Moody v. The City of Newport News, Virginia et al

Filing 97

OPINION AND ORDER, entered and filed 6/16/16: This matter comes before the Court on a Motion for Summary Judgment by Hollandsworth, ECF No. 59 , and a Motion for Summary Judgment by Gibson (collectively "Defendants"), ECF No. 62 . Hollandsworth and Gibson are the only Defendants remaining in this case, as the other Defendants were previously dismissed. ECF Nos. 33 , 50 , 67 , 68 . Defendants Hollandsworth and Gibson both assert that they did not violate Plaintiff� 39;s constitutional rights and they are entitled to qualified immunity for their actions on December 12, 2012, and urge the Court to grant summary judgment. With the Motions fully briefed, and oral argument completed, this matter is ripe f or consideration. As outlined in this Opinion and Order and the Foot Notes, Defendant Hollandsworth's Motion for Summary Judgment, ECF No. 59 , is GRANTED, and Defendant Gibson's Motion for Summary Judgment, ECF No. 62 , is GRANT ED. As a result of the Court's rulings in these matters, both Defendants Hollandsworth and Gibson are DISMISSED from the present action. (See Opinion and Order and Foot Notes for Specifics) (Signed by District Judge Mark S. Davis on 6/16/16). Copies provided 6/17/16.(ecav, )

UNITED

STATES

DISTRICT

EASTERN DISTRICT

COURT

OF

FOR

THE

VIRGINIA

Newport News Division

COREY MOODY,

Plaintiff,
Civil

v.

THE

CITY

OF NEWPORT

VIRGINIA,

JAMES

D.

No.

4:14cv99

NEWS,

FOX,

IN HIS OFFICIAL CAPACITY,
RICHARD W.

MYERS,

IN HIS

OFFICIAL CAPACITY,
HOLLANDSWORTH,

RUSSEL TINSLEY,
RANDY GIBSON,

DANIELLE

INDIVIDUALLY,

INDIVIDUALLY,

INDIVIDUALLY,

and RYAN NORRIS,

INDIVIDUALLY,

Defendants.

OPINION

On

December

12,

2012,

AND

ORDER

Plaintiff

Corey

Moody

("Plaintiff")

suffered gunshot wounds and sustained permanent injuries during a
traffic stop and arrest for federal drug and gun charges.

ECF No. 1.

Compl.,

Due to the events that transpired during the traffic stop,

Plaintiff filed suit, pursuant to 42 U.S.C. § 1983, against the City
of Newport News, Virginia, the former and current Newport News Chiefs
of Police, James D. Fox and Richard W. Myers, respectively, and the
four Newport News Police Officers involved in the shooting, Danielle
Hollandsworth ("Hollandsworth"), Russel Tinsley ("Tinsley"), Randy
Gibson ("Gibson"),

and Ryan Norris

("Norris").

Hollandsworth and

Gibson are the only Defendants remaining in this case, as the other
Defendants were previously dismissed.

ECF Nos.

33,

50,

67,

68.

Plaintiff alleged claims of excessive force,

in violation of

the

Fourth and Fourteenth Amendments, against Hollandsworth and Gibson.
Compl.

at 12.

This matter comes before the Court on a Motion for

Summary Judgment by Hollandsworth,

ECF No.

59,

and a Motion for

Summary Judgment by Gibson (collectively "Defendants"), ECF No. 62.

Defendants Hollandsworth and Gibson both assert that they did not
violate Plaintiff's constitutional rights and they are entitled to
qualified immunity for their actions on December 12, 2012, and urge
the Court to grant summary judgment.

With the Motions fully briefed,

and oral argument completed, this matter is ripe for consideration.
I. FACTUAL AND PROCEDURAL BACKGROUND1
A.

Plaintiff's Prior Interactions with Law Enforcement

It is undisputed that,

in 1999,

prior to the incident giving

rise to this suit, Plaintiff had been convicted of the felony offense
of manufacture, sale, and possession of a controlled substance.

Br.

in Supp. of Mot. for Summ. J., 3, ECF No. 63 [hereinafter "Mem. in
Supp.

of

68:3-15,

Gibson Mot."];
ECF No.

63-6

id. , Ex.

6,

[hereinafter

Moody Deposition

"Moody Depo." ] .

Excerpts,

It

is also

undisputed that Plaintiff sold narcotics to support himself between
2009 and 2012.

Moody Depo.

at 22:11-14.

! As a general matter, the Court has described any genuinely disputed facts
in a light most favorable to Plaintiff, the non-moving party.

See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Elec. Indus.
Co.

v. Zenith Radio Corp.,

475 U.S.

574,

587

(1986).

On March 11, 2012,

Hollandsworth pulled Plaintiff over for a

traffic stop in Newport News, Virginia.

Mem. in Supp. of Gibson Mot.

at 3; id., Ex. 3, Hollandsworth Deposition Excerpts, 42:19-43:22,
ECF No. 63-3 [hereinafter "Hollandsworth Depo."] .

During this March

11, 2012 traffic stop, Plaintiff consented to a search of his person,
and Hollandsworth discovered cocaine

Depo. at 43:5-14.

on

Plaintiff.

Hollandsworth

Plaintiff was advised of his Miranda rights and

was detained; Plaintiff then admitted to possession of the cocaine.
Id.

Hollandsworth

more narcotics.

next

searched

Plaintiff's

Id. at 43:15-22.

vehicle

and

located

Based upon the discovery of

narcotics on Plaintiff's person and in his vehicle, Hollandsworth,

and other police officers, obtained a search warrant for Plaintiff's
residence.

Id.

Plaintiff's

During

residence,

execution

Hollandsworth

of

the

found,

search
among

warrant

other

at

things,

cocaine, ecstasy, several types of ammunition, and a firearm in rooms

that were under Plaintiff's control.

Id. at 48:11-49:19.

Drug and

weapon charges were later filed in the Hampton Circuit Court and
Newport News Circuit Court related to the items found during the
traffic

stop and

43:19-25.

While

placed on bond.
35:12-15,

search of

the

state

Plaintiff's

charges

were

residence.

pending,

See Transcript of Hearing on Mot.

47:19-23,

Commonwealth v.

Ct. ) .

the

Moody,

Ultimately,

ECF

No.

94

CR12000671,

federal

[hereinafter
Bond Order

authorities

Id.

Plaintiff

at
was

for Summ. J.,
"Transcript"];

(Hampton,

adopted

Va.

the

Cir.

case,

prosecuting Plaintiff for possession of drugs with the intent to

distribute,

possessing

a

firearm

in

furtherance

of

such

drug

trafficking crime, and being a felon in possession of a firearm, and
the

Hampton

prosequi.

and

Newport

News

charges

Id. at 60:3-15; Mem.

were

dismissed

as

in Supp. of Gibson Mot.

nolle

at 4.

A valid federal arrest warrant was issued for Plaintiff,

was forty years old at the time,

on November 15, 2012,

who

based upon

a three-count federal indictment for (1) possession with intent to
distribute

cocaine,

in

violation

of

21

U.S.C.

§ 841(a)(1);

(2)

possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C.

§ 924(c)(1)(A); and

(3) possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Mem. in Supp. of Gibson Mot. at 4; id. , Ex. 4, Moody Indictment, ECF
No.

63-4;

id.,

Ex.

10,

Moody Arrest Warrant,

At some point prior to December 12,

ECF No.

2012,

63-10.

Hollandsworth was

informed of the federal charges pending against Plaintiff.

Supp. of Gibson Mot. at 4 .

Mem. in

According to Hollandsworth, Special Agent

Tim Jenkins of the United States Drug Enforcement Agency advised her
that a "federal detainer" had been issued against Plaintiff, and he

requested

her

assistance

Depo. at 56:1-19,

in

60:12-15.

Hollandsworth of Plaintiff's

locating

Plaintiff.

Hollandsworth

Special Agent Jenkins also informed
last known whereabouts and the make,

model, and license plate number of the car that Plaintiff was believed
to be driving.

Def.

Hollandsworth's Mem. of Law in Supp. of Mot.

for Summ.

J.,

Ex.

4,

Hollandsworth's Answers to Plaintiff's First

Set of Interrogatories, 2, ECF No. 60-4 [hereinafter "Hollandsworth
Interrogatory Answers"].

Hollandsworth

looked

for

Plaintiff's

vehicle "over several months" in the area reported to her by Special
Agent Jenkins,

and she located the vehicle known to be associated

with Plaintiff on December 12,
B.

2012.

December

Id.

12,

at 2.

2012

On the evening of December 12, 2012, after locating the vehicle
known to be associated with Plaintiff,

Hollandsworth,

assisted by

Tinsley, undertook surveillance of the apartment where the vehicle
was located.

Hollandsworth Depo. at 75 :22-77 :7 .

Hollandsworth and

Tinsley asked fellow Newport News police officers Norris and Gibson
for assistance with this surveillance.

Id. at 76:8-15.

surveillance, Hollandsworth observed a blue BMW,

During the

which she knew to

have some relationship to Plaintiff, pull away from the apartment.
Id. at 79:8-16.

Hollandsworth and Tinsley suspected that Plaintiff

was driving the vehicle,

unmarked police car.
9,

Tinsley

[hereinafter

and began to follow the blue BMW in their

Mem. in Supp. of Gibson Mot. at 4-5; id., Ex.

Deposition

Excerpts,

"Tinsley Depo."].

62:11-63:6,

ECF

No.

63-9

While Hollandsworth and Tinsley

followed the blue BMW, they observed the vehicle fail to signal a
lane change.

Tinsley Depo. at 64:3-18.

Hollandsworth and Tinsley

2 Page numbers of Exhibits, except for deposition transcripts, correspond
to the page numbers assigned to Exhibits by the Court's electronic filing
system.

then activated the blue lights on their unmarked police vehicle and
pulled

over

the

blue

BMW.

Tinsley Depo.

at

64:3-65:5.

While

pulling the vehicle over, Hollandsworth called in the traffic stop
over the radio,

notifying Gibson and Norris of the stop.

Mem.

in

Supp. of Gibson Mot., Ex. 2, Gibson Deposition Excerpts, 28:7-29:4,
ECF No. 63-2 [hereinafter "Gibson Depo."] ; Tinsley Depo. at 64:10-18.
Hollandsworth

and

Tinsley

pulled

the

blue

BMW

over

in

the

far

left-hand lane, on an incline,3 on the 35th Street overpass in Newport
News,

Virginia,

near

the

Interstate 664 North.
29:9-15.

on-ramps

for

Interstate

664

South and

Tinsley Depo. at 64:3-65:5; Gibson Depo. at

After the blue BMW stopped in the far left-hand lane,

Tinsley and Hollandsworth parked their unmarked police car behind

the BMW.

Gibson Depo. at 29:9-15; Hollandsworth Depo. at 112:22-25.

Gibson and Norris, who arrived with their blue lights activated at
the scene shortly after Tinsley and Hollandsworth arrived,

their

unmarked

vehicle.'1

police

car

behind

Tinsley

and

parked

Hollandsworth's

Mem. in Supp. of Gibson Mot. at 5.

