Copson v. Hephner

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

BETH COPSON, as Administratrix of

the Estate of KYLE ANDREW COPSON,

deceased,

Plaintiff,

v. CIVIL ACTION NO. 1:19-00127

PATRICK M. HEPHNER, individually

as a member of the West Virginia

State Police, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is defendants’ motion for summary

judgment. See ECF No. 54. Plaintiff filed a response in

opposition to defendant’s motion and defendants filed a reply.

See ECF Nos. 57 and 62. After the pretrial conference and with

the permission of the court, the parties filed supplemental

briefs. See ECF Nos. 78 and 79. For the reasons discussed

below, defendants’ motion is GRANTED.

I. Background

At approximately 3:40 p.m., on February 22, 2017, Mercer

County 911 received a call that a “male [was] walking around

carrying approximately a 6 inch knife like a bowie knife” near

the Exxon on Ambrose Lane in Princeton, West Virginia. ECF No.

54-15 (Exhibit O to Defendants’ Motion for Summary Judgment).

Randy Lurie, who was in the vicinity at the time, testified at

his deposition that, upon pulling into the One Stop gas station

in Princeton, he was approached by a man in a car who asked if he

could use Lurie’s phone. See Deposition of Randy Lurie, February

20, 2020, at 9 (hereinafter “Lurie Depo. at ___”) (Exhibit N to

Defendants’ Motion for Summary Judgment) (ECF No. 54-14).

According to Lurie, the man “said that he saw a gentleman walking

around in a jumpsuit with a knife, . . . agitated, walking back

and forth” Id. The man “wanted to call the police and have them

come over and check it out.” Id. at 9-10. Lurie testified that

either he or the other man called 911 using Lurie’s phone. See

id. at 10.1

West Virginia State Police Troopers Patrick M. Hephner and

James C. Long (collectively “the officers”) responded to the 911

call. Hephner and Long approached the man, who was later

identified as Kyle Andrew Copson. Copson continued to behave

erratically, waving the knife and talking to himself, and walked

away from Hephner and Long. Copson led the officers through the

gas station parking lot and into the parking lot of an adjacent

Hardees. While in the Hardees’ parking lot, Copson continued to

1 The Mercer County 911 Call Number Detail indicates that

Jerry Conner made the call. See ECF No. 54-15 (Exhibit O to

Defendants’ Motion for Summary Judgment). In his interview with

the State Police, Mr. Conner confirmed that he made the call

using Lurie’s phone. See ECF No. 54-13 (Exhibit M to Defendants’

Motion for Summary Judgment).

2

wave the knife and yell. Despite repeated requests from the

officers to do so, Copson refused to drop the knife. Eventually,

Copson came toward Officer Hephner with the knife. At that

point, Trooper Hephner fired two shots and Trooper Long fired

one. Copson died at the scene.

Although not known to Troopers Hephner and Long at the time

of the shooting, Copson had a history of mental illness, having

been diagnosed with paranoid schizophrenia, bipolar disorder,

anxiety, depression, and opioid addiction. See ECF No. 54-1

(Plaintiff’s Answers to Def. First Set of Interrogs., Reqs. for

Admis. & Reqs. for Production of Docs.). On February 22, 2017,

and the days leading up to the shooting, there is evidence that

Copson was suffering from the effects of his mental illnesses.

See generally ECF No. 55 at 2-5 (and authorities cited therein).

In his statement given immediately after the shooting,

Trooper Long described what had transpired:

Approximately about 15:40, twenty till 4:00 or whatever

I was sitting at my desk and I heard a call come out of

a guy wielding a knife or had a knife the call was . .

. the description was the guy was in a grey sweat suit

carrying a buey style knife over in the parking lot at

the gas station across off of Ambrose Lane across the

highway from this office, so I get up go out to the

parking lot to get in my car I saw Trooper Hephner come

out the back door, the door at the other end of the

building I asked him if he was going over to cover that

guy too, he said yeah I said I am going with you so we

both got in each one of our cars I followed him over,

we wound up pulling into the parking lot of the Quality

Inn motel the guy was standing pretty much on the

hillside between the parking lot and US route 460 we

could see the knife in his hand, he just started

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hollering stay away from me, things like it’s going to

go bad you know stuff like that, so we ended up

following across Ambrose Lane into the parking lot of

the gas station, which is the Exxon station.

