Waterman v. Batton

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL R. WATERMAN, Personal 

Representative of the Estate of Josh

T. Waterman, Deceased; RUTH G.

WATERMAN; ROLAND M. WATERMAN,

Plaintiffs-Appellees,

v.

MICHAEL P. BATTON; KENNETH KEEL;  No. 04-1096

CHRISTOPHER HEISEY,

Defendants-Appellants,

and

STATE OF MARYLAND,

Defendant.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Catherine C. Blake, District Judge.

(CA-02-1725-CCB)

Argued: September 30, 2004

Decided: January 3, 2005

Before WILKINS, Chief Judge, MOTZ, Circuit Judge, and

Henry E. HUDSON, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Chief Judge Wilkins

wrote the majority opinion, in which Judge Hudson joined. Judge

Motz wrote a dissenting opinion.

2 WATERMAN v. BATTON

COUNSEL

ARGUED: Karen June Kruger, Assistant Attorney General, OFFICE

OF THE ATTORNEY GENERAL, Baltimore, Maryland, for Appel-

lants. John J. Connolly, MURPHY & SHAFFER, L.L.C., Baltimore,

Maryland, for Appellees. ON BRIEF: J. Joseph Curran, Jr., Attorney

General of Maryland, Michael D. Berman, Deputy Chief of Litiga-

tion, Baltimore, Maryland, for Appellants. William J. Murphy, MUR-

PHY & SHAFFER, L.L.C., Baltimore, Maryland, for Appellees.

OPINION

WILKINS, Chief Judge:

Officers Michael Batton, Kenneth Keel, and Christopher Heisey of

the Maryland Transportation Authority (MdTA) (collectively, "Ap-

pellants") appeal a district court order denying their motion for sum-

mary judgment based on qualified immunity in an action alleging that

they unconstitutionally employed deadly force against Josh Water-

man. We reverse and remand.

I.

In reviewing the denial of summary judgment based on qualified

immunity, we accept as true the facts that the district court concluded

may be reasonably inferred from the record when viewed in the light

most favorable to the plaintiff.1 See Gray-Hopkins v. Prince George’s

County, 309 F.3d 224, 229 (4th Cir. 2002). To the extent that the dis-

trict court has not fully set forth the facts on which its decision is

based, we assume the facts that may reasonably be inferred from the

1

Appellants contend that the district court erred in considering the tes-

timony of several witnesses. We lack jurisdiction to review this issue in

an interlocutory appeal of the denial of qualified immunity; rather, we

must accept the facts that the district court concluded could be gleaned

from the record, viewing it in the light most favorable to the plaintiff. See

Gray-Hopkins v. Prince George’s County, 309 F.3d 224, 229 (4th Cir.

2002); Poe v. Leonard, 282 F.3d 123, 147 (2d Cir. 2002).

WATERMAN v. BATTON 3

record when viewed in the light most favorable to the plaintiff. See

Winfield v. Bass, 106 F.3d 525, 533-35 (4th Cir. 1997) (en banc).

Employing these principles reveals the following facts.

On the afternoon of November 28, 2000, at approximately 3:11

p.m., Waterman was driving in the Baltimore Washington Interna-

tional Airport terminal area. MdTA Officer Eric Farrow observed

Waterman traveling 51 miles per hour in a 25-miles-per-hour zone,

and Farrow activated the emergency sirens and lights on his patrol

vehicle and initiated pursuit. When Waterman did not stop, MdTA

Officer Adam Watkowski, who was in another patrol vehicle, acti-

vated his sirens and lights and joined in the pursuit.

As they followed Waterman, Officers Farrow and Watkowski com-

municated by radio with the MdTA officers located at the toll plaza

of the Fort McHenry Tunnel (the Tunnel). At approximately 3:16

p.m., Watkowski reported to Communications at the Tunnel that he

was involved in a "10-80" (chase in progress) heading northbound on

I-95 toward the Tunnel. Communications relayed the message to all

units and identified the vehicle as a gold Mazda with North Carolina

license plate MZL-1595. Appellants heard that message. Other offi-

cers stationed near the toll plaza radioed that they were standing by.

One officer received permission to prepare "stop sticks"2 in the north-

bound lanes on the north side of the toll plaza, and someone radioed

that the sticks were being prepared.

At approximately 3:17 p.m., Officer Watkowski radioed to Com-

munications that Waterman "just tried to run me off the road . . . he’s

trying to take us off the road." Waterman v. Batton, 294 F. Supp. 2d

709, 714 (D. Md. 2003) (alteration in original) (internal quotation

marks omitted).3 Appellants all heard that communication. Addition-

2

Stop sticks disable vehicles by puncturing their tires.