3 Both sides represented to the Court during the May 5, 2016 hearing that
Plaintiff's vehicle was parked on a slight incline, with the front of the
vehicle being slightly higher than the rear of the vehicle.
Transcript
of Hearing on Mot. for Summ. J., 65:5-16, 84:1-12, ECF No. 94 [hereinafter
Plaintiff's counsel further explained that, while the
"Transcript"].
incline was slight, it was such that, should the vehicle have been in neutral
and begun to roll, the vehicle would have rolled backwards . Id. at 84:1-12.

* During

the May

5,

2016

hearing,

both

sides

confirmed

that

the

Gibson/Norris unmarked police car was parked behind both Plaintiff's
vehicle and the Tinsley/Hollandsworth vehicle, and that all three vehicles
were in a line in the far left-hand lane on 35th Street.
36:13-23,

73:21-74:6.

Transcript at

After pulling the blue BMW over, Hollandsworth exited the police
vehicle and approached the right (passenger)
Tinsley Depo.

at

68:4-14.

side of the vehicle.

Hollandsworth progressed far

enough

forward on the right side of the blue BMW to identify Plaintiff (who
she knew from her earlier interactions with him)

she

as the driver,

and

informed Tinsley as much by giving Tinsley a thumbs up and

confirming that

"it's him."

Id.

After Hollandsworth identified

Plaintiff, she returned to the rear of Plaintiff's vehicle—walking
back the way that she had come—and circling around the back of
Plaintiff's vehicle to eventually stand by the rear door on the left
(driver) side.

Id. at 68:8-15; Def. Hollandsworth's Mem. of Law in

Supp. of Mot. for Summ. J., Ex. 1, Hollandsworth Deposition Excerpts,
86:5-8,

87:1-10,

ECF

No.

60-1

[hereinafter

"Hollandsworth

Mot.

Depo."].
As Hollandsworth walked towards Plaintiff's vehicle,

Tinsley

exited the unmarked police car and approached the left (driver) side
of

Plaintiff's

vehicle.

Tinsley

Depo.

at

68:4-20.

Tinsley

continued to walk forward along the left side of Plaintiff's vehicle
until he reached the front driver's side window.

Id. at 68:13-69:9.

However, as Tinsley neared Plaintiff's vehicle, he realized that he
could not see Plaintiff's hands.

Id.

at 68:13-20.

Tinsley then

yelled and ordered Plaintiff to place his hands out the window, where

the officers could see them.3
Depo.

at

68:13-20.

Moody Depo. at 38:16-19; cf. Tinsley

Plaintiff complied with Tinsley's order and

placed both hands out the window.

Depo.

at 68:13-20.

Moody Depo. at 38: 16-19; Tinsley

Additionally,

Plaintiff did not immediately

place his vehicle in park when he came to a stop on 35th Street; one
of the police officers told Plaintiff to take his foot off the brake

and put the vehicle in park.

Moody Depo.

at 38:8-13.

Plaintiff

complied with the order and placed his vehicle in park.

Id.

at

38:11-15.

Gibson and Norris arrived at the scene shortly after Tinsley
and Hollandsworth arrived,
Gibson Depo. at 29:9-19.

just as Tinsley exited his police car.

After arriving, Norris remained away from

Plaintiff s vehicle during the of ficers' interaction with Plaintiff .
Id.

at

37:1-4;

however,

Hollandsworth Mot.

Depo.

at

86:15-87:4.

Gibson,

exited the unmarked police car and slowly walked towards

the right (passenger) side of Plaintiff's vehicle.

Gibson Depo. at

32:2-15.

right

Gibson

continued

to

walk

along

the

side

Plaintiff's vehicle until he reached the front right door.

of

Id. at

32:17-22.

' Plaintiff

asserts

that

an officer

told him

to stick his

hands

out

the

window, and he complied by rolling down the window and sticking his hands
out the window.
Moody Depo. at 38:16-19.
Tinsley recalls ordering
Plaintiff to put his hands on the steering wheel.

Tinsley Depo. at 68:4-20.

While the facts above comport with Plaintiff's version of the events, it
is immaterial whether Plaintiff placed his hands out the window or on the

steering wheel.
It is undisputed that, at this point in the interaction,
Plaintiff complied with Tinsley's order and placed his hands where the
officers could see

them.

During the traffic stop, all four officers were wearing police
raid vests, with the word "police" printed on them in yellow letters

and a police badge on the front of the vest.6
58:17-25;

Hollandsworth

Depo.

at

Tinsley Depo. at

84:17-85:4.

Further,

both

unmarked police vehicles were equipped with blue police lights, and

such blue lights were activated on both cars during the traffic stop.7
Mem. in Supp. of Gibson Mot. at 5; Hollandsworth Depo . at 112 :5-113 :2;
Mem.

in Supp.

of Gibson Mot.,

Ex.

7, Norris Deposition Excerpts,

75:12-76:6, ECF No. 63-7 [hereinafter "Norris Depo."]; Moody Depo.
at 37:7-21.

Due to the blue flashing lights, Plaintiff understood

that the individuals pulling him over were police officers.
Depo.

Moody

at 37:19-38:7.

C. Tinsley and Plaintiff's Struggle

Tinsley

approached

the

left

(driver)

vehicle, holding handcuff s in one hand.

157:7-17; Tinsley Depo.

Plaintiff.

Moody Depo.

at

of

Plaintiff's

Moody Depo . at 144:7-146:2,

at 68:21-69:9.

front driver's side door,

side

When Tinsley reached the

he attempted to place the handcuffs on

144:2-6;

Tinsley Depo.

at 68:21-69:9.

While trying to place the handcuffs on Plaintiff, Tinsley grabbed

5 At the May 5, 2016 hearing, Plaintiff's counsel confirmed that Tinsley,
Hollandsworth, Gibson, and Norris were wearing police raid vests with
identification over their plain clothes during the traffic stop on December
12,

2012.

Transcript at 84:14-17.

7 At the May 5, 2016 hearing, Plaintiff's counsel confirmed that the blue
lights were activated on both Tinsley and Hollandsworth's vehicle and
Gibson and Norris' vehicle during the traffic stop on December 12, 2012.
Transcript at

84:14-17.

Plaintiff's arm and attempted to pull Plaintiff towards himself,
through

the

144:2-146:2.

vehicle

window.

Moody

Depo.

at

40:13-41:25,

However, as Tinsley attempted to handcuff Plaintiff,

Plaintiff "snatched" his hands back, away from Tinsley, and twisted
to the right,
38:20-24,

towards the passenger seat of

48:18-25,

158 :17:-159:6;

Tinsley Depo.

Hollandsworth Interrogatory Answers at 3.
back

from

Tinsley,

he

problem . . . what's

attempted

going

on"?

the vehicle.

to

at

68:21-69:9;

After Plaintiff pulled

ask

Moody

at

Id.

Tinsley
Depo.

at

"what's

the

40:13-41:6.

Tinsley's attempts to handcuff Plaintiff while he was still in the

car were confusing to Plaintiff because, while he knew that Tinsley
was a police officer,
such a fashion.

he had never been arrested or handcuffed in

Opp'n to Def.

Moody Deposition Excerpts,

"Moody Opp'n Depo."].

Gibson's Mot.

46:21-48:4,

ECF.

for Summ. J.,
No.

72-2

Ex.

2,

[hereinafter

Further, when Plaintiff pulled his arm away

from Tinsley, he heard the officer standing by the passenger's side
of the vehicle (Gibson)

say "something about he was going to blow

[Plaintiff's] head off or something like that."

Id. at 42:17-43:7.

As Plaintiff pulled away from Tinsley, Plaintiff drew his arms
back towards himself and turned to his right, towards the passenger's
seat.

Moody Depo.

at 48:14-25.

Tinsley observed Plaintiff reach

towards the center console area with both hands.

Tinsley Depo. at

69:6-9.

gain

At

that

point,

Tinsley

attempted

to

control

Plaintiff's hands by reaching through the driver's side window.

10

of
Id.

at

69:10-21;

Moody

Depo.

at

48:5-25.

In

his

attempt

to

grab

Plaintiff's hands, Tinsley inserted the upper half of his body into
Plaintiff's vehicle and ended up inside the car, through the driver's

side window, from his waist up.8
Depo. at 53:5-13.
Tinsley

also

Tinsley Depo. at 69:11-21; Moody

While attempting to control Plaintiff's hands,

told

Hollandsworth's Mem.

Plaintiff

to

"stop

of Law in Supp. of Mot.

reaching."

Def.

for Summ. J.,

2, ECF

No. 60; id., Ex. 2, Tinsley Deposition Excerpts, 78:13-24, ECF No.
60-2

[hereinafter

Hollandsworth Mot.

"Hollandsworth

Depo.

Mot.

Tinsley

Depo."];

at 87:11-14.

While Tinsley was inside Plaintiff's vehicle and attempting to
grab his hands,
on

his

vehicle.

attempted to
57:1-19.

Tinsley saw Plaintiff release the emergency brake
Tinsley Depo.

shift his

To shift

at

69:18-70:3.

car into gear.

his

vehicle

Plaintiff

Moody Depo.

at

from park into drive,

then

53:1-13,
Plaintiff

reached his hand to the right and down, between the driver and front

aAs Plaintiff argues in his Opposition to Defendant Gibson's Motion for
Summary Judgment, there is a dispute regarding the extent to which Tinsley' s
body was inside the passenger compartment of Plaintiff's vehicle.
Opp'n
to Def. Gibson's Mot. for Summ. J., 2, ECF No. 72.
However, such dispute
is not material.
Plaintiff and Tinsley agree that Tinsley's upper body
was inside Plaintiff's vehicle.
Tinsley Depo. at 69:11-21; Moody Depo.
Hollandsworth observed Tinsley's hands inside Plaintiff's
at 53:5-13.
vehicle and a struggle.
Hollandsworth Depo. at 123:12-17.
Gibson
observed that Tinsley's "body broke the threshold" of the vehicle to take
control of

Plaintiff's arm,

but he observed Tinsley outside the vehicle

ac che "pillar post" between the front and rear driver side doors.

Gibson
Depo. at 42:2-19, 45:7-18.
To the extent that Tinsley's location, as
perceived by Hollandsworth or Gibson, affected Hollandsworth or Gibson's
actions on December 12, 2012, such perceptions are individually addressed
below.

11

passenger bucket seats.
95:16-21.

Moody Depo. at 53:18-55:18; Transcript at

While Plaintiff was reaching between the driver and front

passenger seats, Plaintiff then heard a gunshot from one side of his

vehicle

and

55:19-57:4.

put

his

car

in

neutral.

Moody

Depo.

at

53:1-4,

Plaintiff attempted to put his car into drive to escape

the gunshot but he was only able to shift his car into neutral gear
initially.

Id. at 55:19-56:25.

After Plaintiff put his car in

neutral, he heard additional shots from the other side of his vehicle.