* * *

we are on foot left the cars in the parking lot of the

Quality Inn, um . . . in the parking lot the guy tried

to get into the gas station and Hephner pretty much was

kind of flanking him so to speak he was between the guy

and the building he wouldn’t let him get into the

building I am just trailing them behind them watching

for Hephner, watching this guy and we wind up in the

parking lot of Hardee’s restaurant and at that time you

know the guy he tried. . . he made a motion to get into

the restaurant and Hephner got into the landscaping

stuff to block him to get to the building, guy backs

out into the parking lot and he looked over toward

Cracker Barrel, he didn’t make it to Cracker Barrel

Hephner pretty much stayed between him and the Cracker

Barrel parking lot and I am on the other side of him,

he ended up coming to me, came at me a couple three

different times with the knife, of course at that time

I already had my pistol out of the holster, I drew down

on him each time he came at me, told me to you know put

the knife down we will get you some help, you know each

time he pulled, like two or three times he pulled the

knife come at me, and then the last time he said

something to the effect I can’t remember exactly how he

said it, but it was in the shape of form It is going to

go bad for somebody or one of us and he goes towards

Hephner, and I shot and then Hephner shot, I shot one

round and I think Hephner shot two rounds, so that was

pretty much it, just simple and he you know would not

put the knife down I mean Hephner did about 90 percent

of the talking with the guy and

* * *

and the whole time Hephner was like buddy please put it

down we will get you some help, see what we can do to

help you things like that you know I can’t tell you

word for word what he said the whole time but that was

basically what he was saying.

4

See ECF 54-19 (Exhibits S and Q to Defendants’ Motion for Summary

Judgment).2

Trooper Long was deposed on June 23, 2020 and his deposition

testimony did not differ materially from the statement he had

previously given. Long confirmed that, when they encountered

him, Copson was holding a “big kitchen butcher knife.”

Deposition of James C. Long, June 23, 2020, at 7 (hereinafter

“Long Depo. at ___”) (Exhibit 3 to Plaintiffs’ Opposition to

Defendants’ Motion for Summary Judgment) (ECF No. 57-3). Long

also testified that Hephner asked Copson to put the knife down

but that Copson refused to do so. See id. at 9 (“Hephner was

saying stuff and asking him to put the knife down, and asked him

if he needed help, things like that. I can’t remember,

specifically, what Hephner said. The gist of what he was saying

was, you know, asking him if he needed help, what was he doing?

He asked him to put the knife down, come talk to us, stuff like

that, so - - but he wouldn’t put the knife down.”). Trooper Long

testified that there were bystanders around the area although he

could not recall how many. Id. at 14-15 (“I remember seeing

witnesses. I can’t tell you how many. I mean there were people

at the pumps. There were people in the building. But I’m not

2 Defendants provided an audio recording of this statement.

See Exhibit Q. Exhibit S is a transcript of that interview.

Long submitted a declaration stating that the transcript is a

true and accurate transcription of the statement he gave. See

ECF 54-19.

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counting bystanders when I’m watching a guy with a knife.”). Of

the moments before the shooting, Trooper Long testified:

A: He would walk toward Hephner with the knife, and

every time he would walk to Hephner, Hephner would

ask him to put the knife down, and “We’ll get you

some help, if you need help,” stuff like that.

And he would back away.

And then he would walk toward me with the

knife, brandishing the knife to me. He walked

toward me two or three, maybe four times, with the

knife, straight at me. He didn’t run at me, but

he just walked and had the knife in the air like

he was wanting to stab me, stuff like that.

And I can’t remember what he said each time

after, you know. But every time he would walk

toward me, I would always, you know, tell him, “If

you put the knife down, we’ll get you some help.

* * *

Q: [Y]ou said that he wanted to stab you. What makes

you say he wanted to stab you? You don’t know

that, do you?

A: Well, he came at me with a knife, with a knife up

in the air, you know, the knife pointed at me. I

mean, it was more than one time, sir.

Q: Okay. You said he had it pointed - -

A: He had it up in the air with the knife pointed at

me.

Q: Was the knife pointed down coming at you?

A: I said pointed at me, sir.

Q: Okay. Well, I’m asking which direction the knife

was pointing. Was it pointing up in his hand, or

down in his hand?

A: I don’t recall, you know, if it was straight up,

straight down, but he was coming at me pointing

the knife at me.

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Q: Okay. But you don’t recall him say[ing] anything

to you?

A: He said things to me, but I don’t remember what he

said. But when he came at me with the knife, I

mean, I just said, “If you put the knife down,

we’ll get you some help.” And he would back off.

Q: Okay.

