Johnson v. Rankin

Filing 83

OPINION that the court DENIES the Defendant's Motion for Summary Judgment on all grounds. Signed by District Judge Rebecca Beach Smith and filed on 2/16/12. (jcow, )

UNITED

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

FILED

Norfolk Division

JERRELL R.

FEB 1 6 2012

JOHNSON,

ADMINISTRATOR of

the ESTATE

of KIRILL DENYAKIN,

DECEASED,

CLt. ■-'■-:. i;:-"i

"•■' ■■•! C

Plaintiff,

Civil No.

v.

STEPHEN D.

2:llcv415

RANKIN,
Defendant.

OPINION

This

Motion

matter

comes

before

for Summary Judgment,

ripe for decision.1

the

court

on

which has been

the

Defendant's

fully briefed and is

For the reasons set forth herein,

is

DENIED.

I.

the Motion

Factual and Procedural History

On July
Mr.

1,

Denyakin's

Officer

Stephen

killed

Mr.

night,

Officer

2011,

Plaintiff Jerrell

estate,

Rankin

Denyakin

on

Rankin,

filed

used
the
a

the

Johnson,

present

excessive
night

R.

of

three-year

Complaint

force

April

on behalf of

when

23,

veteran

of

he

2011.
the

alleging

shot
On

and
that

Portsmouth

1 On January 20,
2012,
the Defendant filed a Request for Oral
Argument on this Motion.
After full examination of the briefs
and the record,
the court has determined that a hearing is
unnecessary,
as the facts and legal arguments are adequately
presented,
and
the
decisional
process
would
not
be
aided
significantly by

oral

Va.

7(J).

Loc.

Civ.

R.

argument.

See

Fed.

R.

Civ.

P.

78 (b) ;

E.D.

Police

Department,

police

cruiser.

Mem.

in Opp'n

10:11

p.m.,

reporting

a

patrol
Mem.

Mem.")

received

in

glass

door

He was

dispatcher

said

to get

("Def.

One

Mem.

uniform

alone.

at

that

into

Mem.")

6;

Green
Mem.

Rankin

ninety seconds.

responded

Def.

Rankin exited his

Mem.

3-4.

More

was

banging

PI.

Mem.

male

location.

Officer

PI.

the
Mem.

scene,
4.

Mr.

to

Officer

Rankin

Denyakin's

the

palms

him,

PI.

Def.

Mem.

Mem.

seconds,

Officer

Rankin

PI.

12-13.

He

Mem.

were

thirty-five

building.

arriving

later identified as Kirill
spotted

Rankin.

approximately

4.

Id.

Upon arrival,

Mr.

Denyakin

over his head and was banging on the glass

Id.

in

within
Officer

vehicle and spotted an individual matching the

suspect's description,
When

7;

to

Dispatch

Street

She also gave a description of the suspect's clothing.

Officer

PL's

from

white

the

marked

call

PI.

a

his

Shortly after

454

6;

in

Id.

radio

progress"

Def.

trying

full

Supp.

Priority

Virginia.

the

in

in

2.

a

"burglary

specifically,
the

on

Def.'s

("PI.

he

Portsmouth,

on

was

struck

Mr.

Denyakin,

shortly

thereafter.

id.,

4.

feet
8;

who

in

no

rounds,

fell

to

was

asphalt

5.

his

both

weapon was
Rankin

an

Mem.

firing

eleven

and

had

Id.
hands

door to the building.

Officer

away
PI.

began

rired

open,

Denyakin.

Within

visible
standing

lot

outside

a

matter

weapon.

Def.

Mem.

of

at

which

the

ground

least,

and

of
10;

nine

died

What

happened

Rankin

arrived

matter

of

all

Rankin's
most

those

intervening

the

on

much

relevant

in

scene

and

dispute.

facts.

account

before

parties

The

happened

the

to

following

what

of

favorable

The

seconds

non-moving

he

opened

disagree

summary
and

after

fire

about

first

then

is

the

virtually

recites Officer

sets

party,

Officer

forth

the

the

estate

facts

of

Mr.

Denyakin.
A.

Officer Rankin's Account

Officer

spotting

Rankin

Mr.

