Lee v. City of Richmond, Virginia et al

Filing 193

MEMORANDUM OPINION. Read Opinion for details. Signed by District Judge Robert E. Payne on 03/18/2015. (ccol, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

L

JOTAYNUN LEE, as Administrator
of the Estate of Jataynun

MAR I 8 2015

Trayvon Fleming, Deceased, as
Next Friend of J.F.,

K.F.,
CLERK, U.S. OiSTRiCT COURT

N.T,, N.K., and J.W., Minor

niCHMOND. VA

Children of Jataynun Trayvon

Fleming, Deceased, and
Individually,
Plaintiff,

Civil Action No. 3:12cv471

v.

CITY OF RICHMOND, VIRGINIA,
et•

al•,
Defendants.

MEMORANDUM OPINION

This

matter

is

before

BEVINGTON'S RENEWED MOTION

180) .

the

Court

FOR SUMMARY

on

DEFENDANT

JUDGMENT.

TODD

(Docket

No.

For the reasons set forth below, the motion will be

granted.

FACTUAL AND PROCEDURAL BACKGROUND

On

July

14,

2010,

officers

of

the

Richmond

Police

Department ("RPD") arrived at a private residence located at 304
Beaufont Hill Drive in Richmond,

Trayvon

Fleming

("Fleming")

Virginia,

on

a

to arrest Jataynun

warrant

for

robbery

accomplished by use of a firearm and for his involvement in a

homicide that had been committed earlier that morning.

Tovar

Declaration at 15 3-9, Docket No. 181-2; Fleming Wanted Poster,

Docket No. 181-2. When police entered the residence, Fleming,

who was lawfully inside, retreated to an upstairs bathroom and
barricaded himself there.

181-2.

Tovar Declaration at 1 3, Docket No.

During this initial interaction, Fleming threatened to

shoot any police officer or dog entering the bathroom.
Prendergast Transcribed Internal Affairs Interview (Attached to
Prendergast Declaration) at 4:1-6:2, 9:20-11:5, Docket No. 1811.

After that initial interaction, the RPD officers called the
RPD

SWAT

team,

who

Declaration at 2-4,

responded

to

the

Docket No. 181-2.

been told about the

threats that

residence.

Tovar

In addition to having

Fleming had communicated

directly to the police officers who had attempted to arrest

Fleming, the SWAT team was aware that the RPD had received
information indicating that Fleming would "not go quietly" when

confronted by police and that he was considered armed and

dangerous.

Wanted Poster, Docket No. 181-2; Tovar Declaration

at

Docket No. 181-2. However,

5-6,

Fleming's father,

the

plaintiff Jotayun Lee ("Lee"), was present at the residence and
informed the officers that Fleming did not have a firearm.
Declaration at 113, Docket No 186-2.

Lee

Detective Todd James Bevington ("Bevington") responded to

the residence on Beaufort Hills Drive on July 14, 2012 as a

member of the RPD SWAT team.

Bevington Dep. at 54:11-25; 55:1-

17, Docket No. 181-3.
Bevington had been advised by his
supervisors that Fleming was wanted on robbery and firearm
charges; that he was a suspect in an unrelated homicide that had
occurred earlier that morning; and that he was considered armed

and dangerous.

In addition, Bevington was told that

Fleming had made statements indicating his unwillingness to be

quietly arrested and that he had threatened the police officers
who had arrived to serve the arrest warrant.

Id.

After this

briefing, Bevington was directed by his supervisors to take a

position in the spare bedroom of the residence where the SWAT
team was staging.

Id. at 60:15-24.

While Bevington and other SWAT team members were waiting in

the

spare

bedroom,

Fleming

remained

barricaded

inside

bathroom that was located off the master bedroom,

across the hall from the SWAT team staging area.

the

which was

Declaration of

Matthew Noedel, Exhibits A and B, Docket No. 179-9.

Bevington

repeatedly instructed Fleming on how to peacefully surrender,
telling him to come out of the bathroom with his hands up.

Bevington
barricaded,

Dep.

at

Fleming

66:7-67:10,
occasionally

Docket

No.

181-3.

communicated

with

While
police

negotiators and members of the SWAT team; he repeated his claims
that

he was

armed and again threatened police officers.

Bevington Dep. at 83:6-19, Docket No. 181-3. Fleming asked the
police negotiator what the officers would do if he exited the
master bathroom with his "junk."^ Tovar Declaration at fl2.
Docket No 181-2.

This statement was passed along to members of

the SWAT team inside the house.

Bevington Dep. at 79.3-8,

Docket No. 181-3; Moore Dep. at 44:6-45:2, Docket No 181-5;
Tovar Declaration at 512, Docket No 181-2.

Soon afterwards,

Bevington heard Fleming repeat this question, asking "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."

Bevington Dep. at 79:6-80:15, Docket No.

181-3.

During the course of negotiations,

the negotiation team

deployed a "throw phone", which was capable of providing video
surveillance of Fleming inside the bathroom.^ Tovar Declaration

^Lee argues that the fact that Bevington originally stated that
Fleming used the words "my junk or my shit" (Bevington Internal
Affairs Interview, Docket No. 186-4 at 9)

creates a material

dispute of fact when compared to the statements Bevington made

at his deposition claiming that Fleming exclusively used "my

junk."

Docket No. 18 6 at 9.

That is not a material dispute of

fact and thus will not preclude summary judgment.

^Lee objects to the consideration of any evidence that the SWAT

team obtained by viewing Fleming by using the throw phone

at 111, Docket No 181-2; Bevington Dep. at 75:8-24, Docket No.
181-3; Moore Dep.

at

103:17-104:3,

Docket No.

181-5.

The

negotiation team informed Lt. Tovar, who was the SWAT commanding
officer, that, based on the surveillance through the throw

phone, they believed that Fleming had a gun tucked into his
waistband. Tovar Declaration at Sill, Docket No. 181-2; Bevington

Dep. at 81:14-17, Docket No. 181-3; Moore Dep. at 47:22-48:2,
Docket No. 181-5.^ This information was relayed to Bevington and
other SWAT team members who were inside the residence.