Id. at 53 :1-56 :25 .

Plaintiff recalls that the gunshots came in short

succession—with a very short time in between the first shot and those
that followed from the other side of his vehicle.

Id.

at 56:1-25.

Once Plaintiff shifted his vehicle into drive, his vehicle travelled

forward, up the slight incline of the 35th Street overpass.
59:21-60:15.

Tinsley was still

Id. at

in the passenger compartment of

Plaintiff's vehicle when the car began to move.9

Tinsley Depo. at

Plaintiff asserts that there is an evidentiary dispute regarding whether
Tinsley was still inside the passenger compartment of Plaintiff's vehicle
when che car began to move.
Opp'n to Def. Gibson's Mot. for Summ. J. at
3.
However, a review of Plaintiff's deposition demonstrates that there
is no material dispute regarding such fact.
As noted above, Plaintiff,

Tinsley, Hollandsworth, and Gibson agree that Tinsley's body was inside
Plaintiff's vehicle, to some extent, before the car began to move.
Supra
n. 8 . There is no evidence that Tinsley moved away from Plaintiff 's vehicle
before it began to move.
Instead, during Plaintiff's deposition, when he
was asked if "the officer who had tried to handcuff [him] was still hanging
in [his] passenger compartment up to the waist, from the window," Plaintiff
replied:

"I want to say he was still hanging in the car.

that—did he fall back out of the car or not.
Depo. at 57:12-19.

I don't know

I can't say, you know. "

Moody

Further, to the extent that Hollandsworth or Gibson's

perception of Tinsley's location differs from Plaintiff's recollection,

such perception will be addressed below.
Thus, there is no material
dispute of fact regarding Tinsley's location when Plaintiff put the car
in gear and began to move forward.

12

69:22-70:5; Def.

Hollandsworth's Mem.

of Law in Supp. of Mot.

for

Summ. J. at 3; id. Ex. 6, Norris Deposition Excerpts, 69:4-25, ECF

No.

60-6

[hereinafter

"Hollandsworth

Mot.

Norris

Depo."].

Plaintiff's vehicle traveled forward a short distance before Tinsley
heard a shot and felt a sensation "like somebody punched [him] in
the

side

of

the

face."

Tinsley

Depo.

at

70:1-5.

Plaintiff's

vehicle continued to travel forward across the 35th Street overpass,
and it came to a stop on the other side of the overpass.

at 60:6-15.

Plaintiff did not possess a weapon during the events

on December 12, 2012.

4;

Moody Depo.

Opp'n to Def. Gibson's Mot.

see Hollandsworth Mot.

Depo.

at

92:10-93:8

Hoi lands v/orth did not see a weapon in

for Summ. J. at

(explaining that

Plaintiff's possession on

December 12, 2012); cf. Def. Hollandsworth's Mem. of Law in Supp.
of Mot. for Summ. J. , Ex. 15, Certificate of Analysis, ECF No. 60-15
(listing

forensic

analysis

test

results

of

Hollandsworth

and

Gibson's weapons, the only two weapons fired at the scene on December
12,

2012) .
D.

Hollandsworth's

Actions

During Tinsley's interactions with Plaintiff,

Hollandsworth

stood behind Tinsley, along the left (driver) side of the vehicle,
near the rear left door.

Tinsley approached

the

Hollandsworth Mot. Depo. at 86:5-8.

front,

driver

side window,

After

Hollandsworth

watched Tinsley reach inside Plaintiff's vehicle with handcuffs and
she observed the ensuing struggle between Tinsley and Plaintiff.

13

Id.

at

123:4-125:2.

During

the

struggle,

Hollandsworth

saw

Plaintiff's vehicle's brake lights flash10 and Plaintiff reach
downward,

right

between the driver and front passenger seats,

hand.

Hollandsworth

Interrogatory

with his

Answers

at

3.

Hollandsworth could not see fully into Plaintiff's vehicle, and she

did not see a weapon from her vantage point.

Hollandsworth Mot.

Depo. at 92:10-93:8.

However, having found a firearm in rooms under

Plaintiff's

during

control

her prior

March

11,

2012

search of

Plaintiff's residence, and therefore being concerned that Plaintiff

might have a gun in his vehicle and might be reaching for such gun
with his right hand, Hollandsworth took a step backwards and drew
her weapon.

Id.

Hollandsworth

"fear[ed]

that Officer Tinsley

would be shot," and she "fired [her] weapon once at the vehicle in
an effort to protect Officer Tinsley."
Answers

at

3.

Hollandsworth

Hollandsworth Interrogatory

fired one

Hollandsworth Mot. Depo. at 87:21-22.

shot

at

the

car.

Id. ;

After Hollandsworth fired her

shot, she immediately heard Gibson fire his weapon.

Hollandsworth

Interrogatory

at

Answers

at

3;

Hollandsworth

Depo.

120:5-16.

Hollandsworth's shot did not strike Plaintiff, but traveled through
the left rear side window,

behind the driver's seat,

driver's

penetrated

headrest

and

the

through the

dashboard.

Def.

Norris also observed Plaintiff's vehicle's brake lights illuminate.
Hollandsworth Mot. Norris Depo. at 69:1-2.
However, due to the limited
amount of Norris' deposition testimony provided by the parties, it is
unclear whether Norris and Hollandsworth observed Plaintiff's brake lights
illuminate for the same amount of

time.

14

Hollandsworth's Mem. of Law in Supp. of Mot. for Summ. J. at 4; id. ,
Ex.

7, Criminal Investigation,

Deposition Excerpts,

50:10-22,
E.

5,

ECF No.

60-7;

id.,

Ex.

9, Best

ECF No. 60-9.

Gibson's

Actions

When Gibson arrived at the scene, he exited his unmarked police

car and approached the right (passenger) side of Plaintiff' s vehicle.
Gibson Depo.

at

32:4-25.

Gibson walked along the right side of

Plaintiff's vehicle until he reached the front of the vehicle, near

the front passenger side door.

Id.

Once Gibson reached the front

passenger side door, he observed Tinsley, standing alongside the left
driver side of Plaintiff's vehicle, reach inside Plaintiff's vehicle
to take control of Plaintiff's left arm.

Def.

of Lav/ in Supp.

Ex.

of Mot.

for Summ.

J.,

Hollandsworth's Mem.

3,

Gibson Deposition

Excerpts, 37:11-39:8, ECF No. 60-3 [hereinafter "Hollandsworth Mot.
Gibson Depo."].

Gibson saw Tinsley's body break the threshold of

Plaintiff's vehicle window, but he does not recall whether Tinsley's

chest, head, or upper torso, were in the proximity of Plaintiff's

steering wheel.
attempting
Plaintiff

brake,

to

Gibson Depo.

take

control

reach down,

of

at

42:2-19.

Plaintiff's

arm,

Tinsley

was

Gibson observed

place his hand on his vehicle's emergency

and lower the emergency brake.

Depo. at 37:11-38:23.

While

Hollandsworth Mot. Gibson

As Gibson realized the Plaintiff was lowering

the emergency brake, he yelled at Plaintiff to stop.

Id. at 39 :9-15 .

When Plaintiff continued to lower the emergency brake and began to

15

move to put his vehicle into gear, Gibson began drawing his firearm.
Id.

at 40:6-25.

As

Gibson drew his weapon,

he observed Tinsley

"going forward and downward" as if "being drug by the car."11
Depo. at 44:1-4, 45:7-18.

Gibson

Gibson believed that Plaintiff was about

to flee and that Tinsley was in danger of being dragged or run over

during Plaintiff' s flight, so he fired his weapon at Plaintiff .
in Supp.
Answers,

of Gibson Mot.
2,

ECF No.

at 8; id. , Ex.

1,

Mem.

Gibson Interrogatory

63-1.

When he began to shoot, Gibson stood alongside the front right
(passenger) side door and his first shot went through the front right
side window, towards Plaintiff's legs.

Gibson Depo. at 44:17-45:6.

At about the time Gibson shot, he heard another gunshot, which he
believed

to

have

come

from

another

officer.

Id.

at

44:5-16.

Gibson's next shots, towards Plaintiff's upper body, traversed along
the right side of the vehicle as the vehicle moved forward away from
Gibson.

Id.

at 45:7-25, 48:7-18; Def.

Hollandsworth's Mem. of Law

in Supp. of Mot. for Summ. J., Ex. 8, NNPD Photographs, ECF No. 60-8.

11 Plaintiff argues that there is a material dispute of fact between
Plaintiff and Defendants'

evidence because,

he asserts,

Gibson shot at

Plaintiff before Plaintiff's vehicle began to move forward.
Opp'n to Def.
Gibson's Mot. for Summ. J. at 3.
Plaintiff argues that, to the extent
Gibson shot before Plaintiff's vehicle began to move forward, Gibson's
perception that Tinsley was being dragged was unreasonable.
Id. at 7.
However, as addressed later, such dispute is not material because Gibson's

undisputed

perception

whether or not

of

Tinsley's

such movement was

movement

"forward

related to the movement

and
of

downward,"
Plaintiff's

vehicle, combined with his observation of Plaintiff's motions to shift his

vehicle into drive,

are sufficient to support his reasonable perception
that Tinsley was in danger as a result of Plaintiff's ongoing actions.

16

Gibson

fired approximately four shots

windows

of

Plaintiff's

vehicle.

at

Gibson

Plaintiff
Depo.

at

through the
48:19-49:20.

Plaintiff suffered gunshot wounds and sustained permanent injuries

resulting from the transection of his spinal cord at the T10-T11
level.

Opp'n to Def.

Waller Report,

Hollandsworth's Mot.

ECF No.

for Summ.

J.,

Ex.

4,

64-4.
F. Procedural History

On July 31, 2014, Plaintiff filed suit, pursuant to 42 U.S.C.

§ 1983, against the City of Newport News, Richard Myers (the current
Newport News Chief of Police), James Fox (the former Newport News
Chief of Police),
Compl.,

and Norris,

ECF No. 1.

Hollandsworth,

Tinsley, and Gibson.

Plaintiff asserted several claims,

including

claims of unreasonable seizure through use of excessive force,

in

violation of the Fourth and Fourteenth Amendments, against the four
police officers.

Id.

Claims against Richard Meyers and James Fox

were dismissed on November 4, 2014.
stipulated to dismissal
September 11, 2015.

of

ECF Nos. 33, 44.

Plaintiff's

ECF No.

50.

claims

Further,

The parties

against Norris on

the parties stipulated

to the dismissal of the City of Newport News and Tinsley on December

28, 2015.
action are

ECF Nos. 67, 68.

Thus, the only parties remaining in this

Hollandsworth and Gibson.

On December 7, 2015, Hollandsworth filed her Motion for Summary
Judgment,

arguing

that

she

did

not

violate

Plaintiff's

constitutional rights because her actions on December 12, 2012 did

17

not seize Plaintiff,

force,

that her actions did not constitute excessive

and that she is entitled to qualified immunity.12

Hollandsworth's Mot. for Summ. J., ECF No. 59.