Denyakin,

and

ordered,

the

ground."

banging

on

"Stop.

the

his

refused

hands

to

his

crotch

called
for

Mr.

comply,

help

states

he

Denyakin.

arriving

weapon,

me

In

lowered

after

his

Let

see

hands,

on

instead

on

thrusting
IcL_ at

appeared

Id.

At

to

this

the

air"

on

his

is

used

in

an

also

illuminated

Def.

Reply Mem.

the

hands.

Mr.

Get

turned

2,

be

but

right

9.

point,

emergency.

weapon

for

light

to

to

Denyakin

deep

inside

to Officer

something

Rankin

which

Def.

on

stopped

around

Mr.

hand

Officer

radio,

down

Denyakin to

According

"digging"

police

his
5.

ground,

and

himself,

Denyakin

and

his

scene

positioned

your

response,

his

down

his pants.

area.

that

drew

2.

get

Denyakin

"clear

that,

Rankin states he then ordered Mr.

and

the waistband of
Rankin,

Mem.

door,

Id_;_

he

Police.

Def.

face Rankin.
show

maintains

Mem.

is
2,

better

says
a

in
he

signal
9.

see

He

Mr.

According

facial

to

Officer

expression

right

hand

and

still

Rankin,

"then

inside

Mr.

charged

his

Denyakin

directly

pants."

IcL_

made

at

at

a

menacing

[me]

2,

with

20.

Rankin

characterized this charge as "at a full

run."

Def.

Officer

Rankin

right

there,

stop

there!";

but

charge.

Id.

At

point,

that

toward

allegedly

Mr.

him,

yelled,

Denyakin
when

Rankin

did

Mr.

by

between
Mem.

the

13,
B.

the

discharged

Plaintiff

his

PI.
did

not

23.
reach

for

Officer
his

the

pants

Mem.

in

had

his

and

taken

2,

Pi.

fell

Rankin,

Def.

at

2.

steps

times

Mem.

to

2.

right

4"

eleven

10;

Denyakin

Officer

"about

weapon

Def. Mem.
Mr.

his

Ex.

in

12.

the

ground,

Mem.

11;

PI.

The Plaintiff's Account

particularly

"dig"

door

stop

Mem.

and soon thereafter was pronounced dead.

The

down

gunfire,

glass

not

Denyakin

approximately three seconds.
Hit

"Stop

his

allegations
and

First,
his

pants

that

in

testified
past

Mr.

the

right

something

Rankin

disputes

his

Officer

that

Mr.

Denyakin

Plaintiff

hand

his
that

inside

crotch
Mr.

wrist

Denyakin
charged

maintains
his

area.

that

Mr.
and

Mem.

stuck his
Mr.

his

Officer

that

PI.

account,

stuck

waistband

Denyakin
and

Rankin's

hand

Rankin.

Denyakin
appear

6.
right

Denyakin's

to

While
hand
hand

remained there as he started firing and even when he fell down,2

2 Officer Rankin testified that Mr. Denyakin stuck his right hand
in his pants past his wrist, PI. Mem. Ex. 1 at 111-12, and that

the

autopsy

revealed

gunshot

wound

thumb.

PI.

no

bullet

the

radial

Mem.

Ex.

7-8.

hole

suggest that

the back of

this

Mr.

to

Additionally,

that

that

in

Mr.

the

aspect
Yet,

autopsy

hand."

evidence

of

a

his

right

report
fire

Mem.

to

that

7.

show

The

that

Mr.

likely

Mem.

20-21,

The

1

charged

at

Officer

White

offers

this

hand

at

White.

a

and

his

the

the

right

lunged

testimony

remained

full

PI.

recalls

contention that Mr.

his

palm

disputes

First,

sticking
him

also

him

117.

Nat

towards

the

towards

revealed

Ex.

9-10.

w[s]kin

tags

surface

to

suggests

Denyakin's
and indeed,

Officer

his

right
it was

Rankin.

PI.

26.

Officer

after

with

Plaintiff

Denyakin
Ex.

raised

graze

near

Plaintiff

hand was never down his pants past his wrist,
most

Mem.

from the palmar

Ex.

goes

deep

wrist

PI.

states
is

a

examination

pants.

