Boyes v. Simmons

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

TODD W. BOYES,

Plaintiff,

v. CIVIL ACTION NO. 2:18-cv-01247

ROBERT PICKENPAUGH,

Sheriff, Noble County, Ohio et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is the Proposed Findings of Fact and Recommendation (“PF&R”)

submitted by United States Magistrate Judge Dwane Tinsley in this matter on August 19, 2021.

(ECF No. 230.) Additionally pending before the Court are Defendants Steven Webb (“Webb”)

and Joshua Simmons’s (“Simmons”) (collectively, “Defendants”) Motion for Summary Judgment,

(ECF No. 169); Defendants’ Objections to the PF&R, (ECF No. 232); and Plaintiff Todd Boyes’s

(“Plaintiff”) Objections to the PF&R, (ECF No. 239). For the reasons more fully explained

herein, the Court ADOPTS the PF&R to the extent it recommends dismissal of Plaintiff’s Eighth

and Fourteenth Amendment claims; SUSTAINS Defendants’ objections to the PF&R on

Plaintiff’s Fourth Amendment claim; OVERRULES Plaintiff’s objections to the PF&R; and

DISMISSES this matter in its entirety.

I. BACKGROUND

A detailed recitation of the factual allegations of this action are set forth in the PF&R, (ECF

No. 230), and thus need not be repeated here. The Court will provide a discussion of any relevant

facts as necessary throughout this opinion to resolve the parties’ objections. Briefly, Plaintiff has

asserted claims alleging that the Defendants violated his Fourth, Eighth, and Fourteenth

Amendment rights. (ECF No. 8 at 16, ¶ 2.) Plaintiff initiated this action in this Court on August

23, 2018. (ECF No. 1.) Plaintiff filed his Amended Complaint on October 26, 2018, and only

the claims against Web and Simmons remain.1 (See ECF Nos. 88, 198.) By Standing Order

entered on January 4, 2016, and filed in this matter on August 23, 2018, this action was referred

to Magistrate Judge Tinsley for the submission of proposed findings of fact and a recommendation

for disposition. (ECF No. 5.)

Following a period of discovery, Defendants filed the instant motion for summary

judgment and accompanying exhibits on August 31, 2020. (ECF No. 169.) Plaintiff timely filed

his response in opposition on October 21, 2020.2 (ECF No. 178.) Subsequently, Plaintiff

obtained an extension of the discovery deadline, and thereafter filed two supplemental responses.

(ECF Nos. 222, 224.) Defendants filed their initial reply on October 28, 2020, (ECF No. 179),

and subsequently filed a supplemental reply on May 17, 2021. (ECF No. 225.)

Magistrate Judge Tinsley submitted his PF&R on August 19, 2021. (ECF No. 230.) The

PF&R recommends the dismissal of Plaintiff’s Eighth and Fourteenth Amendment claims, but also

recommends denying summary judgment on Plaintiff’s Fourth Amendment claim. (ECF No. 230

at 35.) Defendants timely filed their objections to the PF&R on September 1, 2021. (ECF No.

1 The Court notes that Webb had filed a Counterclaim in this matter, but voluntarily dismissed his claim. (ECF Nos.

83, 107.) Plaintiff also attempted to amend his Amended Complaint to add additional claims, but those proposed

amendments were denied as “untimely and/or futile.” (ECF No. 230 at 11.)

2 Magistrate Judge Tinsley noted that Plaintiff’s original response was illegible, as his submission was handwritten.

(See ECF No. 230 at 13.) Plaintiff thereafter filed a more legible copy of the same brief on October 30, 2020. (ECF

No. 180.) Should the Court cite anything from Plaintiff’s response, it shall be to ECF No. 180.

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232.) Plaintiff, following an extension of time, timely filed his objections on September 20, 2021.

(ECF No. 239.)

II. LEGAL STANDARD

Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the Court “must determine de

novo any part of the magistrate judge's disposition that has been properly objected to.” Fed. R.