3

Video systems in Farrow’s and Watkowski’s police vehicles recorded

most of the events leading up to and including the shooting. The result-

ing video has been transferred into DVD format and is in the joint appen-

dix. The video creates some question regarding whether Waterman

actually did try to run Watkowski off the road. However, it is undisputed

that Appellants did not have access to this evidence when they encoun-

tered Waterman.

4 WATERMAN v. BATTON

ally, at approximately 3:21 p.m., just after Waterman and the trailing

officers entered the Tunnel, Watkowski radioed to Communications

that Waterman "reached under the seat have all units 10-0" (use cau-

tion). Id. (internal quotation marks omitted). Officer Heisey heard the

10-0 warning, but none of the Appellants heard that Waterman had

reached under his seat.

When Waterman emerged from the Tunnel approximately two

minutes later, he drove toward lane 12 of the toll plaza, the left-most

northbound lane.4 By this time, the pursuit had continued for more

than 10 minutes. As Waterman drove toward the plaza at a normal

speed, keeping a safe distance from vehicles in front of him, five uni-

formed MdTA officers—Appellants and Officers Sean Hames and

Lance Bellman—emerged from around the concrete island located

between lanes 11 and 12. With their weapons drawn, the officers

approached Waterman’s vehicle from the front and passenger sides,

yelling for Waterman to stop.

Waterman slowed as he approached the toll plaza, then coasted for

about one second at approximately 11 miles per hour. The vehicle

ahead of Waterman’s then began to move forward. Immediately

thereafter, the rear of Waterman’s vehicle dipped down and rose back

up—a motion the officers described as "lurching" or "lunging"

forward—and Waterman began to accelerate in the general direction

of the toll plaza and the officers ahead of him. At the instant of accel-

eration, Officer Keel was about 72 feet ahead of the vehicle; Officer

Heisey, 38 feet ahead; Officer Hames, a little more than 23 feet

ahead; and Officer Batton, a little more than 16 feet ahead.5 Although

none of the officers were directly in front of Waterman’s vehicle, they

stood only a few feet to the passenger side of the vehicle’s projected

path.6

4

There are 24 lanes in the plaza. Lane 12 is an M-Tag lane, meaning

that authorized vehicles may proceed slowly through the plaza in that

lane without stopping to pay a toll.

5

It is unclear from the record where Officer Bellman was in relation

to the other officers. He does not appear to be visible in the video.

6

The district court concluded that the record supported the inference

that in the moments before the shooting none of the officers were directly

WATERMAN v. BATTON 5

Perceiving the lurching of the vehicle and Waterman’s acceleration

as the beginning of an attempt to run them over, Appellants began fir-

ing their weapons as soon as Waterman accelerated. As the officers

shot at him, Waterman’s vehicle reached a top speed of approxi-

mately 15 miles per hour. Waterman’s vehicle then passed all of the

officers, avoiding them by several feet and temporarily stopping

behind another vehicle blocking its path. As Appellants scrambled

toward Waterman, they continued to fire their weapons at him from

the passenger side of the vehicle and from behind, ceasing their fire

as he passed through the toll plaza. In all, within the approximately-

six-second period after Waterman’s vehicle lurched forward, Officer

Batton fired four rounds, Officer Keel, two, and Officer Heisey, two.

When Waterman’s vehicle passed through the toll lane, it ran over

the stop sticks. Officer Watkowski followed Waterman through the

lane in his vehicle and collided with him, bringing both vehicles to

a stop.

Waterman sustained five gunshot wounds: a shot that grazed his

front right shoulder; a shot that entered the front right side of his neck

and was recovered from his left shoulder; and shots that went through

his right arm, right thigh, and left thigh. About two minutes after his

vehicle came to a stop, several officers pulled Waterman from his

vehicle and attempted to administer CPR. An ambulance then trans-

ported Waterman to John Hopkins Medical Center, where he was pro-

in front of Waterman’s vehicle. The court, however, did not specify

exactly how close to the path of the vehicle it assumed the officers were

at the instant of acceleration. Some witnesses characterize the officers as

approaching from the side of the vehicle or not being in front of it. Were

there no video recording of the events at issue here, some of this testi-

mony might be sufficient to give rise to a reasonable inference that the

officers were so far out of the path of the vehicle as to not be in serious

danger. However, any reasonable jury would have to interpret the testi-

mony of various witnesses in light of the video recording. (No testimony

suggests that the video does not properly depict the events that occurred.)

Regardless of exactly where each officer was positioned when Waterman

accelerated, the video leaves no doubt that at the moment of acceleration,

there were officers positioned close enough to the vehicle that Waterman

could have run them over in approximately one second.

