# Waterman v. Batton > Court of Appeals for the Fourth Circuit · January 3, 2005 · 393 F.3d 471 URL: https://www.frixlaw.com/law-library/cases/9813332 ## Case - **Full name:** 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; Christopher Heisey, Defendants-Appellants, and State of Maryland, Defendant - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** January 3, 2005 - **Citations:** 393 F.3d 471; 2005 U.S. App. LEXIS 10; 2004 WL 3023163 - **Precedential status:** Published - **Opinion:** Dissent by Motz - **Judges:** Wilkins, Motz - **Cited by:** 216 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9813332 ## How later opinions describe it (automated extraction) - holding that officers were not entitled to judgment as a matter of law on merits of underlying excessive force claim because “a reasonable jury could conclude ... that a perception by the officers that [plaintiff] posed a threat of serious physical harm to them would have been… - concluding that when officers had only about a second before an oncoming car could reach them, they “did not have even a moment to pause and ponder” the many factors that would affect how much of a threat the vehicle posed to them because if they “paused for even an instant, t… - finding that officers, making a split-second determination that the suspect was using his vehicle as a weapon; acted' reasonably in using their weapons and had probable cause to believe that plaintiffs oncoming vehicle posed an immediate threat of .serious physical harm to the… - holding that the “reasonableness of the officer’s actions in creating the dangerous situation is not relevant to the Fourth Amendment analysis; rather, reasonableness is determined based on the information possessed by the officer at the moment that force is employed” - explaining that in reviewing the denial of a motion for 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” ## Opinion text 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 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (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 limits 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 necessary to protect himself or others from “a threat of serious physical harm.” Id. at 396 , 109 S.Ct. 1865 ; *484 Tennessee v. Garner, 471 U.S. 1, 11 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985). In .this case, .Officers MichaeL Batton, Kenneth Keel, and Christopher 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 neither 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 danger 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 definitively negating these accounts. A jury could, nonetheless, conclude that a reasonable police officer, 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, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). But so finding would require resolution 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 disputes 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 judgment of the district court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9813332. Public record. Not legal advice.