PI.

all

suffered

thorough

Denyakin's

the direction of

the

Denyakin

at
as

the

Defendant's

run.

Def.

Plaintiff

Mem.

Ex.

in

him.

cites

11.

Defendant
hand

Mem.

his

the

2;

PI.

Mr.

Mem.

testimony

of

shooting,

Mr.

Denyakin,

started

40-42.
with

that

the

that

pants,

at

inconsistent

Ex.

After

saying

Id^

claim

The

walking

Plaintiff

Officer

Rankin's

Denyakin charged him at a full run.

there

even

as

Rankin

started

firing.

Id.

at

121,
123.
Rankin testified that he never saw Mr.
Denyakin
remove his right hand from his pants, id. at 116-17, and in a
statement he prepared shortly after the incident, Officer Rankin
wrote,

"His

hand was

still

in

his

pants

And I believe it was when he went down."

during

PI.

the

Mem.

charge

Ex.

6.

at me.

Second,

the

intoxicated

that

Rankin

Plaintiff

full

pants

at

a

past

his

Denyakin's

("BAC")

could

run with
wrist."

and

Aileen

between

4:30

The

saw

drinks

Mr.

and

Denyakin

containing

38-41,

45-47,

65-66,

that

some

point

7:00

alcohol

content

Putnam,

Maurice

Wilson,

p.m.,

that

she

was

of

the apartment

of Maurice

where

staying

Mrs.

he

was

at

that

Id.

night,

the

time.

six

mixed

Ex.

12

testified

PI.

Mem.

that

454

returned

Green

Ex.

26,

54.

He urinated on the floor inside his room,

and

lost

his

and

request

of

fell while

attempting

at
Mr.

87.

Denyakin

and Natalya Wilson at

when

to

at 38-41,
Mr.

Decker,

Mem.

PI.

Putnam

some

with Mr.

5

at

Wilson testified that he appeared to be very drunk.

balance

Mr.

at

present

four

vodka.

Ms.

night,

Bradley

approximately

pours"

79-81.

later

in his

blood

earlier

Denyakin became "very intoxicated."
At

stuck

of

his

Aileen

drink

"heavy

at

evidence

Denyakin in the apartment of her boyfriend,

she

so

charge

alone

"was

Mitchell.

testified

p.m.

let

8.

includes

and Louis

Denyakin

hand allegedly

Mem.

from

Mr.

walk,

right

PI.

testimony

Putnam

that

barely

his

intoxication

Natalya Wilson,

time

he

contends

id.

at

to walk.

to

Street,

25-27.
Id.

at

57-58,
Id^ at

66-68.

At

from

the

the

Wilsons'

Mrs.

apartment

Maurice Wilson and his

Wilson,

and

Mr.

carried

Denyakin

down

friend Louis Mitchell.

Id.

was

the

at

removed

street

63-66;

by

PI.

Mem.

Ex.

side

of

13

a

at

nearby

heavily of

apartment

him

building
PI.

neighbor

to

Mem.

The

autopsy

was

.28%

At

BAC

of

Denyakin

W/V,

Dr.

have

been

to

and

84-86,

smelling

onto

PI.

the

on

the

Wilson

saw

glass

Wilson

Mem.

Wilsons'

banging
Mrs.

Mrs.

Rankin

the

began

98-99.

did.

door

for

asked

Ex.

5

at

responded.

Denyakin's

volume

(W/V) .

Alphonse

to

include

of

Mr.

contends,

it

at

the

Rankin,

Denyakin's

suggests
a

Plaintiff

or

...

Polkis

her

79-81.

Def.

PI.

at

run

Mem.

Mem.

his
that

...

that

balance,

Officer

Mr.
he

Mr.

symptoms

intoxicated

right

14-15.

15.

Denyakin was

contends
best,

Ex.

of

sensory motor

impaired

Mem.

time

Ex.

and

of

question

with

the

attests

severely

into

at

signs

time,

that Mr.

full

PI.

impairments

reaction

calls

BAC

numerous

and slurred speech.