The negotiations continued for several hours, after which

supervisors determined that Fleming's behavior indicated that he
was preparing to exit the bathroom in a violent manner. Tovar
Declaration at n

13-14, Docket No 181-2.

To prevent that from

because the throw phone did not record any video or audio during
the stand-off. Docket No. 186 at 9. He argues that "a negative
inference against defendants" should be permitted, which

apparently means that he wants the Court to assume that Fleming

was not seen to have a gun and that he did not communicate
threats to SWAT negotiators.
Id.
However, the absence of
evidence does not create a factual dispute in this case because

there

is

positive

evidence

to

show

that

Lee's

requested

"negative inference" is incorrect.

^ Lee objects that testimony about what Lt. Tovar was told by
members of the negotiation team and thereafter passed along to
the SWAT team staging inside the house as inadmissible hearsay.
Docket No. 186 at 10.
However, the testimony is not being
offered for the truth of the matter asserted (all parties admit
that Fleming did not have a gun as he was believed to) , but
rather is being offered to show the statement's effect on the

hearers,

overruled.

it

is

not

hearsay.

Therefore,

any objection

is

happening, SWAT officers decided to fire tear gas into the
master bathroom to force Fleming to exit and surrender.

Bevington and the other SWAT team members were informed of this
decision and the reasons for it.

Moore Dep. at 55:24-56:6,

Docket No 181-5; Bevington Dep. at 83:16-25, Docket No. 181-3.
The team members then put on gear and gas masks to protect

themselves from the tear gas.

Bevington Dep. at 91:12-15,

Docket No. 181-3; Moore Dep. at 55:24-56:6, Docket No. 181-5.

At

this point,

Bevington was

officer in the team.

181-3.

stationed as the

second

Bevington Dep. at 91:21-92:25, Docket No.

The first officer was positioned in the doorway of the

spare bedroom in a squatting position,

holding a ballistic

shield with one hand and a pistol in the other.

38:16-24, Docket No 181-5.

Moore Dep. at

At the time the gas was deployed,

Officer Wesley Moore was the first officer in the SWAT line.
Id.

Bevington, as the second officer, was leaning over the top

of Moore and was holding a rifle. Bevington Dep. at 92:18-93:10,
Docket No.

181-3.

The other SWAT team members,

who were to

follow the first two officers, were also carrying M-4 rifles and

their service pistols.

Moore Dep. at 39:1-24, Docket No. 181-5,

Bevington Dep. at 86:21-87:14, Docket No. 181-3.

Two tear gas canisters were deployed into the master

bathroom where Fleming was barricaded.

Bevington Dep. at 91:12-

92:4, Docket No. 181-3; Moore Dep. at 63:1-7, Docket No 181-5.
Moore heard Fleming cough. Moore Dep. at 76:24-68:17, Docket No
181-5.

Thereafter, Fleming exited the master bathroom into the

master bedroom.

It is undisputed that Fleming advanced toward

the officers who were waiting approximately 13 feet away in the

spare bedroom across the hall.''

Bevington Dep. at 93:11-21,

Docket No. 181-3; Moore Dep. at 68:11-17,

71:3-17,

Docket No.

181-5.

Moore

and Bevington

both

testified

that,

when

Fleming

exited the master bathroom and ran toward the SWAT team, he was

pointing his hands at the SWAT team as if he was holding a gun.
Moore Dep. at 71:3-17, Docket No. 181-5; Bevington Dep. at 96:1-

' Lee appears to dispute the assertion that ^^Fleming exited the
bathroom very quickly... while moving directly towards Detective
Bevington and Officer Moore." Docket No. 181 at 5. Lee states
that "[t]he SWAT officers. . .were not in the direct path of the
exit from the master bathroom."

Docket No. 186 at 11.

That

evidence, however, does not dispute the proofs that Fleming
advanced, at more than a walk, toward the officers who were
thireen feet away, especially considering that Moore testified

that Fleming was, indeed, charging at an angle when he exited
the bathroom.
Moore
All other testimony
Fleming was advancing
charging. Others say

Dep. at 113:24-114:9, Docket No. 181-5.
from those at the scene confirms that
toward the officers.
Some say he was
he was moving quickly. In any event. Lee

offers no evidence to the contrary,
argument.

relying

instead only on

5, Docket No. 181-3. Moore and Bevington have testified that
Fleming's hands were wrapped in cloth and that there was a black
cylindrical object pointing from the end of the cloth that, to
them, looked like the muzzle of a gun.

Moore Dep. at 72:6-73:5,

Docket No. 181-5; Bevington Dep. at 94:18-22, Docket No. 181-3.

Bevington believed it to be the 9 mm handgun that Fleming had
been reported to have been carrying.
96:2, Docket No. 181-3.

Bevington Dep. at 95:23-

In reality, what Moore and Bevington

thought was a gun was a black women's high heeled shoe wrapped
in a t-shirt.^

Moore

Bevington Dep. at 96:10-11, Docket No. 181-3.

and

Bevington's

testimony

is

supported

internal affairs interview given by Sargent McQuail,

by

the

who was

also a member of the RPD SWAT team that responded to Fleming's
residence.

McQuail

Declaration

at

S12,

Docket

No

188-15.

McQuail stated that one of Fleming's arms was rolled up in a
shirt or a towel and that, after the encounter, McQuail saw a

^ Lee argues that Moore "saw the muzzle of the barrel of
Fleming's ^handgun' and knew that it had no hole from which a
bullet could be fired."

Docket No 186 at 11.

That argument

cites to Moore's deposition, in which he testified that he
"couldn't really say [the shoe] had a hole in it" but reiterated
that "it was a black object that was pointing out...[and] looked
like a barrel."
Moore Dep. at 72:25-73:5.
Thus, the cited
testimony does not in any way support Lee's assertion that Moore
actually recognized that Fleming was carrying a shoe, rather
than a gun.
To the contrary, the testimony shows that Moore
thought (and reasonably so) that Fleming had a gun.

black shoe laying on the floor in the master bedroom.
Interview at 12-14, Docket No. 188-15.