6 WATERMAN v. BATTON

nounced dead at 4:10 p.m. It was later determined that the shot that

entered Waterman’s neck was rapidly fatal, meaning that it killed him

within 30 seconds to two minutes.

Waterman’s personal representative and parents (the Estate) initi-

ated this action in the Circuit Court for Baltimore City, alleging sev-

eral causes of action under Maryland law in addition to a Fourth

Amendment claim, see 42 U.S.C.A. § 1983 (West 2003). As is rele-

vant here, the Estate alleged that the officers violated Waterman’s

Fourth Amendment rights by unjustifiably employing deadly force.

Appellants removed the case to federal court and, following discov-

ery, moved for summary judgment on several grounds, including that

they were entitled to qualified immunity on the Fourth Amendment

claim. The district court denied Appellants’ motion in its entirety. See

Waterman, 294 F. Supp. 2d at 739.

II.

Appellants appeal the portion of the district court order denying

their motion for summary judgment based on qualified immunity. We

conclude that the district court erred in denying Appellants summary

judgment on the qualified immunity issue.

A.

Qualified immunity protects "all but the plainly incompetent or

those who knowingly violate the law." Malley v. Briggs, 475 U.S.

335, 341 (1986). It protects law enforcement officers from "bad

guesses in gray areas" and ensures that they are liable only "for trans-

gressing bright lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th

Cir. 1992). Thus, government officials performing discretionary func-

tions are entitled to qualified immunity from liability for civil dam-

ages to the extent that "their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). In analyzing an appeal from the rejection of a qualified immu-

nity defense, our first task is to identify the specific right that the

plaintiff asserts was infringed by the challenged conduct. See Taylor

v. Waters, 81 F.3d 429, 433 (4th Cir. 1996). We then ask whether the

facts, viewed in the light most favorable to the plaintiff, demonstrate

WATERMAN v. BATTON 7

a violation of that right. See Saucier v. Katz, 533 U.S. 194, 201

(2001). If they do, we consider whether, at the time of the claimed

violation, the right alleged to be violated was clearly established—

meaning that "a reasonable official would understand that what he is

doing violates" the right in question. Id. at 202 (internal quotation

marks omitted).

Although the exact conduct at issue need not have been held

unlawful in order for the law governing an officer’s actions to be

clearly established, the existing authority must be such that the unlaw-

fulness of the conduct is manifest. See Anderson v. Creighton, 483

U.S. 635, 640 (1987); Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.

1992) (explaining that "[t]he fact that an exact right allegedly violated

has not earlier been specifically recognized by any court does not pre-

vent a determination that it was nevertheless ‘clearly established’ for

qualified immunity purposes" and that "‘[c]learly established’ in this

context includes not only already specifically adjudicated rights, but

those manifestly included within more general applications of the

core constitutional principle invoked"). A determination that a right

is clearly established may be based on controlling authority in the

jurisdiction in question or on a "consensus of cases of persuasive

authority such that a reasonable officer could not have believed that

his actions were lawful." Wilson v. Layne, 526 U.S. 603, 617 (1999).

The right the Estate alleges was violated here is Waterman’s Fourth

Amendment right to be free of unreasonable seizures, a right which

includes seizures accomplished by excessive force. See Jones v.

Buchanan, 325 F.3d 520, 527 (4th Cir. 2003). The test for whether

force employed to effect a seizure is excessive is one of "‘objective

reasonableness’ under the circumstances." Graham v. Connor, 490

U.S. 386, 399 (1989). In determining whether force was excessive, a

court must weigh "the nature and quality of the intrusion on the indi-

vidual’s Fourth Amendment interests against the countervailing gov-

ernmental interests at stake." Id. at 396 (internal quotation marks

omitted). Because "police officers are often forced to make split-

second judgments—in circumstances that are tense, uncertain, and

rapidly evolving," id. at 397, the facts must be evaluated from the per-

spective of a reasonable officer on the scene, and the use of hindsight

must be avoided, see id. at 396. Additionally, the reasonableness of

the officer’s actions in creating the dangerous situation is not relevant

8 WATERMAN v. BATTON

to the Fourth Amendment analysis; rather, reasonableness is deter-

mined based on the information possessed by the officer at the

moment that force is employed. See Elliott v. Leavitt, 99 F.3d 640,

643 (4th Cir. 1996); Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir.

1991).7

Here, Appellants seized Waterman by shooting him. It is important

to recognize that "[t]he intrusiveness of a seizure by means of deadly

force is unmatched." Tennessee v. Garner, 471 U.S. 1, 9 (1985). Nev-

ertheless, a police officer may employ deadly force when the officer

has "probable cause to believe that the suspect poses a threat of seri-

ous physical harm, either to the officer or to others." Id. at 11.

