Jotaynun Lee v. Todd Bevington

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cv-00471-REP. Copies to all parties and the district court. [999813389].. [15-1384]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1384

JOTAYNUN LEE, Individually, and on behalf of himself and
the minor children of Jataynun Trayvon Fleming, Deceased,
and as Administrator of the Estate of Jataynun Trayvon
Fleming, Deceased,
Plaintiff - Appellant,
v.
TODD JAMES BEVINGTON,
Defendant - Appellee,
and
CITY OF RICHMOND, VIRGINIA; WESLEY E. MOORE; JOHN DOE, Nos.
1-20, being members of the Richmond Police Department SWAT
Team who responded to, and shot at the decedent at 304
Beaufort Hill Drive, Richmond, VA 23225; JOHN DOE, Nos. 1120, being United States Marshals Service members who were
part of the response team that shot at decedent,
Defendants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:12-cv-00471-REP)

Argued:

March 22, 2016

Decided:

May 5, 2016

Before NIEMEYER and MOTZ, Circuit Judges, and Max O. COGBURN,
Jr., United States District Judge for the Western District of
North Carolina, sitting by designation.

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Affirmed by unpublished opinion.
Judge Cogburn wrote
opinion, in which Judge Niemeyer and Judge Motz joined.

the

ARGUED: Kenechukwu C. Okoli, LAW OFFICES OF K.C. OKOLI, P.C.,
New York, New York, for Appellant.
Donald Cameron Beck, Jr.,
MORRIS & MORRIS, P.C., Richmond, Virginia, for Appellee.
ON
BRIEF: John B. Mann, JOHN B. MANN, P.C., Richmond, Virginia, for
Appellant.
Antoinette Morgan Walker, MORRIS & MORRIS, P.C.,
Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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COGBURN, District Judge:
The Estate of Jataynun Trayvon Fleming (“Appellant” when
referring

to

the

decedent)

estate,

appeals

an

or

order

“Fleming”
of

the

when

referring

district

court

to

the

granting

summary judgment to Detective Todd James Bevington (“Bevington”
or “Appellee”) in this 42 U.S.C. § 1983 excessive force action.
The district court determined that Bevington did not violate
Fleming’s Fourth Amendment rights when he used deadly force in
seizing

Fleming,

and

alternatively

found

that

Bevington

was

entitled to summary judgment on his asserted qualified immunity
defense. We affirm.
I.
We review a district court’s grant of summary judgment de
novo.

Estate

of

Armstrong

ex

rel.

Armstrong

v.

Vill.

of

Pinehurst, 810 F.3d 892, 895 (4th Cir. 2016). Summary judgment
shall be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A factual

dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
material only if it might affect the outcome of the suit under
governing law. Id. When ruling on a summary judgment motion, a
court

must

view

the

evidence

and
3

any

inferences

from

the

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evidence in the light most favorable to the nonmoving party.
F.D.I.C. v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013). “Where
the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine issue
for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). In the end, the question posed by a
summary judgment motion is whether the evidence “is so one-sided
that one party must prevail as a matter of law.” Anderson, 477
U.S. at 252.
“Because this is a deadly force case, ‘the witness most
likely to contradict [the officers'] story—the person shot dead—
is unable to testify.’” Ingle ex rel. Estate of Ingle v. Yelton,
439 F.3d 191, 195 (4th Cir. 2006) (quoting Scott v. Henrich, 39
F.3d 912, 915 (9th Cir. 1994)). In such situations, “a court
must

undertake

a

fairly

critical

assessment

of

the

forensic

evidence, the officer's original reports or statements and the
opinions of experts to decide whether the officer's testimony
could

reasonably

be

rejected

at

a

trial,”

instead

of

merely

accepting a potentially self-serving version of events relayed
by the officers.

Id. (citations omitted).
II.
A.