A: Then he would make his directions toward Hephner,

walk toward him.

Q: Would you agree with me that once you had him in

the Hardee’s parking lot, Mr. Copson was cornered?

He had nowhere else to retreat to. If that a fair

assessment of the situation?

A: No, sir. I don’t agree with you.

Q: Okay. Where else could he have - - based on what

you recall, once in the Hardee’s parking lot,

where else could he have retreated to?

A: Sir, it was a wide open parking lot. There was

just two of us. He could have took off and ran in

any direction away from us.

Q: Okay. Did he ever appear to try to run away from

you all?

A: No, sir.

* * *

Q: Tell me about the actual shooting itself, like,

once Mr. Copson, I guess, stopped retreating. We

have some of this on video, but I just want to get

your recollection of what happened in just the

moments right before the shooting actually

happened.

A: Well, I mean, he made several attempts walking toward

Hephner, and he would back up; several attempts toward

me brandishing the knife on both of us each time he

came at us. He finally made a statement, and I don’t

recall exactly what he said, but it was something to

the effect of, basically, like, “It’s either me or you

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guys, or somebody is going to get hurt,” maybe, “You

guys get hurt,” whatever he said. Then he just takes

off running toward Hephner. And I shot one round, and

Hephner shot two rounds.

Q: Is that, like, a verbatim quote that you remember

hearing Mr. Copson say, or is that just another

generalization

A: It’s a generalization. . . .

Id. at 18-21. Long estimated that Copson was five to eight yards

from Trooper Hephner when he opened fire. See id. at 22.

In his statement following the shooting, Trooper Hephner

stated that, after encountering Copson initially, he followed him

when Copson walked away from the officers. ECF No. 54-18

(Exhibits R and Q to Defendants’ Motion for Summary Judgment).3

Hephner testified that he told Copson that he “couldn’t leave

because he was acting a little bizarre and had a knife in public

that he was openly carrying.” Id. Hephner stated that Copson

said “someone is going to get hurt” and that he thought “maybe he

just wanted to get inside somewhere and cut somebody.” Id.

Trooper Hephner described his interaction with Copson leading up

to the shooting as follows:

I tried telling him, tried talking to him tried asking

him to . . . telling him to put the knife down we could

talk about it what is the problem he said I couldn’t

3 Defendants provided an audio recording of this statement.

See Exhibit Q. Exhibit R is a transcript of that interview.

Hephner submitted a declaration stating that the transcript is a

true and accurate transcription of the statement he gave. See

ECF 54-18.

8

help him told me to F. . . off, people were going to

get hurt someone is going to get hurt, get the F away

from me just completely belligerent irrational uh he

made a couple of lunges towards both Cpl. Long and I a

couple of different times um and when he came . . . or

when Cpl. Long I don’t know when he had his out but I

remember watching him when the gentleman got very close

and lunged towards Cpl. Long, Cpl. Long drew down on

him um I had my weapon already at the low ready and

continued to trying to talk him down tried to calm him

down, calm him down he wouldn’t listen he . . . uh when

Cpl. Long drew down on him he backed off a bit and just

completely denied everything I tried telling him to

drop the knife and to just calm down and he lunged at

me and I shot him.

Id.

There were a number of eyewitnesses to the shooting and the

events preceding it. Mr. Lurie captured the incident on video

using his cell phone. See ECF No. 54-16 (Exhibit P to

Defendants’ Motion for Summary Judgment). Mr. Lurie testified:

The one officer kind of flanked him around a little bit

so to keep him from walking through the parking lot to

kind of, you know, keep him from going any further.

And that’s when they started talking back and forth,

and you can see on the video what happened there, but

he walked towards them a couple time with the knife

out, as they were yelling—they were, the whole time,

yelling at him to drop the knife. And he was just

screaming something or another at them. I don’t know

what he was saying. And then he went forward once and

then he came back, and they both had their guns drawn.

They were kind of a little bit lower at first, but then

they had them straight up at him as he was walking—as

he walked towards them the one time. He backed up and

then turned towards the officer to his left and started

walking towards him faster with the knife out. And

that’s when the officer shot him twice. It sounded

like twice.