B.

We now turn to the question of whether the record, viewed in the

light most favorable to the Estate, shows that Appellants’ shooting of

Waterman constituted an unreasonable seizure under the Fourth

Amendment. Because Appellants argue only that the use of deadly

force was justified by the threat Waterman posed to them and their

fellow officers—as opposed to the general public—we confine our

analysis to that issue. Thus, the question before us is whether a rea-

sonable jury could conclude, based on the evidence forecast in the

7

We note that the Estate maintains that we may not revisit the conclu-

sions of the district court regarding the reasonableness of Appellants’

actions because we must accept the facts found by the district court to

be reasonably inferrable from the forecasted evidence. We disagree.

While we may not question the circumstances that the district court

assumed in analyzing the reasonableness of Appellants’ actions, the rea-

sonableness itself—and specifically the question of what a reasonable

jury could determine regarding reasonableness—is an issue that we con-

sider de novo. See, e.g., Altman v. City of High Point, 330 F.3d 194, 204-

07 (4th Cir. 2003) (reversing district court order denying qualified immu-

nity and concluding that officers’ actions were reasonable); Elliott, 99

F.3d at 644 (explaining that in reviewing the denial of summary judg-

ment based on qualified immunity, although we may not review a deter-

mination by the district court that the forecasted evidence gives rise to

a reasonable inference that particular conduct occurred, we may review

whether the facts assumed by the district court constituted excessive

force).

WATERMAN v. BATTON 9

record, that a perception by the officers that Waterman posed a threat

of serious physical harm to them would have been unreasonable. We

conclude that no reasonable jury could reach that conclusion with

regard to Appellants’ initial shots but that it could conclude that the

shots fired after Waterman passed the officers were unconstitutional.

We address the constitutionality of these two groups of shots seriatim.

1.

When Waterman’s vehicle lurched forward, the officers were

forced to immediately decide whether Waterman was attempting to

assault the officers ahead of him or whether he intended only to drive

by them, leaving them unharmed. To the extent that reasonable offi-

cers under these facts could have taken time to ponder whether the

lurching of the vehicle and Waterman’s acceleration were the begin-

ning of an aggressive move toward them, they would have considered

several factors suggesting that it was. Those would have included (1)

that Waterman, by any account, was not acting rationally in leading

the officers on a more-than-10-minute chase; (2) that he was not stop-

ping despite seeing the officers approaching ahead of him with their

weapons drawn; (3) that he was accelerating in the general direction

of the officers; and, most importantly, (4) that Officer Watkowski had

reported just minutes before that Waterman had attempted to run him

off the road. See Pace v. Capobianco, 283 F.3d 1275, 1282 (11th Cir.

2002) ("By the time of the shooting, Davis had used the automobile

in a manner to give reasonable policemen probable cause to believe

that it had become a deadly weapon with which Davis was armed.").

On the other hand, reasonable officers also would have considered the

following factors as weighing against a conclusion that Waterman

was trying to run over them: (1) that Waterman had not driven reck-

lessly in the 27 seconds between the time he emerged from the Tunnel

and the moment he accelerated in their general direction; (2) that

there was no visible damage to Waterman’s vehicle or the vehicles of

the officers pursuing him; (3) that other than his flight, no information

indicated that Waterman had committed any serious crime prior to

reportedly assaulting Officer Watkowski with his vehicle; and (4) that

Waterman had not yet increased his speed past 15 miles per hour or

turned his vehicle so that the officers were directly in his path.

Of course, the critical reality here is that the officers did not have

even a moment to pause and ponder these many conflicting factors.

10 WATERMAN v. BATTON

See Graham, 490 U.S. at 396-97 ("The 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."). At the instant that Waterman’s

vehicle lurched forward, the vehicle could have reached Officers Bat-

ton and Heisey in about one second even without accelerating further,

and in even less time if it had continued to accelerate. Thus, if the

officers paused for even an instant, they risked losing their last chance

to defend themselves.

Taking into consideration all of these factors, particularly the split-

second nature of the decision, we conclude as a matter of law that

Appellants had probable cause to believe that Waterman’s oncoming

vehicle posed an immediate threat of serious physical harm at least to

Officers Batton and Heisey.8 While reasonable officers would have

8

The Estate points to the opinions of some lay witnesses that Water-

man’s vehicle did not appear to be a threat to the officers ahead and to

expert testimony that the officers’ use of deadly force was unreasonable.