That shoe and the blood

stained t-shirt appear in photographs of the scene.
179-9,

McQuail

Docket No.

11-13.

Sergeant Hayes and Officer Musselwhite were assigned to the
"arrest team" at the time of the shooting and were tasked with

securing

the

suspect

Musselwhite Dep.
32:25-33:5,

and

at 5:

removing

12-24,

Docket No 189-7.

him

Docket No.

from

the

scene.

189-6; Hayes Dep.

Hayes testified that,

at

when he was

securing the suspect and removing him from the house, he did not
see any "cloth-like" material near Fleming,

nor did he see any

shoe

69:18-71:23,

No.

in

Fleming's

189-7.

vicinity.

However,

worried about getting

getting

him

surveying

Hayes

scene

also

[Fleming]

downstairs

the

Hayes

to

testified

him

evidence.

Musselwhite, on the other hand,

at

handcuffed,

get

for

Dep.

to

that

he

was

Docket
"more

picking him up,

the
Id.

hospital",
at

and

than

71:14-17.

recalls seeing a "white towel or

light colored towel...on the ground next to the suspect"® when he
entered the room, but does not recall seeing a shoe in Fleming's

vicinity.

Musselwhite Dep. at 16:12-14, Docket No. 189-6.

®Lee appears to assert that the fact that Musselwhite recalls
seeing a

"white towel

grey t-shirt that was
fact.

Docket No.

or light

colored towel"

rather than the

found on the scene creates a dispute of

187 at 10,

fl8.

That difference may posit a

dispute, but it certainly is not a material dispute.

As Fleming charged the officers, Moore, who was crouched
and holding a ballistics shield, fired a single shot from his
service pistol at Fleming.
181-5.

Moore Dep. at 73:14-25, Docket No.

That was the only shot that Moore fired, because he was

concerned about keeping the shield that he was holding in front
of what he believed to be Fleming's handgun.

at 87:5-10;

79:10-25."'

What happened after Moore fired his first and only shot is
the subject of slightly different testimony.
stated that, when he began firing,

coming

toward

police

officers,

Fleming was still standing,

and pointing

believed to be a gun at the SWAT team.

23.

Bevington has

what

Bevington

at 103:12-18; 106:1-

Bevington then fired one volley of shots, paused for "less

than seconds", and fired another round of shots.
107:7.

at 106:24-

According to Bevington, Fleming fell to the ground after

the first

round of shots,

but attempted to get back up while

continuing to brandish what
Id. at 107:18-24.

Bevington believed was

a weapon.

Bevington testified that he fired the second

round of shots in order to neutralize the threat presented by
As

Moore

fired

his

one

round,

Bevington

shifted his shield slightly upward,

states

that

Moore

bumping Bevington's rifle.

Bevington Dep. at 96:25-97:19, Docket No. 181-3. Because of the
bump, Bevington did not see who fired the initial shot, nor did
he see a muzzle flash. Bevington Dep. at 98:24-99:1, Docket No.

181-3.

However,

initial shot.

Id.

Bevington believed that Fleming had fired the
at 103:6-18.

10

what he thought was Fleming's weapon.

Bevington stopped

firing when Fleming rolled over, and Bevington could no longer
see what he believed to be Fleming's weapon.
108:2;

113:19-114:1.

In

total,

Provost Declaration at SIS.

Bevington

at 106:24fired

8 rounds.

According to Bevington, the team

began moving toward Fleming "immediately after" he finished
firing all of his shots.
No. 181-3.

Bevington Dep. at 109:10-14, Docket

Therefore, except for a possible movement of a short

distance into the hallway between the two bedrooms,

Bevington

has

from

testified

that

all

of

his

shots

were

fired

the

threshold of the bedroom door in which the SWAT team had been
staging.

Id. at 110:16-111:12.

Moore,
events.

however,

describes

a slightly different

order of

He states that, after he fired one shot, the SWAT team

immediately began

advancing

toward

Fleming.

Moore

Dep.

at

81:24-82:3, Docket No. 181-5.

At that time, Fleming "wasn't on

his

down

feet...[but]

pointed up."

was

laying

I^ at 82:18-24.

sideways

with

his

weapon

Moore went on to explain that

Fleming was on the ground "probably kind of leaning up," still

pointing what he believed to be a weapon at the team.

I*^•

82:9-24.

At that point, Moore heard the shots that Bevington

fired.

at 83:4-12.

Id.

11

Expert scene reconstruction, to the limited extent that
such evidence has been allowed, also conflicts somewhat with
Bevington's testimony. Lee's expert, Phillip Hayden, has stated

that he placed trajectory rods in the bullet holes formed by
Bevington's shots that went through the master bedroom floor to
the kitchen below.®
3.

Hayden Declaration, at 2-4, Docket No. 186-

That evidence, construed most favorably to Lee, supports an

inference that

Fleming was down,

or

Bevington fired his two volleys.

on the way down,

when

Taken as a whole,

the

testimony shows the existence of factual disputes respecting
where Bevington was located when he fired the two volleys at

Fleming.

And, it establishes a factual dispute about whether

Fleming was partially down, standing up, or on the way down when
Bevington fired.

After the shooting had come to an end, the RPD SWAT team

secured the master bedroom and bathroom.

The arrest team placed

Fleming in handcuffs and took him downstairs

to

a waiting

ambulance which transported him to MCV, where he was pronounced
dead

within

30

minutes.

Richmond

Police

Department

Force

Investigation Team Report, Background Investigation at 3, Docket
No 179-18.

No gun was found on Fleming's person, in the master

® Hayden was not permitted to opine about Bevington's location
during the shooting for reasons set out in a Memorandum Opinion
and Order dated September 30, 2014. Docket Nos. 172 and 173.

12

bedroom, or in the master bathroom where Fleming had barricaded
himself.

