Drewitt v. Pratt, No. 92-2423

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before WILKINS, Circuit Judge, SPROUSE; HALLANAN
• Citation: 999 F.2d 774
• Parties: Ronald K. DREWITT, Plaintiff-Appellant, v. Fred L. PRATT; Pizza Hut of America, Inc., Defendants-Appellees, City of Norfolk, Party-in-interest.
• Docket Number: No. 92-2423
• Decision Date: 22 July 1993

Page 774

999 F.2d 774 Ronald K. DREWITT, Plaintiff-Appellant,
v.
Fred L. PRATT; Pizza Hut of America, Inc., Defendants-Appellees,
City of Norfolk, Party-in-interest. No. 92-2423. United States Court of Appeals,
Fourth Circuit. Argued May 4, 1993.
Decided July 22, 1993.

Page 775

Lance Arlington Jackson, Rutter & Montagna, Norfolk, VA, argued (Robert L. Mills, on brief), for plaintiff-appellant.

Allan S. Reynolds, Reynolds, Smith & Winters, P.C., Norfolk, VA, argued, for defendants-appellees.

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Before WILKINS, Circuit Judge, SPROUSE, Senior Circuit Judge, and HALLANAN, United States District Judge for the Southern District of West Virginia, sitting by designation.

OPINION

HALLANAN, District Judge:

This appeal arises from the district court's grant of summary judgment in favor of Defendant-Appellee Fred L. Pratt on the basis of qualified immunity. Because we agree both with the district court's finding that no genuine issue of material fact exists and with its application of the law, we affirm its decision.

I.

A.

Defendant-Appellee Fred L. Pratt is a police officer for the City of Norfolk, Va., who works during his off-duty hours as a part-time security guard for a local Pizza Hut. During the evening of August 3, 1990, while working at the Pizza Hut, Officer Pratt was informed by other employees that a vehicle was being driven in a reckless manner on Arkansas Avenue. While investigating their complaint, Officer Pratt observed a vehicle with its headlights off being driven by the Plaintiff-Appellant, Ronald K. Drewitt. Continuing to watch the vehicle, Officer Pratt observed it alternately accelerate and stop and, shortly thereafter, collide with a parked pick-up truck and begin to pull away.

With the intention to arrest the driver for reckless driving, Officer Pratt ran toward the vehicle with his service revolver drawn. Officer Pratt contends that he yelled twice at such time, "Police Officer, stop!" and twice more, "Police Officer, turn the vehicle off!" Officer Pratt, however, was not in uniform at such time and did not display the badge which he carried in his pocket. When the vehicle came to a stop, Officer Pratt crossed in front of the vehicle heading towards its driver's side. Officer Pratt contends that while he was still in front of the vehicle, the vehicle's headlights were activated and the vehicle sped forward towards him.

At the time of impact with the vehicle, Officer Pratt attempted to position his body in a manner so as to avoid being dragged underneath it. His maneuver succeeded and when struck by the vehicle he rolled over the front fender onto the hood. Officer Pratt contends that while on the hood of the vehicle he fired one shot from his weapon into the windshield in an attempt to stop the vehicle and protect himself. His gun accidentally discharged a second time after he fell off the hood at the area of the driver's side front fender. Unbeknownst to him at the time, both bullets struck Drewitt.

Drewitt contends that he remembers little about the evening. He admits that prior to the incident he was drinking alcohol with friends at which time he consumed at least four glasses of beer and at least two glasses of wine. At the time of the shooting, he remembers seeing a man approach him with a gun but does not recall anything after that, including hearing Officer Pratt identify himself as a police officer.

B.

Following the shooting, Drewitt filed a motion for judgment in the Circuit Court of the City of Norfolk against Officer Pratt and Defendant Pizza Hut of America, Inc., alleging said parties were liable under 42 U.S.C. § 1983 for violating his rights under the Fourth and Fourteenth Amendments of the United States Constitution. Drewitt also sought damages under state law for assault and battery and negligence. The Defendants removed the case to the United States District Court for the Eastern District of Virginia and subsequently moved for summary judgment. Drewitt responded in part by conceding that he had no viable § 1983 claim against Pizza Hut of America, Inc. By Order entered on October 9, 1992, the district court granted Officer Pratt's motion for summary judgment on qualified immunity grounds, dismissed Drewitt's § 1983 claims against the Defendants, and remanded his state law claims.

In analyzing Officer Pratt's motion for summary judgment, the district court first concluded that based on "the nature of the

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act performed," Revene v. Charles County Commissioners, 882 F.2d 870, 872 (4th Cir.1989), Officer Pratt was acting under the color of state law when the shooting occurred. The district court next determined in order to properly address Officer Pratt's defense of qualified immunity ^* that Drewitt's § 1983 claims consisted of (1) unlawful arrest and (2) excessive force.

As to the unlawful arrest claim, the district court concluded that although Officer Pratt's failure to display his badge while attempting to execute a warrantless misdemeanor arrest of Drewitt may have violated Virginia statutory law, see Va.Code.Ann. § 19.2-81, it did not rise to a violation of a federal constitutional magnitude. See Penn v. Commonwealth, 13 Va.App. 399, 412 S.E.2d 189, 193-94 (1991), aff'd, 244 Va. 218, 420 S.E.2d 713 (1992) (warrantless arrest for misdemeanor not committed in officer's presence which violated state law did not rise to level of Fourth Amendment violation); Graves v. Commonwealth, No. 1113-88-2, slip op. at 2-3 (Va.Ct.App. July 17, 1990) (unpublished) (failure of non-uniformed police officer to display badge during arrest which violated state law did not rise to violation of Fourth Amendment); see also Street v. Surdyka, 492 F.2d 368, 371 (4th Cir.1974) (not all violations of state law regarding arrest procedures constitute violations of a federal constitutional magnitude). Accordingly, because no clearly established constitutional right was violated, the district court held that Officer Pratt was clearly entitled to qualified immunity on such claim.

The district court next addressed Drewitt's excessive force claim, initially noting that "all 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 citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach." Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989) (emphasis in original). The district court also correctly noted that "the fourth amendment limit[s] a police officer's use of deadly force to those situations, among others, where he has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others." Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir.1991) (citing Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985)).

Drewitt argued in opposing Officer Pratt's entitlement to qualified immunity that:

The facts are in dispute as to whether Pratt ran into the road with his gun up in the air, as Marvin Tucker[, a witness,] has...