Neither precludes Appellants’ entitlement to summary judgment. Even

ignoring the conclusory nature of the lay opinions, those opinions do not

create a genuine issue of fact because the witnesses were unaware of the

fact most critical to the probable cause analysis: that Waterman had

reportedly attempted to use his vehicle as a weapon in order to avoid

being captured only minutes before entering the toll plaza. See Pace, 283

F.3d at 1280 & n.11 (holding that lay witness opinion that approaching

vehicle "[did not] appear to be a threat to any officer on the scene" did

not warrant denial of summary judgment because the witness was not

aware of the events that preceded the shooting that gave the officers rea-

son to believe that suspect would attempt to assault them (internal quota-

tion marks omitted)). Nor is summary judgment precluded by the

Estate’s expert’s opinion that Appellants’ actions were unconstitutional.

"Opinions, be they expert or lay, are only as good as the evidence upon

which they are based." Id. at 1280 n.11; cf. Washington v. United States,

214 F.2d 33, 43 (9th Cir. 1954) (concluding that expert opinions did not

support jury verdict, in part because "[o]pinion evidence is only as good

as the facts upon which it is based" and record did not support opinions).

Here, for the reasons stated, the record demonstrates that the officers’

perception of an immediate threat—whether correct or not—was clearly

reasonable and therefore that their initial use of deadly force was justi-

fied.

WATERMAN v. BATTON 11

recognized the possibility that Waterman intended only to accelerate

by them rather than at them, they also—in the instant they had to

decide—could have interpreted the acceleration in the face of their

show of force as the initiation of a second attempt by Waterman to

avoid capture by using his vehicle as a weapon against law enforce-

ment personnel. See Garner, 471 U.S. at 11 (holding that an officer

may use deadly force when a fleeing suspect "threatens the officer

with a weapon"). Thus, although Appellants could have held their fire

and taken the chance that Waterman’s acceleration in traffic was not

for the purpose of committing another assault against an officer,

"[t]he Constitution simply does not require police to gamble with

their lives in the face of a serious threat of harm."9 Elliott, 99 F.3d at

641.

In denying Appellants’ motion for summary judgment, the district

court relied heavily on the fact that none of the officers were directly

in the path of Waterman’s vehicle at the moment it lurched forward

and the officers opened fire. In so doing, the court cited several cases

for the proposition that when an officer attempts to justify his use of

deadly force against the driver of an oncoming vehicle by claiming

that he was trying to prevent the vehicle from running someone over,

the position of the person relative to the path of the vehicle is impor-

tant. See Hernandez v. Jarman, 340 F.3d 617, 620-21, 623-24 (8th

Cir. 2003); Abraham v. Raso, 183 F.3d 279, 293-94 (3d Cir. 1999);

Acosta v. City & County of San Francisco, 83 F.3d 1143, 1146-47

(9th Cir. 1996); Fraire v. City of Arlington, 957 F.2d 1268, 1274-76

(5th Cir. 1992). We most certainly agree with this general proposi-

9

The situation Appellants faced here—having to determine in a split-

second whether a suspect is using his vehicle as a weapon—is analogous

to the scenario of an officer forced to make a split-second decision as to

whether to use deadly force against a suspect who he believes has a fire-

arm. See, e.g., McLenagan v. Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994)

(holding that use of deadly force was justified against a suspect when

officer, forced to make a split-second decision, relied on his reasonable

belief that another officer had seen a gun in the suspect’s hands even

though the suspect’s hands were handcuffed in front of him and the

defendant officer never saw a weapon); Slattery v. Rizzo, 939 F.2d 213,

215-17 (4th Cir. 1991) (holding that use of deadly force was justified

when suspect in vehicle repeatedly refused orders to raise his hands and

the officer perceived that he was holding something).

12 WATERMAN v. BATTON

tion. And here, the closeness of the officers to the projected path of

Waterman’s vehicle is crucial to our conclusion that deadly force was

justified. Any reasonable factfinder considering all of the forecasted

evidence in the record would determine that Waterman was accelerat-

ing in Appellants’ general direction and that Officers Batton and

Heisey could have been run over in about one second if Waterman

had turned slightly toward them.

Scott v. Edinburg, 346 F.3d 752 (7th Cir. 2003), is instructive on

this point. There, a man attempted to steal the vehicle of an off-duty

police officer from a gas station parking lot. See Scott, 346 F.3d at

754. As the officer yelled from behind the automobile for the man to

stop, the man backed up quickly, either attempting to run the officer

down or acting recklessly with respect to that possibility. See id. at

754, 758. When the thief stopped backing up and began to speed off

through the parking lot, the officer began firing and continued to do

so when the vehicle exited the parking lot. See id. at 754-55. One of

the officer’s shots killed the thief. See id. at 755. On appeal from the

grant of summary judgment to the officer in the subsequent § 1983

suit, the Seventh Circuit held that the use of deadly force was justified

to protect bystanders from the oncoming stolen vehicle. See id. at

758-59. The court specifically rejected the contention that the fact that

no bystanders were in the direct path of the vehicle precluded the use

of deadly force when several people were in the immediate vicinity

of the path. See id. at 759. Of course, Scott differs from the case at

bar in that in Scott much of the concern was probably that the thief

would accidentally hit someone, while the concern here is that Water-

man would again intentionally use his vehicle as a weapon. But just

as the officer in Scott had reason to believe that the thief’s reckless-

ness might cause him to turn out of his then-current projected path,

here Appellants had reason to believe that Waterman’s aggressiveness

toward officers trying to capture him suggested he was about to turn

toward officers not yet in his direct path.