Rankin

Rather,

Mr.

displaying

increased

evidence

charged at

and

the

90-92.

holding

that

.28%

testimony because

pants.

against

state

returned

and Officer

intoxication,

at

over

85-87,

Street

she

by

Plaintiff

charging

which

revealed

staggering gait,

the

at

thereafter,

weight

coordination,

This

unresponsive
13

at

was

by

would

alcohol

5

slumped

3-4.

death

of

he

911,

Ex.

Green

Ex.

issued,

PI.

a

454

that

call

an

him

Denyakin

Shortly

dispatch was

6-7;

Mem.

Mem.

Id.

left

in

Mr.

at

observed

balance.

A

PI.

later,

door.

and

They

building

liquor.

Sometime

glass

80-81.

Rankin's

incapable

hand

down

Denyakin

...

state,

of
his

"never

attempt [ed]

to

stumble

in
PI.

shooting."
C.

Rankin's
Mem.

capable

of

at

Exhibit

3

67.

the

video

Exhibit

from

4

of

to

Rankin's

recording.

In

heard shouting
before

Mem.
that,

is

the

in

heard

Denyakin").3

car

Rankin's
it

The

addition,
"Stop

noise

PI.

Rankin

does

gunfire

started

Stop

begins.

gunfire,

the

the

14

audio

Ordinarily,

the

1.
rest

("[t]he
is

is

when

rest

of

Support

The

only

the

to

the

recording

that

10;

on

he

that

can

be

immediately

Def.'s

audio

thing

Rankin

is

incident.

Plaintiff

the

1

the

there!"

Mem.

of

due

audible

contends
right

Ex.

audio

the

clearly

Def.

Mem.")

in

capture

on-board

Mem.

However,

not

is

an

PI.

Memorandum

Defendant

there!

with

video.

vehicle.

Reply

Mem.

and

Memorandum

the

right

("Def.

from

time

equipped

Defendant's

Defendant's

vehicle.

was

audio

vehicle,

from the

inaudible.

the

from

gunfire

Supp.

apart

clearly

to

the

the

patrol

recording

recording

positioning

the

from the Record

Rankin's

computer

at

23.

Other Evidence

Officer

direction

contends

on

the

that

started

encounter

Reply

tape

can

be

firing

at

would

have

3 The court is mindful of the Supreme Court's decision in Scott
v.
Harris,
550 U.S.
372,
380-81
(2007),
which held that,
in
considering
a
law
enforcement
officer's
motion
for
summary
judgment on a claim of excessive force, a court must view the
facts in the light depicted by the videotape that captured the
events underlying the claim.
The videotape here did not capture
the event.
However, the court has reviewed the audio recording
at issue and finds that, unlike in Scott, the recording does not
"so utterly discredit" the Plaintiff's version of events such
that no reasonable jury could believe him.
See id.
8

been

recorded

Officer

Rankin

microphone
PI.

via

Mem.

to

Ex.

There

Wilson

apartment

testified

the

1

down,

down,

get

PI.

hearing
that

he

on

at

may

9-10,

car

Green

Mem.

454

Officer

get

Officer

to

in

system

hallway

heard

gunfire.

forgot

to

building
She

he

witnesses

the

occurred.

that

personal

his

microphone,

sync

his

before

but

personal

his

shift.

67-71.

no

in

Rankin's

on-board

at

were

was

Officer

5

Rankin

have

Id.

at

II.

the

the

at

Street,
order

9-10.

any

other

when
Mr.

of

the

Wilson

that

the

shooting

Denyakin
she

to

"get

heard

the

does

not

recall

but

she

admits

commands,

commands

Natalya

floor

before

Ms.

other

However,

second

immediately

give

given

shooting.

Rankin

down"

Ex.

the

she

did

not

hear.

93-94.

Standard of Review

Summary

court,

viewing

favorable
genuine

is

to

to

Inc.,

"whether

require

the

the

issue

entitled
Lobby,

judgment

record

material

judgment

the

as

U.S.

as

to

56

a

is

whole

party,

fact

appropriate

and

finds

and

that
law.

a

matter

of

242,

248-50

(1986).

evidence

submission

a

presents

jury

one party must

prevail

reviewing

evidence,

the

Rule

non-moving

of

477

under

as

or

of

court

the

that
the

it

law."
must

there

Anderson

most

is

no

party

is

v.

