# Copson v. Hephner

> District Court, S.D. West Virginia · March 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10729597

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** March 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10729597

## How later opinions describe it (automated extraction)

- 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
- 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
- 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

## Opinion text

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
3
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.
5
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.
6
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
7
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.

24
Tt is SO ORDERED this 30th day of March, 2021.
ENTER:

David A. Faber
Senior United States District Judge

25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729597. Public record. Not legal advice.