In sum, the officers here were faced with a suspect well positioned

to seriously injure or kill one or more of them with his vehicle—

possibly within a fraction of a second—if they did not employ deadly

force. According to the best information available, the suspect had

used his vehicle as a weapon against another officer just minutes

before. Based on this information and the other factors discussed, we

WATERMAN v. BATTON 13

hold as a matter of law that a reasonable officer could have believed

at the instant of acceleration that Waterman presented a threat of seri-

ous physical harm. Appellants thus were entitled to qualified immu-

nity regarding the initial group of shots.

2.

The Estate maintains that even if the initial shots were justifiable,

the same was not true of the shots fired after Waterman’s vehicle

passed the officers and the officers were out of danger (the subse-

quent shots). Appellants rely on Rowland v. Perry, 41 F.3d 167 (4th

Cir. 1994), in support of their argument that the subsequent shots,

which occurred mere seconds after the initial shots, should not be ana-

lyzed separately. We conclude, however, that separate analysis is

appropriate.

In Rowland, a law enforcement officer, Officer Perry, saw a

woman drop a five dollar bill, which Rowland retrieved without

attempting to return it. See Rowland, 41 F.3d at 171. Perry

approached Rowland and, at Perry’s request, Rowland offered the

money to the woman, who refused it, claiming that it was not hers.

See id. Perry could not hear the words between the two, but believed

that Rowland "simply waved the money in the face of [the] openly

distressed and tearful" woman. Id. Perry pursued Rowland and even-

tually grabbed his collar and jerked him around. See id. at 171-72.

Frightened, Rowland instinctively tried to escape Perry’s grasp. Perry

then punched Rowland, threw him to the ground, and "thr[ew] his

weight against Rowland’s right leg and wrench[ed his] knee until it

cracked." Id. at 172.

In concluding that Perry was not entitled to qualified immunity in

Rowland’s subsequent lawsuit, this court stated the following:

In his appraisal of the objective reasonableness of the

force used against Rowland, Perry urges what amounts to a

segmented view of the sequence of events. He emphasizes

the resistance offered by Rowland during the struggle with

Perry, separating this fact from the rest of the story. This

resistance alone, he argues, is enough to make Perry reason-

ably believe that force was necessary. Furthermore, the

14 WATERMAN v. BATTON

defendant divides the use of force into two parts. First, Perry

initially grabbed Rowland’s collar in response to his

attempts to flee. Second, Perry escalated the use of force in

response to Rowland’s resistance, culminating in the leg-

twisting maneuver that finally subdued the suspect. Viewed

in this way, each distinct act of force becomes reasonable

given what Perry knew at each point in this progression.

This approach seems to us to miss the forest for the trees.

The better way to assess the objective reasonableness of

force is to view it in full context, with an eye toward the

proportionality of the force in light of all the circumstances.

Artificial divisions in the sequence of events do not aid a

court’s evaluation of objective reasonableness. This view is

supported by the decision in Tennessee v. Garner, which

held that the question is "whether the totality of the circum-

stances justified a particular sort of . . . seizure."

Id. at 173 (alteration in original) (citation & internal quotation marks

omitted). In the end, we denied Perry qualified immunity because it

was "impossible to escape the conclusion that a man suffered a seri-

ous leg injury over a lost five dollar bill." Id. at 174.

Appellants maintain that reviewing the constitutionality of the sub-

sequent shots separately from that of the initial shots would constitute

just the sort of "[a]rtificial divisions in the sequence of events" that

we refused to undertake in Rowland. Appellants’ argument is not

without support. In characterizing Perry’s approach as "miss[ing] the

forest for the trees," Rowland is unclear regarding whether it rejects

(a) the notion that the reasonableness of force employed can turn on

a change of circumstances during an encounter lasting only a few sec-

onds, or (b) the idea that any of the events should be reviewed outside

the context of the conduct that precipitated the seizure—there, the

simple failure to return a five dollar bill.

Although both readings are plausible, we conclude that the latter

reading is the better one. It is established in this circuit that the rea-

sonableness of an officer’s actions is determined based on the infor-

mation possessed by the officer at the moment that force is employed.

