735 F.3d 153 (4th Cir. 2013), 13-1071, Cooper v. Sheehan

Docket Nº:13-1071.
Citation:735 F.3d 153
Opinion Judge:KING, Circuit Judge.
Party Name:George COOPER, Sr., Plaintiff-Appellee, v. James SHEEHAN; Brian Carlisle, Defendants-Appellants, and George Cooper, Jr., Plaintiff, and Brunswick County Sheriff's Department; Sheriff Ronald Hewett; David Crocker; Gene Caison; Kevin Holden; John Ingram, Defendants.
Attorney:Christopher J. Geis, Womble Carlyle Sandridge & Rice, PLLC, Winston-Salem, North Carolina, for Appellants. Laura Conner, Robert M. Tatum, Tatum & Atkinson, PLLC, Raleigh, North Carolina, for Appellee. James R. Morgan, Jr., James A. Dean, Womble Carlyle Sandridge & Rice, PLLC, Winston-Salem, North...
Judge Panel:Before WILKINSON, KING, and WYNN, Circuit Judges. Judge KING wrote the opinion, in which Judge WILKINSON and Judge WYNN joined.
Case Date:November 07, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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

George COOPER, Sr., Plaintiff-Appellee,


George Cooper, Jr., Plaintiff,


James SHEEHAN; Brian Carlisle, Defendants-Appellants,


Brunswick County Sheriff's Department; Sheriff Ronald Hewett; David Crocker; Gene Caison; Kevin Holden; John Ingram, Defendants.

No. 13-1071.

United States Court of Appeals, Fourth Circuit.

November 7, 2013

Argued: Sept. 20, 2013.

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Christopher J. Geis, Womble Carlyle Sandridge & Rice, PLLC, Winston-Salem, North Carolina, for Appellants.

Laura Conner, Robert M. Tatum, Tatum & Atkinson, PLLC, Raleigh, North Carolina, for Appellee.


James R. Morgan, Jr., James A. Dean, Womble Carlyle Sandridge & Rice, PLLC, Winston-Salem, North Carolina, for Appellants.

Before WILKINSON, KING, and WYNN, Circuit Judges.

Affirmed by published opinion.

Judge KING wrote the opinion, in which Judge WILKINSON and Judge WYNN joined.

KING, Circuit Judge.

Late in the evening of May 2, 2007, George Cooper, Sr., was alerted to the sound of unknown persons outside his mobile home in rural Leland, North Carolina. Lowered shotgun in hand, Cooper stepped out onto his back porch to investigate. Seconds later, he was struck by gunfire. The shots were fired by Brunswick County deputy sheriffs James Sheehan and Brian Carlisle (the " Officers" ), who were investigating a reported domestic disturbance on Cooper's property. Cooper survived, and he subsequently initiated this civil action in the Eastern District of North Carolina, alleging claims under 42 U.S.C. § 1983, as well as state law claims, arising from the shooting incident.

The Officers moved for summary judgment, which was granted in part and denied in part. See Cooper v. Brunswick Cnty. Sheriff's Dep't, 896 F.Supp.2d 432 (E.D.N.C.2012). In pertinent part, the district court denied the Officers' assertions of qualified and public officers' immunity from, respectively, Cooper's federal and state excessive force claims. Invoking the collateral order doctrine, the Officers

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seek appellate relief from the immunity aspects of the court's decision. As explained below, we affirm.



On the day of the shooting, Cooper and his cousin Paul Herring spent several hours repairing the floor of a nearby relative's home.1 Upon finishing the work, Herring agreed to join Cooper for dinner. At around 9:00 p.m., Herring arrived at Cooper's residence, and the two men enjoyed the evening in the backyard, talking about " [f]ootball games [and] old fights." Cooper, 896 F.Supp.2d at 436.2 Cooper may have enjoyed the mid-spring evening a little too much, smoking marijuana laced with cocaine, and chasing " three or four beers" with a pint of brandy. Id. at 437. Afterward, the men retired to Cooper's mobile home to prepare the meal.

Just after 11:00 p.m., a neighbor called 911 " to report that an altercation was occurring at the Cooper property." Cooper, 896 F.Supp.2d at 437 n. 2. The 911 dispatcher relayed the call to the Officers, reporting that the disturbance " sound[ed] like two males screaming at each other." Id. at 437. The dispatcher did not indicate whether the men were armed or otherwise dangerous. Around 11:30 p.m., the Officers arrived in the vicinity of Cooper's mobile home, Carlisle driving a standard patrol car and Sheehan in an unmarked vehicle. Neither of the Officers activated his blue lights or siren. As Carlisle approached in his vehicle, he " could hear screaming ... coming from [the] property." Id. He also saw " a black male" — not Cooper— " standing on the [mobile home's] back porch." Id. 3 Carlisle perceived that the man on the porch observed the approaching police cars, after which he went inside the mobile home. Sheehan also saw a man standing on the porch.