On

July

14,

2010,

officers

of

the

Richmond

Police

Department (“RPD”) arrived at Fleming’s family home in Richmond,
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Virginia, to execute a warrant for Fleming’s arrest on charges
of robbery and use of a firearm in the commission of a felony.
Fleming was also suspected of being involved in a homicide and
home invasion committed earlier that day. When police entered
the residence, Fleming retreated and barricaded himself in an
upstairs bathroom. Officers present on the scene reported that
Fleming refused to exit the bathroom and repeatedly threatened
to shoot the police officers.
After that initial interaction, the RPD officers dispatched
a SWAT team to the residence; Bevington was a member of that
SWAT team. The commander of the SWAT team, Lieutenant Mauricio
Tovar (“Tovar”), communicated to the SWAT officers, including
Bevington,

the

threats

that

Fleming

had

made

to

the

RPD

officers. Tovar also showed the SWAT officers Fleming’s “wanted
poster,” which described Fleming as “armed and dangerous” and
advised that he “[would] not go quietly.” J.A. 357. The poster
also

included

Tovar’s

handwritten

notes

describing

communications he had received from RPD officers investigating
the homicide. Those notes indicated that Fleming was possibly
armed

with

a

handgun

and

had

made

statements

that

he

“will

shoot” and was “not going down without a fight.” J.A. 354. When
Fleming’s father, Jotaynun Lee (“Lee”), arrived at the residence
and spoke with officers on the scene, he told the officers that
Fleming did not have a gun.
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After
members

on

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Tovar

briefed

the

foregoing

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Bevington

and

information,

the
the

other
SWAT

SWAT

team

team

members

staged themselves in a spare bedroom across the hall from the
master bedroom, which connected with the bathroom where Fleming
remained barricaded. Police negotiators deployed a “throw phone”
into the bathroom, which allowed for audio communication between
Fleming and negotiation officers, as well as video surveillance
of

the

scene

in

the

bathroom.

The

negotiation

team

informed

Tovar that based on the video surveillance relayed through the
throw phone, Fleming appeared to have a gun tucked into his
waistband. Tovar communicated this fact to Bevington and other
SWAT team members in the staging area. The negotiation team,
using

the

throw

phone,

attempted

to

convince

Fleming

to

peacefully surrender for several hours. In addition, throughout
the course of the negotiations, Bevington repeatedly instructed
Fleming on how to surrender, telling him to come out of the
bathroom with his hands up.
While

barricaded,

Fleming

communicated

with

police

negotiators and members of the SWAT team, telling them he wanted
to speak to his father and that he wanted a cigarette. At one
point during the standoff, negotiators informed the SWAT team
members that Fleming had asked what the SWAT officers would do
if he “came out with his junk.” J.A. 355, 365. SWAT officers,
including Bevington, heard Fleming repeat this question from the
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bathroom, yelling at the SWAT team, “What are you-all going to
do when I come out with my junk? What are you going to do when I
come out with my shit? You-all better get ready to kill me,” and
“you-all are going to have to shoot it out with me.” J.A. 365,
751-52, 795. Officers interpreted “junk” to be a slang word for
“gun” or “weapon.”
After

several

hours,

Fleming

stopped

responding

to

communications from the negotiators and began breathing heavily.
Based on communications with the negotiators, Tovar determined
that Fleming was preparing to exit the bathroom in a violent
manner. Tovar then decided to fire tear gas into the master
bathroom from outside the house in order to force Fleming to
exit and surrender. In preparation for the tear gas deployment,
Bevington and the other SWAT team members put on gas masks.
At

the

time

the

gas

was

deployed,

Officer

Wesley

Moore

(“Moore”) was the first officer in the single-file SWAT line,
kneeling and holding a ballistic shield. Bevington was stationed
as

the

second

officer

in

the

team,

standing

directly

behind

Moore and providing “cover to a lethal threat.” J.A. 368. Moore
was positioned in the doorway of the spare bedroom; Bevington
was leaning over the top of Moore, holding a rifle. The SWAT
team

members

carrying

in

rifles

line
and

behind

service

Moore
pistols;

7

and
one

Bevington
carried

were
a

also

Taser

to

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deploy if necessary. The last two officers in line were part of
the “arrest team” responsible for handcuffing Fleming.
Soon after the tear gas canisters were launched into the
bathroom where Fleming was barricaded, Fleming exited the master
bathroom, 1 moved into the master bedroom, and advanced toward the
officers, who were waiting approximately 13 feet away in the
threshold of the door to the spare bedroom across the hall.
Moore and Bevington both testified that when Fleming exited
the master bathroom, his hands were outstretched toward the SWAT
team.

