Petition for Writ of Certiorari — Anthony Momphard, Jr., Individually and in His Official Capacity as a Deputy Sheriff of the Macon County Sheriff's Department, et al., Petitioners v. Melissa B. Knibbs, as Personal Representative of the Estate of Michael Scott Knibbs

No.

In the

Supreme Court of the United States

ANTHONY MOMPHARD, JR., Individually and

in his official capacity as a Deputy Sheriff of

the Macon County Sheriff's Department;

ROBERT HOLLAND, in his Official capacity as

the Sheriff of Macon County; WESTERN

SURETY COMPANY, a South Dakota

Corporation; THE OHIO CASUALTY

INSURANCE COMPANY, a New Hampshire

Corporation,

Petitioners,

v.

MELISSA B. KNIBBS,

as Personal Representative of the

Estate of Michael Scott Knibbs,

Respondent.

-----------------------------------------ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

-----------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------Steven A. Bader

Counsel of Record

CRANFILL SUMNER LLP

P.O. Box 27808

Raleigh, NC 27611

(919) 828-5100

Patrick H. Flanagan

Stephanie H. Webster

CRANFILL SUMNER LLP

P.O. Box 30787

Charlotte, NC 28230

(704) 332-8300

Counsel for Petitioners

Counsel for Petitioners

GibsonMoore Appellate Services, LLC

206 East Cary Street ♦ Richmond, VA 23219

804-249-7770 ♦ www.gibsonmoore.net

i

QUESTIONS PRESENTED

The Fourth Circuit ruled that Deputy Anthony

Momphard, Jr., a North Carolina sheriff’s deputy,

was not entitled to qualified immunity in a 42 U.S.C.

§ 1983 suit alleging unconstitutional deadly force. On

April 29, 2018, Deputy Momphard responded to a

property dispute between Knibbs and his neighbor in

rural North Carolina. Deputy Momphard responded

alone and arrived on scene around midnight. Deputy

Momphard stepped onto Knibbs’ porch, in full police

uniform, and announced “sheriff’s office.” In response,

Knibbs came to his door and racked a shotgun.

Deputy Momphard could not see Knibbs behind the

door. Deputy Momphard directed Knibbs to drop his

weapon. Knibbs did not respond. Deputy Momphard

then moved to his left to try and exit the porch. This

caused Deputy Knibbs to pass a window, where he

saw Knibbs standing and aiming the shotgun at him

(a retained plaintiff’s expert claims that Knibbs

aimed the shotgun toward the ceiling). Deputy

Momphard made the split-second decision to act and

he shot Knibbs, who died from his injuries. The

questions are:

1. Whether the Fourth Circuit erred in finding that

a reasonable officer in Deputy Momphard’s

position would not have perceived a danger that

justified lethal force; and

2. Whether the Fourth Circuit erred in defining

Knibbs’ constitutional right in a general sense

when it stretched cases with superficial

similarities (such as cases where a person was shot

at home) to find Knibbs’ right had been clearly

established.

ii

PARTIES TO THE PROCEEDINGS

Petitioners are Anthony Momphard, Jr., a Macon

County, North Carolina, Sheriff’s Deputy; Robert

Holland, Sheriff of Macon County; Western Surety

Company and The Ohio Casualty Insurance

Company.

Respondent is Melissa Knibbs, as Personal

Representative of the Estate of Michael Scott Knibbs.

Pursuant to Rule 29.6 Western Surety Company

has parent corporations which include Continental

Casualty Company, The Continental Corporation,

CNA Financial Corporation, and Loews Corporation,

but no parent owns 10% or more of corporate stock.

The Ohio Casualty Insurance Company has no

corporate parents, and therefore there is no parent or

publicly held company owning 10% or more of its

stock.

iii

TABLE OF CONTENTS

Page:

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDINGS......................... ii

TABLE OF CONTENTS ........................................... iii

TABLE OF AUTHORITIES....................................... v

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..................................... 1

PETITION FOR WRIT OF CERTIORARI ................ 2

STATEMENT OF THE CASE ................................... 4

1. Facts ................................................................. 5

2. Fourth Circuit Opinion.................................... 7

REASONS FOR GRANTING THE WRIT ................. 9

I. The Fourth Circuit focused on Knibbs’

intent, rather than facts known to

Deputy

Momphard,

to

find

a

Constitutional violation................................... 9

A. An officer need not wait for a “furtive

movement” before using deadly force

when an armed suspect ignores a

command to drop their weapon ............... 11

B. The alleged disputed facts found by

the Fourth Circuit do not give rise to

a constitutional violation ......................... 16

iv

II. The Fourth Circuit’s Cited Cases Did

Not Clearly Establish a Constitutional

Violation ......................................................... 18

A. Cooper and Hensley are factually

distinct from this case .............................. 19

B. Factually analogous Fourth Circuit

precedent

supports

Deputy

Momphard’s decision to use deadly

force........................................................... 22

CONCLUSION ......................................................... 23

v

TABLE OF AUTHORITIES

Page(s):

Cases:

Anderson v. Creighton,

483 U.S. 635 (1987) ............................................. 19

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ............................................. 11