See Elliott, 99 F.3d at 643. To simply view all of the force employed

WATERMAN v. BATTON 15

in light of only the information possessed by the officer when he

began to employ force would limit, for no good reason, the relevant

circumstances to be considered in judging the constitutionality of the

officer’s actions. We therefore hold that force justified at the begin-

ning of an encounter is not justified even seconds later if the justifica-

tion for the initial force has been eliminated. See Abraham v. Raso,

183 F.3d 279, 294 (3d Cir. 1999) (finding issue of fact regarding

whether officer was justified in firing on vehicle from side after step-

ping out of the way to avoid being run over, and explaining that "[a]

passing risk to a police officer is not an ongoing license to kill an oth-

erwise unthreatening suspect"); Dickerson v. McClellan, 101 F.3d

1151, 1162 n.9 (6th Cir. 1996) (noting that analyzing separate seg-

ments of single encounter may be appropriate if "the officers’ initial

decision to shoot was reasonable under the circumstances but there

was no need to continue shooting"); Ellis v. Wynalda, 999 F.2d 243,

247 (7th Cir. 1993) (holding that when fleeing felon tossed a mesh

bag weighing four or five pounds toward the officer, the officer would

have been justified if he fired at that moment out of fear that the bag

might knock his firearm out of his hand, but that he was not justified

in firing after bag hit him and fell to the ground without injuring him

and suspect turned and ran); see also Bates ex rel. Johns v. Chester-

field County, 216 F.3d 367, 371-72 (4th Cir. 2000) (concluding with

regard to escalating physical confrontation between officer and resist-

ing suspect that officer’s use of force was reasonable "[a]t every stage

of the . . . incident"); Hopkins v. Andaya, 958 F.2d 881, 886-88 (9th

Cir. 1992) (per curiam) (dividing several-minute encounter into two

segments and holding that even if the first application of force was

constitutional, the second may not have been).

Applying this principle here, we conclude that the record, viewed

in the light most favorable to the Estate, shows that once Waterman’s

vehicle passed the officers, the threat to their safety was eliminated

and thus could not justify the subsequent shots. A factfinder could

reasonably conclude that as the officers pursued Waterman’s vehicle,

they knew or should have known that Waterman had passed them

without veering in their direction. Under these circumstances, a rea-

sonable factfinder could determine that any belief that the officers

continued at that point to face an imminent threat of serious physical

harm would be unreasonable.

16 WATERMAN v. BATTON

C.

Having determined that the record, when viewed in the light most

favorable to the Estate, shows that the subsequent shots were uncon-

stitutional, we now consider whether that unconstitutionality was

clearly established on November 28, 2000, when the shooting

occurred. We conclude that it was not and thus that Appellants were

entitled to qualified immunity for the subsequent shots as well.

As we have discussed, a necessary premise to our conclusion that

the forecasted evidence could demonstrate the unconstitutionality of

the subsequent shots is that an imminent threat of serious physical

harm to an officer is not sufficient to justify the employment of

deadly force seconds after the threat is eliminated if a reasonable offi-

cer would have recognized when the force was employed that the

threat no longer existed. That proposition was not clearly established

in Maryland on November 28, 2000.

Our analysis of this issue begins with Pittman v. Nelms, 87 F.3d

116 (4th Cir. 1996). There, two law enforcement officers, Banks and

Nelms, had an ongoing feud with Timothy Hudson. See Pittman, 87

F.3d at 119. One day in May 1992, Hudson began to drive away in

his vehicle as Banks approached him; Banks’ arm became entangled

in the vehicle, resulting in Banks being dragged for 25 or 30 feet. See

id. at 118, 120. When the vehicle turned to the right, Banks was

thrown to the side. See id. at 120. He picked himself up, ran toward

the vehicle, and fired at it as it sped away. See id. Nelms fired at the

same time, injuring Pittman, a passenger in the automobile. See id.

When Nelms fired, the vehicle was approximately 25 feet in front of

him, and moving away, and Nelms could see that Banks had not been

run over and that he was no longer in danger. See id. We held that

because "the entire series of events took only a few short seconds,"

during which Banks was in serious danger, and because the situation

was "tense, uncertain, and rapidly evolving," the force employed was

not excessive under clearly established law. Id. (internal quotation

marks omitted).