They

both

testified

that

Fleming

was

holding

a

black

cylindrical object wrapped in some sort of cloth, and that they
perceived this object as a gun. What Moore and Bevington thought
was a gun was later determined to be a woman’s high-heeled shoe
wrapped in a t-shirt. As Fleming came toward the officers, Moore
fired a single shot at him. Moore later testified that he shot
because he feared for his life and thought that Fleming was
going to shoot him or another member of the SWAT team.
Bevington

testified

that

as

Fleming

came

out

of

the

bathroom and moved toward the officers, Moore shifted upwards a
1

Appellant argues that a dispute of material fact exists as
to how much time elapsed between the tear gas being thrown into
the bathroom and Fleming running out of the bathroom. Moore
stated at his deposition that only seconds elapsed; Sergeant
Charles Hayes (another SWAT member) estimated that it took
between three and seven minutes. Though disputed, this fact is
not material to resolution of the excessive force question
before us.

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few

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inches,

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knocking

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Bevington’s

gun

slightly.

Bevington

believed that the shot fired by Moore had come from Fleming.
Bevington testified that after the first shot was fired, Fleming
was still coming toward the officers with his hands straight out
in front of him, holding what appeared to be a weapon. Bevington
then fired several shots at Fleming. 2 Bevington testified that
after he fired the first round of shots, Fleming fell to the
ground but was still pointing his “weapon” at the officers and
attempting to get back up as the officers approached. Moore also
testified that after Fleming fell to the ground, he was still
holding what appeared to be a weapon and was pointing it toward
the officers. Bevington continued to fire until Fleming rolled
over

and

Bevington

Bevington
stated

that

could

no

longer

the

time

between

see
the

Fleming’s

hands.

first

second

and

round of shots he fired was “less than seconds.” J.A. 382. Moore
and Bevington fired a total of nine rounds at Fleming, who was
struck multiple times in his hands, arms, torso, and chest.
2

Appellant argues that a genuine dispute of material fact
exists as to Bevington’s locations when Fleming exited the
bathroom and when he was shot seconds later. The district court
properly concluded that though a factual dispute existed as to
Bevington’s precise location at those times, resolution of those
disputed facts was immaterial to the excessive force analysis.
See Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 539-40
(E.D. Va. 2015) (“Whether Bevington was removed from Fleming by
thirteen feet or ten feet or five feet makes no difference to
the circumstances confronting the SWAT unit and Bevington as
Fleming exited the bathroom and advanced toward the unit.”).

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When

the

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shooting

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ceased,

the

two

arresting

officers

handcuffed Fleming, removed him from the scene, and placed him
in a waiting ambulance. 3 After being transported to a hospital,
Fleming was pronounced dead within 30 minutes. Upon inspecting
the

scene

after

the

shooting,

officers

did

not

find

a

gun.

Photographs of the scene reveal a woman's high-heeled shoe and a
blood-stained, light-colored t-shirt on the floor of the master
bedroom.
Appellant

argues

that

a

genuine

issue

of

material

fact

exists as to Fleming’s location and positioning at the time he
was shot. Appellant notes that during his interview three days
after the shooting, Bevington told investigators he shot Fleming
with a second round while Fleming was still on the ground and
trying to get up, describing it as: “he’s kind of laying toward
us and he has this item in his hand still…what I believe was a
gun and he tries to get up again.” J.A. 553. Years later, at his
deposition, he testified that he shot Fleming again while he was

3

Appellant argues that a disputed issue of material fact
exists as to who handcuffed Fleming after he was shot based on
statements made by Lieutenant Stephen McQuail after the shooting
and a declaration that he later signed in April 2013. See J.A.
1255; 1253 (explaining that multiple officers assisted in
placing handcuffs on Fleming). In addition to finding no genuine
factual dispute between the officer’s statements, the issue of
who handcuffed Fleming after the shooting is irrelevant to the
inquiry before us.