Anderson v. Russell,

247 F.3d 125 (4th Cir. 2001) ............................... 22

Ballard v. Burton,

444 F.3d 391 (5th Cir. 2006) ............................... 13

Blanford v. Sacramento County,

406 F.3d 1110 (9th Cir. 2005) ....................... 14, 15

Carroll v. Carman,

574 U.S. 13 (2014) ............................................... 23

Castorena v. Zamora,

684 F. App'x 360 (5th Cir. 2017) ........................ 17

Chappell v. City of Cleveland,

585 F.3d 901 (6th Cir. 2009) ............................... 14

City and County of San Francisco v. Sheehan,

575 U.S. 600 (2015) ....................................... 19, 23

City of Escondido v. Emmons,

-- U.S. --, 139 S. Ct. 500 (2019) .......................... 23

City of Tahlequah v. Bond,

142 S. Ct. 9 (2021) ............................................... 23

Cooper v. Sheehan,

735 F.3d 153 (4th Cir. 2013) ........................ passim

Elliott v. Leavitt,

99 F.3d 640 (4th Cir. 1996) ................................. 10

vi

Graham v. Connor,

490 U.S. 386 (1989) ................................. 10, 18, 19

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ............................................. 18

Harris v. Pittman,

927 F.3d 266 (4th Cir. 2019) ............................... 24

Hensley on behalf of North Carolina v. Price,

876 F.3d 573 (4th Cir. 2017) ........................ passim

Kisela v. Hughes,

-- U.S. --, 138 S. Ct. 1148 (2018) .................. 19, 23

Knibbs v. Momphard, et al.,

30 F.4th 200 (2022) ............................................... 1

Long v. Slaton,

508 F.3d 576 (11th Cir. 2007) ............................. 15

Malley v. Briggs,

475 U.S. 335 (1986) ............................................. 18

Mullenix v. Luna,

577 U.S. 7 (2015) ................................................. 23

Partlow v. Stadler,

774 F.3d 497 (8th Cir. 2014) ......................... 12, 13

Plumhoff v. Rickard,

572 U.S. 765 (2014) ............................................. 23

Ramirez v. Knoulton,

542 F.3d 124 (5th Cir. 2008) ............................... 13

Reichle v. Howards,

566 U.S. 658 (2012) ....................................... 18, 23

Rhodes v. McDannel,

945 F.2d 117 (6th Cir. 1991) ............................... 14

Richardson v. McKnight,

521 U.S. 399 (1997) ............................................... 4

vii

Rivas-Villegas v. Cortesluna,

142 S. Ct. 4 (2021) ............................................... 23

Rogers v. Carter,

133 F.3d 1114 (8th Cir. 1998) .............................. 17

Ryburn v. Huff,

565 US 469 (2012) ............................................... 23

Saucier v. Katz,

533 U.S. 194 (2001) ............................................. 12

Scott v. Harris,

550 U.S. 372 (2007) ............................................. 11

Sinclair v. City of Des Moines,

268 F.3d 594 (8th Cir. 2001) ................................ 13

Slattery v. Rizzo,

939 F.2d 213 (4th Cir. 1991) ............................... 22

Stanton v. Sims,

571 U.S. 3 (2013) ................................................. 23

Tennessee v. Garner,

471 U.S. 1 (1985) ..................................... 10, 18, 19

White v. Pauly,

580 U.S. 73, 137 S. Ct. 548 (2017) ................ 18, 23

Wilson v. Layne,

526 U.S. 603 (1999) ............................................. 23

Wilson v. Meeks,

52 F.3d 1547 (10th Cir. 1995)

(Wilson I) ................................................. 11, 12, 17

Wood v. Moss,

572 U.S. 744 (2014) ............................................. 23

Yates v. City of Cleveland,

941 F.2d 444 (6th Cir. 1991) ............................... 17

viii

Statutes:

28 U.S.C. § 1254(1) ..................................................... 1

42 U.S.C. § 1983 .................................................. i, 2, 4

Constitutional Provisions:

U.S. Const. amend. IV....................................... passim

1

OPINIONS BELOW

The opinion of the Court of Appeals is reported as

Knibbs v. Momphard, et al., 30 F.4th 200 (2022). It is

reproduced in the Petition Appendix at pp. 1a-75a.

The opinion of the District Court is unreported and

reproduced in the Petition Appendix at pp. 76a-106a.

JURISDICTION

On March 30, 2022, the Fourth Circuit Court of

Appeals filed its opinion. It filed an amended opinion

to correct spelling mistakes on April 19, 2022. This

Court’s jurisdiction is invoked under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but

upon probably cause, supported by oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

U.S. Const. amend. IV.

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress, except

2

that in any action brought against a judicial

officer for an act or omission taken in such

officer's judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was

violated or declaratory relief was unavailable.

For the purposes of this section, any Act of

Congress applicable exclusively to the District

of Columbia shall be considered to be a statute

of the District of Columbia.

42 U.S.C. § 1983.

PETITION FOR WRIT OF CERTIORARI

The Fourth Circuit held that deadly force is not

justified when a person racks a shotgun after a deputy

identifies himself and then refuses to drop the weapon

when ordered. This decision departs from this Court’s

precedent. Excessive force cases, to be sure, are factdriven. Yet the Fourth Circuit’s decision cannot be

reconciled with its own precedent, as well as case law

from at least six other circuits which hold that deadly

force is justified when an armed individual makes an

objective threat and refuses to disarm.

The Fourth Circuit, in arriving at a different

outcome, viewed the situation from Knibbs’

perspective; not Deputy Momphard’s. But Knibbs’

intent, whatever it may have been, does not dictate

whether a reasonable officer in Deputy Momphard’s

shoes would have perceived a deadly threat. After all,

Deputy Momphard does not know why Knibbs racked

his shotgun or why Knibbs refused to lay it down. All

Deputy Momphard knows is that a man behind a door

racked his shotgun after Deputy Momphard

identified himself. And that man never answered

Deputy Momphard’s commands to drop it. Deputy

Momphard was alone, it was dark, and the door

3

offered no shelter from a shotgun blast. So even if

Knibbs shouldered his shotgun as Deputy Momphard

passed the window (as his expert claims), Deputy

Momphard had an instant to make his choice after he

saw that Knibbs had declined to disarm.