On December 21, 2015,

Plaintiff filed his opposition to Hollandsworth's Motion.
Def. Hollandsworth's Mot.

for Summ. J.,

Def.

ECF No.

64.

Opp'n to

Hollandsworth

filed her reply in support of her Motion on December 23, 2015.

Def.

Hollandsworth's Reply to Opp'n to Mot.

65.

On

December 21,

2015,

Gibson

for Summ. J.,

filed his Motion

ECF No.

for Summary

Judgment, arguing that his actions did not constitute excessive force
and that he is entitled to qualified immunity.
ECF No. 62.

2016.

for Summ. J.,

On January 11, 2016, Plaintiff filed his opposition to

Gibson's motion.

72.

Mot.

Opp'n to Def. Gibson's Mot. for Summ. J., ECF. No.

Gibson filed his reply in support of his Motion on January 19,
Reply Br.

in Supp.

of Mot.

for Summ.

J.,

ECF No.

80.

The

parties then appeared before the Court for extensive oral argument
on May 5,

2016.

12 Hollandsworth also argues that she is not liable for a claim of bystander
liability.
Mem. in Support of Hollandsworth Mot. at 6-9.
In response to
Hollandsworth's arguments, and evidence developed during deposition and
discovery, Plaintiff withdrew his claims of bystander liability in his
Opposition to Hollandsworth's Motion for Summary Judgment.
Opp'n to Def.
Hollandsworth's Mot. for Summ. J. at 9.
Further, Plaintiff's counsel

confirmed during the May 5, 2016 hearing that Plaintiff is not pursuing

any claims related to bystander liability or substantive due process
Transcript at
against Hollandsworth or Gibson in this matter.
104 = 25-105:23 .

II.

A.

LEGAL

STANDARD

Summary Judgment Standard

The Federal Rules of Civil Procedure provide that a district

court shall grant summary judgment in favor of a movant if such party
"shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."

P.

56(a).

Fed. R. Civ.

"' [T]he mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported
motion for summary judgment;
genuine issue of

material

the requirement is that there be no

fact.'"

Cloaninger ex rel.

Estate of

Cloaninger v. McDevitt, 555 F.3d 324, 332 (4th Cir. 2009)
Anderson v. Liberty Lobby,

Inc.,

477 U.S.

242,

247-48

(quoting

(1986)).

A

fact is "material" if it "might affect the outcome of the suit," and
a dispute is "genuine" if

"the evidence is such that a reasonable

jury could return a verdict for the nonmoving party."
U.S.

at 248.

Anderson, 477

A party opposing a summary judgment motion "'cannot

create a genuine issue of material fact through mere speculation or
the building of one inference upon another.'"
Phelan,

526 F.3d 135, 140

769 F.2d 213,

214

(4th Cir.

(4th Cir.

2008)

Othentec Ltd.

v.

(quoting Beale v. Hardy,

1985)).

Federal Rule of Civil Procedure 56 (c) addresses the applicable
procedure for pursuing,

and defending against,

explaining as follows:

19

summary judgment,

(c)

Procedures.

(1) Supporting Factual Positions. A party asserting that
a fact cannot be or is genuinely disputed must support
the assertion by:

(A) citing to particular parts of materials in the
record,
including
depositions,
documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for
purposes
of
the
motion
only),
admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence
to support the fact.
Fed. R. Civ. P. 56(c) (emphasis added) .

Rule 56 further states that

" [i] f a party fails to properly support an assertion of fact or fails
to properly address another party's assertion of fact as required
by Rule

56(c),"

the

Court

has

discretion

undisputed for purposes of the motion."

to

"consider

Fed. R. Civ.

the

fact

P. 56(e) (2) .

Although the initial burden at summary judgment falls on the

moving party, once such party has advanced evidence supporting entry
of summary judgment, the non-moving party may not rest upon the mere
allegations of the pleadings,

but instead must set forth specific

facts in the form of exhibits, sworn statements, or other materials

that illustrate a genuine issue for trial.

Fed. R. Civ.

P.

56(c);

CelotexCorp. v. Catrett, 477 U.S. 317, 322-24 (1986) ; Butler v. Drive
Auto. Indus, of Am., Inc., 793 F.3d 404, 408 (4th Cir. 2015).

Thus,

while the movant must carry the burden to show the absence of a genuine
issue of material fact, when such burden is met, the non-movant must
establish the existence of such an issue.

20

Celotex, 477 U.S. at 322-

23.

At that point, "the judge's function is not himself to weigh

the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial."
249.

In doing

"justifiable

non-moving

so,

the

judge

inferences"

party,

determinations.
No. 15-1110,

and

in

the

must

the

construe

light

judge

Anderson, 477 U.S. at

most

may

not

the

facts

and

all

favorable

to

the

make

credibility

Id. at 255; Jones v. Chandrasuwan,

F.3d

,

2016 WL 1697682, at *3 (4th Cir. Apr. 28, 2016).
B. Qualified Immunity

Defendants Hollandsworth and Gibson assert that they did not

violate Plaintiff's constitutional rights and that they are entitled
to qualified

immunity

for

their actions

on December

12,

2012.

Because the determination of whether Defendants violated Plaintiff' s

constitutional rights is a component of the qualified immunity
analysis, the Court analyzes both arguments under the rubric of its

qualified immunity analysis below.13
"'Qualified

immunity

protects

officers

who

commit

constitutional violations but who, in light of clearly established
law,

could reasonably believe

that

their actions were

lawful.'"

Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d
892,

898

1J During

(4th Cir.

the May

2016)

5,

2016

(quoting Henry v. Purnell,

hearing,

each

party

652 F.3d 524,

confirmed

that

the

determination of whether Defendants violated Plaintiff's constitutional

rights is coterminous with the Court's determination regarding the first
Transcript at 11:16-23,
step of the qualified immunity analysis.
17:17-18:5,

53:24-54:2.

21

531

(4th Cir.

2011)

(en banc)).

This protection "'balances two

important interests—the need to hold public officials accountable
when

they

exercise

power

officials from harassment,

irresponsibly

distraction,

perform their duties reasonably.'"
884 (4th Cir. 2016)

(2009)) .

and

the

Yates v. Terry,

817 F.3d 877,
231

To determine whether an officer is entitled to qualified

non-movant,

constitutional right.

194,

201

"The first step is

taken in the light most favorable

establish

that

the

officer

violated

a

At the second step, courts determine whether

that right was clearly established."
533 U.S.

shield

(quoting Pearson v. Callahan, 555 U.S. 223,

to determine whether the facts,
the

to

and liability when they

immunity, courts engage in a two-step inquiry.

to

need

Id.

(citing Saucier v. Katz,

(2001) ) .

As to the first step of the qualified immunity analysis, in the
present case,

the Complaint alleges that the Newport News Police

Officers violated Plaintiff's constitutional right to be free of
unreasonable seizure accomplished by the use of excessive force.
"The Fourth Amendment bars police officers from using excessive force

to effectuate a seizure."

Yates, 817 F.3d at 884

(citing Jones v.

Buchanan, 325 F.3d 520, 527 (4th Cir. 2003)); see Graham v. Connor,
490 U.S.

386,

395

(1989).

A "claim that law enforcement officials

used excessive force in the course of making an arrest, investigatory

stop, or other 'seizure' of [a] person" is "properly analyzed under
the

Fourth

Amendment's

'objective

22

reasonableness'

standard."

Armstrong,

810 F.3d at 899 (quoting Graham,

officer may employ force,

circumstances,

490 U.S.

at 388).

An

when such force is reasonable under the

in the course

of his

or

her

duty.

Further,

a

reasonable officer may use deadly force "[w]here the officer has

probable cause to believe that [a] suspect poses a threat of serious
physical harm,
Garner,

either to the officer or to others."

471 U.S.

1,

11

Tennessee v.

(1985).

In determining whether force is reasonable, courts are required
to carefully balance "'the nature and quality of the intrusion on
the

individual's

Fourth

Amendment

interests'

against

the

countervailing governmental interests at stake."

Graham, 4 90 U.S.

at

accomplish

396

(quoting

Garner,

471

U.S.

at

8).

To

such

balancing, a court "focus[es] on the facts and circumstances of each
case,

taking into account '[1] the severity of the crime at issue,

[2] whether the suspect poses an immediate threat to the safety of

the officers or others,

and

[3]

whether he is actively resisting

arrest or attempting to evade arrest by flight.'"

Yates, 817 F.3d

at 885 (quoting Graham, 490 U.S. at 396) ; Armstrong, 810 F.3d at 899.
A court must consider the reasonableness of the force employed "'in

full context, with an eye toward the proportionality of the force
in light of all the circumstances.'"

(quoting Waterman v. Batton, 393 F.3d 471, 481 (4th

(4th Cir. 2015)
Cir.

2005)) .

recognized

Smith v. Ray, 781 F.3d 95, 101

The

that

Court

"'police

of

Appeals

officers

23

for

the

Fourth

are

often

Circuit

forced

to

has

make

split-second judgments—in circumstances that are tense, uncertain,
and rapidly evolving-[and] we take care to consider the facts from
the perspective of

a reasonable officer on the

scene,

and avoid

judging the officer's conduct with the 20/20 vision of hindsight.'"
Cooper v. Sheehan, 735 F.3d 153, 158-59 (4th Cir. 2013) (quoting Clem
v.

Corbeau,

284 F.3d 543,

550

(4th Cir.

2002)).

The second step of the qualified immunity analysis—the "clearly

established" prong—is "a test that focuses on the objective legal
reasonableness of an official's acts."
U.S. 800,

819 (1982) .

'sufficiently

clear

Harlow v.

Fitzgerald,

"A clearly established right is one that is

that

every

reasonable

official

would

understood that what he [wa] s doing violates that right. '"
v. Luna,

136 S. Ct.

457

305,

308

(2015)

(per curiam)

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

have

Mullenix

(quoting Reichle

Ordinarily, to determine

whether a right is clearly established in this circuit,

the court

" 'need not look beyond the decisions of the Supreme Court, [the Fourth

Circuit] court of appeals, and the highest court of the state in which
the case arose' to determine whether a reasonable officer would know
that

his

conduct

was

unlawful

in

the

situation

he

confronted."

Yates, 817 F.3d at 887 (quoting Wilson v. Kittoe, 337 F.3d 392, 40203 (4th Cir. 2003)); Edwards v. City of Goldsboro, 178 F.3d 231,
(4th

Cir.

1999).

An

official

violates

a

clearly

251

established

constitutional right when, "'in the light of preexisting law[,] the
unlawfulness' of the actions is apparent."

24

Iko v. Shreve, 535 F.3d

225, 237-38 (4th Cir. 2008) (quoting Anderson v. Creighton, 483 U.S.
635,

640

(1987)).

The

"clearly established"

inquiry

undertaken in light of the specific context of the case,
broad general proposition.'"
(2004)

"'must be
not as a

Brosseau v. Haugen, 543 U.S. 194, 198

(quoting Saucier, 533 U.S. at 201) .