Civ. P. 72(b)(3). Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the Court “must

determine de novo any part of the magistrate judge's disposition that has been properly objected

to.” Fed. R. Civ. P. 72(b)(3). The Court is not required to review, under a de novo or any other

standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings

or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150

(1985). Failure to file timely objections constitutes a waiver of de novo review and a party's right

to appeal this Court's Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363,

1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this

Court need not conduct a de novo review when a party “makes general and conclusory objections

that do not direct the Court to a specific error in the magistrate's proposed findings and

recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

III. DISCUSSION

Both Plaintiff and Defendants have filed objections to the PF&R. Plaintiff’s objections to

the PF&R are not altogether clear, though he argues that he should be entitled to a “liberal

interpretation” of his submissions, “as he is a pro se litigant and novice of the law, rules and

regulations.”3 (ECF No. 239 at 1.) Aside from requesting a liberal construction of his filings,

3 Of course, as a pro se litigant, he is afforded a liberal construction of his pleadings, though this standard is not

without its limits. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (“[Liberal construction] does

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Plaintiff does not direct the Court to any specific errors contained in the PF&R nor does he offer

anything of substance that the Court could construe as an objection. (See generally ECF No. 239.)

Instead, he maintains that he generally “objects to the proposed finding and recommendation,” and

that any errors on his part are “solely within the realm of errant comprehension and the inability

to properly access the law library and individuals trained to properly litigate matters such as this.”

(Id. at 1, 4.)

Defendants, meanwhile object to the PF&R’s recommendation that summary judgment be

denied on Plaintiff’s Fourth Amendment claim. In particular, Defendants object to the PF&R’s

reliance on Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005), to find that there remains genuine

issues of material fact that render summary judgment inappropriate. (ECF No. 232 at 3.)

Therefore, based on the objections before it, the Court will begin with Plaintiff’s Eight and

Fourteenth Amendment claims, before addressing the Fourth Amendment claim and Defendants’

objections.

A. Plaintiff’s Eighth and Fourteenth Amendment Claims

Plaintiff has not directed the Court to any specific finding in the PF&R to which he objects

as it related to his Eighth and Fourteenth Amendment claims. Defendants similarly have made

no objections to the findings of the PF&R addressing these claims. Therefore, the Court

ADOPTS the findings of the PF&R, (ECF No. 230), as to Plaintiff’s Eighth and Fourteenth

Amendment claims; GRANTS Defendants’ motion for summary judgment, (ECF No. 169), as to

these two claims; and DISMISSES Plaintiff’s claims.

not require those courts to conjure up questions never squarely presented to them.”).

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B. Plaintiff’s Fourth Amendment Claim

The PF&R recommends the denial of summary judgment on Plaintiff’s Fourth Amendment

claim, relying on Waterman for the principle that it is clearly established in the Fourth Circuit that

it is unreasonable for police officers to use deadly force against a suspect when there is no

immediate threat to themselves or the general public. (ECF No. 230 at 30.) Because this right

is clearly established, the PF&R recommends that this Court find that Defendants are not entitled

to qualified immunity. (Id. at 32.)

Defendants, however, argue that Waterman is “highly distinguishable” from the facts of

this matter. (ECF No. 232 at 3.) Unlike the officers in Waterman, Defendants here argue that

they were “confronted with a more menacing set of facts and circumstances,” including the

issuance of a “BOLO4” for the suspect by the Ohio State Police for the carjacking of a civilian

with an AR-15 assault rifle; indications that the suspect was high on methamphetamines and had

participated in an “execution style murder”; the characterization of the suspect as “EXTREMELY

DANGEROUS [sic]” and “WILL ENGAGE IN A SHOOTOUT [sic]”; and the leading of officers

on a high-speed and off road chase. (Id. at 4.) Defendants also argue that, most importantly,

Plaintiff here remained a danger to the officers as was reasonably perceived by them when

discharging their weapons. (Id.) Because this matter introduces a distinguishable set of facts

than Waterman, Defendants insist it has no application here and that they should be entitled to

qualified immunity on Plaintiff’s claim of excessive force.

Qualified immunity is “an immunity from suit rather than a mere defense to

liability.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Mitchell v. Forsyth, 472 U.S.