There is no relevant distinction between the facts in Pittman and

those here. In both cases, the officers employing deadly force had

information that the suspect had recently assaulted an officer with his

WATERMAN v. BATTON 17

vehicle. Also, both cases presented tense, rapidly changing situations,

where the threat justifying the use of deadly force ended only seconds

before the shots in question were fired. In light of our holding that

Nelms’ use of deadly force was not excessive under law that was

clearly established in May 1992, the same must be true of the subse-

quent shots here.10

The question thus becomes whether the excessiveness of the force

employed here, although unclear in May 1992, was nonetheless clari-

fied prior to November 28, 2000. We conclude that it was not. We

have already noted that other circuits decided during this period that

a passing risk to an officer does not authorize him to employ deadly

force moments after he should have recognized the passing of the

risk. See Abraham, 183 F.3d at 294; Dickerson, 101 F.3d at 1162 n.9;

Ellis, 999 F.2d at 247. However, this circuit did not. Indeed, as we

have discussed, we issued a decision, Rowland, that was susceptible

to the reading that an application of force that extends for but a few

seconds cannot be parsed into temporal segments for the purpose of

reviewing each act in light of the information the officer had at that

moment. See Dickerson, 101 F.3d at 1162 n.9 (interpreting Rowland

in this way). Considering the uncertainty created by Pittman and

Rowland regarding whether an officer may legally employ deadly

force in response to a threat of serious harm moments after he should

have known that the threat had been eliminated, we hold that the

unconstitutionality of the subsequent shots was not clearly established

in Maryland in November 2000.

III.

In sum, we reverse the denial of summary judgment to Appellants

10

It is important to note that Pittman does not preclude our earlier hold-

ing that the subsequent shots—viewed in the light most favorable to the

Estate—were unconstitutional. Pittman addressed only whether the force

there was excessive under the law clearly established in May 1992. See

id. It did not decide whether the force was in fact excessive. See id. at

119 & n.2 (explaining this distinction).

18 WATERMAN v. BATTON

on the Fourth Amendment claim and remand for further proceedings

consistent with this opinion.11

REVERSED AND REMANDED

DIANA GRIBBON MOTZ, dissenting:

With respect and regret, I dissent.

Law enforcement officers face some of the most grueling, difficult,

and dangerous work in our communities; they are called upon to

make "split-second judgments — in circumstances that are tense,

uncertain, and rapidly evolving." Graham v. Connor, 490 U.S. 386,

397 (1989). All of us are, and should be, grateful to those who accept

these challenges on our behalf.

However, we cannot let our gratitude and admiration erode the lim-

its the Constitution imposes on the use of force by police officers —

especially fatal force. The hazards of police work simply do not

authorize officers to engage in the unbridled use of force. No matter

how exasperated an officer becomes, the Constitution does not permit

him to shoot a motorist for speeding — unless a reasonable officer in

the same position would have had probable cause to believe it neces-

sary to protect himself or others from "a threat of serious physical

harm." Id. at 396; Tennessee v. Garner, 471 U.S. 1, 11 (1985).

In this case, Officers Michael Batton, Kenneth Keel, and Christo-

pher Heisey fired nine rounds of ammunition at a car driven by Josh

Waterman, who sustained five gunshot wounds and died rapidly from

those injuries. Ten minutes before the shooting, Josh Waterman had

driven 51 m.p.h. in a 25 m.p.h. zone and failed to stop when signaled

to do so by officers in squad cars, which may well have exasperated

them. However, by the time of the shooting, Josh Waterman was nei-

11

The Estate suggests that if we conclude that the facts assumed by the

district court do not create a genuine issue of fact on the issue of quali-

fied immunity, it should be permitted to argue that the district court did

not properly view the record in the light most favorable to the Estate.

However, the Estate does not specify any errors made by the district

court in this regard, and we are not aware of any.

WATERMAN v. BATTON 19

ther speeding nor driving erratically — rather, he was passing through

a toll plaza at 11 to 15 m.p.h.; and several eyewitnesses have sworn

that none of the law enforcement officers at the toll plaza were in dan-

ger of being hit by Josh Waterman’s car. The video of the shooting

could well be interpreted as supporting or, at the very least, not defini-

tively negating these accounts.

A jury could, nonetheless, conclude that a reasonable police offi-

cer, confronted with the situation facing Officers Batton, Keel, and

Heisey, would have acted as they did or would not have realized that

shooting Josh Waterman violated the Constitution. See Saucier v.

Katz, 533 U.S. 194, 201-02 (2001). But so finding would require reso-

lution of several genuine disputes of material fact, which we can no

more resolve on interlocutory appeal than the district court could

when ruling on the officers’ motion for summary judgment.

In a thorough opinion, replete with numerous references to the

record, the district court carefully detailed the material factual dis-

putes requiring the denial of summary judgment. See Waterman v.

Batton, 294 F.Supp.2d 709 (D.Md. 2003). I cannot add to, or improve

upon, the district court’s excellent opinion. I would affirm the judg-

ment of the district court.