Witt v. West Virginia State Police, Troop 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEVEN S. WITT, 

Plaintiff-Appellee,

v.

WEST VIRGINIA STATE POLICE,

TROOP 2, Martinsburg, Berkeley

County; J.J. BOWMAN, individually  No. 10-1008

and in his Official Capacity; J.D.

BURKHART, individually and in his

Official Capacity; J.B. FLANIGAN,

individually and in his Official

Capacity,

Defendants-Appellants.



Appeal from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

John Preston Bailey, Chief District Judge.

(3:08-cv-00183-JPB)

Argued: December 7, 2010

Decided: February 4, 2011

Before MOTZ, AGEE, and KEENAN, Circuit Judges.

Dismissed by published opinion. Judge Motz wrote the opin-

ion, in which Judge Agee and Judge Keenan joined.

2 WITT v. WEST VIRGINIA STATE POLICE

COUNSEL

ARGUED: Jason Patrick Foster, STEPTOE & JOHNSON,

LLP, Martinsburg, West Virginia, for Appellants. Harry P.

Waddell, LAW OFFICE OF HARRY P. WADDELL, Martin-

sburg, West Virginia, for Appellee. ON BRIEF: Lucien G.

Lewin, STEPTOE & JOHNSON, LLP, Martinsburg, West

Virginia, for Appellants. David M. Hammer, HAMMER,

FERRETTI & SCHIAVONI, Martinsburg, West Virginia, for

Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Steven Witt brought this § 1983 Fourth Amendment exces-

sive force case against the West Virginia State Police and

three troopers. After dismissing Witt’s claims against the

State Police and the troopers in their official capacity, the dis-

trict court refused to grant summary judgment to the troopers

in their individual capacity. Contending that qualified immu-

nity protects them from suit, the troopers timely noted this

interlocutory appeal. For the reasons that follow, we dismiss

the appeal.

I.

The parties agree as to only some of the facts giving rise

to this suit. They agree that on January 8, 2007, Witt con-

sumed alcohol at a local bar and then joined his girlfriend,

Candy Gedon, and her children for dinner at a restaurant.

After dinner, Gedon drove Witt, who sat in the front passen-

ger seat, and her children, who sat in the back, to her home.

As Gedon pulled into her driveway, Trooper J.J. Bowman

pulled his police cruiser behind her. The trooper activated his

emergency lights and dashboard camera, but not the camera’s

WITT v. WEST VIRGINIA STATE POLICE 3

microphone. Shortly thereafter, Troopers J.D. Burkhart and

J.B. Flanigan arrived at the scene. The troopers were acting

on the belief that Witt was Daniel Anderson, who was similar

in height and weight to Witt, was rumored to associate with

Gedon, and was wanted for various crimes, including

attempted assault of a state trooper two days before the eve-

ning in question. Within moments of Burkhart’s and Flani-

gan’s arrival at the scene, a scuffle ensued in which Witt

suffered injuries including a left orbital fracture, a facial lacer-

ation of 2.5 centimeters, a scalp laceration of 2.5 centimeters,

a second scalp laceration of 3 centimeters, and a closed head

injury. Some of the scuffle was recorded by Trooper Bow-

man’s dashboard video camera, but seven seconds occurred

off camera.

The parties disagree as to virtually all other material facts.

Witt maintains that after Trooper Bowman ordered Gedon,

who had exited the driver’s side door, to return to the car, the

trooper walked to the passenger side, opened the door, and

asked Witt to identify himself. Witt replied, "I’m Steve Witt.

Who are you?" Trooper Bowman told Witt he was a state

trooper and asked Witt for identification. Witt responded that

his identification was in his wallet and began to reach for his

back pocket where he kept the wallet. At that point, the

trooper pushed Witt and yelled, "Where’s your wallet at?"

Witt replied, "If you back off of me, I’ll get my wallet."

Trooper Bowman then "grabbed" Witt and "yanked [him] out

of the car," while ordering him to "get the fuck out of the car."