4 A “BOLO,” as used here, is shorthand for a “Be on the Lookout” alert. (ECF No. 230 at 2.)

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511, 526 (1985)). See also Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (“We

repeatedly have stressed the importance of resolving immunity questions at the earliest possible

stage in litigation.”) Qualified immunity protects government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pearson, 555 U.S. at

231 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, qualified immunity

“protects law enforcement officers from ‘bad guesses in gray areas’ and ensures that they are liable

only ‘for transgressing bright lines.’” Waterman, 393 F.3d at 476 (quoting Maciariello v.

Sumner, 973 F.2d 295, 298 (4th Cir. 1992)).

To determine whether a law enforcement officer is entitled to qualified immunity, the

Supreme Court of the United States articulated a two-part inquiry. Saucier v. Katz, 533 U.S. 194,

201 (2001). First, the court must ask “whether the facts, taken in the light most favorable to the

party asserting the injury, . . . show the officer's conduct violated a federal right.” Tolan v. Cotton,

572 U.S. 650, 655–56 (2014) (quoting Saucier, 533 U.S. at 201) (internal quotation marks

omitted). The second prong asks “whether the right in question was ‘clearly established’ at the

time of the violation.” Id. at 656 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). “Courts

are ‘permitted to exercise their sound discretion in deciding which of the two prongs of

the qualified immunity analysis should be addressed first in light of the circumstances in the

particular case at hand.’” Smith v. Ray, 781 F.3d 95, 106, n.3 (4th Cir. 2015) (quoting Pearson,

555 U.S. at 236).

“A constitutional right is ‘clearly established’ when ‘its contours [are] sufficiently clear

that a reasonable official would understand that what he is doing violates that right.’” Cooper v.

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Sheehan, 735 F.3d 153, 158 (4th Cir. 2013) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

While a clearly established right does not require a case that is factually “on point, . . . existing

precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v.

al-Kidd, 563 U.S. 731, 741 (2011). “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.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting Katz, 533 U.S.

at 201).

Plaintiff’s claims of excessive force are governed by the Fourth Amendment. The Fourth

Amendment guarantees“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures.” U.S. Const. Amend. IV. Thus, the Fourth

Amendment does not proscribe all seizures, but only unreasonable ones. See United States v.

Sharpe, 470 U.S. 675, 682 (1985). See also Florida v. Jimeno, 500 U.S. 248, 250 (1991) (“The

touchstone of the Fourth Amendment is reasonableness.”).

In determining whether a law enforcement officer has used excessive force, the court must

determine “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to their underlying intent or

motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). “The intent or motivation of the

officer is irrelevant; the question is whether a reasonable officer in the same circumstances would

have concluded that a threat existed justifying the particular use of force.” Elliott v. Leavitt, 99

F.3d 640, 642 (4th Cir. 1996) (citing Graham, 490 U.S. at 396–97). This determination requires

the court to weigh “the nature and quality of the intrusion on the individual's Fourth Amendment

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interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at

396. “A reviewing court may not employ ‘the 20/20 vision of hindsight’ and must make

‘allowance for the fact that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving.’” Elliott v. Leavitt, 99 F.3d 640,

642 (4th Cir. 1996) (quoting Graham, 490 U.S. at 396–97). See also Waterman, 393 F.3d at 477

(“[R]easonableness is determined based on the information possessed by the officer at the moment

that force is employed.”).

Plaintiff claims that both Defendants used excessive force against him when they

discharged their firearms at him while in the Sanderson coal camp area, after leading officers on a

high-speed chase. Importantly, the Supreme Court recognizes that “[w]here the officer has

probable cause to believe that the suspect poses a threat of serious physical harm, either to the

officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”

Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004); Tennessee v. Garner, 471 U.S. 1, 11 (1985).

Nevertheless, “[t]he intrusiveness of a seizure by means of deadly force is unmatched.” Garner,

471 U.S. at 9.

With these principles in mind, the Court now turns to the Fourth Circuit’s decision in

Waterman. There, Waterman was observed by officers in the Baltimore Washington International

Airport terminal area traveling at a speed of 51 miles per hour in a 25 miles per hour zone.