Moreover, the Fourth Circuit denied qualified

immunity because it found the constitutional

violation had been clearly established. To arrive at

this outcome, the court cited two cases – Cooper v.

Sheehan and Hensley on behalf of North Carolina v.

Price – to decide that that the contours of Knibbs’

right had been set by Fourth Circuit jurisprudence.

Those cases share one surface-level similarity with

this case – in all three cases, an officer shot an

individual who possessed a gun on their property. Yet

in Cooper and Hensley, unlike this case, the officers

never identified themselves and never ordered the

suspects to disarm. And the suspects in those cases

did not load their weapons after an officer announced

their presence. In dissent, Judge Niemeyer pointed

out that “reasonable officers would more likely have

recognized the distinguishing facts in [Cooper and

Hensley] and concluded that they do not inform the

circumstances.” (Pet. App. 72a).

The Fourth Circuit’s opinion, in a larger sense, has

minimized the margin for error inherent in qualified

immunity. The court insisted, without precedent, that

Deputy Momphard must prove that Knibbs actually

meant harm before he could justify using deadly force.

But nobody knows what Knibbs intended here. Still,

Knibbs’ actions presented an objective and fatal

threat to Deputy Momphard. And Deputy Momphard

had the right to go home to his family too. This is a

tragedy and life-altering event for all involved. But

qualified immunity exists to “protect[] the public from

4

unwarranted timidity on the part of public officials.”

Richardson v. McKnight, 521 U.S. 399, 408 (1997). If

the decision below is allowed to stand, then officers

across the county will be trained to exercise timidity

for their own protection when faced with armed

citizens who refuse commands to disarm.

This Court should grant the petition on both

questions presented or, alternatively, summarily

reverse the Fourth Circuit's refusal to follow

precedent governing the determination of “clearly

established” law.

STATEMENT OF THE CASE

Melissa Knibbs, as personal representative of the

Estate of Scott Knibbs, sued Deputy Momphard,

Sheriff Robert Holland, and two sheriff’s bonds in the

Western District of North Carolina. The Estate

pleaded eight claims for relief, including a § 1983

claim against Knibbs for a Fourth Amendment

violation. The suit stems from an April 29, 2018

encounter that culminated in Deputy Momphard

shooting Scott Knibbs.

The District Court dismissed all claims on

summary judgment. It found that Deputy Momphard

was entitled to qualified immunity because he had

probable cause to believe that Knibbs presented an

immediate and serious threat. It further decided that

Knibbs did not have a clearly established right to be

free from deadly force. (Pet. App. 76a-106a)

The Fourth Circuit, in a published opinion,

reversed. It found Deputy Momphard’s decision

objectively unreasonable. It unearthed two factual

disputes to support its outcome: (1) whether Deputy

Momphard was readily recognizable as a law

5

enforcement officer and (2) whether Knibbs aimed his

shotgun at Deputy Momphard when he was shot. In

addition, the Fourth Circuit found the contours of

Knibbs’ Fourth Amendment rights “beyond debate”

when the shooting occurred, even though it could not

identify any analogous case law that defined these

contours. Judge Niemeyer authored a dissent. (Pet.

App. 1a-75a)

1. Facts

On April 29, 2018, dispatch sent Deputy

Momphard to investigate a dispute between

neighbors in rural Macon County, North Carolina. He

arrived on scene at 11:55 p.m. Deputy Momphard

wore his sheriff’s department uniform. He drove a

marked sheriff’s vehicle. Deputy Momphard parked

20 to 30 feet from Knibbs’ home. He left his headlights

on. Deputy Momphard was alone.

Deputy Momphard walked to Knibbs’ home first

because he saw a light inside. Deputy Momphard

announced “sheriff’s office” several times and knocked

on the door. Nobody answered.

Deputy Momphard then walked to the neighboring

home and spoke with Shelton Freeman. Freeman

called police because Knibbs had placed nail-infested

boards across their common driveway. Freeman also

reported that Knibbs had been aggressive in past

encounters, hence the need to call police. As the two

men spoke, the lights went off inside Knibbs’ home.

Deputy Momphard then walked back to Knibbs’ home

to try and speak with him.

Deputy Momphard announced “sheriff’s office” as

he walked up to Knibbs’ porch. He heard motion

inside the home. Deputy Momphard then stepped

6

onto the porch and announced “sheriff’s office” again.

In response, an individual (later identified as Knibbs)

racked a shotgun behind a door that led from the

home to the porch. Deputy Momphard could not see

behind the door. Deputy Momphard announced “drop

it,” or “put it down,” multiple times and in a loud and

forceful tone. The individual did not respond. Deputy

Momphard decided not to back off the porch because

the door offered no protection from a shotgun blast.

With that in mind, Deputy Momphard decided to

move to his left to get off the porch and away from the

situation. This required him to pass a window next to

the door. Deputy Momphard held his service weapon

in his right hand and a flashlight in his left.

Deputy Momphard moved across the window and

saw Knibbs holding his shotgun. The parties dispute

how Knibbs held the weapon. Deputy Momphard saw

Knibbs aim the weapon at him. Knibbs’ expert has

theorized that Knibbs rested the shotgun on his

shoulder with the barrel facing the ceiling. Either

way, Deputy Momphard saw that Knibbs had refused

to comply with his instruction to disarm. Deputy

Momphard had a split-second to make a decision. He

fired his service weapon multiple times and fatally

shot Knibbs.

Knibbs’ wife Melissa was in the home when the

events occurred. She heard Deputy Momphard

announce “sheriff’s office.” In response, she testified

that Knibbs retrieved his shotgun and said something

like “anybody can say they are a sheriff.” Knibbs then

racked the shotgun and walked toward the porch

door. Melissa also heard Deputy Momphard direct

Knibbs to put the shotgun down. Freeman (the

neighbor) also heard Deputy Momphard direct

Knibbs to disarm.

