Milstead v. Kibler

Decision Date22 January 2001
Docket NumberDEFENDANTS-APPELLEES,No. 00-1539,PLAINTIFF-APPELLANT,00-1539
Citation243 F.3d 157
Parties(4th Cir. 2001) MATTHEW MILSTEAD, ADMINISTRATOR OF THE ESTATE OF MARK MILSTEAD,, v. CHAD KIBLER; SCOTT PROCTOR; LESTER WHETZEL, . Argued:
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg.

James H. Michael, Jr., Senior District Judge. (CA-98-75-5) [Copyrighted Material Omitted] Argued: Jeffrey S. Parker, Great Falls, Virginia, for Appellant. Mark Dudley Obenshain, Wharton, Aldhizer & Weaver, P.L.C., Harrisonburg, Virginia, for Appellees. On Brief: James R. Tate, Tate & Bywater, Ltd., Vienna, Virginia, for Appellant.

Before Wilkinson, Chief Judge, Niemeyer, Circuit Judge, and Malcolm J. Howard, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief Judge Wilkinson and Judge Howard joined.

OPINION

Niemeyer, Circuit Judge

The Administrator of the Estate of Mark Milstead brought this action under 42 U.S.C. § 1983, alleging that three police officers used excessive force in violation of the Fourth and Fourteenth Amendments when one of the officers accidentally shot Milstead, mistaking him for an assailant who had just shot Milstead and his fiancee. The district court granted the officers' motion for summary judgment, relying on qualified immunity. Finding no constitutional violation, we affirm.

I.

Following an emergency call on October 26, 1996, from Mark Milstead to the 911 operator in Shenandoah County, Virginia, Officers Chad Kibler and Scott Proctor, deputy sheriffs in Shenandoah County, and Lester Whetzel, a Woodstock, Virginia town police officer, were dispatched to 59 Indian Camp Trail at Bear Paw Road, in a secluded area in Shenandoah County in response to Milstead's call for help. Milstead reported that he and his fiancee were being attacked by an intruder, Steven Ramey, his fiancee's former boyfriend. The 911 operator reported Milstead's call to the officers, telling them that a man had been shot in the neck and a woman stabbed.1 The officers received the call shortly after midnight and responded immediately. Upon their arrival at the house, they saw a van parked in front of the house, with the door open, and fresh blood on the van and on the steps leading to the house. They also heard calls for help from inside the house. As Officer Whetzel walked around the house, Officer Proctor, followed by Officer Kibler, proceeded to the front door. Proctor kicked open the door, yelled "police," and took a couple of steps into the house. It is unclear whether Kibler, who was following closely behind, actually made it inside. Both officers saw two figures wrestling on the floor, one of whom withdrew from the altercation and warned them that the other had a gun. The person with the gun pointed it at Officer Proctor, whereupon Proctor stopped, began to back up, and fired four shots from his pistol. While backing up, Proctor fell backwards onto the deck outside the door. Kibler, believing that Proctor had been shot, retreated to the outside corner of the house where the steps from the front desk exited, and took a defensive position. Kibler then heard one of the people -- presumably Ramey -say that he was going to "kill all of you." About 15 seconds after Officer Kibler's initial retreat from the front door, someone came crashing through the door "in a run" and turned toward where Officer Kibler was positioned. Kibler fired two shots, bringing the person down. While the person's hands were about chin level, Kibler did not see anything in them; the only light in the area was an outside wall light behind the person whom Kibler shot.

Officer Kibler explained later that when he fired his gun he believed that the target had to be the assailant Ramey because Milstead had been shot in the neck and could not therefore have been running. He also explained that Ramey had a gun, and that, shortly before the person believed to be Ramey came out of the house, someone said he was going to "kill you all." Kibler concluded that Ramey was making good on this threat.