Once on his feet, Witt pulled his arm from the trooper’s

assertedly painful grasp.

At this time, Witt noticed Troopers Flanigan and Burkhart

approaching and that Trooper Burkhart was pointing a gun at

him. According to Witt, as the troopers surrounded him,

Trooper Bowman began to pull Witt down toward the ground.

As Witt fell, Trooper Burkhart struck him in the head with his

gun. Witt claims that he was not resisting the officers or mov-

ing toward them in a threatening manner. Moreover, accord-

4 WITT v. WEST VIRGINIA STATE POLICE

ing to Witt, although he called out that his head was split

open, the troopers continued kicking and kneeing him as he

lay face down in a mud puddle. Witt maintains that he initi-

ated no blows but "may have swung" after being "hit several

times." The troopers then took Witt’s wallet, handcuffed him,

dragged him across the yard, and threw him against a tree.

Both Gedon and one of her children corroborate Witt’s ver-

sion of events.

The troopers relate a very different tale and maintain that

the video from Trooper Bowman’s dashboard camera sub-

stantiates their version of events. The troopers contend that

the video demonstrates that (1) Witt, not Trooper Bowman,

forcefully opened the passenger side door of Gedon’s vehicle

and then swung both of his legs out of the vehicle; (2) Witt

stood up in front of Trooper Bowman in an aggressive man-

ner; (3) Witt never reached for his wallet before or after he

stood up; and (4) Trooper Burkhart reholstered his service

weapon without ever striking Witt. The troopers maintain

that, after the parties moved out of camera view, as Trooper

Bowman brought Witt to the ground, Trooper Flanigan inad-

vertently struck Witt on the back of the head with a Maglite

flashlight, and that this inadvertent blow, not any intentional

beating, caused Witt’s injuries.* The troopers concede that as

Trooper Bowman began to bring Witt to the ground, the entire

incident moved off camera.

The district court denied the troopers’ motion for summary

judgment on qualified immunity grounds, concluding that

Witt presented sufficient evidence to raise genuine issues of

material fact. The troopers timely filed this interlocutory

appeal. Witt has moved to dismiss the appeal, arguing that we

lack jurisdiction to entertain it.

*The troopers spend a good deal of time describing Witt’s criminal his-

tory and possession of illegal narcotics. Of course, these facts are irrele-

vant to the excessive force analysis because, as the troopers themselves

acknowledge, they "did not know" these facts "at the time" they allegedly

beat Witt. Appellants’ Br. at 18.

WITT v. WEST VIRGINIA STATE POLICE 5

II.

"[Q]ualified immunity protects government officials from

liability for violations of constitutional rights that were not

clearly established at the time of the challenged conduct." Iko

v. Shreve, 535 F.3d 225, 233 (4th Cir. 2008) (citing Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). It constitutes an

"immunity from suit rather than a mere defense to liability;

and like an absolute immunity, it is effectively lost if a case

is erroneously permitted to go to trial." Mitchell v. Forsyth,

472 U.S. 511, 526 (1985) (emphasis omitted). Accordingly, "a

district court’s denial of a claim of qualified immunity, to the

extent that it turns on an issue of law, is an appealable ‘final

decision’ . . . notwithstanding the absence of a final judg-

ment." Id. at 530 (emphasis added); see also Behrens v. Pelle-

tier, 516 U.S. 299, 301 (1996); Johnson v. Jones, 515 U.S.

304, 313 (1995); Winfield v. Bass, 106 F.3d 525, 528 (4th Cir.

1997) (en banc).

However, "a defendant, entitled to invoke a qualified

immunity defense, may not appeal a district court’s summary

judgment order insofar as that order determines whether or

not the pretrial record sets forth a ‘genuine’ issue of fact for

trial." Johnson, 515 U.S. at 319-20 (emphasis added).