7

2. Fourth Circuit Opinion

The Fourth Circuit reversed summary judgment

and ruled that Deputy Momphard was not entitled to

qualified immunity. First, it found a Fourth

Amendment violation because a reasonable officer in

Deputy Momphard’s position would not have

perceived a deadly threat. It found two genuine

factual disputes: “(1) whether Knibbs aimed his gun

at Deputy Momphard; and (2) whether Deputy

Momphard was ‘readily recognizable as a law

enforcement officer on Knibbs’ porch.” (Pet. App. 23a).

On the first point, the Fourth Circuit decided that

where Knibbs’ pointed his shotgun goes to whether he

posed an objective threat. (Id). On the second point,

the court found that “the record does not conclusively

establish that Knibbs could have visually identified

Deputy Momphard as a law enforcement officer on his

porch that night.” (Pet. App. 24a-25a).

These two alleged disputes led the Fourth Circuit

to decide that Knibbs would not have posed a threat

to Deputy Momphard unless he had made a “furtive

movement.” This allowed the Fourth Circuit to

discount Knibbs’ decision to rack his shotgun and to

more or less ignored his refusal to disarm. This

version supported a constitutional violation where

“Knibbs was shot inside his own home while holding

a loaded shotgun that was not aimed at Deputy

Momphard.” (Pet. App. 26a).

The Fourth Circuit also found the contours of

Knibbs’ constitutional right had been “clearly

established” when the shooting occurred. It could not

find any cases that involved similar facts. So instead,

it relied on its decisions in Cooper v. Sheehan, 735

F.3d 153 (4th Cir. 2013) and Hensley on behalf of

8

North Carolina v. Price, 876 F.3d 573, 578 (4th Cir.

2017), which the court characterized as “materially

indistinguishable.” These cases “clearly establish”

that even after law enforcement directs an individual

to lay down their weapon, deadly force is only justified

if the individual “makes some sort of furtive or other

threatening movement with the weapon” that

indicates an intent to use it. (Pet. App. 43a).

Judge Niemeyer dissented. First off, he disagreed

that the record contained two factual disputes that

give rise to a Fourth Amendment violation. Judge

Niemeyer, unlike the majority, saw no dispute as to

whether Deputy Momphard could have been

recognized as law enforcement. He wrote that the

majority’s decision on this point “defies the commonsense reality presented by the facts of record.” (Pet.

App. 65a). Deputy Momphard loudly announced

himself in uniform. And there is no evidence that

Knibbs could not, or did not, know that a deputy was

at his door. Besides, Judge Niemeyer noted, this

question had to be analyzed from Deputy Momphard’s

perspective and not Knibbs’ vantagepoint. Building

on this observation, Judge Niemeyer found that

where Knibbs aimed his shotgun did not foreclose

summary judgment. “Knibbs,” he wrote, “did not

communicate with Deputy Momphard and had a

shotgun, which he had just racked and refused to drop

at the Deputy’s command.” (Pet. App. 68a). Deputy

Momphard then passed the window, where he saw

Knibbs holding the gun. This “prompt[ed] Deputy

Momphard’s immediate response.” Having set out

these facts, Judge Niemeyer wrote that “[t]he issue is

not whether Deputy Momphard was actually at risk

of harm at that moment, but whether, in the totality

of the circumstances, he reasonably believed that he

9

was at risk of serious bodily injury.” (Pet. App. 69a)

(emphasis in original).

Last, Judge Niemeyer found the majority defined

Knibbs’ constitutional right at a general level.

“Cooper and Hensley,” he wrote, “hardly inform

reasonable officers standing in Deputy Momphard’s

circumstances. Indeed, reasonable officers would

more likely have recognized the distinguishing facts

in them and concluded that they do not inform the

circumstances.” (Pet. App. 72a). Judge Niemeyer

pointed out that the officers in those cases never

announced their presence and never gave warning. In

the end, Judge Niemeyer wrote, “[o]ur officers in

uniform deserve clearer guidance than this before

they are held liable, especially when they, in good

faith, believe that they are performing their jobs

lawfully, albeit in a manner that results in tragic

consequences.” (Pet. App. 74a).

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari to clarify

Fourth Amendment standards governing an officer's

reasonable apprehension as to when circumstances

justify deadly force. In addition, or in the alternative,

this Court should grant certiorari and summarily

reverse the Fourth Circuit to ensure that qualified

immunity is protected and applied.

I. The Fourth Circuit focused on Knibbs’

intent, rather than facts known to Deputy

Momphard, to find a Constitutional violation

A police officer does not violate the Fourth

Amendment by using deadly force when the officer

has “probable cause to believe that the suspect poses

a threat of serious physical harm, either to the officer

10

or others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985).

Whether fatal force is “reasonable” is “judged from the

perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Graham v.

Connor, 490 U.S. 386, 396 (1989). Reviewing courts

allow for the reality that “police officers are often

forced

to

make

split-second

judgments—in

circumstances that are tense, uncertain, and rapidly

evolving.” Id. at 397. As such, courts account for the

“fact that officers on the beat are not often afforded

the luxury of armchair reflection.” Elliott v. Leavitt,

99 F.3d 640, 642 (4th Cir. 1996) (citations omitted).

The Fourth Circuit framed this as a case where

Knibbs did nothing more than possess a gun in his

home. Sure, Knibbs racked his shotgun after Deputy

Momphard announced “sheriff’s office.” But he had to

load the gun in case he needed to defend himself. And

yes, Knibbs ignored commands to drop his shotgun.