Liberty

relevant

The

is

the

light

moving

inquiry

sufficient

whether

a matter
the

a

in

when

so

Id.
draw

disagreement

one-sided

at
all

251-52.

to

that

In

reasonable

inferences

in

credibility
Staples,

A

favor

the

determinations

Inc.,

court

party,

of

372

or

F.3d 662,

should

after

non-moving

establish

the

case,

on

which

trial.

Celotex Corp.

667

grant

adequate

that

of

{4th Cir.

Catrett,

if

make
v.

the

U.S.

non-moving

has

element

bear

not

Williams

the

discovery,

477

may

2004).

judgment

for

will

and

evidence.

an essential

party
v.

the

summary

time

existence

weigh

party

failed

of

that

burden
317,

of

323

to

party's

proof

(1986).

at
The

moving party "bears the responsibility of informing the district
court

of

the

basis

for

its

motion"

and

absence of a genuine issue of material

motion for summary judgment,
the

facts

alleged

affidavits,
issue

of

in

material

statements,

fact

without

pleadings,

or

for

other

Id.

trial.

To defeat a

See

to

id^ at

relying

show
324.

evidentiary

162

genuine

Conclusory

support,

1998) .

"there must be evidence on which the jury could

III.

Anderson,

802

477 U.S.

(4th

Cir.

at 252.

Analysis

In
asks

795,

are

Causey

reasonably find for the plaintiff."

F.3d

a

upon

insufficient.
Rather,

Balog,

instead

evidence

specific

v.

fact."

the

the non-moving party must go beyond

the

depositions,

"demonstrat [ing]

his

the

because

Memorandum

court
he

alternative,

to

acted
the

in

grant

Support

of

summary

judgment

reasonably
Defendant

under
asks

10

the

the
the

Motion,
as

a

the

Defendant

matter

circumstances.
court

to

grant

of

law

In

the

summary

judgment

because

the

Defendant

for

Summary

he

is

also

asks

Judgment

claim,

to

to

the

Plaintiff's

is

addressed

A.

exercise

in

as

its

to

force.
claim

that

of

arrest,

citizen

a

is

law

force."

v.

to

grant

Each

Levitt,

his

Motion

U.S.C.

summary

§

1983

judgment

these

as

contentions

99

F.3d

under

standard.

officer
a

Graham
the

in

threat
v.

the

the

Waterman

Subjective

or

motivation

(omitting

excessive

643

or

v.

the

v.

are

393

regarding

irrelevant.

citations).

11

the

"seizure"

490

determine

125,

the

course

a

free

objective

386,

395

whether
would

(4th

are

471,

Cir.

"based

the moment
F.3d

A

"a
have

particular use of

126

actions

the

of

U.S.

circumstances

F.3d

1996).

Amendment's

must

officer's

factors

in

Connor,

same

Batton,

Cir.

force

other

Fourth

court

247

{4th

excessive

existed justifying

Russell,
of

against

640,

stop,

analyzed

individuals

accomplished by

those

information possessed by the officer at

intent

42

of

protects

used

reasonableness

2005).

grant

Finally,

the Merits

officer

Anderon

employed."

it

Plaintiff's

investigatory

concluded that

should

claims.

including

Specifically,

reasonable

the

Amendment

police

reasonableness
(1989).

court,

immunity.

turn.

seizures,

Elliot

qualified

discretion

state

Fourth

unreasonable

The

the

Summary Judgment on

The

an

entitled to

that
476

officer's

Graham,

4 90

2001).
on

the

force
(4th

is

Cir.

underlying

U.S.

at

397

In
court

determining

must

consider

including

suspect
or

the

the

an

to

evade

allowance

the

split-second

uncertain,
that
at

is

by

fact

that

and

rapidly
in

a

at

the

of

of

issue,

safety

actively

of

Graham,

4 90

are

the

about

situation."

case,

the

officers

U.S.

at

must

or
396.

embody

forced

that

the

the

arrest

often

circumstances

particular

each

resisting

officers

—

used,

whether

reasonableness

in

evolving

force

are

amount

tense,

of

Graham,

to

force

490

U.S.