Waterman, 393 F.3d at 473. Law enforcement activated their lights and sirens, and when

Waterman refused to pull over, initiated pursuit. Id. Waterman approached the Fort McHenry

Tunnel Toll Plaza where other officers prepared “stop sticks” in an attempt to stop the car. Id.

The pursuing officers radioed ahead that Waterman had tried to run them off the road and put out

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a “use caution” warning when Waterman was observed reaching under the seat. Id. However,

not all officers heard the use-caution warning. Id. As Waterman approached the plaza, several

officers emerged from the concrete islands separating the lanes with their weapons drawn and

approached the vehicle from the front and passenger sides, directing Waterman to stop. Id.

Waterman slowed the vehicle to approximately 11 miles per hour, but then accelerated, causing

the vehicle to “lurch.” Id. While none of the officers were directly in front of the vehicle, they

stood only a few feet to the side of the vehicle’s path and ranged between 16 feet and 72 feet ahead

of the vehicle. Id. at 474–75. The officers perceived Waterman’s acceleration as an “attempt to

run them over,” and so they fired their weapons at him. Id. at 475. Waterman’s vehicle passed

the officers, avoiding them, and came to a stop behind another vehicle. Id. As the officers

approached, they continued shooting at Waterman. Id. In the approximately six-second period

between Waterman accelerating and his vehicle coming to a stop, the officers fired eight shots.

Id. When Waterman’s vehicle passed through the toll lane, it ran over the stop sticks, and the

pursuing officer collided with Waterman’s vehicle, bringing it to a final stop. Id. Waterman was

shot five times and died at the scene. Id.

The Fourth Circuit reasoned that, if the officers had time to contemplate whether

Waterman’s sudden acceleration was an attempt to hit them, they would have considered factors

such as Waterman’s irrational behavior in leading officers on a “more-than-10-minute” chase; his

refusal to stop when approached by officers with weapons drawn; his acceleration in the officers’

direction; and the report by the pursuing officer that Waterman had just tried to run him off the

road. Id. at 477–78. They might also have considered that in the almost 30 seconds before

reaching the plaza, Waterman had not driven recklessly; there was no visible damage to the

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vehicle; that other than his flight from officers, Waterman had not committed any other known

crimes prior to the chase; and that he had not accelerated past 15 miles per hour or put any officers

directly in his path. Id. at 478. Recognizing, however, that officers only had a split second to

consider these factors, the Fourth Circuit opined that “if the officers paused for even an instant,

they risked losing their last chance to defend themselves.” Id. Therefore, the court held that

reasonable officers could have interpreted Waterman’s acceleration as a “show of force” or an

attempt to use his vehicle as a weapon, such that the officers were justified in utilizing deadly

force. Id.

However, the same could not be said for the shots fired after Waterman’s vehicle passed

the officers. Id. at 481–82. The Fourth Circuit again articulated the principle that “the

reasonableness of an officer's actions is determined based on the information possessed by the

officer at the moment that force is employed.” Id. at 482. At the time the vehicle had passed

them by, the officers should have known that the imminent threat of serious physical harm had

abated. Id. Therefore, the court held that once the vehicle had passed the officers, the danger to

their safety was eliminated, and thus the subsequent shots could not be justified. Id. at 482.

The PF&R relies on Waterman to recommend that a genuine issue of material fact still

exists such that a grant of summary judgment is inappropriate. Defendants, as detailed above,

argue that the instant case demonstrates a more “menacing” set of facts that, when perceived in the

heat of the moment by the Defendants, entitle them to qualified immunity and thus distinguishes

this matter from Waterman. This Court agrees.

Critical to this determination are the principles articulated above. A court cannot filter a

rapidly-evolving scene through hindsight in rendering its decision, and instead must focus on the

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reasonable perceptions of an officer on the scene at the time. See Graham, 490 U.S. at 397. With

this in mind, it becomes readily apparent that the officers were faced with a much more threatening

set of circumstances.