But, Knibbs had doubts about whether Deputy

Momphard, in fact, was an officer. So, Knibbs hedged

his bets by shouldering his shotgun so the barrel

pointed at the ceiling. That way, if Deputy Momphard

actually was an officer, it would be clear that Knibbs

meant no harm.

The problem with the Fourth Circuit’s narrative is

two-fold. First off, it lacks support in the record (and

indeed, is entirely hypothetical). In addition, it

considers the case from Knibbs’ supposed (and

unsubstantiated perspective); not from the vantage of

a reasonable officer faced with these same facts.

Summary judgment must be reviewed on the

evidence. It is not reviewed on theoretical deductions

that may be gleaned from the record. The Fourth

Circuit, in ignoring this rule, found that because

11

Knibbs’ mindset could not be established from the

record evidence, a jury should be allowed to draw

inferences as to what he intended. But Knibbs’

thinking, whatever it was, does not overcome Deputy

Momphard’s qualified immunity. To make out a

genuine issue of material fact, a plaintiff must

present probative evidence that tends to support their

case. Scott, 550 U.S. 372, 380–81 (2007) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986)). This must be evidence on which a jury could

return a verdict. Id. In Scott, this Court rejected the

idea that it had an obligation to afford inferences for

the nonmoving party based on an unsupported

conjecture. Id. at 380–81 n. 8. Instead, it noted that

inferences can only be drawn “to the extent

supportable by the record.” Whether deadly force is

justified is a legal question to be decided by the court

on the record evidence Id.

The Fifth, Sixth, Eighth, Ninth, Tenth, and

Eleventh circuits have all held that officers have an

objective basis for deadly force when they encounter

weapon-yielding suspects who ignore commands to

“drop it.” These courts do not require an officer to wait

for a “furtive movement” before fatal force is justified.

This is true even when a suspect wields a blade as

opposed to a gun. The Fourth Circuit, however,

departed from this precedent to lower the standard

for Fourth Amendment violations in its jurisdiction.

A. An officer need not wait for a “furtive

movement” before using deadly force when an

armed suspect ignores a command to drop their

weapon

In Wilson v. Meeks, the Tenth Circuit considered a

case near identical to this one. 52 F.3d 1547, 1549-50

12

(10th Cir. 1995) (Wilson I) abrogated in part and on

other grounds by Saucier v. Katz, 533 U.S. 194 (2001)).

The officer in that case encountered two men having

a disagreement on private property. Id. One man held

a gun behind his leg. Id. at 1550. The officer,

suspecting the man could be armed, directed him to

show his hand. Id. The man refused. Id. The officer

again asked the man to show his hand. Id. The officer

heard the handgun “cocking.” Id. at 1553. The man

then brought the gun forward and, in a split second,

the officer shot him twice. Id. at 1550. The parties

disputed whether the man pointed the gun at the

officer when he brought it forward. Id. at 1550. The

plaintiff’s expert argued that the decedent presented

the gun in a “surrender position” and that he meant

no harm to the officer. Id. The Tenth Circuit was not

persuaded. See generally id. “The inquiry here,” it

wrote, “is not [the plaintiff’s decedent’s] state of mind

or intentions, but whether, from an objective

viewpoint and taking all factors into consideration,

[the officer] reasonably feared for his life.” Id. at 155354. “Qualified immunity,” it went on, “does not

require that the police officer know what is in the

heart or mind of his assailant. It requires that he

react reasonably to a threat. [The officer] did so.” Id.

The Eight Circuit dealt with similar facts in

Partlow v. Stadler, 774 F.3d 497 (8th Cir. 2014). The

plaintiff in that case exited his apartment holding a

shotgun aimed at the ground. Id. at 500. Police

outside told him to drop the firearm. Id. Instead, he

racked a shell into the chamber and started to raise

the gun. Id. Police shot him. Id. The plaintiff later

testified that he did not intend to threaten the

officers. Id. The district court, based on the plaintiff’s

narrative, denied summary judgment. Id. at 501. The

13

Eight Circuit reversed. See generally id. It reaffirmed

that the plaintiff’s mindset does not determine how a

reasonable officer would perceive the situation. Id. at

502. And the objective evidence showed a “tense,

uncertain, and rapidly evolving” situation that

warranted law enforcement’s “split-second decision to

apply deadly force.” Id. See also Sinclair v. City of Des

Moines, 268 F.3d 594, 595 (8th Cir. 2001) (per curiam)

(finding no Fourth Amendment violation when

officers knocked on a door and announced themselves,

only for the door to open and reveal a man with a rifle

that officers shot and killed).

Deadly force may even be justified when there is

some distance between an officer and a suspect that

ignores commands to disarm. In Ramirez v. Knoulton,

the Fifth Circuit considered a case where police

ordered the plaintiff to exit his vehicle and raise his

hands following a traffic stop. 542 F.3d 124, 127 (5th

Cir. 2008). The plaintiff exited his car with a

handgun. Id. Police stood near their cruisers and

directed the plaintiff to drop his weapon. Id. The

plaintiff, instead, held the gun with his arms at his

side. Id. He then put his hands on his hips and

brought them together near his waist. Id. At that

point, one officer fired a round and shot him in the

head. Id. The district court denied summary

judgment, reasoning that the stop occurred in a

remote area and the plaintiff never raised his weapon

or pointed it at an officer. Id. at 129. The Fifth Circuit

declined to armchair quarterback the situation. Id. It

reversed and restated that rule that a person need not

“raise his weapon, discharge the weapon, or even

point it at the officers” to create an objectively

reasonable fear justifying deadly force. Id. See also

Ballard v. Burton, 444 F.3d 391, 403 (5th Cir. 2006)

14

(affirming summary judgment for police in case where

an individual refused commands to drop his rifle,

discharged his rifle in the air, and moved the weapon

in the officers’ general direction because “regardless

of the direction in which [the suspect] pointed the rifle

just before he was shot, a reasonable officer in these

circumstances would have reason to believe that [he]

posed a threat of serious harm”).