There need not be a case

"directly on point" in order for an officer to know that his or her
conduct

violates

a

clearly

established

right,

"but

existing

precedent must have placed the statutory or constitutional question
beyond debate."

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)

(citing Anderson,
341

483 U.S.

at 640; Malley v. Briggs, 475 U.S.

335,

(1986)) .
III.

As noted above,

DISCUSSION

Plaintiff has alleged that Hollandsworth and

Gibson each engaged in an unreasonable seizure by using excessive
force against Plaintiff,

in violation of the Fourth and Fourteenth

Amendments, during the events that transpired on December 12, 2012.
Both Hollandsworth and Gibson seek summary judgment on Plaintiff's
claim against them,
constitutional

arguing that they did not violate Plaintiff's

rights

and

that

they

are

entitled

to

qualified

immunity.
A. Hollandsworth's Motion for Summary Judgment
Hollandsworth asserts, first, that Plaintiff's excessive force
claim

fails

because,

while

Plaintiff on December 12,

Hollandsworth

2012,

fired

her

weapon

at

her shot did not strike Plaintiff.

25

Thus, as a matter of law, Hollandsworth argues, she did not "seize"

Plaintiff and she cannot be held liable for unreasonable seizure by
means of excessive force.

Second,

Hollandsworth asserts that she

is entitled to qualified immunity because she did not engage in
excessive force during the events that took place on December 12th.
Instead, Hollandsworth argues, she acted based upon a "reasonabl[e]
[perception] that Tinsley was in serious danger."
Hollandsworth's

Mot.

at

11.

Additionally,

excessive force against Plaintiff,

Mem. in Supp. of

even

if

she

used

Hollandsworth asserts that she

is entitled to qualified immunity because she did not violate a
clearly established constitutional right.

In response,

Plaintiff argues that Hollandsworth affected a

seizure of Plaintiff because she "was the first party to fire her

weapon and such triggered the events that led to this incident."
Pi.'s Opp'n to Hollandsworth's Mot. for Summ. J. at 4.

Plaintiff

also argues that qualified immunity is not warranted because, in
light of the "full context" of the incident, "a reasonable officer
would not have believed the conduct was

lawful and would not have

utilized the force employed by Defendant Hollandsworth."

Id. at 9.

The Court will address each of Hollandsworth's arguments in turn.
1.

Unreasonable

Seizure

Hollandsworth first argues that her actions on December 12, 2012

did not constitute a seizure of Plaintiff.

consideration

of

this

issue

by

26

looking

The Court begins its

at

the

definition

of

"seizure."

"[T]he word

'seizure'

[means]

a

'taking possession

[of] ' . . . [and f]or most purposes at common law, the word connoted
not merely grasping, or applying physical force to, the animate or

inanimate

object

physical control."

in

question,

but

actually

bringing

it

within

California v. Hodari P. , 499 U.S. 621, 624 (1991)

(internal citations omitted).

The United States Supreme Court has

recognized two circumstances that may constitute an arrest,
therefore a seizure,

under the Fourth Amendment.

and

Id.

First, the [Supreme Court] concluded that a person is
"seized" if he is touched by a police officer with lawful
authority and purpose to arrest, even if that person is
not
subdued. . . .
Second,
following
[the
Supreme
Court's] decision in Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968), the Court also concluded that a person is "seized"
under the Fourth Amendment upon the submission of that
person to an official "show of authority."

United States v. Letsinger, 93 F.3d 140, 143 (4th Cir. 1996) (citing
Hodari P., 499 U.S. at 626-29).

Where "physical force is absent,

a seizure requires both a 'show of authority' from law enforcement
officers

and

[individual]."

2015)

'submission to

the

assertion

of

authority'

by

the

United States v. Stover, 808 F.3d 991, 995 (4th Cir.

(quoting Hodari D., 499 U.S. at 626).
Applying this standard to a similar set of facts, our Court of

Appeals, in the unpublished decision of Estate of Rodgers ex rel.
Rodgers v.

Smith,

188 F.

App'x 175

(4th Cir.

2006),

rejected an

unreasonable seizure claim against a police officer.

Id. at 180

(citing Hodari P., 499 U.S. at 625-26; Letsinger, 93 F.3d at 143).

27

In Rodgers, a police officer fired his weapon at the plaintiff, who
refused to submit to law enforcement's show of authority, but the
of ficer's shot did not strike the plaintiff .

Id. at 179 .

The Fourth

Circuit held that, because the plaintiff did not submit to lav;
enforcement's show of authority and,

alternatively,

"because the

bullets from [the officer's] weapon never touched [the plaintiff] ,"
the officer did not seize the plaintiff under either circumstance
described above.
1259,

1267,

Id. at 180-81 (citing Carr v. Tatangelo, 338 F.3d

1270-71

(11th

Cir.

2003)).

Similar

to

the

Fourth

Circuit's analysis on this issue, other courts have concluded that

no

seizure

took

place

when a plaintiff

failed

to

submit

to an

officer's show of authority and the officer shot at the plaintiff
and missed.
2014),

aff'd,

See Jones v. Norton, 3 F. Supp. 3d 1170, 1190 (D. Utah
809

F.3d 564

resisted Detective

(10th Cir.

Norton's

bullets missed the target

2015)

("Because Mr.

order and because

(Mr. Murray),

Murray

Detective Norton's

Detective Norton did not

seize Mr. Murray at that point. " (citing James v. Chavez, 830 F. Supp.
2d 1208,

1242-43

(D.N.M. 2011))); James v. Chavez,

830 F. Supp. 2d

1208, 1242-44 (D.N.M. 2011) , aff'd, 511 F. App'x 742 (10th Cir. 2013)

(finding that a seizure did not occur because the officer did not

hit the plaintiff with his bullet and there was no evidence that the
plaintiff had submitted to a show of authority) ; Graham v. Pa. State
Police Lancaster Cty., No. 09-3106, 2009 WL 3682384, at *3 (E.D. Pa.

Nov. 3, 2009)

(unpublished) ("Although a seizure by physical force

28

can occur when a police officer actually shoots a suspect, see, e.g.,
Tennessee v. Garner, 471 U.S. 1, 7 (1985) , firing a shot that misses

a suspect does not constitute a seizure by physical force." (citing
Plaza-Bonilla v. Cortazzo, No. 07-2045, 2009 WL 605909, *4 (E.D. Pa.
March

9,

5250691,

2009);
at *2

Manelski
(E.D.

Pa.

v.

Tinicum Twp. , No.

Dec.

17,

2008)));

07-1487,

Shaw v.

2008

Goodrich,

WL
No.

I:05cv003, 2005 WL 2348473, at *2 (S.D. Ind. Sept. 26, 2005) (listing
cases that have concluded that

"no seizure took place where the

officers' shots neither struck nor stopped the plaintiff" ) ; cf . Carr,
338 F.3d at 1270-71 (explaining that, because the plaintiff was not

shot or physically touched by the officers, his excessive force claim
related to a shooting is based on substantive due process under the
Fourteenth Amendment, rather than the Fourth Amendment' s protections

against unreasonable seizures).
In the present case, there is no dispute that Hollandsworth's
shot did not strike Plaintiff.
demonstrates

that,

at

the

time

Further,

the undisputed evidence

Hollandsworth shot,

Plaintiff was

resisting multiple efforts to show authority by the officers.14

As

-A During the May 5, 2016 hearing, Plaintiff argued that he, in fact, did
submit to the officers' show of authority because he initially complied
with the officers' directions to place his hands where they could see them
and to place his vehicle in park. Transcript at 12:6-13:7.
Relying on
the Fourth Circuit's opinion in United States v. Stover, 808 F.3d 991 (4th
Cir. 2015), Plaintiff argued that the officers made a show of authority
and Plaintiff initially submitted to that show of authority, and thus,

despite his later attempts to resist handcuffing and to drive away, a
seizure was effectuated in this case.

argument, however, is unavailing.

Id.

at 13:11-14:12.

Plaintiff's

The Stover decision does not support

Plaintiff's assertion that the legal implications of his initial compliance

29

such, the Court finds the Rodgers case persuasive, and concludes that
Hollandsworth did not affect an unreasonable seizure of Plaintiff
because Hollandsworth did not seize Plaintiff at all.

Plaintiff attempts to differentiate the present case from the
holding in Rodgers by arguing that Hollandsworth effectively caused
a seizure of Plaintiff because she "was the first party to fire her
weapon and such triggered the events" on December 12th.
Def.

Hollandsworth's

Mot.

for Summ.

J.

at

4.

Plaintiff

Opp'n to
bases

his

argument on the unpublished case of Newsome v. Watson, No. 2:14cv94,
2014 WL 4202480 (E.D. Va. Aug. 22, 2014),

in which the court denied

a motion to dismiss, finding that the plaintiff adequately pled that
the

officer,

effectively

who

caused

did

not

personally

excessive

force

to

employ

be

excessive

exerted

force,

against

the

continue after he stopped complying and began to resist arrest.
Instead,
Stover held that, while it was initially unclear whether the defendant

submitted to the officers' commands, his subsequent disobedience to the
officers'

instructions demonstrated that the defendant did not submit to

the show of police authority and, thus, a seizure was not effectuated until
Stover, 808 F.3d
the individual completely complied with police commands.
at 1000-01.
Further, in Hodari P. , the Supreme Court explained that, even
though an arrest may have been effectuated, it does not mean that, "for
Fourth Amendment purposes [, ] there is a continuing arrest during [a] period
of fugitivity." Hodari P., 499 U.S. at 625(citing Thompson v. Whitman,
85 U.S. 457, 471 (1874) ) . Instead, Hodari P. notes that even if a seizure
was initially effectuated, such seizure does not continue throughout a
subsequent pursuit or resistance.
Id. ; see United States v. Griffin, 652
F.3d 793, 799 (7th Cir. 2011) (rejecting a "seizure-as-a-continuum"
theory) ; Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523,
548 (6th Cir. 2002) ("Hodari P. merely explained that if a suspect flees
after an initial seizure, the seizure does not continue throughout the
subsequent pursuit.").
Therefore, the officers' show of authority and
Plaintiff' s initial show of submission did not effectuate a seizure in this

matter,

because

Plaintiff

subsequently disobeyed

resisted arrest.

30

police

commands

and

plaintiff.

Id. at *5.

However,

the parties in Newsome did not

dispute that a seizure took place,

address whether the officer,
effectuated a seizure.

Id.

and the Newsome court did not

who did not employ excessive force,
at *3.

Thus,

Plaintiff's reliance on

Newsome to argue that a seizure took place in the present case is
misplaced because,

for purposes of the Fourth Amendment analysis,

the only issue that the Newsome court considered was whether the
officers'

conduct

Further,

was

even

if

reasonable.

this

Court

were

to

consider

Plaintiff's

"effective causation" theory, an unpublished opinion from our Court

of Appeals has explained that such theory is "highly dubious in the
excessive force context."

Gandy v. Robey, 520 F. App'x 134, 142 (4th

Cir. 2013) (unpublished).