Lurie Depo. at 17. Besides Lurie, there were six other

eyewitnesses to the shooting: Charles Mutterback, Jerry Conner,

9

Jesse Ray Dodson, Phillip Newman, Roger Stephens, and Wanda

Mutterback. See ECF No. 54-13 (Exhibit M to Defendants’ Motion

for Summary Judgment). These statements were generally

consistent. All the eyewitnesses confirmed that Copson was

carrying a knife and waving it around. See id. Multiple

witnesses described Copson’s movement as erratic and described

him “lunging” at the officers. Id. Most indicated that they

heard the officers repeatedly ask Copson to drop the knife. See

id. Roger Stephens did state that it “seemed like to [him] they

could have avoided killing [Copson].” Id.

The video shows the actual shooting and the seconds leading

up to it. Copson is clearly agitated and seen with a knife which

he is waving around. He moves towards the officers and then

backs away more than once. He is seen moving toward Trooper

Hephner just before he is shot. It is impossible to hear what

Copson or the officers are saying. See ECF No. 54-16

On February 21, 2019, Beth Copson, as Administratrix of the

Estate of Kyle Andrew Copson, filed a four-count complaint under

federal and state law in which she alleged that Troopers Hephner

and Long violated Kyle Andrew Copson's constitutional rights by

using excessive and deadly force against him on February 22,

2017. Her complaint alleged the use of excessive force in

violation 42 U.S.C. § 1983 (Count I); state constitutional

10

violations (Count II); battery (Count III); and negligence (Count

IV).

Defendants filed a summary judgment motion arguing that they

were entitled to judgment as a matter of law on all claims. In

response to defendants’ motion, plaintiff agreed to dismiss her

state constitutional and battery claims. See ECF No. 57 at 7

n.4. Furthermore, at the pretrial conference, counsel for

plaintiff withdrew the negligence claim.4 Defendants argue that

4 In any event, the negligence claim would have been

dismissed. As Judge Copenhaver recently noted:

A plaintiff cannot prevail on a claim of simple

negligence based on a defendant's intentional

act. Smith v. Lusk, 533 F. App'x 280, 284 (4th

Cir. 2013); see also Brown v. J.C. Penney Corp.,

521 F. App'x 922, 924 (11th Cir. 2013) (per

curiam) (“A claim for negligence cannot be

premised solely on a defendant's alleged

commission of an intentional tort.”); Stone v.

Rudolph, 32 S.E.2d 742, 748 (W. Va. 1944)

(“Negligence and wilfulness are mutually

exclusive terms which imply radically different

mental states.”). “[A] mere allegation of

negligence does not turn an intentional tort into

negligent conduct.” Weigle v. Pifer, 139 F. Supp.

3d 760, 780 (S.D.W. Va. 2015) (quoting Benavidez

v. United States, 177 F.3d 927, 931 (10th Cir.

1999)).

Schoonover v. Clay County Sheriff’s Dep’t, Civil Action No. 2:19-

cv-00386, 2020 WL 2573243, *10 (S.D.W. Va. 2020).

The acts alleged against defendants are only for intentional

conduct. Therefore, plaintiff’s claim of simple negligence based

on the officers’ intentional acts fails. See Smith v. Lusk, No.

12-2063, 533 F. App’x 280, 284 (4th Cir. Jul. 18, 2013) (holding

that estate of nightclub patron shot and killed by police officer

could not prevail on a claim of simple negligence where evidence

demonstrated that officer intentionally shot patron); see also

11

they are entitled to qualified immunity on the Section 1983

claim.

Summary Judgment Standard

“A party may move for summary judgment, identifying each

claim or defense—or the part of each claim or defense—on which

summary judgment is sought. The court shall grant summary

judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). The moving party has the

burden of establishing that there is no genuine issue as to any

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). This burden can be met by showing that the nonmoving

party has failed to prove an essential element of the nonmoving

party's case for which the nonmoving party will bear the burden

of proof at trial. Id. at 322. If the moving party meets this

burden, according to the United States Supreme Court, "there can

be 'no genuine issue as to any material fact,' since a complete

failure of proof concerning an essential element of the nonmoving

party's case necessarily renders all other facts immaterial."

Id. at 323.

Rhodes v. King, CIVIL ACTION NO. 2:19-cv-00626, 2020 WL 4607323,

*4 (S.D.W. Va. Aug. 11, 2020) (dismissing negligence claim

arising out of intentional shooting).

12

Once the moving party has met this burden, the burden shifts

to the nonmoving party to produce sufficient evidence for a jury

to return a verdict for that party.

The mere existence of a scintilla of evidence in

support of the plaintiff's position will be

insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff. The judge's

inquiry, therefore, unavoidably asks whether reasonable

jurors could find, by a preponderance of the evidence,

that the plaintiff is entitled to a verdict . . . .