To begin, the instant case did not initiate with an attempted stop for a simple traffic

violation, as did Waterman. Instead, officers in the Charleston Police Department, and elsewhere,

were notified on February 25, 2017, with a “BOLO” alert from the Ohio State Police, who

disclosed that Plaintiff had “carjacked a vehicle using an AR-15,” and also had in his possession a

“STOLEN LOADED .22 J-Frame Ruger pistol with a crimson trace laser.” (ECF No. 170 at 24,

Ex. B.) The BOLO also stated that Plaintiff should be considered “ARMED AND

DANGEROUS” and that he possessed a “lengthy” criminal history, spanning three states and

including weapons charges and resisting arrest.5 (Id.) Moreover, the Nobles County Sheriff’s

Office in Ohio advised that Plaintiff was “EXTREMELY DANGEROUS” and would “ENGAGE

IN A SHOOTOUT” with police. (Id.) Finally, the BOLO alerted law enforcement that Plaintiff

was likely to continue fleeing to Florida, where he had previously fled to avoid arrest. (Id.)

Rather than a relatively minor traffic violation, officers here were immediately presented with an

alert regarding a highly dangerous and armed fugitive.

Around 7:48 p.m., the stolen vehicle—a Ford F-350 pickup truck—was spotted traveling

on Interstate 77 by Charleston Police Department Officer Barnette, who radioed for backup and

began to follow the truck down the interstate. (ECF No. 230 at 2.) Plaintiff exited the interstate

at Exit 95, on MacCorkle Avenue, where he pulled into a restaurant parking lot, at which point

5 Officers were also under the impression that Plaintiff had, at some time, committed an “execution style murder.”

(See ECF No. 183 at 20–22.) During his deposition, Plaintiff admitted that it was his father who had been convicted

of the murder, but invoked the Fifth Amendment when asked more about the murder. (Id.) It is currently unclear

how the officers here were made aware of Plaintiff’s suspected, albeit mistaken, involvement.

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Officers Barnette and McClure attempted to initiate a stop by pulling in behind Plaintiff and

activating their lights and sirens. (Id. at 3.) Instead of complying, Plaintiff fled in the stolen

truck, returned to the interstate and headed towards Charleston, beginning a dangerous high-speed

pursuit. (Id.) Plaintiff led police on a high-speed chase, with speeds nearing or exceeding 110

miles per hour. (Id. See also ECF Nos. 222 at 43, 225 at 8–9, 9–10.) Plaintiff additionally

drove the wrong way down an entrance ramp to the interstate, passed cars illegally in the wrong

lane of traffic, and simply refused to yield to the officers’ demands to stop. (ECF No. 230 at 3;

ECF No. 183 at 19–20.) Plaintiff’s own stated intent was to not get arrested and be sent to prison.

(ECF No. 183 at 20.) Plaintiff’s reckless flight from police, excessive speeds, and driving in

oncoming traffic clearly put officers and the public at great risk.

Plaintiff’s flight led officers to an off-road area in Sanderson, an unincorporated

community about 20 miles northeast of Charleston. (ECF No. 230 at 3.) Plaintiff apparently

believed that if he was able to get off the paved road, the pursuing officers would not be able to

follow him. (ECF No. 183 at 23–24.) Plaintiff exited the main road across a small wooden

bridge and onto a trail road that lead into a coal camp. (ECF No. 230 at 3.) As the pursuit

continued off road, many of the officers turned off their lights and sirens. (ECF No. 183 at 25–

26.) Plaintiff, apparently in an attempt to lose the officers in pursuit, drove across a creek, and

then back into the creek, where his truck stalled momentarily. (ECF Nos. 170, Exs. D, E; 172,

Exs. F, G at 2015.) With his vehicle disabled in the water, Plaintiff ignored multiple commands

to surrender. (ECF No. 170, Exs. D, E; 172, Exs. F, G at 2021–23.) Plaintiff was able to restart

the truck, at which point he drove out of the creek. (ECF No. 183 at 23:17–21.) At that time, he

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encountered Webb, who fired three shots through the side window, one of which struck Plaintiff

in the hand. (Id. at 23:22–24.)