Photographs of the scene reveal a woman's high-heeled

shoe and a bloodied light-colored t-shirt on the floor of the
master bedroom.

Lee, Fleming's father and the Administrator of his Estate,
filed an Amended Complaint, Docket No. 38, that presented three

counts against Moore, in addition to other defendants.

Count I,

Id^

filed pursuant to 42 U.S.C. § 1983,® alleges that

Bevington's actions constituted an unlawful seizure of Fleming's

person under the Fourth Amendment^® and thus that Bevington had
violated Fleming's rights under the Fourth Amendment.
9.

Id. at 8-

Count II alleges that Bevington had 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.

Id. at 9-11.

Count III

® "Every person who,

any statute,

ordinance,

under

color of

regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress..."

io«The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,
shall not be violated,

and no warrants shall issue,

but upon

probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized."

13

alleged that Bevington caused Fleming "to suffer great pain,

suffering and anguish" during the July 14, 2010 standoff and
subsequent shooting. Id^ at 11. On March 27, 2013, Counts II
and III of the Amended Complaint were dismissed in their

entirety and Count I was dismissed to the extent that it alleged
claims on behalf of Lee individually or of Fleming's minor
children under Fed. R. Civ. Pro. 12(b)(6).

Docket Nos. 79-80.

Bevington filed a Motion for Summary Judgment assuming that
the defendants' motions to exclude Lee's experts were granted

(Docket No.

14 6)

and a Second Motion for

Summary Judgment

assuming that the defendants' motions to exclude Lee's experts
was denied (Docket No. 148).

Both of these motions were denied

without prejudice, because the Defendants' Motions to Exclude
Experts were granted in part and denied in part.
173 and 174.

Docket Nos.

Defendants were permitted to file renewed summary

judgment motions.

Docket No. 175.

Bevington filed the pending

renewed motion for summary judgment, and it has been briefed and
argued, and the motion is ripe for decision.
APPLICABLE LEGAL FRAMEWORK

I.

STunmary Judgmen-t Standard

Under

rendered

Fed.

R.

forthwith

Civ.

if

the

P.

56,

summary

pleadings,

14

judgment

depositions,

"shall

be

answers

to

interrogatories,

and admissions on file,

together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to
judgment as a matter of law."

Fed. R. Civ. P. f6(c).

In

Celtotex Corp. v. Caltrett,^^ the Supreme Court stated that Rule

56(c)

requires the entry of summary judgment "after adequate

time for discovery and upon motion, against a party who fails to
make a

showing

sufficient

to

establish the

existence

of

an

essential element to that party's case, and on which that party

will bear the burden of proof at trial."

Id. at 322.

In order

to enter summary judgment "there can be no genuine issue as to

any material fact, since a complete failure to proof concerning
an essential elements of the nonmoving party's case renders all
other facts immaterial."

Id.

at 323.

When reviewing a motion for summary judgment, a court must

interpret the facts and any inferences drawn therefrom in the

light most favorable to the nonmoving party.

See Matsushita

Elec.

U.S.

Indus.

(1986);
F.3d

Co.

v.

Zenith

Seabulk Offshore,

408,

418

(4th

Cir.

Radio

Corp.,

Ltd. V. Am.
2004).

475

574,

587

Home. Assurance Co.,
To

successfully

377

oppose

a

documented motion for summary judgment, the nonmoving party must

demonstrate
11

417 U.S.

to
317

the

court

that

there

(1986).

15

are

specific

facts

that

would create a genuine issue for trial.

Lobby,

Inc.,

477 U.S. 242, 250

See Anderson v.—Liberty

(1986).

"Where...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."

United States v. Lee, 943 F.2d 366, 368 (4th Cir.

1991).

II.

42 U.S.C.

§

1983

Section 1983 of Title 42 of the United States Code

(§1983)

provides that:

Every

person

statute,

usage,

who,

under

ordinance,

of

any

State

District of Columbia,

be

subjected,

States

or

any

color

regulation,

or

Territory

subjects,

citizen

other

of

any

custom,

or

or

the

or causes to

of

the

person

within

United
the

jurisdiction thereof to the deprivation of
any
rights,
privileges,
or
immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity,
proceeding for redress.

or

other

proper

The statute, of course, does not create a substantive cause

of

action.

access

to

It
the

merely
federal

provides
courts

in

a

procedural
which

to

vehicle
seek

redress

violations of federal constitutional or statutory rights.

V. City of Richmond,
aff'd 78 F.3d 578

establish

that

he

875 F. Supp.

(4th Cir.

was

1124, 1132

1996).

"deprived

16

Thus,

of

a

of

Amato

(E.D. Va. 1994);

to prevail.

right

giving

secured

Lee must

by

the

Constitution or laws of the United States, and that the alleged

deprivation was committed under color of state law."

Artu—Mfrs.

Mut. Ins. Co. V. Sullivan, 526 U.S. 40, 49-50 (1999).

There is

no dispute that Bevington was acting under color of state law at
the relevant time.

The asserted federal right is the right to

be free of unreasonable seizure under the Fourth Amendment to
the United States Constitution.

DISCUSSION

Bevington has moved for summary judgment on the merits of
Count

I,

asserting

that

the

reasonably in shooting Fleming.

record

shows

that

he

acted

Alternatively, he seeks summary

judgment on his defense of qualified immunity.

"Ordinarily, it

is preferable to articulate a single basis for decision and,
conversely, to refrain from making alternative holdings."

Amato

V. City of Richmond, 875 F. Supp. 1124 (E.D. Va. 1994); aff'd 78
F.3d 578 (4th Cir. 1996)

(citing Karsten v. Kaiser Found. Health

Plan of the Middle Atlantic States,

Cir. 1994).

Inc.,

36

F. 3d 8,

11

(4th

However, this case presents an exception predicated

on judicial efficiency.

Hence, each ground for summary judgment

will be addressed.

17

Count

I:

Unreasonable

Amendment:

A.