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "If

the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted." Id. at 250-51.

Analysis

The defense of “[q]ualified immunity shields a government

official from liability for civil monetary damages if the

officer’s ‘conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.’” Wiley v. Doory, 14 F.3d 993, 995 (4th Cir. 1994);

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In

Saucier v. Katz, 533 U.S. 194, 195 (2001), the Supreme Court laid

out a two-step process for resolving the qualified immunity

claims of government officials. First, a court must decide

whether the facts that a plaintiff has alleged or shown make out

a violation of a constitutional right. See id. at 201. Second,

a court must decide whether the right at issue was “clearly

established” at the time of defendant’s alleged misconduct. See

13

id. Courts may exercise discretion in deciding which of the two

Saucier prongs “should be addressed first in light of the

circumstances in the particular case at hand.” Pearson v.

Callahan, 555 U.S. 223, 236 (2009).

A clearly established right is one that is

“sufficiently clear that every reasonable official

would have understood that what he is doing violates

that right.” Reichle v. Howards, 566 U.S. ––––, ––––,

132 S. Ct. 2088, 2093, 182 L. Ed.2d 985 (2012)

(internal quotation marks and alteration omitted). “We

do not require a case directly on point, but existing

precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v.

al–Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 179 L.

Ed.2d 1149 (2011). Put simply, qualified immunity

protects “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S.

335, 341, 106 S. Ct. 1092, 89 L. Ed.2d 271 (1986).

“We have repeatedly told courts . . . not to

define clearly established law at a high level of

generality.” al–Kidd, supra, at 742, 131 S. Ct. 2074.

The dispositive question is “whether the violative

nature of particular conduct is clearly established.”

Ibid. (emphasis added). This inquiry “‘must be

undertaken in light of the specific context of the

case, not as a broad general proposition.’” Brosseau

v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 160 L.

Ed.2d 583 (2004) (per curiam ) (quoting Saucier v.

Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed.2d

272 (2001)). Such specificity is especially important

in the Fourth Amendment context, where the Court has

recognized that “[i]t is sometimes difficult for an

officer to determine how the relevant legal doctrine,

here excessive force, will apply to the factual

situation the officer confronts.” 533 U.S., at 205,

121 S. Ct. 2151.

Mullenix v. Luna, 577 U.S. 7, 11-12 (2015).

Whether a right is clearly established is a question of law.

Ray v. Roane, 948 F.3d 222, 228 (4th Cir. 2020). In deciding it,

14

this court is to consider the Supreme Court, Fourth Circuit, and

Supreme Court of Appeals of West Virginia precedent first. See

id. at 229; see also Wilson v. Prince George’s Cnty., Maryland,

893 F.3d 213, 221 (4th Cir. 2018) (“To determine whether a right

is clearly established, we assess whether the law has been

authoritatively decided by the Supreme Court, the appropriate

United States Court of Appeals, or the highest court of the

state.”) (internal quotation and citation omitted).

In 2018, the Supreme Court decided Kisela v. Hughes, 138 S.

Ct. 1148 (2018), a case which is instructive in resolving the

instant motion for summary judgment. In that case, Andrew

Kisela, a police officer in Tucson, Arizona, shot Amy Hughes in

May 2010. See id. at 1150.

Kisela and two other officers had arrived on the scene

after hearing a police radio report that a woman was

engaging in erratic behavior with a knife. They had

been there but a few minutes, perhaps just a minute.

When Kisela fired, Hughes was holding a large kitchen

knife, had taken steps toward another woman standing

nearby, and had refused to drop the knife after at

least two commands to do so.

Id. The Kisela court laid out the test for determining whether

an officer has used excessive force in violation of the Fourth

Amendment:

In one of the first cases on this general

subject, Tennessee v. Garner, 471 U.S. 1, 105 S .Ct.

1694, 85 L. Ed.2d 1 (1985), the Court addressed the

constitutionality of the police using force that can be

deadly. There, the Court held that “[w]here the

officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the

15

officer or to others, it is not constitutionally

unreasonable to prevent escape by using deadly force.”

Id., at 11, 105 S. Ct. 1694.

In Graham v. Connor, 490 U.S. 386, 396, 109 S.