Although an appellate court can, on interlocutory appeal,

decide "purely legal questions relating to qualified immunity,"

it may not reweigh the record evidence "to determine whether

material factual disputes preclude summary disposition." Iko,

535 F.3d at 234; see also Culosi v. Bullock, 596 F.3d 195, 203

n.6 (4th Cir. 2010); Winfield, 106 F.3d at 529.

Further, we must "examine the parties’ appellate arguments

to ensure that we only consider those legal questions formally

raised on appeal." Iko, 535 F.3d at 235. "This step is particu-

larly important in interlocutory appeals regarding qualified

immunity, because a party can so focus its appellate argument

on factual disputes that it fails to raise a single legal question

appropriate for appellate review." Id. at 235 n.8; see also

6 WITT v. WEST VIRGINIA STATE POLICE

Johnson, 515 U.S. at 314 (dismissing appeal because the

Court could not "find any ‘separate’ [legal] question—one

that is significantly different from the fact-related legal issues

that likely underlie the plaintiff’s claim on the merits").

With these governing principles in mind, we turn to the

case at hand.

III.

After carefully reviewing the parties’ differing accounts as

to the underlying facts, the district court denied the troopers

qualified immunity because it concluded that Witt had pro-

duced evidence raising questions "of material fact with regard

to his § 1983 excessive force claim." Witt v. Bowman, No.

3:08-cv-183, at 10 (N.D.W. Va. Nov. 12, 2009). "[W]hether

Witt posed a threat to the safety of the troopers and whether

he resisted or attempted to evade arrest" were, the court

found, "crucial facts to be analyzed in determining whether

the troopers violated the Fourth Amendment and, if so,

whether they should have known their conduct was impermis-

sible." Id.; see Graham v. Connor, 490 U.S. 386, 396 (1989).

The court further found that "the credibility of testimony" and

"the reliability of documentary evidence" in this case pre-

sented genuine disputes as to these "crucial facts." Witt, No.

3:08-cv-183, at 10-11. The district court concluded that the

lack of neutral witnesses pitted the self-interested testimony

of the troopers, who had one account of events, against the

self-interested testimony of Witt, Gedon, and her daughter,

who had a very different account, and that the poor quality of

the video did not resolve these disputes. This finding, that

genuine disputes of material fact preclude the grant of sum-

mary judgment on qualified immunity grounds, would seem

to require us to dismiss the troopers’ interlocutory appeal for

lack of jurisdiction. See e.g., Johnson, 515 U.S. at 319-20.

The troopers maintain, however, that they raise the legal

question "inherent in every determination that a governmental

WITT v. WEST VIRGINIA STATE POLICE 7

official is not entitled to qualified immunity." Winfield, 106

F.3d at 529; see also Behrens, 516 U.S. at 313. That is, that

the facts "viewed in the light most favorable to the nonmov-

ing party," i.e., Witt, demonstrate that the troopers’ conduct

violated no "clearly established" right. Winfield, 106 F.3d at

529. The record offers no support for this contention. Rather,

instead of viewing the facts in the light most favorable to

Witt, time and again the troopers attempt to resolve disputes

as to material facts in their own favor.

Moreover, contrary to the troopers’ contentions, the video

from Trooper Bowman’s dashboard camera does not compel

adoption of the troopers’ version of the facts and rejection of

Witt’s. If it did, this would be a very different case. For when

a video "quite clearly contradicts the version of the story told

by [the plaintiff] . . . so that no reasonable jury could believe

it, a court should not adopt that version of the facts for pur-

poses of ruling on a motion for summary judgment." Scott v.

Harris, 550 U.S. 372, 378, 380 (2007); accord Iko, 535 F.3d

at 230.

Of course, Scott does not abrogate the proper summary

judgment analysis, which in qualified immunity cases "usu-

ally means adopting . . . the plaintiff’s version of the facts."