It is critical to understand what was happening in these moments from the perceptions of

the officers. As previously evidenced, officers were aware of Plaintiff’s tendency to resist arrest,

knew that he was carrying at least one AR-15 rifle, and knew that he would engage in a shootout

with officers. Moreover, Plaintiff had only moments before led officers on an extremely

dangerous, high-speed chase on the interstate that involved him swerving in and out of oncoming

traffic, driving the wrong way through an entrance ramp, “lock[ing] up [his] brakes up on the

interstate,” and exceeding speeds of at least 100 miles per hour. (ECF No. 225 at 8–9.) Then,

he led officers to a coal camp where the chase continued off-road and in an area with spotty radio

traffic in the dark of night. (See ECF No. 225 at 9–10.) In fact, there was much confusion about

not only Plaintiff’s whereabouts upon entering the coal camp, but also the other officer’s locations

in the area. (ECF No. 230 at 4.)

Webb admitted in statements to investigators that he thought Plaintiff was on foot when

the truck was in the creek, but then saw the vehicle accelerate out of the water. (ECF No. 170–1

at 5–6.) Webb also believed that other officers were nearby, and specifically “in the direction in

which Plaintiff was headed.” (Id. at 44–45.) This information, coupled with the reckless chase

Plaintiff led officers on, as well as the information in the BOLO, led Webb to believe that Plaintiff

was an imminent threat to officers and to the public. (Id.) Plaintiff himself admits that he did

not give up.6 (ECF No. 35 at 12–14.)

6 Through his supplemental filings, Plaintiff now contends that he was exiting the creek to surrender. (See ECF No.

230 at 5, n.5.) The PF&R correctly identifies this as a “sham affidavit,” as it totally contradicts the evidentiary record

before the Court, including Plaintiff’s own sworn testimony. This sham affidavit, filed solely in an attempt to create

a dispute of fact, is properly disregarded. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (“a

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Plaintiff did not stop after Webb shot at him. Mere seconds later, Plaintiff encountered

Officers Hawley and Smith, both of whom had to act quickly to get out of Plaintiff’s path. (ECF

No. 172, Ex. K at 2026.) Officer Hawley spun out of the way of the stolen vehicle and fired one

shot, which did not hit Plaintiff. Officer Smith, meanwhile, had been attempting to move her

police cruiser out of the road, but Plaintiff rammed her cruiser off the road at a speed of 35 miles

per hour, totaling the cruiser and injuring Officer Smith. (ECF No. 170–1 at 15–16.) Plaintiff

still did not stop, and he continued his flight. (Id.) Again, Plaintiff himself admits that he did

not yield to the officers’ authority. (ECF No. 183 at 25.)

Plaintiff then, only a moment later, encountered Simmons. Simmons had been waiting by

the wooden bridge which led out of the camp and back onto the main road. (ECF No. 170 at 30.)

Simmons reported that he was “behind [his] end block waiting because shots had already been

fired,” Plaintiff was a murder suspect out of Ohio, and Plaintiff had just led officers on a “long

police pursuit.” (Id.) Simmons reported hearing several gunshots just before Plaintiff

approached, and when Plaintiff came “over the hill,” he was driving directly at Simmons at a high

rate of speed. (Id.; ECF No. 225 at 9–10.) Simmons fired five shots at Plaintiff as he approached,

none of which actually hit Plaintiff. (See ECF No. 230 at 8.) Plaintiff passed Simmons, and then

lost control of the vehicle. (ECF No. 172, Ex. L at 36:42–50.)

Plaintiff was restrained and removed from the truck, and no further force was used against

him. (ECF No. 183 at 29.) Officers then found an AR-15 rifle in the truck. (Id.) About an

party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her

own previous sworn statement”); see also Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (“If a party

who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit

contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for

screening out sham issues of fact.”).

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hour later, emergency personnel arrived and took Plaintiff to the hospital. (Id.) Plaintiff can be

heard on body camera footage apologizing and admitting that he fled from law enforcement

because he did not want to go to jail. (ECF No. 172, Ex. L at 52:50.)

This recitation of facts is critical to the analysis herein because 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.”

Lee v. City of Richmond, 100 F. Supp.3d 528, 541 (E.D. Va. 2015) (citing Rowland v. Perry, 41

F.3d 167, 173 (4th Cir. 1994)). This analysis requires “careful attention to the facts and

circumstances of each particular case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396,

399 (1989).