Ct. 1865, 104 L. Ed.2d 443 (1989), the Court held that

the question whether an officer has used excessive

force “requires careful attention to the facts and

circumstances of each particular case, including the

severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight.” “The

‘reasonableness’ of a particular use of force must be

judged from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of

hindsight.” Ibid. And “[t]he calculus of

reasonableness must embody allowance for the fact that

police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that is

necessary in a particular situation.” Id., at 396–397,

109 S. Ct. 1865.

Id. at 1152. The Court concluded that it did not need to decide

whether Kisela used deadly force against Hughes because, “even

assuming a Fourth Amendment violation occurred”, “Kisela was at

least entitled to qualified immunity.” Id.

“Qualified immunity attaches when an official's

conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have known.” White v. Pauly, 580 U.S. ––––,

––––, 137 S. Ct. 548, 551, 196 L. Ed.2d 463 (2017) (per

curiam )(alterations and internal quotation marks

omitted). “Because the focus is on whether the officer

had fair notice that her conduct was unlawful,

reasonableness is judged against the backdrop of the

law at the time of the conduct.” Brosseau v. Haugen,

543 U.S. 194, 198, 125 S. Ct. 596, 160 L. Ed.2d 583

(2004) (per curiam).

Although “this Court's caselaw does not require

a case directly on point for a right to be clearly

established, existing precedent must have placed the

16

statutory or constitutional question beyond debate.”

White, 580 U.S., at ––––, 137 S. Ct., at 551 (internal

quotation marks omitted). “In other words, immunity

protects all but the plainly incompetent or those who

knowingly violate the law.” Ibid. (internal quotation

marks omitted). This Court has “‘repeatedly told

courts—and the Ninth Circuit in particular—not to

define clearly established law at a high level of

generality.’” City and County of San Francisco v.

Sheehan, 575 U.S. ––––, ––––, 135 S. Ct. 1765,

1775–1776, 191 L. Ed.2d 856 (2015) (quoting Ashcroft v.

al-Kidd, 563 U.S. 731, 742, 131 S. Ct. 2074, 179 L.

Ed.2d 1149 (2011)); see also Brosseau, supra, at

198–199, 125 S. Ct. 596.

“[S]pecificity is especially important in the

Fourth Amendment context, where the Court has

recognized that it is sometimes difficult for an

officer to determine how the relevant legal doctrine,

here excessive force, will apply to the factual

situation the officer confronts.” Mullenix v. Luna,

577 U.S. ––––, ––––, 136 S. Ct. 305, 308, 193 L. Ed.2d

255 (2015) (per curiam) (internal quotation marks

omitted). Use of excessive force is an area of the law

“in which the result depends very much on the facts of

each case,” and thus police officers are entitled to

qualified immunity unless existing precedent “squarely

governs” the specific facts at issue. Id., at ––––,

136 S. Ct., at 309 (internal quotation marks omitted

and emphasis deleted). Precedent involving similar

facts can help move a case beyond the otherwise “hazy

border between excessive and acceptable force” and

thereby provide an officer notice that a specific use

of force is unlawful. Id., at ––––, 136 S. Ct., at 312

(internal quotation marks omitted).

“Of course, general statements of the law are

not inherently incapable of giving fair and clear

warning to officers.” White, 580 U.S., at ––––, 137 S.

Ct., at 552 (internal quotation marks omitted). But

the general rules set forth in “Garner and Graham do

not by themselves create clearly established law

outside an ‘obvious case.’” Ibid. Where constitutional

guidelines seem inapplicable or too remote, it does not

suffice for a court simply to state that an officer may

not use unreasonable and excessive force, deny

qualified immunity, and then remit the case for a trial

on the question of reasonableness. An officer “cannot

17

be said to have violated a clearly established right

unless the right's contours were sufficiently definite

that any reasonable official in the defendant's shoes

would have understood that he was violating it.”

Plumhoff v. Rickard, 572 U.S. ––––, ––––, 134 S. Ct.

2012, 2023, 188 L. Ed.2d 1056 (2014). That is a

necessary part of the qualified-immunity standard, and

it is a part of the standard that the Court of Appeals

here failed to implement in a correct way.

Kisela says he shot Hughes because, although

the officers themselves were in no apparent danger, he

believed she was a threat to Chadwick. Kisela had mere

seconds to assess the potential danger to Chadwick. He

was confronted with a woman who had just been seen

hacking a tree with a large kitchen knife and whose

behavior was erratic enough to cause a concerned

bystander to call 911 and then flag down Kisela and

Garcia. Kisela was separated from Hughes and Chadwick

by a chain-link fence; Hughes had moved to within a few

feet of Chadwick; and she failed to acknowledge at

least two commands to drop the knife. Those commands

were loud enough that Chadwick, who was standing next

to Hughes, heard them. This is far from an obvious

case in which any competent officer would have known

that shooting Hughes to protect Chadwick would violate

the Fourth Amendment.