Still alive, the person Officer Kibler shot told him, "He is still inside." Kibler then realized that he had shot Milstead and not Ramey. After talking with Milstead, Kibler went to the other side of the house and told Officer Proctor that he had shot "the good guy." Proctor told Kibler to return to cover and be watchful for Ramey. After backup arrived several minutes later, the officers removed Milstead and transported him to the hospital, where he died shortly thereafter from the shots fired by Officer Kibler. The officers determined later that Ramey had killed himself with a shot to his head and that Milstead's fiancee had also died.

Milstead's estate commenced this action under 42 U.S.C. § 1983, alleging that Officer Kibler had used excessive force in violation of the Fourth and Fourteenth Amendments and alleging state claims based on the fact that the officers failed to seek medical care in time to save Milstead's life. The district court granted the officers' motion for summary judgment, dismissing the federal claims on qualified immunity and dismissing the state claims because the plaintiff failed to advance sufficient proof in support of them. This appeal followed, challenging only the qualified immunity ruling.

II.

The Administrator of the Estate contends that the"unjustified killing of an innocent person by the police... who had been summoned... to protect and assist" Milstead constituted excessive force, in violation of the Fourth and Fourteenth Amendments, and that, in finding the officers in this case immune from liability, the district court "fail[ed] to consider the full evidentiary record, it improperly weigh[ed] evidence, it fail[ed] to consider the totality of the circumstances, it fail[ed] consistently to apply the correct objective standard of conduct, it fail[ed] to draw all permissible inferences in favor of the nonmoving party, and ultimately degenerate[d] into fact-finding by the trial judge." The Administrator argues that if the record is taken as a whole and in a light most favorable to Milstead and if the correct legal standard is applied, "the killing of Mark Milstead was unreasonable as a matter of law."

The legal principles governing qualified immunity analysis are well established. "Police officers are protected by qualified immunity when performing their duties within the scope of their employment insofar as their conduct does not breach `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Sigman v. Town of Chapel Hill, 161 F.3d 782, 786 (4th Cir. 1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The reasonableness inquiry is an objective one, "measured by reference to clearly established law." Harlow, 457 U.S. at 818. At bottom, police officers performing a discretionary function enjoy an immunity that shields them from liability for civil damages unless (1) the officers' conduct violates a federal statutory or constitutional right, and (2) the right was clearly established at the time of the conduct, such that (3) an objectively reasonable officer would have understood that the conduct violated that right. See Wilson v. Layne, 526 U.S. 603, 614-15 (1999); Anderson v. Creighton, 483 U.S. 635, 638-40 (1987); Harlow, 457 U.S. at 818-19.

The "first inquiry" in the analytical structure by which the qualified immunity defense is addressed is whether a violation of a constitutional right has been alleged. Siegert v. Gilley, 500 U.S. 226, 231 (1991). Thus, when the qualified immunity defense is asserted, "on summary judgment, the judge appropriately may determine, not only the currently applicable law but whether that law was clearly established at the time an action occurred." Id. (quoting Harlow, 457 U.S. at 818) (internal quotation marks omitted (alteration removed)). And "concomitant" to these determinations is the determination "of whether the plaintiff has asserted a violation of a constitutional right at all." Id. at 232. In Siegert, after establishing this framework, the Court then proceeded to determine first whether the plaintiff alleged a violation of the Constitution.

This analytical sequence was confirmed in Wilson v. Layne, 526 U.S. 603 (1999), in which the Court reiterated that"[a] court evaluating a claim of qualified immunity `must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation'" Id. at 609 (emphasis added) (quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999)). This procedure applies even when the non-constitutional issues in the analysis may resolve the immunity issue more easily than the underlying question of constitutional law. See County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998). Were courts to rule on qualified immunity without determining the constitutionality of the challenged conduct, "standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals. An immunity determination, with nothing more, provides no clear standard, constitutional or non-constitutional." Id.

Accordingly, in this case we turn first to the question of whether the Administrator has alleged or demonstrated that the conduct of any of the three officers violated Milstead's constitutional rights. Only if we find a constitutional violation may we proceed further in the analysis.2 See Wilson, 526 U.S. at 609.

"[A]ll claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other `seizure' of a free...

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