Ignoring a command to disarm can justify deadly

force even if the weapon in question is not a firearm.

In Chappell v. City of Cleveland, the Sixth Circuit

considered a case where police entered a darkened

residence to look for a robbery suspect. 585 F.3d 901,

904 (6th Cir. 2009). They proceeded from one room to

another with flashlights and firearms drawn. Id. at

915. The officers announced “Cleveland police” as

they made their way through the home. Id. They

entered a bedroom and found a knife-wielding

juvenile in the closet. Id. They ordered the juvenile to

leave the closet and show his hands. Id. The juvenile

stepped out with his hands in the air and the knife

blade pointed toward the ceiling. Id. He then

proceeded toward the officers, who shot and killed

him. Id. The Sixth Circuit, on review, found that the

juvenile’s refusal to drop the knife, coupled with his

movement toward officers, justified deadly force. Id.

at 915. See also Rhodes v. McDannel, 945 F.2d 117,

118 (6th Cir. 1991) (officers justified in using deadly

force where suspect did not comply with commands to

drop a knife).

Likewise, in Blanford v. Sacramento County, the

Ninth Circuit reviewed a case where a man walked

through a suburban neighborhood with a sword. 406

F.3d 1110, 1112 (9th Cir. 2005). Officers located the

man, who ignored orders to drop the sword. Id. The

15

officers followed the man to a home, where he

attempted to enter the front door. Id. at 1113. When

that failed, the man walked around the home toward

a backyard gate. Id. At that point, the officers shot the

man and directed him to disarm. Id. The man ignored

the command, so police shot him a second time as he

walked through the gate. Id. Fourteen seconds

passed between the shootings. Id. Officers later

learned the man lived at this home. Id. The Ninth

Circuit, nonetheless, held that there was no Fourth

Amendment violation because the police “had cause

to believe that [the man] posed a serious danger to

themselves and to anyone in the house or yard …

because he failed to heed warnings or commands and

was armed with an edged weapon that he refused to

put down.” Id. at 1116.

Indeed, in Long v. Slaton, the Eleventh Circuit

found no Fourth Amendment violation where a deputy

fatally shot a man who had taken the deputy’s vehicle

and started to drive away. 508 F.3d 576, 580 (11th

Cir. 2007). The man ignored the officer’s command to

stop the vehicle and get out. Id. The court, upon

review, noted that an officer does not have to wait

until a person “has drawn a bead on the officer or

others before using deadly force.” Id. at 581 (cleaned

up). The man could have converted the vehicle to a

lethal weapon with ease. Id. The fact that the man

had not turned the vehicle into a weapon yet (and the

encounter happened in a remote area) did not

undermine the officer’s decision to use fatal force. Id.

16

B. The alleged disputed facts found by the Fourth

Circuit do not give rise to a constitutional

violation

The Fourth Circuit’s decision cannot be reconciled

with precedent from the circuits. To refresh, the

Fourth Circuit found two alleged fact disputes that

gave rise to a constitutional violation: (1) whether

Deputy Momphard was readily recognizable as a law

enforcement officer and (2) whether Knibbs aimed his

shotgun at Deputy Momphard when he was shot. No

circuit would have denied summary judgment on

these alleged disputes though.

To begin, the Fourth Circuit considered whether

Deputy Momphard was “readily recognizable” as law

enforcement. The mistake on this point is two-fold.

First, the Fourth Circuit analyzed this question from

Knibbs’ perspective, even though it acknowledged

that the question had to be considered from the

deputy’s viewpoint. Compare Pet. App. 30a n. 6

(noting that the “crucial fact is not what Knibbs

subjectively believed, but rather what Deputy

Momphard reasonably perceived in light of the

circumstances known to him at the time”) with Pet.

App. 24a-25a (denying summary judgment because

“the record does not conclusively establish that

Knibbs could have visually identified Deputy

Momphard as a law enforcement officer on his porch

that night”). Second, there is no record evidence that

suggests Deputy Momphard should have questioned

Knibbs’ ability to identify him as police. After all,

officers are recognized by their uniform, badge or

announced role. Knibbs checked all three boxes.

Cases where officers should have understood their

identity was unknown include cases where the

identity of a plainclothes officer is called into question

17

by a suspect (see e.g. Rogers v. Carter, 133 F.3d 1114,

1118 (8th Cir. 1998) and cases where a uniformed

officer ventures into a dark area without identifying

themselves at all. Yates v. City of Cleveland, 941 F.2d

444, 447 (6th Cir. 1991)). Nothing like that happened

here.

As to the second disputed fact – where Knibbs

aimed his shotgun – the Fourth Circuit agreed that

an officer need not wait for a gun to be pointed at them

to use deadly force. (Pet. App. 36a). But it found this

alleged dispute controlling because Knibbs did not

otherwise threaten Deputy Momphard with a “furtive

movement.” (Id.). To get there, the Fourth Circuit had

to decide that “[r]acking a shotgun inside one’s home,

without more, is no more threatening than coming to

the door with any other loaded firearm.” (Pet. App.