396-97.

The use of deadly

force

is

sound reason to believe that

physical
642.

An

harm

to

officer

believe that a

v.

to

flight."

—

the

circumstances

police

judgments

of

crime

threat

calculus

necessary

is

and

the

he

arrest

"[t]he

for

of

whether

Furthermore,

make

facts

immediate

and

attempting

"the

severity

poses

others,

reasonableness

Russell,

Chapel

Karnes,

F.3d

reasonableness
decisions
Purnell,

do
652

not

F.3d 125,

161

27

is

officer

is
not

F.3d

782,

1002,
the

F.3d 524,

or

Elliot,

others."
to

(4th

1007

(4th

touchstone;

532

actually

threat.

(4th Cir.
788

transgress

the officer has

a threat of serious

such a

131

"when

suspect poses

required

suspect poses

247

Hill,

the

a

reasonable

12

2011).

to

Siqman v.

Anderson

Town of

McLenaqan

1994).

"mistaken,

at

weapon

a

F.3d

e.g.,

1998);

Cir.

constitutional

(4th Cir.

See,

2001);
Cir.

see

99

but

bounds."

v.

Again,
reasonable,
Henry

v.

For

purposes

of

summary

objective

reasonableness

taken

the

in

United

States

Viewed
Mr.

in

complex
scene

at

in

Rankin

was

454

unclear

from

Officer

Rankin

Defendant
was

no

a

the

on

issuing

to

with
Mr.

stumble

were

not

his

stuck

Mr.

those

if

up

in

waistband

E.g.,

(1962).

apartment

arrived

on

dispatch.

the

Officer

person.

It

and

to

what

as

is

whether

However,

either

Rankin's

the

case

well

as

of

intoxicated

the

Rankin

commands.

in Officer

the

of

Denyakin's

evidence

this

655

severely

in progress"

Denyakin was

down

654,

door

Officer

commands,

hands

a

of

Plaintiff.

U.S.

that

standard

facts

the

glass

when

this

the

369

show

"burglary

complying

they

conclusory

on

Street

opened fire,

way otherwise

facts

weapon

was

holding

right

the

Plaintiff's

been

his

Inc.,

to

have

testimony

to

banging

the

attempting

This

favorable

Green

observed

was

most

light,

response

Denyakin

to

Diebold,

v.

this

Denyakin

applied

light

is

judgment,

air;
of

extent

Mr.

when

the

standing still
direction.

at

the

his

He may

very

pants

or

or

least,
in

any

concealed.

set

of

that

facts

Mr.

hand

Denyakin

in

his

statement

to defeat

a motion

802,

here

the

The

Plaintiff

starkly

charged

pants

creating

for

Plaintiff
points

contrasts

past

a

Rankin
his

factual

summary judgment,
advances
to

factual

specific

13

with

Officer

Rankin's

a

run

with

a

mere

at

full

wrist.

dispute
see

While

is

Causey,

support

forensic

insufficient
162

F.3d at

for his

claims.

and

testimonial

evidentiary

support

in

the

factual

dispute

as

charged

Officer

Rankin

his pants

to,

significant

inappropriate

Denyakin

not

did

Defendant's

when

Plaintiff's

conflicting

194,

a

genuine,

whether

material

Mr.

Denyakin's

216

555

"[w]hen

plaintiff

her with a

of

Denyakin

hand

is

U.S.

not

was

in

on

(2009).

For

evidence

chokehold even though

orders,

while

the

stern words,
of

trial must

turns

on

jury.

two

turns

what

conflicting

observed,

on

which
on

of
the

v.

Katz,

dissenting

on

other

by

instance,

that

had."

was

Saucier

the

all

Qualified

subdued

times

that

The

case

rings

true

with

he

used

at

hand

immunity

to

the

Immunity

"[OJualified

stories

v.

continues,

official

evidence
Id.

Pearson

she

she complied at

be

the

happened

grounds

proffers

that
him

has

Mr.

