Williams v. Williams et al

Filing 188

ORDER denying 170 Motion for Summary Judgment; denying 171 Motion for Summary Judgment. Signed by Honorable Patrick Michael Duffy on March 1, 2018.(jmcg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Johnnie Williams,
Plaintiff,
v.
Lance Corporal Kyle Strickland and
Raymond S. Heroux,
Defendants.

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C.A. No.: 9:15-cv-1118-PMD-MGB
ORDER

This matter is before the Court on each Defendant’s motion for summary judgment (ECF
Nos. 170 & 171). For the reasons set forth herein, both motions are denied.
BACKGROUND
This 42 U.S.C. § 1983 action is based on Williams’ allegations that officers from the
Beaufort County Sheriff’s Office used excessive force against him when they arrested him on
June 29, 2012.

According to Williams’ second amended complaint, he and his son were

traveling from Savannah, Georgia to Beaufort, South Carolina to visit a family member.
Williams stopped for gas when he and his son arrived in Beaufort. While at the gas station,
Anthony Ancrum asked Williams for a ride to the Canal Street Apartments, and Williams agreed.
Ancrum got in the back seat because Williams’ son was in the front seat. Once he arrived at the
apartments, Williams alleges that Defendants opened fire on his car without warning, firing from
multiple directions. He states that he was struck in the back by a bullet, that he panicked, and
that he briefly lost control of his vehicle as a result of his fear and his wound.

Defendants allege the following additional details in support of their motion. According
to them, officers Strickland, Criddle, and Heroux 1 were assigned to a drug task force and were
working on June 29, 2012. Around 9:00 PM, Heroux saw Williams’ car and ran the registration
tag through Beaufort County Dispatch. He learned that the tag had been stolen, and was told to
stop Williams’ car. When Williams turned into the Canal Apartments where Ancrum lived,
Heroux activated his blue lights and siren. Williams initially stopped, and then drove toward the
rear of the apartment complex. Williams then stopped the car in a parking space and Heroux got
out of his car and approached the driver’s door. Strickland and Criddle arrived at the scene and
also got out of their vehicle. When Heroux was ten feet away from Williams’ car, the Williams
looked at Heroux, turned the wheels to the right, and quickly reversed his car, causing the front
end of the car to violently whip around in Heroux’s direction. Heroux stepped back toward his
car and claims that he believed Williams was trying to run him over. Heroux drew his duty
weapon and started to approach Williams’ car again. Strickland also started walking up to the
car at the same time. Williams then swerved towards Heroux, straightened out the car, and then
accelerated toward Strickland. Heroux claims to have believed Strickland’s life was in danger
and fired three or four times at Williams. Strickland also fired three or four shots, allegedly into
the front windshield.
After the shooting was over, Williams’ car crashed into a small tree and the engine
stopped. The officers approached the vehicle and saw that Williams and Ancrum had been shot.
The officers handcuffed Williams and Ancrum, and Williams asked them why they had shot him.
Heroux responded, saying that Williams had tried to kill him by running him over. While

1.
Heroux was not named in Williams’ first amended complaint and was therefore terminated as a party to this
action. After the Court adopted the Magistrate Judge’s Report and Recommendation on March 10, 2017, the Court
appointed counsel for Williams. His counsel then moved to amend the complaint to again name Heroux as a party.
The Court granted that motion on June 9, and Heroux is now a party once again.

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Williams claimed not to have tried to run Heroux over, Ancrum stated, “Yeah you did!” (Mot.
Summ. J., Statement Cpl. Raymond S. Heroux, Beaufort County Sheriff’s Office, ECF No. 1705, at 2.)

The South Carolina Law Enforcement Division (“SLED”) took Heroux’s and

Strickland’s duty weapons at the scene, and Williams and Ancrum were transported to the
hospital.
LEGAL STANDARD
To grant a motion for summary judgment, a court must find that “there is no genuine
dispute as to any material fact.” Fed. R. Civ. P. 56(a). The judge is not to weigh the evidence
but rather must determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). All evidence should be viewed in the light most favorable to the
nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990). “[I]t
is ultimately the nonmovant’s burden to persuade [the court] that there is indeed a dispute of
material fact. It must provide more than a scintilla of evidence—and not merely conclusory
allegations or speculation—upon which a jury could properly find in its favor.” CoreTel Va.,
LLC v. Verizon Va., LLC, 752 F.3d 364, 370 (4th Cir. 2014) (citations omitted). “[W]here the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party,
disposition by summary judgment is appropriate.” Teamsters Joint Council No. 83 v. Centra,
Inc., 947 F.2d 115, 119 (4th Cir. 1991). Summary judgment is not “a disfavored procedural
shortcut,” but an important mechanism for weeding out “claims and defenses [that] have no
factual basis.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
DISCUSSION
The Court will address each Defendant’s motion in turn, except when the two motions
overlap. First, however, the Court sets forth the legal framework for its analysis.