31a). The “more” here, which the Fourth Circuit

ignored, was that Knibbs racked his weapon right

after Deputy Momphard announced “sheriff’s

department.” The Fifth and the Tenth Circuit have

both held that loading a round into the chamber, in

response to law enforcement, can be a threat to a

reasonable officer. See e.g. Wilson I, 52 F.3d at 1553

(officer reasonably believed suspect made threat

when he “cocked” his handgun); Castorena v. Zamora,

684 F. App'x 360, 365 (5th Cir. 2017) (officer

reasonably believed suspect made threat when he

racked his shotgun). And then the Fourth Circuit

attached no importance to Knibbs’ refusal to drop his

shotgun (despite commands) and his refusal to even

acknowledge Deputy Momphard. These two facts,

coupled with Knibbs’ decision to rack his shotgun

behind a door and hidden from Deputy Momphard,

caused Deputy Momphard to fear for his life. In that

sense, the case is indistinguishable from the case law

18

set forth supra I.A. An officer need not wait for a

“furtive movement” when an armed suspect ignores

commands to disarm. This is especially true, here,

where Deputy Momphard was alone, without shelter

or an escape route, and Knibbs refused to

acknowledge Deputy Momphard’s commands.

All told, the Fourth Circuit’s divergence from its

sister circuits warrants certiorari to settle

uncertainty in this area and bring the Fourth Circuit

into compliance with constitutional standards that

control nationwide.

II. The Fourth Circuit’s Cited Cases Did Not

Clearly Establish a Constitutional Violation

Qualified immunity shields officials from civil

liability as long as 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)). A

right is “clearly established” if “every reasonable

official would have understood that what he is doing

violates that right.” Reichle v. Howards, 566 U.S. 658,

664 (2012) (internal quotation marks and alteration

omitted). Qualified immunity protects “all but the

plainly incompetent or those who knowingly violate

the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

For a Fourth Amendment right to be clearly

established, a plaintiff must “identify a case where an

officer acting under similar circumstances as [a

defendant] was held to have violated the Fourth

amendment.” White v. Pauly, 580 U.S. 73, 137 S. Ct.

548, 552 (2017) (per curiam). A plaintiff must do more

than cite to Graham and Garner, which “lay out

excessive-force principles at only a general level.” Id.

Indeed, this Court “explained decades ago, the clearly

19

established law must be ‘particularized’ to the facts of

the case.” Id. (citing Anderson v. Creighton, 483 U.S.

635, 640 (1987)). If not, then qualified immunity can

be converted to unqualified liability by alleging

conduct that violates “extremely abstract rights.” Id.

(cleaned up). Reliance on case law that has little in

common with the facts facing the officer “does not

pass the straight-face test” and by extension, does not

“clearly establish” a right. Kisela v. Hughes, -- U.S. --,

138 S. Ct. 1148, 1154 (2018) (per curiam) (quotation

omitted).

Because this Court has never held an officer liable

for excessive force in a case like this, the Fourth

Circuit would have to find clearly established law in

a “robust consensus of cases of persuasive authority.”

See, e.g., City and County of San Francisco v.

Sheehan, 575 U.S. 600, 617 (2015). Yet, as in in

Sheehan, “no such consensus exists here.” Id.

The Fourth Circuit relied, by and large, on two

Fourth Circuit cases in its decision, Cooper v.

Sheehan, 735 F.3d 153 (4th Cir. 2013) and Hensley on

behalf of North Carolina v. Price, 876 F.3d 573, 578

(4th Cir. 2017). These cases, set forth below, do not

clearly establish the law here.

A. Cooper and Hensley are factually distinct from

this case

The Fourth Circuit held that its precedent “clearly

establishes” that a person’s failure to disarm when

ordered only justifies deadly force if coupled with a

“furtive movement.” (Pet. App. 43a). From there, it

decided that “Cooper and Hensley are materially

indistinguishable” and the “few factual differences

that do exist” should have caused Deputy Momphard

to realize that Knibbs was just a “homeowner

20

possessing a firearm in a non-threatening manner in

his own home while investigating a nocturnal

disturbance.” (Pet. App. 46a).

Yet qualified immunity in Cooper and Hensley

turned on three facts not found here: (1) the officers

did not announce their presence (so the officers should

have realized that the suspects did not know police

were outside their door); (2) the officers did not direct

the suspects to surrender their firearms, and (3) the

suspects took no threatening action toward the

officer. These distinctions, Judge Niemeyer noted in

dissent, would not have caused Deputy Momphard to

believe Knibbs had a “clearly established” right to be

free from deadly force.

In Cooper, dispatch received a call of two men

screaming at each other in a mobile home. 735 F.3d

at 155. Two officers responded to the call and

approached the mobile home on foot. Id. One officer

knocked on a window with his flashlight, but neither

announced his presence or identified himself as a

deputy sheriff. Id. Cooper, the owner of the mobile

home, called out for anyone in the yard to identify

himself. Id. The officers did not respond. Id. Cooper

walked onto the porch holding a shotgun with its

muzzle pointed toward the ground. Id. The officers

saw Cooper with the shotgun and, without warning,

drew their weapons and shot Cooper five or six times.

Id. at 156. This Court held that qualified immunity

did not apply because the officers had no reason to

believe Cooper was dangerous when he stepped out of

his home with a shotgun to ask who was there. Id. at

157. In fact, the officers even chose not to answer

when Cooper asked who was in the yard. Id. Because

“no reasonable officer could have believed that

[Cooper] was aware that two sheriff deputies were

21

outside,” deadly force was not justified “[a]bsent a

threatening act, like raising or firing the shotgun.” Id.

Hensley, like Cooper, involved officers hidden

outside a suspect’s home. 876 F.3d at 578. The suspect

walked off his front porch carrying a handgun. Id. The

suspect did not know the deputies were present; the

deputies never ordered him to stop or drop his

weapon; and the suspect did not make any threats of

any kind. Id. As such, qualified immunity was not

available. Id.

Put simply, this case is not Cooper or Hensley.