Id. at 1152-53.

As in Kisela, the court exercises its discretion to proceed

directly to the second prong of the qualified immunity analysis

and considers whether the law was such that Troopers Hephner and

Long would have known that shooting Copson under the

circumstances presented violated the Fourth Amendment. In so

doing, the court is cognizant of “the importance of drawing

inferences in favor of the nonmovant” while “tak[ing] care not to

define a case’s ‘context’ in a manner that imports genuinely

disputed factual propositions.” Tolan v. Cotton, 134 S. Ct.

18

1861, 1866 (2014) (quoting Brousseau v. Haugen, 543 U.S. 194,

195, 198 (2004)).

Therefore, defined at the level of specificity required by

the Supreme Court and drawing inferences in favor of plaintiff,

the court must determine whether it was clearly established law

in February 2017, that shooting Copson was an unconstitutional

use of excessive force when: (1) the officers were responding to

a 911 call and were able to observe that Copson was holding a

large knife and behaving erratically in a public place; (2) at

the time he was shot, Copson was standing about 15 feet from the

officers holding a knife and making sudden movements; and (3)

Copson ignored the officers’ repeated commands to drop the knife.

See, e.g., Wilson v. Prince George’s Cnty., Maryland, 893 F.3d

213, 222 (4th Cir. 2018). The court’s “review of relevant

precedent” shows “that it was not clearly established law in

[February 2017] in the Supreme Court, th[e Fourth] Circuit, or in

the [West Virginia Supreme Court of Appeals] that an officer

shooting an individual under such circumstances would be engaging

in an unconstitutional use of force.” Id.

The cases plaintiff relies on would not have placed Troopers

Hephner and Long on such notice.5 While plaintiff relies on the

5 For example Betton v. Belue, 942 F.3d 184 (4th Cir. 2019),

and Wilson v. Prince George County, 893 F.3d 213 (4th Cir. 2018),

were both decided after the shooting at issue here. The Supreme

Court has made clear “because a reasonable officer is not

required to foresee judicial decisions that do not yet exist in

19

line of cases holding that “mere possession” of a weapon does not

justify the use of deadly force, see Cooper v. Sheehan, 735 F.3d

153, 154, 159 (4th Cir. 2013), this is not that type of case.

Here, Copson was not shot solely because he had a deadly weapon

in his possession. Rather, he was waving that weapon in a public

setting while behaving erratically and refusing officers’

repeated commands to drop the knife. Therefore, the Cooper

decision did not put Troopers Hephner and Long “on notice that

shooting [Copson] would be crossing a bright line in violation of

the Fourth Amendment.” Wilson, 893 F.3d at 222; see also

Anderson v. Russell, 247 F.3d 125, 128 (4th Cir. 2001) (holding

that officers were entitled to qualified immunity for shooting a

man suspected of carrying a gun who initially complied with

commands, but later lowered his hands and reached into his back

left pocket toward a bulge under his clothing); Slattery v.

Rizzo, 939 F.2d 213, 215-16 (4th Cir. 1991) (holding that

shooting of an individual, suspected of narcotics trafficking,

was objectively reasonable when the suspect ignored commands to

raise his hands and turned in the officers’ direction with his

hand partially closed around an object).

instances where the requirements of the Fourth Amendment are far

from obvious” that cases decided after the events in question are

“of no use in the clearly established inquiry.” Kisela, 138 S.

Ct. at 1154.

20

Connor v. Thompson, 647 F. App’x 231 (4th Cir. 2016), is

likewise unhelpful. In Connor, the officer responded to a 911

call that Adam Carter was suicidal. See id. at 233-34. When the

officer arrived at the house, he was escorted by a roommate into

an entrance foyer with a four-step stairwell leading to the

living room where Carter was waiting. See id. at 234. As Carter

“was about halfway down the four stairs” the officer saw that the

decedent was holding a paring knife. Id. The officer “drew his

gun and told Carter to drop the knife. The command was repeated

several times . . . but Carter did not comply. When Carter

reached the bottom of the stairs, [the officer] fired twice,

killing him.” Id.