This is so because, "[a] police of ficer's

pre-seizure conduct, regardless of whether it was ill-advised or
violative of law enforcement protocol, is generally not relevant for

purposes of an excessive force claim under the Fourth Amendment which
looks only to the moment force is used."

Id. (citing Greenidge v.

Ruffin, 927 F.2d 789, 791 (4th Cir. 1991) ) .
Hollandsworth's

shot

did

not

seize

Thus, to the extent that

Plaintiff,

Hollandsworth's

conduct is generally not relevant in determining whether excessive

force was used by other officers.
"effective

causation"

is

not

Therefore, Plaintiff's theory of
sufficient

to

demonstrate

that

Hollandsworth seized Plaintiff on December 12, 2012, much less that
such seizure was unreasonable.

31

2. Qualified Immunity
Alternatively,

seizure,

even

if

Hollandsworth's

conduct

effected

a

the undisputed evidence indicates that Hollandsworth is

entitled to qualified immunity for her use of force.

Hollandsworth

is entitled to qualified immunity, on the first step of the qualified
immunity analysis, because the undisputed evidence demonstrates that
she did not violate a constitutional right of Plaintiff.

second step of the qualified immunity analysis,
entitled

to

qualified

immunity

because,

even

December 12th violated a constitutional right,

As to the

Hollandsworth is

if

her

conduct

on

such right was not

clearly established.
a.

Constitutional

Violation—Excessive

Force

In determining whether an officer's use of force is objectively
reasonable,

the focus

"is on what

the police officer reasonably

perceived at the time that he acted and whether a reasonable officer
armed with the same information, would have had the same perception
and have acted in like fashion."

Supp. 3d 528, 541 (E.D. Va. 2015)

Lee v.

City of Richmond,

100 F.

(citing Rowland v. Perry, 41 F.3d

167, 173 (4th Cir. 1994) ); see Cooper, 735 F. 3d at 158-59 (explaining
that

a

"reasonable

officer"

inquiry

includes

considering

that

"'police officers are often forced to make split-second judgments—in
circumstances

that

are

tense,

uncertain,

(quoting Clem, 284 F. 3d at 550)) .

and

rapidly evolving'"

To determine whether an officer's

use of force is objectively reasonable,

32

a court should consider,

"' [1]

the severity of the crime at issue,

[2]

whether the suspect

poses an immediate threat to the safety of the officers or others,
and

[3]

whether

[a plaintiff]

is actively

attempting to evade arrest by flight.'"15
(quoting Graham,

490

U.S.

at

396).

resisting

arrest

or

Yates, 817 F.3d at 885

Considering

these

factors,

Hollandsworth's conduct was objectively reasonable because another
officer,

armed with the same

information that Hollandsworth had,

would have perceived that Tinsley was in danger and would have acted
to protect Tinsley.

With respect to the first factor, determination of the "severity
of the crime at issue" includes consideration of the possible serious
impending

criminal

activity

that

Hollandsworth

reasonably

perceived, in addition to crimes that have already taken place .*G

See

15 In his Opposition, Plaintiff also argues that the Court should consider
the extent of his injuries in determining whether Hollandsworth's conduct
was reasonable.
Opp'n to Def. Hollandsworth's Mot. for Summ. J. at 8-9.
Plaintiff is correct that our Court of Appeals has found that "the extent

of the plaintiff's injury is also a relevant consideration" in determining
whether excessive force was used.
Jones v. Buchanan, 325 F.3d 520, 527
(4th Cir. 2003) .
However, such consideration is of limited relevance in

the present matter because the Court must determine whether, based on the
circumstances,

Hollandsworth's

constituted excessive

force.

use

of

However,

her

while

firearm

on

Plaintiff's

December

12th

injuries are

severe and would be relevant to a determination of other matters, the extent

of Plaintiff's injuries does not affect the Court's determination of
whether Hollandsworth's use of her weapon was unreasonable because, if the
Court determines that Hollandsworth's use of her weapon was unreasonable,

any injury suffered by Plaintiff would be the result of excessive force.

16 During the May 5, 2016 hearing, the parties agreed that, in considering
the
the
but
the

"severity of the crime at issue," the Court should consider, not only
offenses with which Plaintiff was charged in the federal indictment,
also the criminal activity which the officers reasonably perceived at
time they shot.
Transcript at 54:15-55:20, 103:12-104:11.

33

Anderson v. Russell, 247 F.3d 125, 132 (4th Cir. 2001)

(finding that

an officer's decision to shoot was reasonable because the "crime at

issue"

was not

limited to the

"possible violation of Maryland's

concealed weapons law," but included the officer's concern that the
individual intended "to use the concealed weapon in a way that would

put himself, the mall patrons, or other citizens in jeopardy") .

On

December

an

12th,

the

officers

sought

to

arrest

Plaintiff

outstanding federal warrant for drug and weapon charges.
arrest,

Plaintiff disobeyed the officers'

on

During the

instructions,

resisted

arrest, and reached for, what Hollandsworth thought to be, a weapon
to use

to escape

arrest.

Hollandsworth believed,

previous interactions with Plaintiff,

based on her

and having previously found

a firearm in rooms under Plaintiff's control, as well as Plaintiff's

active

resistance

Further,

to

arrest,

that Plaintiff

possessed a weapon.

as Plaintiff was struggling with Tinsley to avoid being

handcuffed,

Hollandsworth believed that Plaintiff intended to use

a concealed weapon to harm Tinsley.

Thus, the "crime[s] at issue"

in this matter are severe and include Plaintiff's outstanding drug

and weapon charges,
to arrest,

any charges related to Plaintiff's resistance

and potential charges for the harm that Hollandsworth

perceived that Plaintiff would cause to Tinsley.
With respect to the second factor,

whether the suspect poses

an immediate threat to the safety of the officers or others, Plaintiff

argues that Hollandsworth's belief that he posed an immediate threat

34

to Tinsley's safety is unreasonable because he did not possess a
firearm and,

thus,

Hollandsworth's
however,

could

Mot.

for

not

have

Summ.

J.

shot
at

anyone.

8.

Opp'n

Plaintiff's

to

Def.

argument,

is unavailing because Hollandsworth reasonably perceived

that Plaintiff was reaching for a firearm and that,
a firearm,

if he obtained

he posed an immediate threat to Tinsley's safety.

Our

Court of Appeals has held that, when faced with a threat of serious
physical harm,

either to the officer or to others,

"an officer is

not required to see an object in the suspect's hand before using
deadly force."

Anderson, 247 F.3d at 131.

Instead, an officer may

use such force if it is based on the perception that an individual
is armed and presents a threat of serious physical harm, even if the
belief that the individual is armed is mistaken.

See id.

(finding

that an officer acted reasonably in firing on an individual as a

protective measure when the officer believed the individual to be
reaching for a weapon in his waistband,

even when such belief was

mistaken).

the

In

the

present

case,

undisputed

evidence

demonstrates that seconds before Hollandsworth fired her weapon, she

observed Tinsley struggling to gain control of Plaintiff's hands and
she saw Plaintiff reach in a direction away from Tinsley and down

towards the floorboards of his vehicle.

Although Hollandsworth did

not see a weapon in Plaintiff's possession, she knew of Plaintiff's
prior gun possession, and drug and weapon charges, and feared that
Plaintiff

was

reaching

for

a

firearm.

35

Further,

Hollandsworth

perceived that, should Plaintiff succeed in any attempt to pick up
a firearm, Tinsley was in danger of serious harm.

Thus, even though

Hollandsworth was mistaken in her belief that Plaintiff had a firearm

during the events on December 12,

2012,

Hollandsworth had sound

reasons for her perception that Plaintiff posed an immediate threat
to Tinsley's safety at the time she shot.
Finally, with respect to the third factor, whether a plaintiff
is actively resisting arrest or attempting to evade arrest by flight,
Plaintiff argues that Hollandsworth's perception that he resisted
arrest is unreasonable because, based on Cowles v. Peterson,

344 F.

Supp. 2d 472 (E.D. Va. 2004) , the officers caused Plaintiff to resist
arrest by "refusing to provide him with information as to v/hy he was
being stopped and handcuffed."

Opp'n to Def. Hollandsworth's Mot.

for Summ. J. at 8; Transcript at 26:19-27:24.

The Cowles decision

is factually distinct from the instant case, and Plaintiff's argument
is not supported by the evidence.

The Cowles court determined that,

considering the totality of the circumstances, the officer's use of
force against a non-compliant plaintiff was not reasonable because,
prior to the plaintiff's attempted flight or resistance, the officer
used excessive force by striking the plaintiff on the forehead twice
with a can of mace, which arguably prompted the plaintiff's flight.
Cowles, 344 F. Supp. 2d at 482-83.

Conversely, in the present case,

the officers did not employ, and Plaintiff does not assert that the

officers employed, excessive force before he began to resist arrest.

36

Plaintiff has admitted that he understood that he was being pulled
over by police officers at the time of his interaction with Tinsley.
When Tinsley attempted to place handcuffs on Plaintiff,

Plaintiff

stated that he "snatched" his hands back and turned away from Tinsley
before asking any questions of the officers.
to

struggle

with

Tinsley,

and

to

resist

Plaintiff continued

Tinsley's

attempts

to

handcuff him, even after Tinsley told Plaintiff to "stop reaching."
Additionally,

Plaintiff does not assert an excessive force claim

against Tinsley,

preceded

or any other officer,

Hollandsworth's

demonstrated

that

shot. 17

Tinsley,

resistance to arrest.

or

based on the

Thus,

another

events that

Plaintiff

officer,

has

not

instigated

his

Moreover, Hollandsworth reasonably perceived

that Plaintiff was actively resisting arrest at the time she shot.

Therefore,
Plaintiff.

Hollandsworth did not use excessive force against
Considering

Hollandsworth's

conduct

was

the

factors

discussed

objectively

reasonable

in

Yates,

because

she

perceived that Plaintiff, while actively resisting arrest, reached
for a weapon, intending to harm Tinsley.

Another officer, armed with

the same information that Hollandsworth had,

would have perceived

that Tinsley was in danger and would have acted similarly to protect
Tinsley.

17 During the May 5, 2016 hearing, Plaintiff's counsel confirmed that the
only activities that Plaintiff alleges constitute excessive force in this
matter are the shots fired by Hollandsworth and Gibson.
Transcript at
32:17-33:9,

105:19-24.

37

b.

Clearly Established

Further, even if Hollandsworth used excessive force, she would

still be entitled to qualified immunity because she did not violate
a clearly established constitutional right.

As noted above,

"[a]

clearly established right is one that is 'sufficiently clear that
every reasonable official would have understood that what he [wa] s

doing violates that right.'"

Mullenix,

136 S. Ct. at 308

(2015).

The "'salient question'"

in determining whether a rule is clearly

established

the

incident

"'is

whether

provided

'fair

state

warning'

of

to

the

the

alleged [conduct] was unconstitutional.'"
Ct.