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on

the

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ground,

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trying

to

get

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up,

but

still

pointing

what

Bevington thought to be a weapon at the officers.
Moore testified that after he fired his shot, Fleming fell
to the ground within a matter of seconds, and as Moore moved
toward him, Fleming “was on his back kind of sitting up a little
bit, and he had at least one hand pointed up, [and] I could see
the weapon in his hand at that time.” J.A. 786. When questioned
as to whether he heard gunfire other than his own before Fleming
fell to the ground, Moore testified, “when he was coming towards
me, I fired the one round. That’s all I heard. As we moved up,
that’s when I heard more gunshots. At that point…[h]e was kind
of up, probably kind of leaning up…[h]e was laying down sideways
with his weapon pointed up.” J.A. 789. Moore reiterated that
though Fleming was on the ground, he was still pointing what he
believed to be a weapon at the SWAT team. At that point, Moore
heard the shots that Bevington fired at Fleming.
To the extent that this testimony constitutes a factual
discrepancy, we do not find it material to resolution of the
matter at hand. Both Moore and Bevington testified that Fleming
was attempting to get up, and either still had the “weapon” in
his hand, or was actively pointing it at the officers, after
Bevington fired the first volley of shots. As the district court
properly found:

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The second volley was fired a split-second after the
first one, and, of course, Bevington, when he fired
that volley, was informed by all the previously
recounted facts just as he was when he fired the first
volley. In addition, Bevington, as did Moore, saw
that, although Fleming was down and wounded, he also
was trying to get up and, in the process, he was still
pointing at the police officers what was reasonably
thought to be a gun. And, Bevington knew that the man
pointing what he reasonably thought was a gun had
threatened to kill the police officers. He then made a
split-second reaction to fire the second volley at a
man who was a threat to him and other officers and who
was still resisting arrest. On the record here,
whether Fleming was on the floor, or not, is not
material to the determination whether…Bevington acted
reasonably to the presented risk when firing the
second volley.
Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 540 (E.D. Va.
2015).
As to the other alleged genuine issues of material fact
raised by Appellant, addressed supra, we find that they are not
truly disputed factual discrepancies, not material to resolution
of

the

question

before

us,

or

merely

facts

that

Appellant

attempts to discredit in favor of his speculative version of
events. As this court has previously noted,
In cases where officers are hurriedly called to the
scene of a disturbance, the reasonableness of their
response must be gauged against the reasonableness of
their perceptions, not against what may later be found
to have actually taken place. It will nearly always be
the case that witnesses to a crime differ over what
occurred. That inevitable confusion, however, need not
signify a difference of triable fact. What matters is
whether the officers acted reasonably upon the reports
available to them and whether they undertook an
objectively reasonable investigation with respect to

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that information in light of the exigent circumstances
they faced.
Gooden v. Howard Cty., Md., 954 F.2d 960, 965 (4th Cir. 1992).
We find that none of the factual disputes raised by Appellant
are triable issues that would ultimately affect the outcome of
this case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Appellant

also

contends

that

two

inferences

should

have

been drawn in his favor at the summary judgment stage. First,
based on the fact that Fleming emerged from a bathroom full of
tear gas, Appellant asks the court to infer that Fleming’s eyes
were stinging and closed in response to the gas, and thus, that
he must not have been able to see where he was going. Second,
Appellant contends that the court should have inferred from the
testimony of the officers, some of whom did not report to the
investigators immediately after the shooting that they saw a
shoe or cloth near Fleming, that the shoe and cloth were planted
by one or more officers after the shooting but before the police
crime scene unit took photographs of the scene. We find such
inferences to be unsupported by the record and based wholly on
speculation. While the court is cognizant of the fact that there
is no testimony in this case from the one person who could have
potentially

