Brockington v. Boykins

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TIM BROCKINGTON, 

Plaintiff-Appellee,

v.



ANTWAN LAMONT BOYKINS,

No. 09-2308

Defendant-Appellant,

and

BALTIMORE POLICE DEPARTMENT,

Defendant.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Catherine C. Blake, District Judge.

(1:08-cv-01713-CCB)

Argued: December 7, 2010

Decided: March 22, 2011

Before GREGORY, DAVIS, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Gregory wrote the

opinion, in which Judge Davis and Judge Wynn joined.

COUNSEL

ARGUED: Barron Stroud, Jr., STROUD & PRIEST, LLC,

Baltimore, Maryland, for Appellant. Eric Earl Murphy,

2 BROCKINGTON v. BOYKINS

JONES DAY, Columbus, Ohio, for Appellee. ON BRIEF:

Joseph W. Clark, Katherine E. Stern, Mark R. Lentz, JONES

DAY, Washington, D.C., for Appellee.

OPINION

GREGORY, Circuit Judge:

This 42 U.S.C. § 1983 case deals with whether a police

officer who used deadly force is entitled to qualified immu-

nity. Timothy Brockington, Plaintiff-Appellee, and Officer

Antwan Boykins, Defendant-Appellant, had a confrontation

that led to separate criminal and civil proceedings. In the

criminal proceedings, Brockington was convicted of kidnap-

ping Officer Boykins, but acquitted of possessing a gun dur-

ing that same incident. In the current civil proceedings,

Brockington alleges Officer Boykins used excessive, deadly

force in violation of his constitutional rights. Officer Boykins

moved to dismiss the complaint on the ground of qualified

immunity. The district court denied the motion. Because a

reasonable officer would have recognized that deadly force

was no longer needed after Brockington was injured and help-

less with his back on the ground, the judgment of the district

court is affirmed.

I.

At the outset, we take judicial notice of Brockington’s con-

viction in the Maryland Court of Special Appeals, which is a

matter of public record.* Papasan v. Allain, 478 U.S. 265,

*Importantly, we do not resolve the issue of whether judicial notice may

be taken of the facts underlying the conviction. Unlike other circuits, we

have not laid out the metes and bounds of judicial notice and we leave for

another day the question of whether such facts — including facts essential

to the conviction — are properly before us on a motion to dismiss for the

truth of the matter asserted, or whether such consideration is barred by the

rule against hearsay. See Wright & Graham, supra, at § 5106.4 (noting

that court documents are considered hearsay except, inter alia, when they

are findings of fact).

BROCKINGTON v. BOYKINS 3

298 (1986); see also Charles Alan Wright & Kenneth W. Gra-

ham, Federal Practice and Procedure: Evidence 2d § 5106.4

(2005) (court may properly take judicial notice of final con-

victions). As is the case for the complaint itself, we construe

the conviction in the light most favorable to the appellee.

Papasan, 478 U.S. at 298.

After a jury trial, Brockington was convicted of kidnap-

ping, conspiracy to kidnap, carjacking, and robbery, but

acquitted of all gun-related offenses. Brockington subse-

quently filed a pro se complaint against the Baltimore Police

Department ("BPD") and Boykins alleging claims under 42

U.S.C. § 1983 for violations of Brockington’s rights under the

Fourth and Fourteenth Amendments of the Constitution. The

district court thereafter granted a motion to appoint counsel to

represent Brockington. Brockington’s counsel requested leave

to file a Second Amended Complaint ("SAC"). The district

court granted permission to do so. The court also denied

Boykins’ motion to dismiss on the doctrine of qualified

immunity in a one-sentence order that contained no reasoning.

The denial of qualified immunity is an immediately appeal-

able order. Mitchell v. Forsyth, 472 U.S. 511 (1985).

The SAC alleges various crucial facts important to a

motion to dismiss. According to the complaint, on or about

July 5, 2005, after the initial crimes had been committed,

Brockington and Boykins confronted each other on the back-

yard steps of a vacant house at 1123 Myrtle Avenue. Boykins

fired his handgun at least twice at Brockington when Brock-

ington was approximately four feet away on the steps. The

first shot hit Brockington’s left hand, almost severing his

pinky from his hand. The second shot hit Brockington’s upper

abdomen and caused Brockington to fall off the stairs onto the

cement landing below. Brockington was unable to get up or

otherwise defend himself. As he lay on his back, Boykins

stood directly over him and fired at least six shots at close

range. Brockington did nothing to defend himself but raise his

hands and sway from side to side to protect his face. After

4 BROCKINGTON v. BOYKINS

shooting Brockington a total of nine times, Boykins fled the

scene. At no point in time was Brockington armed throughout

the confrontation. As a result of the incident, Brockington

spent three weeks on life support, is paralyzed, and is a para-

plegic.

