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UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
JULIE MARTIN, et al.,
Defendant-Appellant,
v. DOUG DISHONG, et al.,
Defendants-Appellees,
No. 02-1173, No. 02-1193
57 Fed. Appx. 153
December 5, 2002,
Argued
January 30, 2003, Decided
NOTICE: RULES OF THE FOURTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PER CURIAM:
Doug
Dishong appeals an order of the district court denying his motion for summary
judgment on grounds of qualified immunity. We affirm. n1
I.
On review of the grant or denial of a motion for summary
judgment, we view the evidence in the light most favorable to the nonmoving
party. See Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 684 (4th Cir. 2000).
Furthermore, because this is an interlocutory appeal from the denial of summary
judgment and the order appealed from set forth the relevant facts, we must
accept the facts as described in that order rather than conducting an
independent review of the evidence. See
Gray-Hopkins v. Prince George's County , 309 F.3d 224, 229-30 (4th Cir.
2002).
As the
district court explained, this case arises from the fatal shooting of Matthew
Martin in April 2000. Before the shooting, a deputy sheriff in Georgetown
County, South Carolina, observed Martin in a place that made her suspect he was
planning to dump trash illegally. When she approached to investigate, Martin
fled in his truck. A second deputy saw Martin about fifteen minutes later and
began pursuing him. This vehicle chase culminated at an intersection where
Dishong and another deputy had set up a roadblock.
The deputies assert that when
Martin reached the roadblock, he rammed Dishong's vehicle, backed up, collided
with the vehicle again, backed up a second time, and then drove forward toward
Dishong's vehicle once more. By contrast, Martin's wife (Plaintiff) alleges
that Martin collided with Dishong's
vehicle accidentally and then tried to turn away from the roadblock. It is
undisputed that Dishong fired several shots at Martin during these events, that
the other two deputies fired at his tires, and that a shot fired by Dishong
caused Martin's death.
[*155] The
parties offered conflicting evidence concerning the relative positions of
Dishong and Martin at the moment when Dishong fired the fatal shot. Evidence
presented by the defense placed Dishong next to his vehicle and in the path of
Martin's on-coming truck. By contrast, Plaintiff offered evidence indicating
that Dishong was safely inside his vehicle as Martin came toward it. Another
scenario supported by Plaintiff's evidence placed Dishong behind his vehicle
while Martin was attempting to drive away from the intersection.
Plaintiff
sued Dishong under 42 U.S.C.A. § 1983 (West Supp. 2002), alleging that he
employed deadly force without justification. n2 On summary judgment, the
district court ruled that Dishong was not entitled to qualified immunity
because constitutional limitations on the use of force were clearly established
at the time of the shooting and a reasonable jury could find that Dishong
breached those limits by shooting at Martin without any reasonable fear that he
was in danger. Dishong noted an immediate appeal from this order. See Mitchell
v. Forsyth, 472 U.S. 511, 530, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985).
II.
The use of
deadly force against a fleeing suspect constitutes a seizure under the Fourth
Amendment. See Tennessee v. Garner, 471 U.S. 1, 7, 85 L.
Ed. 2d 1, 105 S. Ct. 1694 (1985); see also
Graham v. Connor, 490 U.S. 386, 395, 104 L. Ed. 2d 443, 109 S. Ct. 1865
(1989) (holding that the Fourth Amendment
governs all claims alleging excessive force by law officers attempting to
effect an arrest). The use of deadly force is permissible only when "it is
necessary to prevent the [suspect's] escape and the officer has probable cause
to believe that the suspect poses a significant threat of death or serious
physical injury to the officer or others." Garner, 471 U.S. at 3.
Expounding on this rule, the Supreme Court said, "If the suspect threatens the officer with a weapon or there
is probable cause to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical harm, deadly force may
be used if necessary to prevent escape . . . ." Id. at 11.
Garner thus approves the use of deadly force by a police
officer against a fleeing suspect if the suspect (1) poses a threat to the
officer, (2) poses a threat to others, or (3) has committed a serious violent
crime. Dishong claims that the third
condition is met here because Martin's attempt to ram Dishong with his truck
amounted to a potentially lethal assault; thus, Dishong was justified in using
deadly force to prevent Martin's escape even if Martin was driving away from
the roadblock when the fatal shot was fired. During summary judgment
proceedings, however, Dishong emphasized the first Garner condition, claiming
that deadly force was warranted because he was in imminent peril at the moment
he fired the fatal shot. This was the only component of Garner discussed by the
district court, and it is consequently the only aspect of Garner we will
address. n3
With our
focus narrowed in this manner, we uphold the decision of the district court. As
that court detailed in its order, the evidence in the summary judgment record
would support different conclusions, depending on which evidence was believed
[*156] by the trier of fact. One possible conclusion -- that Dishong was standing
outside his vehicle and Martin was driving directly toward him at the moment
the fatal shot was fired -- would support Dishong's assertion that he used
deadly force to protect himself. But this assertion fails under other scenarios
supported by other evidence, in which Dishong was safely inside or behind his
vehicle. The district court correctly concluded that this dispute of fact
precludes the entry of summary judgment based on the assertion that Dishong
reasonably feared for his own safety when he fired the shot that killed Martin.
See Fed. R. Civ. P. 56(c) (stating that summary judgment is appropriate if
"there is no genuine issue as to any material fact").
III.
For the reasons stated above, we affirm the decision of the
district court denying Dishong's motion for summary judgment.
AFFIRMED
FOOTNOTES:
n1
Dishong's appeal (Case No. 02-1173) was consolidated with an appeal from the
grant of summary judgment in favor of another Defendant (Case No. 02-1193). We
dismiss the latter appeal for lack of jurisdiction. See Baird v. Palmer, 114 F.3d 39, 42-43 (4th
Cir. 1997).
n2
Plaintiff's complaint named three other Defendants in addition to Dishong. Two
were voluntarily dismissed from the suit; the third, Sheriff A. Lane Cribb,
prevailed on his motion for summary judgment. Plaintiff appealed from the
judgment in favor of Cribb, but that appeal has been dismissed. See supra note
1.
n3 We do
not decide whether Dishong is entitled to summary judgment on the basis
advanced here -- that he was preventing the escape of a dangerous criminal --
or on the ground that Martin's flight would have posed a danger to others.