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Section 1983 “is not itself a source of substantive rights,” but merely provides “a method
for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144, n.3
(1979). An excessive force claim brought under § 1983 implicates the Fourth Amendment,
which governs claims of excessive force during the course of an arrest, investigatory stop, or
other seizure of a person. Schultz v. Braga, 455 F.3d 470, 476-77 (4th Cir. 2006) (citing Graham
v. Conner, 490 U.S. 386, 388 (1989)).
It is well-settled that an arrest “by the use of deadly force is a seizure subject to the
reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7
(1985). The reasonableness of a search is analyzed “by balancing the extent of the intrusion
against the need for it.” Id. at 7-8. Fourth Amendment claims of excessive use of force during
an arrest are considered under an “objective reasonableness” standard. Graham, 490 U.S. at 399
(citations omitted); Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc); Culosi v.
Bullock, 596 F.3d 195, 201 (4th Cir. 2010). A court’s determination of what is objectively
reasonable depends on the conditions that exist at the time the alleged excessive force is used,
recognizing that police officers are often forced to make split-second judgments in circumstances
that are tense, uncertain, and rapidly evolving. Graham, 490 U.S. at 396. “[R]easonableness is
evaluated from the perspective of the officer on the scene, not through the more leisurely lens of
hindsight.” Abney v. Coe, 493 F.3d 412, 415 (4th Cir. 2007) (citing Graham, 490 U.S. at 39697; Milstead v. Kibler, 243 F.3d 157, 163 (4th Cir. 2001)).

When determining objective

reasonableness, a court must consider “whether the totality of the circumstances justifie[s] a
particular sort of search or seizure.” Garner, 471 U.S. at 8-9. Thus, the court must “focus on the
facts and circumstances of each case, taking into account ‘the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and whether

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he is actively resisting arrest or attempting to evade arrest by flight.’” Yates v. Terry, 817 F.3d
877, 885 (4th Cir. 2016) (quoting Graham, 490 U.S. at 396).
Heroux and Strickland also assert that they are entitled to qualified immunity. “The
doctrine of qualified immunity protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Determining whether a government
official is entitled to qualified immunity is a two-step process. Id. at 232. “First, a court must
decide whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a
constitutional right.” Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). “Second, if the
plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly
established’ at the time of defendant’s alleged misconduct.” Id. (citing Saucier, 533 U.S. at
201).
The Court addresses Strickland’s motion first. He argues that the evidence shows he did
not fire the shot that hit Williams, that it was objectively reasonable to use deadly force under the
circumstances, and that, in the alternative, he is entitled to qualified immunity. Strickland bases
his arguments on judicial estoppel—contending that Williams is precluded from asserting facts
that differ from the facts he ratified when he agreed to plead guilty to criminal charges arising
out of this incident.
“When a party attempts to assert a position that is inconsistent with a prior position that
the party has successfully asserted in another court, courts have a number of steps that they may
take to prevent such an attempted abuse of the judicial process.” Lowery v. Stovall, 92 F.3d 219,
223 (4th Cir. 1996). To prove judicial estoppel, “the party sought to be estopped must be
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seeking to adopt a position that is inconsistent with a stance taken in prior litigation,” id. at 224,
“the prior inconsistent position must have been accepted by the court,” id., and “the party sought
to be estopped must have ‘intentionally misled the court to gain unfair advantage,’” id. (quoting
Tenneco Chems., Inc. v. William T. Burnett & Co., 691 F.2d 658, 665 (4th Cir. 1982)).
However, “courts will not apply judicial estoppel ‘when a party’s prior position was based on
inadvertence or mistake.’” Id. (quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d
26 (1995)).
Williams pled guilty on November 14, 2016, to three separate charges of assault and
battery. During that plea, the solicitor summarized the facts that gave rise to the charges against
Williams. The bulk of those facts are set forth above, but Strickland notes several specific facts
for purposes of judicial estoppel. Specifically, Strickland points out the following facts that
Williams affirmed were true and correct during his guilty plea:
Mr. Williams made a very deliberate turn towards Sergeant Heroux as he was
trying to drive away. This caused Sergeant Heroux to be in fear for his life and it
did appear that he was trying to hit him. Officer Heroux then did tell Officer
Strickland and Officer Criddle who were on a separate side to watch out. Mr.
Williams then put his car in drive again and then did drive towards Mr. Strickland
and Mr. Criddle. They did [sic]– he did not hit them although it appeared he was
trying to. He drove past them and at this point the officers had their weapons
drawn and did fire several shots at the vehicle.
(Mot. Summ. J., Ex. D., Tr. R., ECF No. 171-5, at 5–6 (emphasis added).) Strickland maintains
that Williams’ affirmation of these facts directly undermines his account that he was fired upon
for no reason and also undermines Williams’ contention that Strickland and Heroux were not in
danger at the time they shot into his car. In contrast, Williams points out that the solicitor’s
statement of facts does not specify critical facts—including Williams’ location, as well as the
officers’ respective locations, at the time the officers fired their weapons.