1861,

1866

(2014)

(quoting Hope v.

law'

at

the

defendants

time

'that

of

an

their

Tolan v. Cotton, 134 S.

Pelzer,

536 U.S.

730,

741

(2002)) .

At the time of the events in question, the state of the law did
not provide Hollandsworth with fair warning that her conduct was
unconstitutional.

Instead, at the time of the incident,

the state

of the law made allowances for officers like Hollandsworth, who made

a split-second decision to fire her weapon, believing that a fellow
officer was in danger.
Before employing deadly force, police must have sound
reason to believe that the suspect poses a serious threat
to their safety or the safety of others. Officers need not
be absolutely sure, however, of the nature of the threat
or
the
suspect's
intent
to
cause
them
harm—the
Constitution does not require that certitude precede the
act of self protection.

Elliott v. Leavitt, 99 F.3d 640, 644 (4th Cir. 1996).

Further, even

though Hollandsworth was mistaken as to the presence of a gun and
the corresponding extent of the threat posed by Plaintiff, our Court
of Appeals has held that an officer's actions are reasonable when
such officer fires a weapon based on a well-founded, though mistaken,

belief that a suspect is reaching for a gun.

See Anderson, 247 F.3d

at 132 (citing Elliott, 99 F.3d at 644; Reese v. Anderson,

926 F.2d

494, 501 (5th Cir. 1991) ) ; McLenaganv. Karnes, 27 F.3d 1002, 1007-08
(4th Cir. 1994)

("We will not second-guess the split-second judgment

of a trained police officer merely because that judgment turns out
to be mistaken, particularly where inaction could have resulted in
death

or

serious

injury

to

the

officer

and

others.").

Thus,

Hollandsworth did not violate a clearly established constitutional

right when she fired her weapon at Plaintiff.
Therefore, as an alternative holding to the Court's ruling that
Hollandsworth did not

seize

Plaintiff,

the

Court

also

finds

that

Hollandsworth is entitled to qualified immunity for her conduct on
December 12, 2012 because she did not violate a clearly established

constitutional right.

As such, Hollandsworth's Motion for Summary

Judgment is GRANTED on two separate grounds and she is DISMISSED from
this

action.

B.

Gibson's Motion for Summary Judgment

Similar to Hollandsworth, Gibson asserts that the Court should

grant summary judgment on Plaintiff's excessive force claim against

39

him because he is entitled to qualified immunity.
the first step of the qualified immunity analysis,

With respect to
Gibson asserts

that, while his shots struck Plaintiff, he did not engage in excessive
force

during

the

events

that

took

place

on December

12,

2012.

Instead, Gibson argues, he shot at Plaintiff based on a reasonable

perception that

"Tinsley appeared . . . to be in danger of being

dragged, crushed, or run over by Moody' s car as he attempted to flee."
Mem. in Supp. of Gibson Mot. at 13.

With respect to the second step

of the qualified immunity analysis, Gibson asserts that, even if he
used excessive force, he is entitled to qualified immunity because
he did not violate a clearly established constitutional right.
In response, Plaintiff argues that Gibson used excessive force
because he began to fire his weapon before Plaintiff began "driving
away,
not

[and] his perception that Officer Tinsley was being drug was

reasonable

Gibson's Mot.

as

the

for Summ.

vehicle

was

J. at 7.

not

moving."

Further,

Opp'n

to

Def.

Plaintiff argues that

qualified immunity is not warranted in this matter because, in light

of the "totality of circumstances and information available to and
perceived by Defendant Gibson, a reasonable officer would not have
believe [d] that his conduct in using deadly force was lawful

Id. at 11.

. . . ."

The Court will address each step of the qualified immunity

analysis in turn.

40

1.

Constitutional Violation-Excessive

To determine

whether an officer's

Force

actions

are objectively

reasonable, "[t]he focus, of course, is on what the police officer
reasonably

perceived

at

the

time

that

he

acted

reasonable officer armed with the same information,

and

with

respect

to

Hollandsworth,

it

must

be

a

would have had

the same perception and have acted in like fashion."
Supp. 3d at 541 (citing Rowland, 41 F.3dat 173) .

whether

Lee, 100 F.

Just as noted above

remembered

that,

in

determining whether an officer acted in an objectively reasonable
fashion,

a court should consider,

at issue,

[2]

"'[1]

the severity of the crime

whether the suspect poses an immediate threat to the

safety of the officers or others, and

[3]

whether he is actively

resisting arrest or attempting to evade arrest by flight. ",1
817F.3dat885 (quoting Graham, 490 U.S. at 396) .

Yates,

Considering these

factors, Gibson's conduct was objectively reasonable because another
officer, armed with the same information that Gibson had, would have

perceived that Plaintiff intended and attempted to flee arrest in
a manner that placed Tinsley in imminent danger.

13 Plaintiff also argues that the Court should consider the extent of his
injuries in determining whether Gibson's conduct was reasonable.
Opp'n
to

Def.

Gibson's

Mot.

for

Summ.

J.

at

11.

As

discussed

above,

such

consideration is of limited relevance in the present matter.
See supra
n.15.
As such, the Court will not consider the seriousness of Plaintiff's

injuries in its determination of whether Gibson's conduct was reasonable.

41

a. Severity of the Crime at Issue

With respect to the first factor,
issue" weighs in Gibson's favor.

"severity of

the crime at

As discussed above, consideration

of the "crime at issue" includes consideration of pending criminal
charges and possible impending criminal activity,

Gibson, even though it had not yet occurred.19
at 132; supra sect. III.A.2.a.

as perceived by

See Anderson, 247 F. 3d

On December 12th, the officers sought

to arrest Plaintiff on an outstanding federal warrant for drug and
weapon

charges.

officers'

During

instructions

the

and

arrest,

resisted

Plaintiff
arrest.

disobeyed

Gibson

the

observed

Plaintiff move to place his vehicle in gear and Tinsley go "forward
and downward," along the side of Plaintiff's vehicle, causing Gibson
to reasonably believe that Tinsley was in danger of being run over
or dragged due to Plaintiff's imminent flight.
at

issue"

in

this

matter

outstanding

drug

and

Plaintiff's

resistance

are

weapon

Thus, the "crime[s]

severe

and

include

Plaintiff's

charges,

any

charges

related

to arrest,

and potential

charges

to

for the

imminent harm that Gibson perceived that Plaintiff would cause to
Tinsley.
b.
As

to

the

Immediate Threat to Safety

second factor,

Plaintiff argues,

first,

Plaintiff

presents

two arguments.

that there is a dispute of material fact

"' See supra n.16.

42

regarding

the

immediate

threat

posed

by

Plaintiff.

Second,

Plaintiff argues, Gibson's perception that Tinsley was in danger was
unreasonable.

The Court disagrees with Plaintiff's assessment on

both grounds.

With

respect

to Plaintiff's

first

argument

regarding

this

factor, Plaintiff relies on the unpublished cases of Lowery v. City
of South Boston, No. 92-0004, 1993 WL 597439 (W.D. Va. Oct. 15, 1992)

and Nolan v. Grim, No. 5:09cv39, 2010 WL 4929658 (W.D. Va. Nov. 30,
2010),

to argue that the Court cannot resolve Gibson's Motion for

Summary Judgment because the parties' versions of the facts are too

divergent.

The Court acknowledges that certain facts,

Gibson's conduct and perceptions,
However,

such disputes

are

not

related to

are in dispute in this matter.

material

because

the

undisputed

evidence, considered in the light most favorable to Plaintiff

this

Court

reasonable.
in

this

must),

demonstrates

that

Gibson's

perceptions

(as

were

Thus, unlike Lowery and Nolan, the undisputed evidence

matter

alone

is

sufficient

to

demonstrate

that

Gibson

reasonably perceived that Plaintiff posed an immediate threat to
Tinsley's safety.
Plaintiff's second argument is that Gibson's perception that
Plaintiff

posed

an

immediate

unreasonable because (1)

threat

to

Tinsley's

safety

was

Plaintiff did not drive away until after

he heard the first gunshot, and (2) Gibson did not see Tinsley inside
the passenger compartment of Plaintiff's vehicle.

43

Opp'n to Def.

Gibson's Mot. for Summ. J. at 10.
Tinsley could not have

Essentially, Plaintiff argues that

fallen or been dragged due

movement because the car was not yet moving.

to

the

car's

Such argument, however,

does not undermine the reasonableness of Gibson's perception that
Tinsley was in danger; it merely calls into question the mechanism

by which Gibson observed Tinsley "going forward and downward" (i.e.
the car's movement).
these facts.

The cause of Tinsley's fall is immaterial on

The fall could have been caused by the ongoing melee

of the arrest, or Tinsley tripping, or slipping on the overpass.

The

undisputed evidence demonstrates that (1) Tinsley's "body broke the
threshold

[of Plaintiff's vehicle]

[Plaintiff's] arm . . . ."
53:5-13;

(2)

to go in and take control of

Gibson Depo. at 42:2-11; Moody Depo. at

while Tinsley was attempting

to

control Plaintiff,

Plaintiff released the emergency brake on his vehicle; (3) Plaintiff
then moved his hand to the gearshift, intending to place his vehicle

into gear; (4) almost simultaneously, Gibson observed Tinsley "going
forward and downward," Gibson Depo. at 43:25-44:4, and believed that

Tinsley "was somewhere near the lower half of

the door,"

id. at

45:7-16.

Gibson perceived that Tinsley was in danger because he

observed,

nearly simultaneously,

that

Plaintiff was

putting his

vehicle in gear to flee and that Tinsley had fallen near the wheels
of Plaintiff's vehicle.

Any reasonable officer would have perceived

that Plaintiff's flight posed an immediate threat of harm or serious

injury to Tinsley, who was falling near the wheels of the vehicle,

44

regardless of whether Plaintiff's vehicle had begun to move or was

about to move.20

Thus,

even presuming that,

when Gibson shot,

Plaintiff's vehicle had not yet moved forward and Tinsley was not
inside Plaintiff's vehicle, Gibson had sound reasons to believe that

Plaintiff posed an immediate threat to Tinsley's safety.
Similar to this Court's analysis on this issue,

other courts

have determined that an officer acted reasonably when, upon observing
indicia of an individual's imminent flight and believing that such
flight would place another officer in danger,
the individual to prevent flight.
v. Oakes, 493 F. Supp. 2d 776

such officer shot at

For example, in the case of Willis

(W.D. Va. 2007), the court held that,

while the parties disputed whether the vehicle at issue had begun
to move at the time the officer shot and the extent to which another

officer was in danger of being harmed due to the movement of the
vehicle,

the shooting officer acted in an objectively reasonable

fashion when he shot to protect the other officer.

Id. at 783.

The

Willis court determined that, based upon the undisputed evidence that

(1) plaintiff had jumped into his vehicle,

(2) put the key into the

20 As Gibson's counsel persuasively explained during the May 5,
hearing,

2016

"no officer can have perfect knowledge as to why Tinsley [was]

going down on the other side.
It would be impossible for an officer in
Gibson's position to be able to observe all facets of what was happening
on

the other side of

the vehicle."

