requisite probable cause.
The
Appellee here.

first

and

the

district

court

establish

this

We hold that they do not.
third

Graham

factors

plainly

favor

Neither provides a basis on which a reasonable
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officer could conclude that Carter posed a threat of death or
serious injury to others.
As to the first factor, Carter
known to Thompson.

had committed no crime

His uncle called 911 because Carter was

suicidal and needed help.

“When the subject of a seizure ‘ha[s]

not

this

committed

any

crime,

subject’s] favor.”

factor

weighs

heavily

in

[the

Estate of Armstrong ex rel. Armstrong v.

Vill. of Pinehurst, 810 F.3d 892, 899 (4th Cir. 2015) (quoting
Bailey v. Kennedy, 349 F.3d 731, 743-44 (4th Cir. 2003)).
As
court’s

to

the

third

factor,

nothing

view

of

the

facts

supports

a

in

the

conclusion

district

that

Carter

intended to flee, nor was he actively resisting arrest.

Viewed

in the light most favorable to Appellee, the evidence would show
that

Carter

direction

slowly

of

the

staggered

Deputy

down

after

his

the

steps

uncle

said

in

the

to

because Carter’s ride to Holly Hill had arrived.

general

follow

him

Such behavior

imparts no indication that would create a governmental interest
in

inflicting

deadly

force.

See

Smith,

781

F.3d

at

102-03

(Where an arrestee “did not strike at [the arresting officer],
attempt to flee the scene, or even turn her back to him,” the
third Graham factor did not authorize use of force.).
Here,
second
whether

factor

the

parties’

nonetheless

Carter’s

actions

arguments

favored
are
13

the

center
use

reasonably

of

on

whether

force,

believed

the

namely,
to

have

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constituted an immediate threat to Thompson or another person.
Viewing

the

record

in

the

light

most

favorable

to

Appellee,

Carter possessed a paring knife, refused to comply with repeated
commands to drop the weapon, and continued down the stairs (and
thus

closer

to

Thompson)

rather

than

stopping.

As

for

the

knife, we have held “the mere possession of a [deadly weapon] by
a suspect is not enough to permit the use of deadly force. . . .
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

(emphasis in original). 5
possession

of

his

weapon.”

Cooper,

735

F.3d

at

159

And while Carter stubbornly maintained

knife,

the

assumed

circumstances

Thompson

confronted do not establish that Carter threatened anyone with
it.
For
appropriately

the

present

assumed

that

inquiry,
Carter

the

never

changed hands, or acted aggressively with it.

district

raised

his

court
knife,

We have held that

holding a weapon in a non-threatening position while “ma[king]
no sudden moves[] . . . fail[s] to support the proposition that
a

reasonable

officer

would

have

5

had

probable

cause

to

See also Pena v. Porter, 316 F. App’x 303, 312 (4th
2009) (“Absent any additional factors which would give
Officers probable cause to fear for their safety or for
safety of others, the mere presence of a weapon is
sufficient to justify the use of deadly force.”).

14

feel
Cir.
the
the
not

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threatened.”
been

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Cooper, 735 F.3d at 159.

informed

that

Carter

was

Thompson, moreover, had

suicidal,

which

explained the reason for holding the knife.
(concluding
themselves

that
and

where

had

police

created

a

officers

could

See id. at 160

failed

“nocturnal

have

to

identify

disturbance”

on

the

plaintiff’s property, the plaintiff’s “rationale for bearing a
firearm while investigating [that] disturbance . . . ‘should
have

been

apparent

to

[the

Officers]

at

the

time

of

the

shooting.’” (quoting Pena v. Porter, 316 F. App’x 303, 312 (4th
Cir. 2009))).
The
“slowly

district

stagger[ing] . . .

support himself.”
that

court

an

also

while

assumed

holding

that

on

to

Carter
the

wall

Conner, 2015 WL 1125065, at *2.

individual

can

barely

walk

contravenes

was
to

Evidence
a

police

officer’s argument that deadly force was necessitated by the
risk that the individual might charge and attack the officer.
See Clem v. Corbeau, 284 F.3d 543, 552 (4th Cir. 2002).
Viewing
totality,
officer

we

fail

“probable

the
to

district
see

cause

how

to

court’s
they

believe

would
that

assumed
give

a

[Carter]

facts

in

reasonable
pose[d]

a

significant threat of death or serious physical injury to the
officer or others.”