A trial must be had.
B.

which

a

official

that

and

Ginsburg

J.,

other

judgment

against

permitted.

(Ginsburg,

proffers

harm

claim

captures

part

223

force

summary
conclude

force

Justice

"excessive

in

serious

deadly

best

render

rationally

of

As

(2001)

Callahan,

questions

threat

judgment

overruled

a

a

stories

summary

U.S.

only

Mr.

could

unreasonable.

grounds),

his

whether

jury

application

and

533

a

pose

excessive

street,"

and

importantly,

factual

because

two

most

creating

or otherwise concealed from view.

These

the

record,

protection

than

a

simple

affords

defense

14

government

on

the

officials

merits."

greater

Slattery

v.

Rizzo,
who

939

commit

clearly

533

at

but

hold

206).

plainly

doctrine
public

Briggs,

distraction,

and

reasonably."

Pearson,

v.

behind
context

quick

of

and

To

makes

decisive

facts that

when

U.S.

defense

Rowland,

in
41

whether

right."

341

officials

the

exercise

from

perform

energetic

power

harassment,

their

Qualified

need

duties

immunity

is

law

enforcement

of

liability."

high

risk

172

(4th

Cir.

1994)

(citing

(1987)).

"The

concerns

638

especially
which

face

of

salient

frequently

volatile

and

in

the

requires

changing

172.

qualified

immunity

the

15

they

—

a

F.3d at

Pearson,

violate

(1986).

interests

when

work,

the

First,

who

335,

635,

a plaintiff has alleged

a constitutional

knowingly

of

are

police

action

inquiries.

protects

231.

to

167,

their

immunity

they

at

531

that

of

Saucier,

shield

actors

483

at

important

U.S.

F.3d

street-level

determine

two

41

immunity

circumstances."

to

believe

light

those

or

overdeterrence

Creighton,

the

555

government

Perry,

Anderson v.

need

in

(citing

accountable

liability

"avoid

subjecting

Rowland

the

who,

officers

qualified

words,

two

"protects

but

F.3d

475 U.S.

"balances

and

by

652

other

It

reasonably

incompetent

irresponsibly

to

could

officials

1991).

violations

Henry,

In

Malley v.

designed

(4th Cir.

law,

lawful."

the

law."

The
to

216

Constitutional

were

U.S.

"all

213,

established

actions

the

F.2d

court
.

.

555

.

applies,

decides

make

U.S.

at

out

the

court

"whether
a

232.

the

violation of
Second,

the

court

determines

established'
Id.

If

the

officer
131

is

S.

between

the

time

answer

to

2074,

"to

excessive

before

they

are

conduct

quotation

The

of

the
of

these

from

unlawful."

Saucier,

court

has

determined

whether,

in

that

shooting

Rankin

seizures

accomplished by excessive

The

question

right

finds

was

that

A

it

right

reasonable
v.

U.S.

is

the

Mr.

court

"clearly

that

457

U.S.

federal

shooting

Plaintiff,
1

qualified

immunity

hazy

to

border

ensure

are

on

U.S.

at

206

is

triable

that

notice

(internal

Denyakin

Denyakin's

must

a

on

April

right

to

See

supra

force.

resolve,

23,

be

2011,

free

of

Part

III.A.

is

whether

therefore,
23,

question

2011.

The

court

was.

officer

established

the

Al-Kidd,

and

clearly established on April

Fitzgerald,

that

violated

there

Mr.

Officer

this

the

v.

officers

533

then

omitted).

concerning

next

the

'clearly

no,

sometimes

force,

suit,

is

Ashcroft

way,

the

was

alleged misconduct."

questions

this

acceptable

to

issue

immunity.
In

officers

and

at

defendant's

(2011).

subjected

is

right

qualified

2080

protect

the

either

entitled to

Ct.

operates

their

at

"whether

Mr.

was

(1985),

law

established"

if

it

the alleged conduct
800,

818

should

Denyakin,

clearly
prohibits

(1982).
have

under

unlawful.
shooting

16

is
In

put

the

would

the

be

clear

unlawful.
this

circumstances

Tennessee
suspects

v.