Seizure

in

Violation

of

the

Fourth

The Merits

Legal Principles

Claims of excessive force during the course of a seizure

"are properly analyzed under the Fourth Amendment's 'objective
reasonableness' standard."

(1986).

Graham v. Connor, 490 U.S. 386, 388

In the Fourth Circuit,

reasonable

officer

in

the

"[t]he question is whether a

same

circumstances

would

have

concluded that a threat existed justifying the particular use of
force."

Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001).

"Determining whether the force used to seize an individual is

'objectively reasonable'

requires a careful balancing of the

nature and quality of the intrusion on the individual's Fourth
Amendment

interests

against

interests at stake."

"has

countervailing

governmental

Swann v. City of Richmond, 498 F. Supp. 2d

847, 854 (E.D. Va. 2007)
It

the

long been

arrest... necessarily

(quoting Graham, 490 U.S. at 396).
recognized that

carries

with

it

the

the

right

right

to make
to

use

an

some

degree of physical coercion or threat thereof to effect it", but
the

reasonableness

of

such

physical

coercion

depends

specific circumstances of the encounter at issue.
U.S.

at

396.

"The

test

of

reasonableness

under

on

the

Graham, 490
the

Fourth

Amendment is not capable of precise definition or mechanical

18

operation", but instead "requires careful attention to the facts
and

circumstances

of

each

particular

case,

including

the

severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade

arrest by flight."
Graham,

490 U.S. at 396.

In addition,

force

Bell v. Wolfish, 441 U.S. 520, 529 (1979);

must

officer

be

judged

from

the

on

scene,

rather

hindsight."
"for the

"the 'reasonableness'

the

of a particular use of

perspective

than with

Graham, 490 U.S. at 396.

the

of

a

reasonable

20/20

vision of

Thus, courts must allow

fact that police officers are often forced to make

split-second
uncertain,

judgments

-

in

circumstances

and rapidly evolving."

that

at 397.

are

tense,

"The court's

focus should be on the circumstances at the moment the force was

used and on the fact that officers. . . are not often afforded the

luxury of armchair reflection."

Elliott v.

640, 642 (4th Cir. 1996)(citations omitted).

Leavitt,

99 F.3d

The Fourth Circuit

"has consistently held that an officer does not have to wait
until a gun is pointed at the officer before the officer is
entitled to take action."

131.

"The

Fourth

omniscience.... Officers

Anderson v.

Amendment
need

not

19

be

Russell,

does
absolutely

247

not

F.3d 125,

require

sure...of

the

nature of the threat or the suspect's intent to cause them harm
-

the Constitution does

not

act of self-protection.
B.

reasonable

are

argues

and thus

against
several

judgment

that

certitude precede the

Russell, 247 F.3d at 132.

Were Fleming's Fourth Amendment Rights Violated?

Bevington

right

require

that

his

did not

unreasonable
material

actions

violate

inappropriate.

Thus,

July

Fleming's

seizures.

disputes

on

14,

2010

were

Fourth Amendment

Lee maintains

of

fact

that

the

first

task

that

render

is

to

there

summary

determine

whether there are genuine disputes of material fact.
1.

Lee

has

The Alleged Factual Disputes

identified

three

disputes

of

fact

that

he

says

foreclose summary judgment.Each will be addressed in turn.
(i)

Perceived Presence of a

There is now no dispute that
know that he was

dispute

of

fact

Fleming

to

have

advanced

toward

not.

The

whether
been
them.

issue

the

armed
On

"Gun"

Fleming was

armed for we

is whether there

officers
when

that

he
issue.

is

reasonably

left
Lee

the

a

genuine

perceived

bathroom

argues

^^Lee alleges that there are several "disputes" of fact.

that

20

and
the

Most of

these perceived disputes are based on selective citation of
record or that attempt to create material disputes of fact
of unimportant details.
Contentions of this sort need not
addressed.
Therefore,
the Court will focus on such of
alleged disputes
that are accompanied by citations to
record.

now

the
out
be
the

the

previously

recited

differences

between

the

testimony

of

Bevington and Moore (both of whom perceived that Fleming was
armed as he advanced)

on the one hand,

Musselwhite and Hayes

(about what they saw after the shooting

was over)

and the testimony of

creates a genuine dispute of fact whether Bevington

and Moore reasonably perceived Fleming to have been armed as he
advanced toward them.

Lee's argument lacks merit.

To begin, the critical time is when the officers fired on

Fleming; and, on that point, the most pertinent evidence is that

given by Bevington and Moore both of whom explained that Fleming
appeared to be carrying a pistol wrapped in a piece of white
cloth

of

some

kind.

Both

officers

were

clearly

Fleming from the time that he left the bathroom.

focused

Both officers

gave consistent accounts of what they saw in Fleming's hand:

gun wrapped in cloth.

on

a

No witness contradicts them as to the

circumstances that were extant just before Fleming was shot.

McQuail, another member of the SWAT team, testified that he
saw a shirt or a towel wrapped around Fleming's arm and that,

after the shooting he saw a black woman's high-heeled shoe on
the floor in the master bedroom.

That,

of course,

corroborates

the testimony given by Bevington and Moore.

Musselwhite and Hayes,

on whose testimony Lee predicates

the existence of a genuine dispute of material fact,

21

testified

only about what they saw after the shooting, not before it had
occurred

or

while

it

was

happening.

Musselwhite

said

that,

after the event, he saw no shoe near Fleming, but that he did
see a white or light-colored towel next to where Fleming lay

wounded.

Hayes did not recall seeing either a shoe or a towel

near Fleming.

The testimony of Musselwhite does not create any conflict
with what Bevington and Moore said.
saw

a

white

or

light-colored

wounded supports,

In fact,

towel

near

rather than disputes,

Bevington and Moore.

that Musselwhite

where

Fleming

lay

the testimony given by

Considering the record as a whole,

that

neither Musselwhite nor Hayes saw a shoe near Fleming after he
had been shot does not create a genuine dispute of material fact

as

to

whether,

as

Fleming

advanced

toward

the

officers,

carried what appeared to be a gun wrapped in a cloth.

he

Moreover,

photographs taken at the scene show that there was a black highheeled shoe on

recall

the

the

floor

presence

of

nearby.

a

towel

Nor does

or

a

shoe

Hayes'

create

failure

a

to

genuine

dispute of material fact because "a lack of recollection does
not

create

an

issue

summary judgment."
(M.D.N.C.

of

fact

that

Hubbard v.