II.

We review de novo the decision of the lower court to deny

a motion to dismiss pursuant to Federal Rule 12(b)(6), recog-

nizing that dismissal is inappropriate unless, accepting as true

the well-pled facts in the complaint and viewing them in the

light most favorable to the plaintiff, the plaintiff is unable to

"state a claim to relief that is plausible on its face." Bell Alt.

Corp. v. Twombly, 550 U.S. 544, 570 (2007); Jenkins v. Med-

ford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc). "Al-

though a motion pursuant to Rule 12(b)(6) invites an inquiry

into the legal sufficiency of the complaint, not an analysis of

potential defenses to the claims set forth therein, dismissal

nevertheless is appropriate when the face of the complaint

clearly reveals the existence of a meritorious affirmative

defense." Brooks v. City of Winston-Salem, 85 F.3d 178, 181

(4th Cir. 1996). One such defense is that of qualified immu-

nity. Jenkins, 119 F.3d at 1159.

"Qualified immunity shields government officials perform-

ing discretionary functions from personal-capacity liability for

civil damages under § 1983, insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known." Ridpath v.

Board of Governors Marshall University, 447 F.3d 292, 306

(4th Cir. 2006) (quoting Wilson v. Layne, 526 U.S. 603, 609

(1999)) (internal quotation marks omitted). Officials will

receive immunity unless the § 1983 claim satisfies a two-

prong test: (1) the allegations, if true, substantiate a violation

of a federal statutory or constitutional right and (2) the right

was "clearly established" such that a reasonable person would

have known his acts or omissions violated that right. Id.; see

BROCKINGTON v. BOYKINS 5

also Saucier v. Katz, 533 U.S. 194, 201 (2001), modified by

Pearson v. Callahan, 555 U.S. 223 (2009) (setting up this

two-pronged framework).

III.

In determining whether Brockington’s complaint satisfies

the two-prong test articulated above, we must evaluate the

reasonableness of the officer’s use of deadly force under a

multifactor analysis set forth in Graham v. Connor, 490 U.S.

386, 396-97 (1989). Graham governs our analysis of seizures

alleged to have been effected in violation of the Fourth

Amendment, and more specifically situations where excessive

force is employed. 490 U.S. at 399; see also Jones v.

Buchanan, 325 F.3d 520, 527 (4th Cir. 2003) (barring exces-

sive force in effecting seizures). Graham specifies that

whether force is excessive or not is based on "objective rea-

sonableness" under the circumstances "without regard to [the

officer’s] underlying intent or motivation." 490 U.S. at 390,

397. "In assessing whether an officer’s actions were objec-

tively reasonable, ‘we weigh the nature and quality of the

intrusion on the individual’s Fourth Amendment interests

against the countervailing governmental interests at stake.’"

Turmon v. Jordan, 405 F.3d 202, 207 (4th Cir. 2005) (quoting

Buchanan, 325 F.3d at 527) (internal punctuation omitted).

"The nature of the intrusion on a plaintiff’s Fourth Amend-

ment rights is generally measured by ‘the amount of force

employed to [e]ffect the seizure.’" Id. (citing Howerton v.

Fletcher, 213 F.3d 171, 173 (4th Cir. 2000)). "The extent of

the plaintiff’s injuries is also a relevant consideration." Id.

(citing Buchanan, 325 F.3d at 527.). "Several factors are con-

sidered in assessing the governmental interests at stake,

including the ‘severity of the crime at issue, whether the sus-

pect posed an immediate threat to the safety of the officer [ ]

or others, and whether he . . . actively resisted arrest or

attempted to evade arrest by flight.’" Id. (citing Graham, 490

U.S. at 396). "Because ‘police officers are often forced to

make split-second judgments — in circumstances that are

6 BROCKINGTON v. BOYKINS

tense, uncertain, and rapidly evolving,’ the facts must be eval-

uated from the perspective of a reasonable officer on the

scene, and the use of hindsight must be avoided." Waterman

v. Batton, 393 F.3d 471, 476-77 (4th Cir. 2005) (citing Gra-

ham, 490 U.S. at 396-97).