The Court of Appeals affirmed the district court's denial of

qualified immunity, explaining,

Viewing the record in the light most favorable to the

Appellee, Carter possessed a paring knife, refused to

comply with repeated commands to drop the weapon,

continued down the stairs (and thus closer to [the

officer]) rather than stopping. As for the knife, we

have held the mere possession of a deadly weapon by a

suspect is not enough to permit the use of deadly

force. Instead, deadly force may only be used by a

police officer when, based on a reasonable assessment,

the officer or another person is threatened with the

weapon. And while Carter stubbornly maintained

possession of his knife, the assumed circumstances [the

officer] confronted do not establish that Carter

threatened anyone with it.

For the present inquiry, the district court

appropriately assumed Carter never raised his knife,

changed hands, or acted aggressively with it. We have

held that holding a weapon in a non-threatening

position while making no sudden moves fails to support

21

the proposition that a reasonable officer would have

had probable cause to feel threatened. [The officer],

moreover, had been informed that Carter was suicidal,

which could have explained the reason for holding the

knife.

Id. at 237-38 (internal citations and quotations omitted).

In this case, however, Copson was holding a large knife in a

public area and waving it at the officers. He refused to drop

the knife despite repeated entreaties to do so. And, unlike in

Connor, there is no indication that Copson was suicidal and the

officers were not aware he suffered from mental illness.

Nor is Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2014),

sufficiently analogous to the present case to put Troopers

Hephner and Long on notice that their conduct would violate the

law. In Clem, two officers responded to a call from a woman

claiming that her husband (Clem) was suffering from dementia,

depression, and various physical problems. See id. at 545. At

the time he was shot, Clem was “known to the officers to be

mentally ill . . . obviously unarmed, . . . stumbling toward the

bathroom in his own house with pepper spray in his eyes, unable

to threaten anyone.” Id. at 552. Without giving Clem any

warning, one of the officers shot him. See id. at 547. The

Fourth Circuit held that the officer’s use of force was

unreasonable in violation of the Fourth Amendment. See id. at

552.

22

In this case, the officers did not know that Copson was

mentally ill; Copson was armed with a knife and waving it around;

Copson refused to put down the knife on multiple occasions; and

Copson was not incapacitated by pepper spray when he was shot.

Finally, Streater v. Wilson, 565 F. App’x 208 (4th Cir.

2014), is too factually dissimilar to this case to have put the

officers on notice. In Streater, officers responded to the scene

of a stabbing where they were informed the assailant had already

fled and weighed approximately 240 pounds. See id. at 209. The

victim’s minor son, weighing between 115 and 120 pounds, was

“walking quickly toward the scene” and “carrying a kitchen knife

that he picked up at home after learning that his mother had been

stabbed.” Id. Observing the knife, the officer unholstered his

gun and told the son to drop his knife three times. See id. The

son “failed to comply and continued to approach.” Id. The son

stopped 31.9 feet from the officer and dropped his knife.

Nevertheless, the officer fired a total of four shots, hitting

the son twice. See id.

The United States Court of Appeals for the Fourth Circuit

upheld the district court’s determination that the officer’s

actions were not shielded by qualified immunity because the

officer had violated the son’s clearly established Fourth

Amendment rights. See id. at 212. As the court put it, by the

time the officer “decided to take what he called a ‘kill shot,’

23

[the son] had disarmed, was neither approaching nor threatening

the officers or civilians, and based on the police broadcast and

Streater’s protests, was not a suspect in the domestic assault.”

Id. Unlike in Streater, at the time he was shot, Copson was

closer to defendants, still armed, not complying with commands to

drop his weapon, and advancing toward Hephner.

Conclusion

In this case, the court “need not, and does not, decide

whether [Troopers Hephner and Long] violated the Fourth Amendment

when [they] used deadly force against [Copson].” Kisela, 138 S.

Ct. at 1152. The court proceeds in this way because, even

assuming a Fourth Amendment violation occurred, the officers were

entitled to qualified immunity. “[Q]ualified immunity protects

actions in the ‘hazy border between excessive and acceptable

force.’” Mullenix v. Luna, 577 U.S. 7, 18 (2015) (quoting

Brosseau v. Haugen, 543 U.S. 194, 201 (2004)). “Hard cases can

make bad law, and it is to protect against that possibility that

police officers possess the defense of qualified immunity.”

Pinder v. Johnson, 54 F.3d 1169, 1179 (4th Cir. 1995).

Based on the foregoing, defendants’ motion for summary

judgment is GRANTED.

The Clerk is directed to send copies of this Memorandum

Opinion and Order to all counsel of record.

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Tt is SO ORDERED this 30th day of March, 2021.

ENTER:

David A. Faber

Senior United States District Judge

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