633 F.3d 272 (4th Cir. 2011), 10-1008, Witt v. West Virginia State Police, Troop 2

Docket Nº:10-1008.
Citation:633 F.3d 272
Opinion Judge:DIANA GRIBBON MOTZ, Circuit Judge:
Party Name:Steven S. WITT, Plaintiff-Appellee, v. WEST VIRGINIA STATE POLICE, TROOP 2, Martinsburg, Berkeley County; J.J. Bowman, individually and in his Official Capacity; J.D. Burkhart, individually and in his Official Capacity; J.B. Flanigan, individually and in his Official Capacity, Defendants-Appellants.
Attorney:Jason Patrick Foster, Steptoe & Johnson, LLP, Martinsburg, West Virginia, for Appellants. Harry P. Waddell, Law Office Of Harry P. Waddell, Martinsburg, West Virginia, for Appellee. Lucien G. Lewin, Steptoe & Johnson, LLP, Martinsburg, West Virginia, for Appellants. David M. Hammer, Hammer, Ferre...
Judge Panel:Before MOTZ, AGEE, and KEENAN, Circuit Judges. Dismissed by published opinion. Judge MOTZ wrote the opinion, in which Judge AGEE and Judge KEENAN joined.
Case Date:February 04, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 272

633 F.3d 272 (4th Cir. 2011)

Steven S. WITT, Plaintiff-Appellee,

v.

WEST VIRGINIA STATE POLICE, TROOP 2, Martinsburg, Berkeley County; J.J. Bowman, individually and in his Official Capacity; J.D. Burkhart, individually and in his Official Capacity; J.B. Flanigan, individually and in his Official Capacity, Defendants-Appellants.

No. 10-1008.

United States Court of Appeals, Fourth Circuit.

February 4, 2011

Argued: Dec. 7, 2010.

Page 273

ARGUED:

Jason Patrick Foster, Steptoe & Johnson, LLP, Martinsburg, West Virginia, for Appellants.

Harry P. Waddell, Law Office Of Harry P. Waddell, Martinsburg, West Virginia, for Appellee.

ON BRIEF:

Lucien G. Lewin, Steptoe & Johnson, LLP, Martinsburg, West Virginia, for Appellants.

David M. Hammer, Hammer, Ferretti & Schiavoni, Martinsburg, West Virginia, for Appellee.

Before MOTZ, AGEE, and KEENAN, Circuit Judges.

Dismissed by published opinion. Judge MOTZ wrote the opinion, in which Judge AGEE and Judge KEENAN joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Steven Witt brought this § 1983 Fourth Amendment excessive force case against the West Virginia State Police and three troopers. After dismissing Witt's claims against the State Police and the troopers in their official capacity, the district court refused to grant summary judgment to the troopers in their individual capacity. Contending

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that qualified immunity protects them from suit, the troopers timely noted this interlocutory appeal. For the reasons that follow, we dismiss the appeal.

I.

The parties agree as to only some of the facts giving rise to this suit. They agree that on January 8, 2007, Witt consumed alcohol at a local bar and then joined his girlfriend, Candy Gedon, and her children for dinner at a restaurant. After dinner, Gedon drove Witt, who sat in the front passenger seat, and her children, who sat in the back, to her home. As Gedon pulled into her driveway, Trooper J.J. Bowman pulled his police cruiser behind her. The trooper activated his emergency lights and dashboard camera, but not the camera's microphone. Shortly thereafter, Troopers J.D. Burkhart and J.B. Flanigan arrived at the scene. The troopers were acting on the belief that Witt was Daniel Anderson, who was similar in height and weight to Witt, was rumored to associate with Gedon, and was wanted for various crimes, including attempted assault of a state trooper two days before the evening in question. Within moments of Burkhart's and Flanigan's arrival at the scene, a scuffle ensued in which Witt suffered injuries including a left orbital fracture, a facial laceration of 2.5 centimeters, a scalp laceration of 2.5 centimeters, a second scalp laceration of 3 centimeters, and a closed head injury. Some of the scuffle was recorded by Trooper Bowman's dashboard video camera, but seven seconds occurred off camera.

The parties disagree as to virtually all other material facts. Witt maintains that after Trooper Bowman ordered Gedon, who had exited the driver's side door, to return to the car, the trooper walked to the passenger side, opened the door, and asked Witt to identify himself. Witt replied, " I'm Steve Witt. Who are you?" Trooper Bowman told Witt he was a state trooper and asked Witt for identification. Witt responded that his identification was in his wallet and began to reach for his back pocket where he kept the wallet. At that point, the trooper pushed Witt and yelled, " Where's your wallet at?" Witt replied, " If you back off of me, I'll get my wallet." Trooper Bowman then " grabbed" Witt and " yanked [him] out of the car," while ordering him to " get the fuck out of the car." Once on his feet, Witt pulled his arm from the trooper's assertedly painful grasp.

At this time, Witt noticed Troopers Flanigan and Burkhart approaching and that Trooper Burkhart was pointing a gun at him. According to Witt, as the troopers surrounded him, Trooper Bowman began to pull Witt down toward the ground. As Witt fell, Trooper Burkhart struck him in the head with his gun. Witt claims that he was not resisting the officers or moving toward them in a threatening manner. Moreover, according to Witt, although he called out that his head was split open, the troopers continued kicking and kneeing him as he lay face down in a mud puddle. Witt maintains that he initiated no blows but " may have swung" after being " hit several times." The troopers then took Witt's wallet, handcuffed him, dragged him across the yard, and threw him against a tree. Both Gedon and one of her children corroborate Witt's version of events.

The troopers relate a very different tale and maintain that the video from Trooper Bowman's dashboard camera substantiates their version of events. The troopers contend that the video demonstrates that (1) Witt, not Trooper Bowman, forcefully opened the passenger side door of Gedon's vehicle and then swung both of his legs out of the vehicle; (2) Witt stood up in front of Trooper Bowman in an aggressive manner;

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(3) Witt never reached for his wallet before or after he stood up; and (4) Trooper Burkhart reholstered his service weapon without ever striking Witt. The troopers maintain that, after the parties moved out of camera view, as Trooper Bowman brought Witt to the ground, Trooper Flanigan inadvertently struck Witt on the back of the head with a Maglite flashlight, and that this inadvertent blow, not any intentional beating, caused Witt's injuries.[*] The troopers concede that as Trooper Bowman began to bring Witt to the ground, the entire incident moved off camera.

The district court denied the troopers' motion for summary judgment on qualified immunity grounds, concluding that Witt presented sufficient evidence to raise genuine issues of material fact. The troopers timely filed this interlocutory appeal. Witt has moved to dismiss the appeal, arguing that we lack jurisdiction to entertain it.

II.

" [Q]ualified immunity protects government officials from liability for violations of constitutional rights that were not clearly established at the time of the challenged conduct." Iko v. Shreve, 535 F.3d 225, 233 (4th Cir.2008) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). It constitutes an " immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis omitted). Accordingly, " a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘ final decision’ ... notwithstanding the absence of a final judgment." Id. at 530, 105 S.Ct. 2806 (emphasis added); see also Behrens v. Pelletier, 516 U.S. 299, 301, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Johnson v. Jones, 515 U.S. 304, 313, 115...

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