2013)).

22

will

Bohman,

defeat

a

motion

for

2013 WL 2645260 at 8

Relatedly,

Lee argues that there is a conflict between

Moore and Bevington about whether Fleming charged the officers
as

he

exited

conflicting

the

bathroom.

evidence.

In

No matter

fact,

how

there

is

Fleming's

no

conduct

such

is

described, it is beyond dispute that he was advancing toward the
officers as he exited the bathroom.

And, even if there is some

slight difference in the descriptions of Fleming's pace, "the
fact

that

officers

on the

scene

have

recollections

differing

the...police

slightly

of the

cardinal

facts

(although the

agree as to the vast bulk of the facts) does not itself generate
a

triable

issue

precluding

the

entry

of

summary

judgment."

Moore v. Winer, 190 F. Supp.2d 804, 806 (D. Md. 2002).

In sum,

whether

there is no genuine dispute of material fact as to

Fleming

exited the

bathroom and

advanced

toward the

officers carrying a high-heeled shoe wrapped in a cloth with the

heel pointing toward the officers.

No reasonable jury could

reasonably conclude that Fleming did not appear to be armed as
he advanced toward the SWAT unit as to which Moore and Bevington
held the first two spots in line.

(ii) Bevington's Location When He Fired

Lee also argues that there is conflicting evidence about

Bevington's position when he fired at Fleming.

As discussed

above, Bevington testified that all eight shots were fired from

23

the door of the bedroom across the hall from the master bedroom

where

Fleming

fell

or,

hallway between the
that,

by

at

most,

a

short

two bedrooms.

distance

However,

into

the

Moore testified

immediately after he fired his sole shot at Fleming,

the

time

that

Bevington

finished

shooting,

and

Bevington

was

nearly on top of Fleming's body and the team was close behind.
Lee relies also on the testimony of Philip Hayden which was

that Bevington was not at the threshold of the staging bedroom
when

he

Hayden's

fired

the

five

testimony

Bevington's

about

location

shots

that

what

cannot

the

pierced

trajectory

preclude

summary

the

floorboards.

rods

show

judgment

as

to

because

Hayden is not permitted to use [his] measurements to extrapolate
any

opinions

about

the

angles

of

the

shots,

the

location

of

Detective Bevington as he was shooting or any recreation of the
shooting.

Bevington takes the view that,
as

to

his

location,

the

dispute

is

even if there is a dispute
irrelevant

and

material fact that should preclude summary judgment.
188

at

whether

15.

"The

Bevington

critical

had

questions",

probable

cause

to

says

thus

not

Docket No.

Bevington,

believe

a

that

"are

Fleming

posed an immediate threat of serious bodily harm or whether an

officer

in

conduct was

Bevington's
lawful."

Id.

shoes
at

could

15.

24

have

believed

Bevington's

Lee is correct in asserting that the testimony of Bevington

and Moore creates a dispute of fact because Moore and Bevington

offer opposing testimony about

Bevington's

fired the eight shots at Fleming
floor).

Whether

that

dispute

location when he

(five of which pierced the

of

fact

is

material

will

be

addressed below.

(iii) Fleming's Location when Bevington Fired

Finally,

Lee argues

that

there

is

a

dispute of

Fleming's position when he was shot by Bevington.

fact

to

Specifically,

he asserts that there is a dispute of fact as to whether Fleming

was still standing when initially shot by Bevington, or whether
he fell to the floor immediately after being shot by Moore.

Bevington only briefly addressed this issue and has failed
directly to address the dispute between his testimony and that

of Moore respecting whether Fleming was standing and advancing
when

Bevington

Bevington

takes

first
the

fired
view

or
that

was

on

"there

the
is

floor.
no

Instead,

dispute

that

Detective Bevington fired shots while Fleming was attempting to
get back up."

There is clearly a dispute of fact that is created between

Moore

and

Bevington's

testimony

respecting

Fleming's

when

Bevington started shooting.

fell

immediately after being struck by Moore's bullet.

25

According to Moore,

location

Fleming
Moore

recounts

that

Bevington began

firing

when

ground and attempting to stand back up.
testified that he fired his

first

Fleming was

on

the

Bevington, however, has

burst of shots

while

Fleming

was still standing and that he fired his second volley of shots
after

Fleming

had

Both do agree,

fallen

however,

and

was

attempting

to

get

back

up.

that Bevington fired his shots in two

separate volleys that were very close together in time.

Thus,

the dispute between the two on this point is whether Fleming was
on the ground when Bevington began shooting or whether he was

standing and fell
fired.

Again,

to

the

ground during,

or before,

Bevington

whether this fact is material will be addressed

below.

2.

Materiality

Analysis

as

to

the

Locations

of

Bevington and Fleming

"[T]he

material.
outcome

substantive

Only
of

the

law

disputes
suit

will

over

under

the

identify

facts

governing

Inc.,

477

U.S.

242,

248

(1986).

facts

are

might

that

preclude the entry of summary judgment."
Lobby,

which

affect

the

law

will

properly

Anderson v.
Thus,

if

the

Liberty
disputes

about Bevington's location when firing upon Fleming or Fleming's
location when being fired upon could reasonably affect a
determination

reasonable,

of

whether

Bevington's

actions

were

jury's

objectively

they are material and summary judgment would not be

26

proper.

Ultimately, both disputes of fact outlined above are

not material to the resolution of this case and thus do not
preclude summary judgment.

Of course,

the materiality of the disputed facts must be

assessed on the record as a whole including the part of the

record that is beyond dispute.

Thus, the assessment begins with

the understanding that the following facts are not disputed.