contradicted

the

testimony

of

the

officers—the

decedent—there is simply no evidence in the record that would

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allow

us

to

essentially

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make

amount

such
to

a

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inferences.
request

for

Appellant’s
the

court

assertions

to

doubt

the

testimony in this case and rely instead on unfounded conjecture.
This we will not do. See Local Union 7107 v. Clinchfield Coal
Co., 124 F.3d 639, 640 (4th Cir. 1997) (“Fanciful inferences and
bald speculations of the sort no rational trier of fact would
draw or engage in at trial need not be drawn or engaged in at
summary judgment.”).
B.
Lee,

in

his

capacity

as

the

Administrator

of

Fleming’s

Estate, brought this § 1983 action in the Eastern District of
Virginia,

alleging

that

Bevington’s

actions

constituted

an

unlawful seizure of Fleming's person under the Fourth Amendment. 4
The

district

court

granted

Bevington’s

4

Motion

for

Summary

Appellant’s Amended Complaint asserted three counts
against Bevington and other officers. In addition to the Fourth
Amendment excessive force claim asserted in Count I, Count II
alleged that Bevington violated Lee's and Fleming's children’s
substantive due process rights by depriving them of their
liberty interest “in the companionship, care, custody, and
management” of Fleming. Count III alleged that Bevington caused
Fleming “to suffer great pain, suffering and anguish” during the
July 14, 2010 standoff and subsequent shooting. On March 27,
2013, the district court dismissed, pursuant to Fed. R. Civ. P.
12(b)(6), Counts II and III of the Amended Complaint, as well as
Count I to the extent that it alleged claims on behalf of Lee
individually and Fleming's minor children. Appellant’s argument
on appeal challenges only the district court’s disposition of
Count I on summary judgment, thus making the excessive force
claim and related qualified immunity question the only issues
before us on appeal.

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Judgment on March 18, 2015, finding that Bevington was entitled
to summary judgment on the merits of Appellant’s excessive force
claim

and,

accordingly,

entitled

to

summary

judgment

on

the

basis of qualified immunity. This appeal followed.
III.
A.
“Qualified
constitutional
established

immunity
violations

law,

could

protects
but

officers

who,

reasonably

in

believe

who

light
that

commit

of

clearly

their

actions

were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc). “Officials will receive immunity unless the §
1983 claim satisfies a two-prong test: (1) the allegations, if
true,

substantiate

a

violation

of

a

federal

statutory

or

constitutional right and (2) the right was clearly established
such

that

a

reasonable

person

would

have

known

his

acts

or

omissions violated that right.” Brockington v. Boykins, 637 F.3d
503, 506 (4th Cir. 2011) (citation and internal quotation marks
omitted). The court may address these questions in either order,
but Appellant’s case will survive summary judgment “only if we
answer both questions in the affirmative.” Estate of Armstrong
ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 898 (4th
Cir.

2016)

(citing

Pearson

v.

Callahan,

555

U.S.

223,

232

(2009)). Here, considering the facts in the light most favorable
to

Appellant,

Bevington’s

conduct
15

did

not

violate

Fleming’s

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constitutional

rights

and

our

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inquiry

thus

ceases

after

resolving the first prong.
B.
Appellant alleges that Bevington violated Fleming’s Fourth
Amendment right to be free from unreasonable seizures—a right
that extends to seizures accomplished by excessive force.

See

Graham v. Connor, 490 U.S. 386, 394 (U.S. 1989). “A claim that a
police officer employed excessive force is analyzed under the
Fourth Amendment under an ‘objective reasonableness’ standard.”
Smith

v.

Ray,

781

F.3d

95,

100-01

(4th

Cir.

2015)

(quoting

Henry, 652 F.3d at 531). Excessive force does not arise if an
officer’s actions “are ‘objectively reasonable’ in light of the
facts

and

circumstances

confronting

[him],

without

regard

to

[his] underlying intent or motivation.” Id. (quoting Graham, 490
U.S.

at

397).