clearly

on

notice

alleged

Garner,

who

a

Harlow

case,

officer

to

pose

by

471
no

significant

Fourth

threat

Circuit

George's

that

a

physical

In

284

where
the

was

at

of

the

time

Fourth

Circuit

the

Plaintiff,

disarmed,

individual

Cir.

a

still

at

231,

the

an

the

In

2002),

to

holding

seize

threat

Fourth

of

an

serious

Clem,

in

the

older

Circuit

raised

284
was

over

F.3d
not

head

552,

entitled

Plaintiff

was

was

his

at

light most

who

the

showed that

the

man

held

immunity where

Plaintiff,

hands

officer

facts,

that

disabled

to the

with

shot.

that

Prince

2002),

force

poses

v.

others.

favorable

showed

mentally

or

(4th

The

Cir.

(4th

entitled to qualified

fatal

held

231

deadly

F.3d

qualified immunity where
to

use

standing

the

224,

may

in the light most

Gray-Hopkins

F.3d

harm.

Gray-Hopkins

553

309

not

in

physical

543,

officer

an officer was

facts,

findings

309

that

Gray-Hopkins,

serious

F.3d

officer

harm to

or

similar

Corbeau,

only

death

Maryland,

police

individual

that

made

County,

and Clem v.

of

the
to

favorable

an

obviously

stumbling

around

with pepper spray in his eyes when he was shot.
The
man who

Defendant
had his

stumbling

these
was

in

is alleged to have

hands

the

qualified

and,

or

officer's

circumstances

lawful,

up,

as

could
a

at

shot

least

visible,

direction.

not

result,

have
the

immunity.

17

an apparently unarmed

A

and was,

reasonable

believed
Defendant

that
is

not

at

most,

officer

such

in

conduct

entitled

to

Of

prove

course,

to

Officer
in

his

the

pants;
no

Defendant

be

free

summary

but

if

violated

Mr.

not

Plaintiff

can

so

guessing"

Denyakin's

have

to

be

did

not

to

charge

right

hand

it

would

then

that

the

conclude

established

See Clem,

able

his

prove,

clearly

force.

not

Denyakin

did

second

Mr.

Defendant

judgment

consider

asks

as

and

to

punitive

asks

the court

284

right

F.3d at

to

552.

summary

judgment

at
IV.

to "exercise

1983

claim,

its discretion

Mem.

28.

Those claims allege

and

Id.

for

claim,

Plaintiff's

contextual

and

(Count

the

court

judgment

the

the

Plaintiff's

battery

Because

summary

to

court

related

as

state

denies
to

declines

IV),

to

law

the
grant

claims

Conclusion

This

genuine

be

case

dispute

violated
to

to

§

for

as

V) .

1983

U.S.C.

motion

juncture.

this

as

§

42

his

assault

III),

motion

grant

judgment

Def.

(Count

U.S.C.

to

Plaintiff's

summary

(Count

damages

42

the

court

law claims."

Defendant's

Plaintiff's

the

grant

negligence

the

that

may

Denyakin

the

"[i]n so doing,"

gross

Mr.

"improper

remaining state

and

that

fact

ultimately

State Law Claims

The

to

or

of

from excessive police

C.

and,

Plaintiff

trier

Rankin

require

the

Mr.

free

is

of material

Denyakin's
of

seizures

fact

clearly

fact-bound.

regarding

whether

established

accomplished

18

by

It

involves

the

Defendant

constitutional

excessive

a

force,

right
and,

therefore,

of
for

law.

the

Defendant

Accordingly,

is

the

Summary Judgment on all

The

Clerk

is

counsel of record

It

is

SO

DIRECTED
for

the

not

entitled

court

DENIES

to

judgment

the

as

a

matter

Defendant's

Motion

grounds.

to

send

a

copy

of

this

Opinion

to

Plaintiff and for the Defendant.

ORDERED.

/s/
Rebecca Beach Smith
Chief . . _ .
United States District Judge
REBECCA BEACH

SMITH

CHIEF UNITED STATES

Norfolk,

Virginia

February \ [q , 2012

19

DISTRICT

JUDGE