Garner, 471 U.S. at 3.

Those assumed facts

depict a non-aggressive, partially incapacitated, non-criminal
holding

a

knife

in

his

own
15

residence

while

providing

no

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indication that the knife was about to be used to harm someone
else. 6

Using

deadly

force

against

such

an

individual

is

unconstitutional, and the district court, therefore, did not err
by

denying

question

Appellants’
whether

motion

for

Thompson’s

summary

actions

judgment

violated

on

the

Carter’s

constitutional rights.
2.
We turn, then, to the second inquiry in our qualified
immunity

analysis:

Was

this

constitutional

violation

clearly

established when it occurred?
Even

when

state

officials

violate

the

Constitution,

“[t]he doctrine of qualified immunity shields [the] officials
from

civil

liability

violate clearly
rights.”
curiam)

so

long

established

as

their

statutory

conduct
or

does

not

constitutional

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per
(internal

sufficiently

quotation

clearly

marks

established

6

to

omitted).
expose

A
an

right

is

official

to

If this case proceeds to trial, the trier of fact would
not be bound to accept this set of assumed facts as we are.
Accordingly, our conclusion that Thompson’s use of force was
objectively unreasonable and our underlying reasoning -- both of
which are expressly based on a set of facts that the ultimate
trier of fact need not accept -- likewise do not bind that trier
of fact on remand.
See, e.g., Clem, 284 F.3d at 552 (“Of
course, [the plaintiff] ultimately may not be able to prove
these facts, but, if he can, . . . [the defendant officer]
violated [the plaintiff]’s Fourth Amendment right to be free
from excessive police force.”)

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liability if “every reasonable official would have understood
that

what

he

is

doing

violates

that

right.”

Id.

Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).
to

say

that

an

official

action

is

(quoting

“This is not

protected

by

qualified

immunity unless the very action in question has previously been
held

unlawful;

but

it

is

to

say

that

in

the

light

existing law the unlawfulness must be apparent.”
Creighton,

483

U.S.

635,

640

(1987)

(citation

of

pre-

Anderson v.
omitted).

We

evaluate whether the unlawfulness of a particular violation was
apparent “in light of the specific context of the case, not as a
broad

general

(quoting

proposition.”

Brosseau

v.

Haugen,

In

case,

Mullenix,
543

U.S.

136

S.

Ct.

at

308

194,

198

(2004)

(per

a

suicidal

and

curiam)).
this

Thompson

confronted

obviously impaired but non-aggressive man who refused to drop a
knife

held

in

a

non-threatening

stagger[ing]” down stairs.

manner

while

“slowly

Conner, 2015 WL 1125065, at *2.

front door remained open behind Thompson at all times.

The

We think

the unconstitutionality of using deadly force in that specific
context was apparent.
Three decades ago, the Supreme Court set forth the
requirement

that

police

officers

limit

deadly

force

to

situations where “probable cause to believe that the suspect
poses a significant threat of death or serious physical injury
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to the officer or others” exists.
we

have

since

held

that

Garner, 471 U.S. at 3.

officers

who

commit

a

And

violation

“manifestly included within” the “core constitutional principle”
announced

in

Garner

are

not

entitled

to

qualified

immunity.

Clem, 284 F.3d at 553 (quoting Buonocore v. Harris, 65 F.3d 347,
357 (4th Cir. 1995)).
Thompson’s violation fits within that principle.
reasonable

officer

could

think

that

a

suicidal,

No

non-criminal

individual holding a small paring knife and otherwise acting in
a nonthreatening manner who had difficulty standing and walking
presents

justification

proscription.
to

bar

to

deviate

from

Garner’s

bright-line

Garner, therefore, constitutes sufficient notice

qualified

immunity

in

this

case.

See

Weinmann

v.