“The

test

of

reasonableness

under

the

Fourth

Amendment is not capable of precise definition or mechanical
application…[but] requires a careful balancing of the nature and
quality of the intrusion on the individual's Fourth Amendment
interests against the countervailing governmental interests at
stake.”

Armstrong,

quotation

marks

810

F.3d

omitted).

at

Three

899

(internal

factors

guide

citations
us

in

and
this

balancing: 1) the severity of the crime at issue; 2) the extent
to which the suspect poses an immediate threat to the safety of
the officers or others; and 3) whether the suspect is actively
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resisting

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or

arrest

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to

attempting

evade

arrest

by

flight.

Graham, 490 U.S. at 396. “Ultimately, the question to be decided
is

‘whether

particular

the
sort

totality
of

(quoting Tennessee

...
v.

of

the

circumstances

seizure.’”

Garner,

471

Smith,
U.S.

1,

781
8–9

justifie[s]
F.3d

at

(1985)).

a

101
This

court has previously noted that, as opposed to considering an
officer’s actions piecemeal in a “segmented sequence of events,”
“[t]he

better

way

to

assess

the

objective

reasonableness

of

force is to view it in full context, with an eye toward the
proportionality of the force in light of all the circumstances.”
Id. at 101-02 (quoting Rowland v. Perry, 41 F.3d 167, 173 (4th
Cir. 1994)). In addition, our determination of reasonableness
must account “for the fact that police officers are often forced
to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that
is necessary in a particular situation.” Graham, 490 U.S. at
396-97. As the district court noted,
No citizen can fairly expect to draw a gun on police
without risking tragic consequences. And no court can
expect any human being to remain passive in the face
of an active threat on his or her life…the Fourth
Amendment
does
not
require
omniscience.
Before
employing deadly force, police must have sound reason
to believe that the suspect poses a serious threat to
their safety or the safety of others. Officers need
not be absolutely sure, however, of the nature of the
threat or the suspect's intent to cause them harm—the
Constitution does not require that certitude precede
the act of self protection.

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Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 542 (E.D. Va.
2015) (quoting Elliott v. Leavitt, 99 F.3d 640, 644 (4th Cir.
1996)).
Upon

de

novo

review,

we

find

that

the

totality

of

circumstances here justifies the seizure that took place.

the

As to

the first Graham factor, the crime at issue was severe. Officers
were attempting to arrest Fleming for his alleged involvement in
a robbery accomplished by use of a firearm. The officers were
also aware that Fleming was a suspect in a homicide committed
earlier

that

day.

The

fact

that

Fleming

was

accused

of

committing such violent crimes weighs against Appellant.
As

to

the

second

Graham

factor,

the

uncontroverted

testimony indicates that the officers reasonably believed that
Fleming posed an immediate threat to their safety. In addition
to being aware of the fact that Fleming was wanted for violent
crimes, the officers had been briefed on information from RPD
indicating that Fleming was likely armed. They also received
reports
revealed

from

the

what

negotiation

appeared

to

be

team
a

that

weapon

video

tucked

surveillance

into

Fleming’s

waistband. Moreover, Fleming made overt threats to the SWAT team
officers

on

the

scene

implying

that

he

was

armed.

Once

he

emerged from the bathroom holding what appeared to be a weapon
pointed at the officers, there existed a reasonable perception
that Fleming posed an immediate risk to their safety. While it
18

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was

Doc: 35

later

Filed: 05/05/2016

determined

intentionally
continued
after

to

Moore

created
point
and

that
the

the

Pg: 19 of 22

Fleming

perception

apparent

Bevington

was
that

weapon

fired

not

their

at

he

armed,
was.

the

Fleming

officers

initial

he

shots.

even
These

undisputed facts indicate that Bevington could reasonably have
determined that Fleming posed a threat to his safety, as well as
that of his fellow officers, over the course of the rapidly
evolving and uncertain scenario that unraveled once Fleming came
out of the bathroom.
The

third

arrest—is

factor—whether
not

also

Fleming
to

favorable

was

actively

Appellant.

resisting

Fleming

had

been

actively resisting arrest for several hours at the time he was
shot.