Deputy Momphard, unlike the officers in those cases,

announced himself in full uniform. He tried to engage

Knibbs and did not hide from him. Furthermore, after

Deputy Momphard identified himself, Knibbs racked

his shotgun. As noted supra I.A., the Fifth and Tenth

Circuits have both recognized that loading a bullet

into a chamber in response to police may be perceived

as a threat. And last, unlike in Cooper and Hensley,

Deputy Momphard ordered Knibbs to drop his

weapon and Knibbs did not comply. Indeed, by the

time Deputy Momphard laid eyes on Knibbs he saw a

man who, even accepting Knibbs’ disputed facts, was

shouldering a shotgun mere feet away and who had

clearly ignored a command to drop his weapon.

Deputy Momphard then had a moment to decide

whether to shoot or risk getting shot. These

distinctions disprove the idea that Cooper and

Hensley should have caused Deputy Momphard to

realize that Knibbs was just a “homeowner possessing

a firearm in a non-threatening manner in his own

home while investigating a nocturnal disturbance.”

22

More than that, though, other cases from the

Fourth Circuit further show that Deputy Momphard

was justified in his decision to use deadly force.

B. Factually analogous Fourth Circuit precedent

supports Deputy Momphard’s decision to use

deadly force

The Fourth Circuit read Slattery v. Rizzo, 939 F.2d

213, 214 (4th Cir. 1991) and Anderson v. Russell, 247

F.3d 125, 131 (4th Cir. 2001) as only supporting

deadly force when a suspect engages in a “furtive

movement.” But in those cases, the officers did not

know whether the person they spoke with had a gun.

Slattery, 939 F.2d at 214-15; Anderson, 247 F.3d at

127-28. Both officers asked the suspect to show their

concealed hands. See generally id. The shootings

happened when the suspects made a movement

without showing their hands first. See generally id.

This threatening move, coupled with the suspect’s

non-compliance with the officer’s directions, justified

deadly force. Id.

Here, Deputy Momphard knew Knibbs had a

shotgun. He did not need to wait for a “furtive

movement” to feel threatened. He already felt

threatened when Knibbs racked his shotgun after he

identified himself. And then, like in Slattery and

Anderson, Knibbs disregarded the command to drop

his shotgun. Deputy Momphard was justified in using

deadly force under those cases.

To put a finer point on it, the issue here was not

beyond debate. To the contrary, the panel debated

both the district court and the dissent in a 55-page

majority opinion that deconstructed its precedent to

engineer the “contours” of Knibbs’ alleged

constitutional right. But the law cannot be clearly

23

established for police officers who face dangerous

situations in real time if judges - “far removed from

the scene and with the opportunity to dissect the

elements of the situation,” cannot agree on it. Ryburn,

565 U.S. at 475. Indeed, when judges “disagree on a

constitutional question, it is unfair to subject police to

money damages for picking the losing side of the

controversy.” Wilson v. Layne, 526 U.S. 603, 618

(1999).

CONCLUSION

Qualified immunity is important to “society as a

whole” and it is “effectively lost if a case is erroneously

permitted to go to trial.” White, 580 U.S. 73, 137 S. Ct.

548, 551–52 (cleaned up). For that reason, this Court

has repeatedly reversed circuits in qualified

immunity cases when rights are defined with a high

level of generality rather than clearly established by

case law. See e.g. City of Tahlequah v. Bond, 142 S.

Ct. 9, 11 (2021) (per curiam) (Tenth Circuit); RivasVillegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per

curiam) (Ninth Circuit); City of Escondido v.

Emmons, –-- U.S. --, 139 S. Ct. 500 (2019) (per curiam)

(Ninth Circuit); Kisela, supra (2018) (Ninth Circuit);

White, supra (2017) (Tenth Circuit); Sheehan, supra

(2015) (Ninth Circuit); Mullenix v. Luna, 577 U.S. 7

(2015) (Fifth Circuit); Carroll v. Carman, 574 U.S. 13

(2014) (per curiam) (Third Circuit); Wood v. Moss, 572

U.S. 744 (2014) (Ninth Circuit); Plumhoff v. Rickard,

572 U.S. 765 (2014) (Sixth Circuit); Stanton v. Sims,

571 U.S. 3 (2013) (per curiam) (Ninth Circuit); Reichle

v. Howards, 566 U.S. 658 (2012) (Tenth Circuit).

The Fourth Circuit, so far, has avoided reversal on

qualified immunity in the last decade. Yet “[a]t some

point a pattern of Court decisions becomes a

24

drumbeat, leaving one to wonder how long it will take

for the Court's message to break through.” Harris v.

Pittman, 927 F.3d 266, 283 (4th Cir. 2019)

(Wilkinson, J., dissenting). The Fourth Circuit’s time

has come. This Court should grant the petition on

both questions presented or, alternatively, summarily

reverse the Fourth Circuit's refusal to follow

precedent governing the determination of “clearly

established” law.

Respectfully submitted, this the 28th day of June

2022.

/s/ Steven A. Bader

STEVEN A. BADER

Counsel of Record

N.C. State Bar No. 55931

E-mail: sbader@cshlaw.com

Cranfill Sumner LLP

P.O. Box 27808

Raleigh, NC 27611

Telephone: 919-828-5100

PATRICK H. FLANAGAN

N.C. State Bar No. 17407

E-mail: phf@cshlaw.com

STEPHANIE H. WEBSTER

N.C. State Bar No. 12164

E-mail: swebster@cshlaw.com

Cranfill Sumner LLP

Post Office Box 30787

Charlotte, NC 28230

Telephone: 704-332-8300

Counsel for Petitioners Anthony Momphard, Jr.,

Robert Holland, Western Surety Company and

The Ohio Casualty Insurance