Transcript at

111:19-24.

However,

based solely on Plaintiff's view of the facts, Gibson reasonably perceived
that Plaintiff posed an immediate threat to Tinsley' s safety because "the

emergency brake was being dropped down, the car was being taken out of park
and into gear and that [the vehicle] was about to move forward . . . and
Tinsley going down."
Id. at 111:16-112:20.

45

ignition,

(3)

had

shifted

the

vehicle

into

drive,

and

(4)

was

struggling with another officer at the driver's side window of the

vehicle, the shooting officer was entitled to qualified immunity
because "it was still objectively reasonable for [the officer]

to

believe that [the other officer] and other persons were in danger."
Id. (citing Elliott,
Ruth,

99 F.3d at 641).

222 F. Supp. 2d 753

Additionally,

in Dorsey v.

(D. Md. 2002), the court determined that

an officer acted reasonably by shooting to stop the plaintiff, after
observing the plaintiff take steps to place his vehicle in reverse
and to accelerate in reverse towards another officer.

see also Tolliver v. City of Chicago,
WL

1425865,

at

*7-8

(7th Cir.

Apr.

F.3d
12,

Id. at 756-57;

, No. 15-1924, 2016

2016) (finding qualified

immunity applied to officers who shot at an initially motionless
vehicle that began moving forward while the officers were shooting,
because

" [r]easonable officers

in their circumstances would have

perceived the car as a deadly weapon that created a threat of serious

physical harm.

. . . Moreover,

the officers had no way of knowing

whether [the plaintiff] would accelerate, shortening the space and
time to react") ; Cass v. City of Dayton, 770 F.3d 368, 375 (6th Cir.

2014)

(finding that "[a]n officer is justified in using deadly force

against

'a driver who objectively appears ready to drive into an

officer or

bystander with his

car' "

(quoting Hermiz

v.

City of

Southfield, 484 F. App'x. 13, 16 (6th Cir. 2012) )) ; demons v. Knight,
No.

8:14cvl376,

2015 WL 7430032,

46

at *2

(M.D.

Fla.

Nov.

20,

2015)

(unpublished)

(finding

that

reasonable when the officer,

an

officer's

use

of

a

weapon

was

who was located three to five feet in

front of plaintiff's vehicle, observed the non-complaint plaintiff
put his vehicle in drive and begin to accelerate towards him) ; Beasley
v. Piekutowski, No. 4:02-CV-00823, 2005 WL 1463485, at *7 (E.D. Mo.

June 21,

2005)

(unpublished) (finding that an officer's use of

a

weapon was reasonable when the officer, located approximately five

feet in front of the plaintiff's vehicle,

saw the non-compliant

plaintiff look directly at him and reach down to place the vehicle

in gear).
version of

Therefore, even if the Court relies solely on Plaintiff's
the

facts

in the record,

Gibson had

sound reasons

to

believe that Plaintiff posed an immediate threat to Tinsley' s safety,
because of Gibson's observation that Plaintiff was moving to place

his vehicle into gear, and that almost simultaneously, Tinsley fell
"forward and downward" alongside the vehicle.
c. Actively Resisting or Attempting to Evade Arrest
Finally, with respect to the third factor of the test outlined

in Yates, Plaintiff argues that his resistance and attempted flight
"was a result of the officers refusing to provide him with information
as to why he was being stopped and handcuffed.""
Gibson's Mot. for Summ. J. at 10.

As discussed above,

Opp'n to Def.
Plaintiff has

21 Plaintiff again cites Cowles v. Peterson, 344 F. Supp. 2d 472 (E.D. Va.
2004), in support of his argument that the officers' actions caused him
to resist arrest.

However, as discussed previously, the Cowles case does

not support Plaintiff's argument because it is factually inapposite.
supra sect.

III.A.2.a

47

See

not demonstrated that the officers'

attempts to arrest Plaintiff

instigated Plaintiff's resistance or attempted flight.

Plaintiff

understood

that

he

was

being

pulled

over

Instead,

by

police

officers, and he pulled his hands away from Tinsley before asking
any questions of the officers.

As Tinsley attempted to take control

of Plaintiff's hands, Gibson observed Plaintiff lower the emergency
brake on his vehicle and attempt to shift his vehicle into gear,

intending to drive away from the officers.
perceived

that

Plaintiff

was

Thus, Gibson reasonably

actively

resisting

arrest

and

attempting to flee at the time Gibson shot.

Therefore, Gibson did not engage in an unreasonable seizure by
means of excessive force against Plaintiff.
evidence

in

Plaintiff

the

record,

was

simultaneously,

Gibson

resisting

Plaintiff

acted

arrest,

move

to

Based on the undisputed

reasonably
Gibson

place

because,

observed,

his

vehicle

while
almost

in

gear,

intending to drive away, and Tinsley going "forward and downward."
2. Clearly Established Law

Alternatively, even if Gibson did use excessive force, he would
still be entitled to qualified immunity because he did not violate
a clearly established constitutional right.
"'salient

question'"

established

"'is

in

whether

incident provided

determining
the

state

'fair warning'

of

to

whether
the

the

alleged [conduct] was unconstitutional.'"

48

As discussed above, the

law'

a

rule
at

the

defendants

is

clearly

time

'that

of

an

their

Tolan, 134 S. Ct. at 1866

(quoting Hope,

question,

536

U.S.

at

741).

At

the

time of

the events

in

the state of the law did not provide Gibson with "fair

warning" that his conduct violated a constitutional rule.
Plaintiff has not demonstrated, and the Court cannot find, that
there is a pertinent, clearly established rule prohibiting an officer
from shooting at a criminal suspect with an outstanding warrant, who

is resisting arrest when such officer observes indicia of flight and
perceives an imminent threat to another officer due to such flight.
Instead, the Supreme Court has recognized in an analogous case that

a constitutional right prohibiting an officer from "shoot[ing]

a

disturbed felon, [221 set on avoiding capture through vehicular flight,
when persons in the immediate area are at risk from that flight" was
not clearly established, and such conduct falls within the "'hazy
border

between

excessive

and

acceptable

force.'"

Brosseau

v.

Haugen, 543 U.S. 194, 198-200 (2004) (per curiam) (quoting Saucier,
533 U.S. at 206) ) .

Further, our Court of Appeals has recognized that

an officer, making a split-second decision to fire his weapon at an
individual, believing that a fellow officer was in danger of being
harmed

due

to

that

individual's

attempt

to

drive

reasonably and does not violate the Fourth Amendment.

away,

acts

See Waterman

22 While the Supreme Court uses the phrase "disturbed felon, " the Court notes
that the factual circumstances of the case make clear that the plaintiff
did not suffer from an actual mental or physical disability.
Instead, such

word is used to signal Defendant's apparent distress and desperation to
flee. See Haugen v. Brosseau, 339 F.3d 857, 880 (9th Cir. 2003) (Gould,
J., dissenting) (noting that the plaintiff was "a desperate man taking
desperate measures").

49

v. Batton, 393 F.3d 471, 478 (4th Cir. 2005)

(finding that officers,

making a split-second determination that the suspect was using his
vehicle as a weapon, acted reasonably in using their weapons and had
probable cause to believe that plaintiff's oncoming vehicle posed
an immediate threat of serious physical harm to themselves and other
officers) ; Pittman v. Nelms, 87 F.3d 116, 120 (4th Cir. 1996) (finding
no

Fourth

Amendment

violation

when

an

officer,

uncertain, and rapidly evolving" situation,

in

a

"tense,

shot at an individual

driving away when he reasonably believed that such flight placed
another officer in serious danger (citing Drewitt v. Pratt, 999 F.2d

774, 779-80 (4th Cir. 1993))) .23

Further, our Court of Appeals has

stated that:

23 In his Opposition, Plaintiff attempts to distinguish the present case
from Pittman v. Nelms, 87 F.3d 116 (4th Cir. 1996) . Plaintiff argues that
Gibson's reliance on Pittman is misplaced, because the Pittman plaintiff

was engaged in an extended flight from the police prior to shots being fired.
Thus, Plaintiff argues, while the officer in Pittman was found to have

qualified immunity for his shots, the case is inapplicable to the present
matter because the officer in Pittman had additional reasons to support

his firearm use against the plaintiff.
While Plaintiff is correct that
the officer in Pittman had more background knowledge than Gibson did in
the instant case, at the moment the officers shot, both Gibson and the
officer in Pittman faced very similar circumstances.
In Pittman, the
officer observed the plaintiff begin to drive away, and he saw another
officer in the path of the plaintiff's flight. Believing that the other
officer was in danger, the officer shot at the plaintiff as he drove away.
Based on the officer's perception that another officer was in danger, the
Fourth Circuit determined that the shooting officer's conduct was
reasonable and he was entitled to qualified immunity.
Thus, Pittman is

applicable to the case at bar as it reflects the state of the law in existence
at the time that Gibson shot.

Further, Pittman, as a published case in

the Fourth Circuit, provides relevant precedent that Gibson could rely on
to give him "fair warning" of what conduct might be allowed or prohibited
under

the Fourth Amendment.

50

[N]o court can expect any human being to remain passive
in the face of an active threat .... Before employing
deadly force, police must have sound reason to believe that

the suspect poses a serious threat to their safety or the
safety of others. Officers need not be absolutely sure,
however, of the nature of the threat or the suspect's
intent

to

cause

them

harm—the

Constitution

does

not

require that certitude precede the act of self protection.
Elliott,

99 F.3d at 644.

force against Plaintiff,

Thus,

even if Gibson had used excessive

he did not violate a clearly established

constitutional right of Plaintiff.
Therefore, as an alternative holding to the Court' s finding that
Gibson is entitled to qualified immunity because he did not use
excessive

force

against

Plaintiff,

Gibson

is

also

entitled

to

qualified immunity because he did not violate a clearly established
constitutional right of Plaintiff.

As such,

Gibson's Motion for

Summary Judgment is GRANTED on both prongs of the qualified immunity
analysis and he is DISMISSED from this action.
IV.

CONCLUSION

The events that took place on December 12, 2012 were devastating

and tragic, and the Court recognizes that Plaintiff's injuries have
drastically altered his way of life.

However, the state of the law

regarding the issues presented is clear,
Defendants'

For

and the Court must grant

motions.

the

reasons

discussed

above,

Defendant

Hollandsworth's

Motion for Summary Judgment, ECF No. 59, is GRANTED, and Defendant
Gibson's Motion for Summary Judgment,

51

ECF No. 62, is GRANTED.

As

a result of the Court's rulings in these matters,

both Defendants

Hollandsworth and Gibson are DISMISSED from the present action.
The Clerk is REQUESTED to send a copy of this Opinion and Order
to all

IT

counsel

IS

SO

of

record.

ORDERED.

m&

/S/
Mark
UNITED

Norfolk, Virginia

June IG , 2016

.

52

STATES

S.

Davis

DISTRICT

JUDGE