On

July 14, 2010, Fleming was wanted on a warrant for committing
robbery with a firearm and was a suspect in a homicide that had
been

committed

Fleming's

exit

that

morning.

from

the

repeated threats
officers

of

attempting

master

violence
to

In

the

bathroom,

against

arrest

hours

him

Fleming

police.

that

he

leading

He
would

up

to

had made
had told
shoot

any

officer or canine attempting to enter the area in which he had
barricaded himself.

that he would not

Before that,

Fleming had informed others

surrender quietly if confronted by police.

During the standoff with RPD SWAT,

Fleming had repeated his

threats to negotiators and to SWAT members staging inside the
house.

Fleming claimed to have

a gun

in

the bathroom and

questioned what the officers would do if he came out of the
bathroom with that gun.

Bevington and Moore knew all of this

information before the encounter.

27

When Fleming left the bathroom after tear gas forced him to

do so, he advanced toward SWAT team members, who were only 13
feet away.

As he advanced, Fleming was holding a high-heeled

shoe wrapped in a cloth with the heel pointed toward the police
officers.

To the officers,

Fleming appeared to be advancing on

them with a gun pointed in their direction.

Fleming's

conduct,

particularly

in

perspective

of

his

previous threats, created the impression that he was pointing a
gun at the officers.
Bevington,

No reasonable jury could find otherwise.

as well as Moore,

have testified that they thought

Fleming was coming at them with a gun.

No one has shaken that

testimony.

Whether

Bevington was

reasonable

in

that

belief when

he

fired on Fleming must be judged in perspective of the facts and
circumstances

known to him and that determination must not be

made with 20/20 hindsight, Graham, 49 U.S. at 396.

And it must

be made mindful that Bevington had to make split-second judgment
about how to react to Fleming's conduct, id.

course,

That judgment, of

had to be made in perspective of the severity of the

crimes at issue,

whether Fleming posed an immediate threat to

the safety of the officers and whether
resisting arrest

or

attempting

28

to

escape

Fleming was actively
arrest

by

fleeing.

Bell V. Wolfish,

441 U.S.

520, 529

(1979); Graham,

490 U.S. at

396.

Every

one

of

those

factors

describe

the

situation

confronting Bevington when he fired his first volley at Fleming.
In addition he knew that another shot had been fired and thought
that Fleming had fired it.

Lee has not explained how the location of Bevington when he
fired

his

doubt,

were

shots

however,

exposed

affects

the

summary

judgment.

that Bevington and his

to

a

bullet

reasonably thought was

or

There

fellow officer,

bullets

from

Fleming's gun.

what

is

no

Moore,

Bevington

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.

first

volley at

Thus,

Bevington's location when he fired the

Fleming is not

a material

fact

and thus

the

minor dispute over the point does not preclude summary judgment.
Nor is Fleming's location material to the reasonableness of

Bevington

in

firing

the

first

volley

because

the

undisputed

evidence is that Bevington reasonably believed that Fleming was
armed and had fired a shot (even though Moore actually had fired

it) ; and Bevington was confronted with a man who faced serious

criminal charges, who Bevington thought to be armed (reasonably

29

so), who presented a threat to him and other officers, and who
was resisting arrest.

On this record,

even if Fleming was not

standing up but going down because he had been hit by Moore's
shot, or was down and trying to get up, Bevington was left with
no

viable

fellow

choice

other

officers

than

because,

to

risk

his

whatever

own

life

Fleming's

or

that

location

of

and

posture, he at all times was pointing what Bevington thought to
be a gun at Bevington and he SWAT unit.

Of course,

volley.

a

split second later Bevington fired a second

Bevington's location when he fired the second volley is

not any more material than his location when he fired the first
volley because the second volley was
after the

first,

and

there

is

fired

no evidence

almost
that

immediately

Bevington made

any significant change of location between the two volleys.
However,

fired
because

Fleming's

presents
the

a

location

somewhat

testimony

of

when

different
both

the

second

volley

circumstance.

Bevington

and

location of the holes in the floor necessitate,

Moore,

That
and

was

is
the

at this stage of

the proceedings, that Lee must be given the inference that, when
the second volley was fired,

Fleming was on the floor and that

he was wounded, having been shot by both Moore and Bevington.

30

The issue then is whether i t would be a material fact that

Fleming was on the floor when Bevington fired the second volley.
The Court concludes that

i t is not.

The second volley was fired a split-second after the first
one,

and,

of course,

Bevington,

when he fired that volley,

informed by all the previously recounted facts
when he fired the first volley.

Moore, saw that,

In addition,

was

just as he was

Bevington,

as did

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

is

the

floor,

or

not,

not

material

to

the

determination

whether,

under the rules of Bell and Wolfish,

and the law of the

circuit,

Bevington acted reasonably to the presented risk when

firing the second volley.
The case law is

shot

and

fallen

can

clear that,

continue

even a

to

pose

defendant who has been

a

warrants the use of deadly force by officers.

25.

(citing Maradiaqa v. Wilson,

31

518 F.

deadly

threat

Docket No.

Supp. 2d 760,

768

that

181 at

(S.C.

2007),

aff'd 272 Fed. App'x.

263

(4th Cir.

2008); Estate of

Rodaers v. Smith, 2006 WL 1843435 (4th Cir. 2006)).
as in Pethtel v. West Virginia,

568 F.

And, here,

Supp. 2d 658,

669

(N.D.

W. Va. 2008), "tw]hether [the suspect] was lying prone, sitting

slumped,

or standing upright

change

the

nature

circumstances

of

in which

after the

the
the

rapidly

[officers]

first

shot does

evolving
were

and

not

chaotic

required to

act

or

the imminent threat reasonably perceived by the officers up to
and

at

the

moment

immediately

before

the

fatal

shot

was

fired..

Hence,
down

is

matter

whether Fleming was

not

his

a

material

location

officers

when

seconds"

after he

standing,

fact.

or

The material

posture,

Bevington

fired

fired

the

down,

Fleming

the

first

fact

was

second

or on his way
is

aiming

volley,

one.