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Because Williams did not affirm any location-related facts, much less inconsistent facts,
at his guilty plea, he cannot be judicially estopped from asserting a position he never affirmed.
Moreover, a plain reading of the solicitor’s statement indicates that the officers only fired their
shots after Williams drove past them. This fits squarely within Williams’ theory. However, the
Court does conclude that Williams is judicially estopped from contesting the facts set forth in the
first five sentences of the above-quoted paragraph because Williams now seems to argue that he
was attacked by the officers out of the blue, the circuit court judge accepted Williams’ prior
statements at his guilty plea to his significant benefit, 2 and allowing him to change positions
would give him an unfair advantage in this action. 3
The Fourth Circuit uses a totality of the circumstances test when evaluating the
reasonableness of the use of deadly force under the Fourth Amendment, and looks to “the
information available to the [officers] ‘immediately prior to and at the very moment they fired
the . . . shots.’” Hensley v. Price, 876 F.3d 573, 582 (4th Cir. 2017) (quoting Greenidge v.
Ruffin, 927 F.2d 789, 792 (4th Cir. 1991)). As just set forth above, Williams is not estopped
from arguing that Strickland was no longer in danger at the time that he shot at Williams’ car
because Williams did not affirm any facts related to Strickland’s positioning during his guilty
plea. Because Williams is not judicially estopped from asserting his argument that the officers
used excessive force against him because he had passed them by the time they started shooting,
the Court proceeds to its analysis of that argument.

2.
Williams’ potential sentence was reduced from a possible thirty years for a charge of attempted murder to a
maximum of ten years for assault and battery.
3.
The Court makes this determination mindful that judicial estoppel is to be narrowly and cautiously applied.
Lowery, 92 F.3d at 224.

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Although the Court recognizes that Williams has offered little affirmative factual
evidence himself, 4 he has identified testimony from both Strickland and Heroux that supports his
view that Strickland and Heroux were not in danger at the time they fired on him. As a result,
the Court denies Strickland’s motion for summary judgment. Williams’ theory of Strickland’s
liability is that Strickland’s shots caused Heroux to believe that Williams was attempting to run
over Strickland, which in turn caused Heroux to fire the shots that injured Williams. As a result,
Williams contends that his injuries are attributable to Strickland as well as Heroux because
Strickland’s decision to shoot was not reasonable under the circumstances. The Court concludes
that Williams has established a genuine issue of material fact as to whether Strickland’s shots
were a proximate cause of his injury.
Williams also contends that there is a genuine issue of material fact as to whether or not
Strickland himself shot him.