The Officers parked on the grass at the edge of Cooper's property and approached the mobile home on foot. They could hear what sounded like a heated argument inside, but could not make out any words. Carlisle also heard " screaming" and " people walking around inside the [mobile home]." Cooper, 896 F.Supp.2d at 438. To alert the occupants of the Officers' presence, Sheehan " tapp[ed] on the window" with his flashlight, but neither of the Officers announced his presence or identified himself as a deputy sheriff. Id.

In response to the sound at his window, Cooper uttered some obscenities, which the Officers heard. Cooper then peered out the back door (the mobile home's primary entrance), but saw nothing. Cooper called out for anyone in the yard to identify himself, but no one responded. Electing to venture outside to investigate the noise, Cooper retrieved the twenty-gauge shotgun he kept by the door. With the butt of the firearm in his right hand and its muzzle pointed toward the ground, Cooper " opened the back door and took two or three steps on to his darkened porch." Cooper, 896 F.Supp.2d at 437. By that time, the Officers had progressed to an adjacent area and were advancing toward the porch. Within a few feet of the porch steps, Sheehan stumbled over a concrete

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block. As Sheehan regained his balance, Cooper emerged with his shotgun.

Reacting to the sight of Cooper and his shotgun, the Officers drew their service weapons and commenced firing without warning.4 Cooper felt two bullets hit his body and then turned toward the mobile home's door. The Officers continued shooting, and Cooper felt himself hit " a couple of more times" before collapsing to the ground. Cooper, 896 F.Supp.2d at 439. The Officers discharged between eleven and fourteen rounds, and Cooper was hit five or six times, incurring wounds in the elbow, ankle, back, buttocks, and stomach.


On January 29, 2010, Cooper filed this lawsuit, naming as defendants the Brunswick County Sheriff's Department, the current and former Sheriffs, plus several deputies, including the Officers.5 The Complaint included eighteen counts, alleging violations of both state and federal law.6 The claims against the Sheriff's Department were dismissed early in the litigation. Following discovery, on February 1, 2012, the remaining defendants moved for summary judgment. In addition to various defenses, the Officers asserted qualified immunity from Cooper's federal claims, as well as public officers' immunity from Cooper's state law claims. By its September 27, 2012 decision, the district court granted summary judgment to all defendants on most counts. The only claims reserved for trial were asserted against the Officers— Cooper's Fourth Amendment excessive force claims and his state law assault, battery, negligence, and gross negligence claims.

In allowing those claims to go forward as to the Officers, the district court specifically rejected their assertions of federal and state immunity. The court relied heavily on our unpublished opinion in Pena v. Porter, 316 Fed.Appx. 303 (4th Cir.2009). There, a pair of officers searching for a fugitive came to Pena's door late at night, but did not identify themselves. Pena awoke to the sound of his dogs barking and, with no knowledge that the police were outside, opened his door while holding a rifle pointed toward the ground. One of the officers saw the firearm and immediately fired two shots that struck Pena. Pena sued under § 1983 and North Carolina law, and the officers asserted qualified and public officers' immunity. Viewing the facts in the light most favorable to Pena, the district court denied the officers' immunity claims, and we affirmed. We agreed that, under the circumstances, Pena had a " perfectly reasonable" rationale for holding the rifle, which " should have been apparent to [the officers] at the

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time of the shooting." Id. at 312. For purposes of summary judgment, we concluded that Pena's rights had been violated because " [a]bsent any additional factors which would give the [officers] probable cause to fear for their safety or the safety of others, the mere presence of a weapon is not sufficient to justify the use of deadly force." Id.

Finding Pena's facts analogous and its reasoning persuasive, the district court here concluded that " Pena supports [Cooper's] argument" against the Officers' claims of qualified immunity. Cooper, 896 F.Supp.2d at 446. " Accepting [Cooper's] account as true," the court resolved that " the totality of the circumstances [did] not establish that [the Officers] had probable cause to believe that [Cooper] was dangerous when [he] stepped onto his unlit porch at 11:30 p.m., holding a shotgun pointing down, asked who was there, heard nothing, and then was shot a few seconds later." Id. The court acknowledged that " if [Cooper] had ... stepped onto a dark porch armed despite knowing law enforcement officers were approaching his door, that certainly could affect a reasonable officer's apprehension of dangerousness." Id. at 447. Critically, however, the court determined that " no reasonable officer could have believed that [Cooper] was aware that two sheriff deputies were outside" when he stepped onto the porch. Id.

Thus, " [a]bsent a threatening act, like raising or firing the shotgun," the district court ruled that the Officers' decision to use deadly force was not objectively reasonable. Cooper, 896 F.Supp.2d at 447-48. Moreover, after reviewing the applicable legal principles, the court observed that Cooper's " Fourth Amendment right to remain free from the unreasonable use of deadly force was clearly established" at the time of the shooting incident. Id. at 448. On the basis of those conclusions, the court decided that the Officers were not entitled to qualified immunity from Cooper's § 1983 excessive force claims.7 The Officers thereafter timely noted this appeal, asserting jurisdiction under the collateral order doctrine.


Because this is not a typical final order appeal, we first satisfy ourselves of our jurisdiction in this proceeding. See Mort Ranta v. Gorman, 721 F.3d 241, 245...

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