He

chose

to

emerge

from

the

bathroom

creating

the

impression that he was capable of, and intent on, shooting the
arresting officers instead of complying with their commands to
peacefully surrender.
In sum, the totality of circumstances here is that Fleming
was

actively

resisting

arrest

for

violent

felony

charges,

threatened and taunted the police with suggestions that they
should be prepared to kill him, made statements directly to the
officers
bathroom

implying
after

that
a

he

was

armed,

multiple-hour

and

standoff

came
with

out

of

his

the

hands

outstretched toward the officers, pointing what appeared to be a
weapon

at

them.

The

district

court
19

properly

concluded

that

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Pg: 20 of 22

considering the factual circumstances as a whole, “[n]o jury
instructed on the applicable law could conclude that Bevington
acted unreasonably in firing either the first or second volley”
of shots. Lee, 100 F. Supp. 3d at 541. While the loss of life
that occurred in the course of Fleming’s attempted arrest is
undeniably
clearly

heartrending,

justifies

the

the

totality

actions

by

of

law

circumstances

enforcement

that

here
took

place.
IV.
We have also considered Appellant’s arguments about experts
and find them to be either waived or abandoned. The “Statement
of Issues” section of Appellant’s brief raises as an issue for
consideration

on

appeal

whether

the

district

court

properly

precluded the expert testimony of Dr. Kenneth Okafor. Appellant
also stated in the “Summary of Argument” section of his brief
that

the

However,

district

court

improperly

Appellant

never

addresses

excluded
the

such

issue

testimony.

further

in

his

opening or reply brief, and made no mention of this issue at
oral

argument.

An

appellate

contentions

and

the

reasons

authorities

and

parts

of

brief
for

the

“must

them,

record

contain

with
on

appellant's

citations

which

the

to

the

appellant

relies....” Fed. R. App. P. 28(a)(8). To that effect, the failure
to raise or discuss an issue in an appellate brief renders that
issue abandoned. See Mayfield v. Nat'l Ass'n for Stock Car Auto
20

Appeal: 15-1384

Doc: 35

Racing,

Filed: 05/05/2016

Inc.,

674

F.3d

369,

Pg: 21 of 22

376-77

(4th

Cir.

2012).

Because

Appellant has failed to substantively argue the issue to the
court, cite legal authority, or point out any particular part of
the

record

relevant

to

his

assertion

regarding

Dr.

Okafor’s

testimony, we deem this issue abandoned.
In addition, though Appellant did not articulate in the
“Statement of Issues” section of his brief any appellate issue
related to Appellee’s expert Matthew Nordel, he asserted in his
“Summary of Argument” section that the district court erred by
making a credibility determination as to this expert. We first
note

that

the

district

court

nowhere

cited

any

testimony

or

opinion from Mr. Nordel in the decision now before us on appeal,
and Appellant has failed to articulate where in the record the
district court made any finding or reference related to him. It
is

thus

unclear

that

the

district

court

made

a

credibility

determination as to this expert as Appellant claims. It is also
unclear
district

how

any

court’s

such

determination

decision

on

could

summary

have

affected

judgment.

the

Moreover,

Appellant has failed to cite any legal authority in support of
his position on this issue. Thus, we need not consider this
argument

because

it

fails

to

comply

with

Fed.

R.

App.

P.

28(a)(8). Even if the issue were properly before us, however, to
the extent Appellant challenges Mr. Nordel’s expert opinions as
to

the

trajectories

of

bullets
21

fired

at

Fleming,

any

facts

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Pg: 22 of 22

related to the distance and angle from which the bullets were
fired

would

have

no

material

impact

on

our

analysis

of

the

alleged constitutional violation at hand in light of the rest of
the uncontroverted evidence discussed herein, even if such facts
had been accepted by the district court.
V.
Because Bevington’s actions did not constitute an unlawful
seizure in violation of Fleming’s Fourth Amendment rights, we
affirm

the

district

court’s

decision

granting

Bevington’s

summary judgment motion.
AFFIRMED

22