Unlike Waterman, the case presently before the Court does not have a moment where the

threat to the officers or the public immediately ceased. Recall that in Waterman, the window in

which officers could reasonably utilize deadly force shut as soon as the officers were out of harm’s

way and the vehicle passed them. Waterman v. Batton, 393 F.3d 471, 481–82 (4th Cir. 2005).

Here, however, when the facts are considered “in full context, with an eye toward the

proportionality of the force in light of all the circumstances,” Smith v. Ray, 781 F.3d 95, 101 (4th

Cir. 2015), it is apparent that the force utilized by Defendants was reasonable. The officers were

faced with an individual they knew to be armed, would engage in a shootout, and who had refused

to yield to authority at every step of his flight while putting the officers and the public in danger

through his desperate attempts to escape. At every moment during the pursuit through the coal

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camp, Plaintiff put officers in danger. This is perhaps the most important distinction between this

case and Waterman: In the confines of the Sanderson coal camp, where visibility and radio traffic

were “spotty,” the officers were never fully aware of either Plaintiff’s position nor the precise

locations of their fellow officers. While the officers knew that their fellow officers were nearby,

they did not know exactly where but understood that Plaintiff was heading in their direction.

(ECF No. 170–1 at 44–45.) Given Plaintiff’s action up until this point, as well as the information

police had from the BOLO, in the heat of this dangerous pursuit, officers knew Plaintiff

represented a serious and imminent threat to their safety. As Officer Webb testified, he knew that

his fellow officers were up the road: “Their vehicles were in the roadway, . . . and they were

definitely in danger of serious injury and/or death because of your actions.[7]” (ECF No. 225 at

8–9.) This is in sharp contrast to Waterman, where the imminent threat of harm to the officers

abated the moment the vehicle passed them. Indeed, Plaintiff himself attested numerous times

that he would stop at nothing to evade the officers because he did not want to go to prison. (ECF

No. 183 at 19–20.)

As the Supreme Court reasoned, a reviewing court cannot sit in the comfort of chambers

and contemplate the reasonableness of force utilized by law enforcement with the benefit of “20/20

vision of hindsight.” Graham, 490 U.S. at 396. The Fourth Circuit expounded on the

reasonableness of deadly force, as follows:

[T]he Fourth Amendment does not require omniscience. 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 harm—the

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

7 Of course, these fears proved true, as only seconds later, Plaintiff rammed the stolen truck into Officer Smith’s

cruiser, totaling the vehicle and injuring Officer Smith. (ECF No. 170–1 at 15–16.)

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Elliott, et al. v. Leavitt, et al., 99 F.3d 640, 644 (4th Cir. 1996). The officers possessed sound

reason here.

Therefore, for the foregoing reasons, the Court SUSTAINS Defendants’ objections to the

PF&R and FINDS that Defendants are entitled to judgment as a matter of law.8 Defendants are

entitled to qualified immunity, such that Plaintiff’s claims against them must be, and hereby are,

DISMISSED.

IV. CONCLUSION

The Court ADOPTS IN PART the PF&R, (ECF No. 230), as detailed above, and further

SUSTAINS Defendants’ objections. (ECF No. 232.) Plaintiff’s objections, (ECF No. 239), are

OVERRULED. Further, the Court GRANTS Defendants’ Motion for Summary Judgment,

(ECF No. 169), and FINDS that Defendants are entitled to qualified immunity. Based on the

foregoing, this action is DISMISSED in its entirety. The Clerk is further DIRECTED to remove

this case from the Court’s active docket.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: September 28, 2021

8 Defendants have also objected to the PF&R’s finding that a seizure occurred after Plaintiff lost control of the stolen

vehicle and crashed, following the shots fired by Simmons. (See ECF No. 232 at 11–12.) However, as the Court’s

findings above establish that both Simmons and Webb are entitled to qualified immunity, resulting in the dismissal of

Plaintiff’s complaint, the Court shall not entertain this argument.

17

THOMAS E. f—

UNITED STATES DISTRICT JUDGE

18