McClone, 787 F.3d 444, 451 (7th Cir. 2015) (holding that Garner
(and Graham) provided adequate clearly established law to guide
an

officer’s

conduct

when

he

encountered

an

armed

suicidal

person “who is neither resisting arrest nor threatening anyone
save himself” even where no circuit precedent was more directly
analogous);

Mercado

v.

City

of

Orlando,

407

F.3d

1152,

1160

(11th Cir. 2005) (Where officers found a suicidal individual
“crying on the floor of his kitchen with a loose cord around his
neck and a kitchen knife placed up to, but not poking into, his
chest,” the decision to use deadly force was “‘so far beyond the
hazy

border

between

excessive

and
18

acceptable

force

that

the

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official had to know he was violating the Constitution [based on
Garner and other broadly stated excessive force articulations]
even without caselaw on point.’”

(alterations omitted) (quoting

Willingham v. Loughnan, 321 F.3d 1299, 1303 (11th Cir. 2003)).
There
concerning

the

threatening
officers

is

who

also

use

of

existing
force

individual.
acted

in

against

Most
2007

Fourth

Circuit

an

armed,

specifically,

were

not

precedent

entitled

non-

held

we

but

that

to

qualified

immunity after deploying deadly force against an individual who
“stood at the threshold of his home, holding [a] shotgun in one
hand,” but otherwise doing nothing “to support the proposition
that a reasonable officer would have had probable cause to feel
threatened.”
Accepting

Cooper,

Appellee’s

735

version

F.3d
of

at

159;

events,

see

id.

Thompson,

at

160.

acting

in

2012, had no less notice that deadly force was clearly unlawful
when he fired as Carter descended two steps inside his home,
refused to drop a paring knife, but otherwise did nothing to
support

the

conclusion

that

he

posed

an

immediate

threat

to

anyone’s safety.
As

the

district

court

recognized,

then,

summary

judgment in Thompson’s favor is precluded at both steps of the
qualified immunity analysis.

The facts, as we must view them

for purposes of summary judgment, would be sufficient to support
a

trier

of

fact’s

finding

that
19

shooting

Carter

amounted

to

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Moreover, a reasonable officer would know that

shooting Carter under the circumstances presented by Appellee’s
version of the facts would be unlawful.
C.
Appellants

challenge

the

judgment decision on two other fronts.

district

court’s

summary

They assert the decision

erroneously withheld summary judgment on the remaining § 1983
claims and further argue North Carolina’s doctrine of public
officers’
claim.

immunity

precludes

the

pending

assault

and

battery

However, our conclusion that Thompson is not entitled to

qualified immunity at this stage of the litigation forecloses
both objections.
1.
Appellants argue they are entitled to summary judgment
on

the

constitutional

claims

lodged

against

the

Wake

County

Sheriff -- an inadequate training and supervision claim and a
claim brought pursuant to Monell v. New York City Department of
Social Services, 436 U.S. 658 (1978). 7

Having declined to award

qualified immunity to Thompson, however, we lack jurisdiction to
consider these claims.

7

For simplicity’s sake, we will refer to these two claims
collectively as “supervisory claims” throughout the remainder of
this opinion.
The jurisdictional analysis that follows is the
same for each claim.

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Generally,
liability

may

judgment.”

be

erroneous

reviewed

Swint

(1995).

“[a]n

v.

ruling

effectively

Chambers

Accordingly,

Pg: 21 of 24

the

Cty.

denial

on

on

appeal

Comm’n,

of

[supervisory]

514

from
U.S.

Appellants’

final
35,

motion

43
for

summary judgment with respect to the claims against the Wake
County Sheriff “[i]s not an appealable collateral order.”

Id.;

see also Evans v. Chalmers, 703 F.3d 636, 654 n.11 (4th Cir.
2012)

(“We

recognize

that

because

cities

do

not

possess

qualified immunity from § 1983 claims, we do not have appellate
jurisdiction under the collateral order doctrine to hear the
City’s appeal of the Monell claims.”
Appellants
pendent

jurisdiction

interlocutory
individual
issue

are

officers’

of . . .

nevertheless

to

appeals.