Brockington conceded at oral argument that the initial use

of deadly force to subdue him was reasonable. Nevertheless,

he argues that Boykins used excessive force in shooting him

multiple times once he was already immobilized. Boykins

responds that he had probable cause to act because he reason-

ably believed his life was in danger. See Ralph v. Peppersack,

335 F.2d 128, 132 (4th Cir. 1964) (probable cause must be

evaluated by looking at circumstances as they actually faced

officer, not as they are in theory). But whether or not Boykins

had probable cause to detain Brockington is tangential to the

question of deadly force. There is no indication that deadly

force was necessary or reasonable once Brockington was ini-

tially shot, thrown to the ground by the force of the bullets,

and wounded. See Tennessee v. Garner, 471 U.S. 1, 9-11

(1985) ("[t]he intrusiveness of a seizure by means of deadly

force is unmatched" but may be deployed if "the suspect

poses a threat of serious physical harm, either to the officer

or to others."). Furthermore, precedent suggests that it is pos-

sible to parse the sequence of events as they occur; while a

totality of circumstances analysis still remains good law, if

events occur in a series they may be analyzed as such. See

Waterman, 393 F.3d 471, 477. Drawing all inferences in favor

of Brockington from the allegations in the SAC, there was a

clear break in the sequence of events. Brockington’s injuries

may have been evident to Boykins after Brockington fell off

the porch onto the concrete backyard below. Further, it is

alleged that Boykins stood above Brockington execution style

while fully discharging his clip so that gun powder residue got

on Brockington’s hands while Brockington waved away

Boykins, further evincing the excessive nature of the force

used. Whether or not Boykins thought his life was still in

jeopardy is a fact that will be educed through discovery since

BROCKINGTON v. BOYKINS 7

it is unclear from the record before us. Again drawing all rea-

sonable inferences in favor of Brockington, he was unarmed.

Rather than shoot Brockington as he lay helpless on the

ground, a reasonable police officer would have asked him to

surrender, called for backup or an ambulance, or retreated,

depending on the facts that emerge through discovery.

Boykins cites two unpublished Fourth Circuit cases for the

proposition that it is permissible to continue shooting once a

suspect is down. See Rodgers v. Smith, 188 Fed. Appx. 175

(4th Cir. 2006) (unpublished) (shooting took place in a num-

ber of seconds after the suspect had fallen to the ground but

videotape of incident suggests he still had a weapon); Pethel

v. West Virginia State Police, 359 Fed. Appx. 390 (4th Cir.

2009) (per curiam) (unpublished) (shooting kidnapper who

may or may not have fallen to floor after first shot was justi-

fied). Most basically, neither of these has precedential weight.

See Local R. 32.1 (citation of unpublished dispositions disfa-

vored except where necessary to establish res judicata, estop-

pel, or the law of the case). Moreover, Waterman, the case

cited by Brockington, holds otherwise. 393 F.3d at 481

("force justified at the beginning of an encounter is not justi-

fied even seconds later if the justification for the initial force

has been eliminated."). In any case, here there is one impor-

tant difference. In drawing all inferences in favor of Brock-

ington, he was unarmed and this fact was apparent.

Boykins argues that under Graham there needs to be a clear

bright-line separating allowable actions from forbidden ones.

But Boykins also conceded at oral argument that thirty-three

shots would be unjustified, as would twenty-nine, or even

nineteen. It is invariably arbitrary when we undertake to draw

a clean line denominating the precise number of shots

allowed. It is enough for us to say that on these facts, six is

too many.

The second prong of the analysis, whether or not the right

was clearly established, presents a closer question. Boykins

8 BROCKINGTON v. BOYKINS

argues that the right was not clearly established because, by

virtue of the fact there were multiple shots, it was necessarily

a gray area when further shooting became prohibited. See

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

("Officials are not liable for bad guesses in gray areas; they

are liable for transgressing bright lines."). Furthermore,

Boykins argues, Waterman was not a clearly established pre-

cedent in the Fourth Circuit as of the time the shooting

occurred. Waterman involved a high-speed chase of a suspect

that ended in his death. In analyzing the chase, the Waterman

Court broke it down into segments based on the location of

the car relative to the police officers who shot the suspect. Id.

at 477. Boykins claims that Waterman was at odds with the

"totality of circumstances" perspective articulated in Graham.

Importantly, it is not required that the exact conduct has

been found unconstitutional in a previous case. E.g. Hope v.

Pelzer, 536 U.S. 730, 741 (2002) ("officials can still be on

notice that their conduct violates established law even in

novel factual circumstances."). Indeed, it is just common

sense that continuing to shoot someone who is already inca-

pacitated is not justified under these circumstances. Neverthe-

less, the Supreme Court did decide in Tennessee v. Garner

that deadly force was not generally justified against a suspect

who did not pose an immediate threat as Brockington did not

if all facts are construed in his favor. In Waterman, the Court

solidified this position. Waterman thus remains and was at the

time these events took place controlling precedent in this Cir-

cuit.

IV.

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.