The Court agrees with Strickland that such an inference is

unreasonable in light of the undisputed medical evidence that Williams was shot from behind.
Although Strickland’s precise location remains in dispute, it is clear that he was not in a position
to shoot Williams from behind. Heroux testified that “Kyle had already started – Kyle started
shooting and I started shooting almost instantaneously.” (Mot. Summ. J., Ex. 1, Heroux Dep.,
ECF No. 170-2, at 9.) He stated that he was not concerned about shooting Strickland because
Strickland was off to the side of Williams’ car. Heroux also testified about Strickland’s position
as follows: “[w]here he was, I don’t know exactly . . . So all I can tell you is that it appears that
the car may have passed Kyle or was passing Kyle and I started shooting.”

(Id. at 14.)

Moreover, he also testified that Strickland was not in his line of fire. Drawing all reasonable
inferences from the facts in the record in Williams’ favor, the Court cannot grant Strickland

4.
The Court is aware that this is in large part due to the fact that Williams was not deposed until February 19,
2018, at which point he denied all recollection of the incident.

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summary judgment on the basis that his actions were objectively reasonable. Based on Heroux’s
testimony set forth above, Williams’ car was passing or had passed Strickland at the time Heroux
started shooting. Because Heroux also testified that he started shooting at the same time as
Strickland, there is a genuine issue of material fact as to whether Strickland remained in harm’s
way. Moreover, Heroux’s testimony that Strickland was not in his line of fire further supports an
inference that Strickland was not in front of Williams’ vehicle and in danger of being struck. As
set forth above, there is a genuine dispute of material fact as to where Strickland was located and
thus whether he was in danger of being run down. As discussed further below, the Court also
denies Strickland’s motion for summary judgment on the ground that he is entitled to qualified
immunity because the law was not clearly established at the time of this incident.
Heroux also argues that he is entitled to summary judgment for his actions during this
incident. He makes three arguments: (1) that his conduct was objectively reasonable under the
circumstances; (2) that there is no precedent that clearly establishes that his actions violated
Williams’ Fourth Amendment rights under these circumstances; and (3) that the three-year
statute of limitations bars Williams’ action against him. The Court will address each contention
in turn.
Heroux’s argument that his conduct was objectively reasonable is entirely based on his
contention that Strickland was in danger and that he fired on Williams in an effort to protect him.
Importantly, though Heroux himself was the subject of two of Williams’ potentially lifethreatening maneuvers, the Court only looks to the moment that he fired the shots and the time
immediately prior to that.

During that time, Heroux was no longer in danger himself.

Accordingly, whether Heroux’s decision to fire on Williams’ car was objectively reasonable
depends on whether Strickland was in danger. As discussed above in the section pertaining to

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Strickland, there is a genuine issue of material fact as to whether Strickland was in danger.
Heroux’s own testimony creates a reasonable inference that Strickland might have been out of
harm’s way. Accordingly, the Court cannot grant Heroux summary judgment either.
The Court now turns to whether Williams’ Fourth Amendment right was clearly
established at the time of the incident.

In 1985, the Supreme Court held that the Fourth

Amendment limited a police officer’s use of deadly force to those situations, among others,
where he has probable cause to believe that a suspect poses an immediate threat of physical harm
to the officer or others. Garner, 471 U.S. at 11. After the threat of immediate harm has passed,
an officer may not use deadly force to apprehend a suspect. Waterman v. Batton, 393 F.3d 471,
482 (4th Cir. 2005).
It is established in this circuit that the reasonableness of an officer’s actions is
determined based on the information possessed by the officer at the moment that
force is employed. To simply view all of the force employed in light of only the
information possessed by the officer when he began to employ force would limit,
for no good reason, the relevant circumstances to be considered in judging the
constitutionality of the officer’s actions. We therefore hold that force justified at
the beginning of an encounter is not justified even seconds later if the justification
for the initial force has been eliminated.
Id. at 481–82 (internal citation omitted). Waterman was decided in 2005, and this incident did
not occur until 2012. Viewing the evidence in the light most favorable to Williams, Heroux shot
him in the back after Heroux was no longer in danger of being run over. Thus, the deadly force
that would have been justified at the time Heroux was actually in danger was no longer justified
as contemplated by Waterman. The same rationale applies to Heroux’s claim, discussed at
length above, that Strickland was in danger of being run over. Accordingly, the Court concludes
that Williams’ Fourth Amendment right was clearly established at the time of the incident.
In his reply, Strickland cites Brown v. Elliott, 876 F.3d 637 (4th Cir. 2017), in support of
an apparent assertion that even if he violated Williams’ Fourth Amendment rights, he is still
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entitled to qualified immunity because the law was not clearly established.