(citation omitted)).

review
Where

[supervisory]

such
“our

qualified

correct
a

that

denial

we

in

certain

determinations

immunities
liability,

fully
we

of . . .

resolve

[may]

pendent appellate jurisdiction over [such] claims.”

have

the

exercise
Evans, 703

F.3d at 654 n.11; see also Altman v. City of High Point, 330
F.3d 194, 207 n.10 (4th Cir. 2003).
achieved

when

a

qualified

immunity

“[F]ull[] resol[ution]” is
analysis

results

in

the

conclusion that no individual officer committed a constitutional
violation.

Evans, 703 F.3d at 654.

require

predicate

a

constitutional

21

Since supervisory “claims
violation

to

proceed,”

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foreclosure of the individual predicate violation necessitates
dismissal of the supervisory claims.

Id.

But the full resolution requirement is not met here,
where we concluded that Appellee has articulated a version of
events

that

would

allow

the

trier

Thompson used excessive force.

of

fact

to

conclude

that

When a predicate constitutional

violation in fact occurs, affirmatively establishing individual
and supervisory liability requires distinct showings.

See City

of Canton v. Harris, 489 U.S. 378, 385 (1989); see also Shaw v.
Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (listing the elements
necessary to establish a constitutional violation pursuant to a
supervisory liability theory).
confirming

the

existence

of

And there is no sense in which
a

claim’s

prerequisite

understood as “fully resolv[ing] the claim[].”
at 207 n.10.

can

be

Altman, 330 F.3d

“[I]n the face of a constitutional violation,”

therefore, “we lack subject-matter jurisdiction to entertain an
appeal

of

[supervisory]

claim[s]”

at

an

interlocutory

stage.

Martin v. City of Broadview Heights, 712 F.3d 951, 963 (6th Cir.
2013).
Appellants’

request

that

we

reverse

the

district

court’s judgment with respect to the pending supervisory claims
is, accordingly, dismissed for lack of jurisdiction.

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2.
We do have jurisdiction to consider Appellants’ final
challenge -- whether the district court erred by denying their
motion

for

summary

judgment

assault and battery claim.
by

North

Carolina’s

with

respect

to

the

state

law

Dismissal of that claim is required

doctrine

of

public

officers’

immunity,

Appellants argue, because the summary judgment record is devoid
of

evidence

that

Thompson

acted

maliciously,

outside the scope of his authority.
over

[a]

police

officer[’s]

appeal

corruptly,

or

“[W]e have jurisdiction
of

the

district

court’s

denial of public officers’ immunity” in an interlocutory appeal
“[b]ecause, under North Carolina law, public officers’ immunity
is an immunity from suit.”

Bailey v. Kennedy, 349 F.3d 731,

738-39 (4th Cir. 2003) (applying North Carolina law).
But “public officers’ immunity . . . is unavailable to
officers who violate clearly established rights.”
F.3d at 742.

Bailey, 349

So in cases where “a jury could find that no

reasonable officer could have believed his conduct to be lawful
in light of the circumstances known to him at the time[,] [a]
parallel

state

law

claim

of

assault

and

battery

is

subsumed

within the federal excessive force claim and so goes forward as
well.”

Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994)

(applying North Carolina law) (citation omitted).

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That
summary

holding

judgment

on

Pg: 24 of 24

controls

this

Thompson’s

case.

Our

qualified

denial

immunity

of

defense

necessarily entails our judgment that, on the required view of
the facts, no reasonable officer could have believed Thompson’s
conduct was lawful.

The state law assault and battery claim

based on the same conduct is thus “subsumed within the federal
excessive force claim,” Rowland, 41 F.3d at 174, and suffers its
same

fate.

We

affirm

the

district

court’s

conclusion

that

summary judgment is not appropriate.
IV.
For

the

foregoing

reasons,

the

judgment

of

the

district court is affirmed with respect to the excessive force
and

assault

district

and

court’s

battery

claims.

determination

of

Appellants’
the

appeal

supervisory

of

claims

the
is

dismissed for want of jurisdiction.
AFFIRMED IN PART
AND DISMISSED IN PART

24