550 U.S. at 378. Thus, Scott does not hold that courts should

reject a plaintiff’s account on summary judgment whenever

documentary evidence, such as a video, offers some support

for a governmental officer’s version of events. Rather, Scott

merely holds that when documentary evidence "blatantly con-

tradict[s]" a plaintiff’s account "so that no reasonable jury

could believe it," a court should not credit the plaintiff’s ver-

sion on summary judgment. Id. at 380. As such, Scott simply

reinforces the unremarkable principle that "[a]t the summary

judgment stage, facts must be viewed in the light most favor-

able to the nonmoving party" when "there is a ‘genuine’ dis-

pute as to those facts." Id. (quoting Fed. R. Civ. P. 56(c))

(emphasis added).

8 WITT v. WEST VIRGINIA STATE POLICE

Turning to the video in this case, it does not "clearly" or

"blatantly" contradict Witt’s "version of the story." Id. at 378,

380. Rather, it provides little assistance in resolving the par-

ties’ disputes as to the facts. First, because Trooper Bowman

failed to activate the camera’s microphone, the video lacks

sound. The viewer cannot hear whether Witt properly

answered Trooper Bowman’s questions and followed the

trooper’s orders (as Witt claims) or resisted arrest posing a

threat to the troopers’ safety (as the troopers claim). See

Blaylock v. City of Philadelphia, 504 F.3d 405, 414 (3d Cir.

2007) (emphasizing that in Scott the "videotape of undisputed

authenticity depict[ed] all of the defendant’s conduct and all

of the necessary context that would allow the Court to assess

the reasonableness of that conduct").

Not only are we left with a soundless video containing

mere images, but also, as the district court noted, these images

themselves are ambiguous due to the unreliable quality of the

video. It is difficult to decipher from reviewing the video the

true sequence of events. Cf. Iko, 535 F.3d at 231 (noting that

the video in that case undisputedly depicted the "general

sequence of the events"). For example, although the troopers

contend that the video "confirm[s]" that Witt forcefully

opened the passenger side door, Appellants’ Br. at 12, the

police sergeant who investigated the incident concluded that

the video corroborated Witt’s claim that in fact Trooper Bow-

man "opened the passenger’s door."

Furthermore, the video fails to capture seven important sec-

onds of the incident, about which the parties’ accounts decid-

edly differ. It is during these seven seconds that Witt

sustained his head and eye injuries, which he contends the

troopers caused by striking him with a firearm and repeatedly

kicking and kneeing him as he lay face down on the ground.

According to the troopers, during these same seven seconds

they fell to the ground with Witt and inadvertently struck him

on the head with a flashlight. The parties’ dispute as to what

actually happened during these seven seconds is critical to the

WITT v. WEST VIRGINIA STATE POLICE 9

summary judgment analysis, because that dispute goes

directly to the reasonableness of the troopers’ use of force.

In sum, the documentary evidence in this case—the dash-

board video—does not "blatantly contradict[ ]" Witt’s account

of the facts; therefore, it "does not establish that the officers

are entitled to summary judgment." See York v. City of Las

Cruces, 523 F.3d 1205, 1210-11 (10th Cir. 2008) (refusing to

direct grant of summary judgment when an audio tape

recorded "only part of the incident involving the [plaintiff]

and the police officers"); Blaylock, 504 F.3d at 414 (holding

documentary evidence did not establish that plaintiff’s version

of events was "blatantly and demonstrably false"); see also

United States v. Hughes, 606 F.3d 311, 319-20 (6th Cir. 2010)

(finding Scott inapplicable, in determining probable cause for

search, when documentary evidence made party’s account of

disputed fact merely "‘unlikely,’" rather than "utterly discred-

ited" (internal quotation omitted)). Moreover, the troopers’

attempt to "rehash[ ] the factual dispute below" provides no

basis for interlocutory appeal of the district court’s order

denying summary judgment on qualified immunity grounds.

Iko, 535 F.3d at 235.

IV.

Since the troopers seek to appeal from an order that simply

determines that "the pretrial record sets forth a ‘genuine’ issue

of fact for trial," Johnson, 515 U.S. at 320, we must dismiss

the appeal for lack of jurisdiction.

DISMISSED