And,

that,

that

at

"less
is

no

the
than

not

in

dispute.

3.

The

dispositive

issue

is

officer

the

same

reasonable
would

Whether S\3inmary Judgment is Appropriate

have

in

concluded

that

particular use of force."

a

whether

on

this

circumstances

threat

existed

[as

record,

"a

Bevington]

justifying

the

Anderson v. Russell, 247 F.3d at 129.

Bevington was confronted with a person wanted for the violent
crime of

robbery who

also was a

32

suspect

in a murder.

The

suspect posed a grave threat to Bevington's safety and that of
the other officers,

had a gun.
officers.

if as Bevington reasonably thought,

The suspect had
And,

of

course,

threatened to

Fleming

was

kill

Fleming

the police

violating

the

law by

resisting arrest.

Bevington made a split-second judgment (as he

was

do)

entitled

to

under

evolving circumstances."

No

"tense,

uncertain,

and

rapidly

Graham, 4 90 U.S. at 396.

jury instructed on

the

applicable

law could conclude

that Bevington acted unreasonably in firing either the first or
second volley no matter whether Fleming was standing,

and trying to get up,
doubt

that

or was falling down.

Bevington acted,

as

And,

explained above,

was down

there is no
reasonably

in

firing the first volley.

Accordingly,

Bevington

is

entitled to

summary

judgment on

the merits.

QUALIFIED IMMUNITY

The foregoing analysis also would yield summary judgment on
the

plea

police

qualified

officers

functions
conduct

of

the

from civil

does

reasonable

in

immunity.

in

performance

of

liability under §

not violate

officer

Qualified

immunity

their

1983

so

discretionary
long as

clearly established rights

the

shoes

33

of

the

protects

defendant

their

of which
would

a

know.

Rowland v. Perry, 401 F.3d 167, 173 (4th Cir. 1994).

The focus,

of course, is on what the police officer reasonably perceived at
the time that he acted and whether a

reasonable officer armed

with the

had the

same

information,

would have

and have acted in like fashion.

Id.

same perception

The doctrine of qualified

immunity therefore assures that officers are not held liable for
"bad guesses in grey areas;" and,
transgressing bright
295,

298

(4th Cir.

lines.

1992).

instead,

Maciariello

are liable only for
v.

Put another way,

Sumner,

793

F.2d

qualified immunity

affords officers additional breathing room for decisions made on

the spot.
Va.

Merchant v.

Fairfax,

778

F.

Supp.2d 636,

647

(E.D.

2011).

A fundamental purpose of qualified immunity is the need to
avoid

deterring police

officers

from engaging

in vigorous

law

enforcement in difficult situations for fear that they will face

civil liability.
Howard County,

behind

the

context of

Rowland v.

954 F.2d 960,

immunity

Perry,
965

defense

41

(4tg Cir.

are

circumstances."

in the

1992).

especially

street-level police worlc,

quick or decisive action

F.3d at 172;

face

which

Gooden v.

"The concerns

salient

frequently

in

the

requires

of volatile and changing

Id.

The record is abundantly clear as to the facts confronting

Bevington at the time he fired on Fleming.

34

Those facts need not

be

here

repeated,

but

they

quite

clearly

establish

that

Bevington faced what he reasonably perceived to be an inuninent
deadly threat to himself and other officers.

He was forced with

the need to act in tense and fast-moving circumstances and to
make a decision whether to fire or not.

one:

His choice was a simple

fire and protect himself and other officers or delay to

see what Fleming what do.

As

the

Fourth

Circuit

has

held

in

deciding

the

applicability of qualified immunity:
No

citizen

on

can

police

fairly

expect

without

consequences.

And no

to

draw

a

risking
court

can

gun

tragic
expect

any

human being to remain passive in the face of
an

active

threat

Greenidge
Fourth

and

police
their

his

Amendment

omniscience.
that

on

must

the

however,

suspect's

her

life.

As

illustrate,

does

not

the

require

Before employing deadly force,

have

suspect

safety

Officers

or

Slattery

or

need

sound
poses

the

not

reason
a

safety

be

to

serious

believe

threat

of

to

others.

absolutely

sure,

of the nature of the threat or the

intent

to

cause

them harm -

the

Constitution does not require that certitude
precede the act of self-protection.
Id.

at 644.

See also Slattery v.

1991); Greenidge v.
decisions

in

Ruff in,

Elliott,

Rizzo,

927 F.2d 789

Slattery

and

939 F.3d 213

{4th Cir.
Greenidge

(4th Cir.

1991).

The

teach

that

Bevington is entitled to prevail on the assertion of qualified
immunity.

35

CONCLUSION

Without doubt,

police officers who are doing their duty,

whether executing an arrest warrant or otherwise, are obligated
to exercise only such force as is reasonably necessary.
this case illustrates,

But, as

the job of a police officer is fraught

with danger from those who disobey their lawful commands or
resist

arrest.

Those who disobey a

lawful command or resist

arrest make it necessary for police officers to use reasonable
force.

And,

as this case proves,

the use of reasonable force

sometimes entails for the law violator or the resistor the risk
that he will be hurt or killed.

When that happens,

the law does

not sanction the vilification of, or the imposition of liability

on,

the

police

reasonably.
officer.

officer

Instead,

who

is

doing

his

other

acting

the law affords protection to the police

Officer Bevington could have delayed in firing

the first and the second volleys at Fleming.

the

and

That is the result here.

Certainly,

on

duty

facts
officers

known by Bevington,
to

injury

or

would have

death.

That

To have done so,

exposed him and
would

have

been

irresponsible on his part and it certainly was not required by
the applicable law.

36

For

the

foregoing

reasons,

DEFENDANT

RENEWED MOTION FOR SUMMARY JUDGMENT

TODD

(Docket No.

BEVINGTON'S
180)

will be

granted.
I t i s so ORDERED.

/s/
Robert E.

P-Lf

Payne

Senior United States District Judge

Richmond, Virginia
Date:

March

2015

37