Although

Strickland’s reply also argues that Williams has not presented a genuine issue of material fact,
the Court has already disposed of that argument above. In Brown, the Fourth Circuit was
confronted with a situation where a police officer fired his gun while he “was leaning into the
window of a moving truck, not standing off to the side as the truck passed him without veering in
his direction.” Id. at 644. However, the Fourth Circuit also noted that were it confronted with
the facts of Krein v. Price or Waterman v. Batton, cases holding that “an officer violates the
Fourth Amendment by continuing to fire shots at a motorist after the motorist’s car has passed
the officer,” id., it would have concluded that the officers had violated clearly established law.
Id. It is clear that there is a genuine issue of material fact as to whether Strickland, like the
officers in Krein and Waterman, and unlike the officer in Brown, was standing off to the side of
Williams’ car. Accordingly, the Court rejects Strickland’s suggestion that the applicable law
was not clearly established based on Brown.
Finally, the Court turns to Heroux’s statute of limitations argument. Heroux argues that
although Williams commenced this action against him before the expiration of the three-year
statute of limitations when he filed his initial complaint on March 9, 2015, Williams is
nonetheless subject to a statute of limitation defense because he subsequently dropped his claim
against Heroux when he filed his first amended complaint on May 14, 2015. As a result, Heroux
was not named in this action again until June 12, 2017. Heroux argues that Williams was aware
of his involvement in the incident because he properly identified him in his initial complaint and
therefore the discovery rule—that the statute of limitations begins to run when a reasonable
person is on notice that a claim might exist—does not extend the statute of limitations in this

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instance. However, Heroux does not address the fact that Williams’ initial complaint, filed
within the three-year statute of limitations, included Heroux as a defendant.
Rule 15(c)(1) of the Federal Rules of Civil Procedure dictates when a pleading relates
back to the date of the original pleading for statute of limitations purposes. It states in relevant
part that an amendment relates back if:
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the original
pleading; or
(C) the amendment changes the party or the naming of the party against whom a
claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) for serving the summons and complaint, the party to be brought in
by amendment:
(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity.
The Court concludes that Williams has fully satisfied Rule 15(c)(1)’s requirements for his
pleading to relate back to his original complaint.

As an initial matter, Williams’ original

complaint named Heroux as a defendant. Williams’ second amended complaint brings claims
against Heroux that clearly arise out of the same transaction or occurrence—namely the incident
at the Canal Street Apartments. Thus, Rule 15(c)(1)(B) is satisfied. Additionally, with respect to
Rule 15(c)(1)(C), Williams’ second amended complaint re-alleges claims against Heroux that he
made in his original complaint but that were not included in his first amended complaint.
Heroux had notice of these claims since he was originally named in the suit, and he at minimum
should have known that this action would have been brought against him, but for a mistake as to
his identity. As late as Defendants’ previous motion for summary judgment, it was not clear
which officer shot Williams. As for any argument that Williams intentionally chose to sue
Strickland and Criddle, the Supreme Court has stated that:

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a plaintiff might know that the prospective defendant exists but nonetheless
harbor a misunderstanding about his status or role in the events giving rise to the
claim at issue, and she may mistakenly choose to sue a different defendant based
on that misimpression. That kind of deliberate but mistaken choice does not
foreclose a finding that Rule 15(c)(1)(C)(ii) has been satisfied.
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 549, 130 S. Ct. 2485, 2494, 177 L. Ed. 2d 48
(2010). Heroux has not shown that Williams’ choice to remove Heroux was deliberate, much
less that such a choice was not the result of a misimpression. Accordingly, the Court concludes
that Williams’ second amended complaint relates back to his initial complaint. 5
CONCLUSION
For the reasons stated herein, it is ORDERED that both motions for summary judgment
are DENIED.
AND IT IS SO ORDERED.

March 1, 2018
Charleston, South Carolina

5. Although the Court does not doubt its decision, the Court further concludes that equitable tolling would be
appropriate here in light of Williams’ initial status as a pro se litigant. See Wright v. Officer BJ Sawyer & Officer 2
Unknown, No. 4:15-cv-2442-BHH-KDW, 2016 WL 3633445, at *5–6 (D.S.C. June 15, 2016).

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