Elliott v. Leavitt

• Decision Date: 24 January 1997
• Docket Number: 96-1151,Nos. 96-1150,s. 96-1150
• Citation: 105 F.3d 174
• Parties: Dorothy C. ELLIOTT, Individually and as Co-Personal Representative of the Estate of Archie Elliott, III; Archie Elliott, Jr., Individually and as Co-Personal Representative of the Estate of Archie Elliott, III, Plaintiffs-Appellees, v. Jason LEAVITT, Police Officer for District Heights, MD, Defendant-Appellant, and Prince George'S County, Maryland; David B. Mitchell, Prince George's County Police Chief; Wayne Cheney, Police Officer; City Of District Heights, MD; Michael Conboy, Police Chief for District Heights, MD, Defendants. Dorothy C. ELLIOTT, Individually and as Co-Personal Representative of the Estate of Archie Elliott, III; Archie Elliott, Jr., Individually and as Co-Personal Representative of the Estate of Archie Elliott, III, Plaintiffs-Appellees, v. Wayne CHENEY, Police Officer, Defendant-Appellant, and Jason Leavitt, Police Officer for District Heights, MD; Prince George's County, Maryland; David B. Mitchell, Prince George's County Police Chief; City of District Heights, MD; Michael Conboy, Police Chief for District Heights, MD, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 174

105 F.3d 174

Dorothy C. ELLIOTT, Individually and as Co-Personal

Representative of the Estate of Archie Elliott, III; Archie

Elliott, Jr., Individually and as Co-Personal Representative of the Estate of Archie Elliott, III, Plaintiffs-Appellees, v. Jason LEAVITT, Police Officer for District Heights, MD,

Defendant-Appellant,

and

Prince George'S County, Maryland; David B. Mitchell, Prince

George's County Police Chief; Wayne Cheney, Police Officer;

City Of District Heights, MD; Michael Conboy, Police Chief

for District Heights, MD, Defendants.

Dorothy C. ELLIOTT, Individually and as Co-Personal

Representative of the Estate of Archie Elliott, III; Archie

Elliott, Jr., Individually and as Co-Personal Representative of the Estate of Archie Elliott, III, Plaintiffs-Appellees, v. Wayne CHENEY, Police Officer, Defendant-Appellant, and Jason Leavitt, Police Officer for District Heights, MD;

Prince George's County, Maryland; David B. Mitchell, Prince

George's County Police Chief; City of District Heights, MD;

Michael Conboy, Police Chief for District Heights, MD, Defendants.

Nos. 96-1150, 96-1151.

United States Court of Appeals, Fourth Circuit.

Jan. 24, 1997.

ORDER

A member of the Court requested a poll on whether this case should be reheard en banc. A majority of the judges in active service voted that it should not be reheard en banc.

Judges Hall, Murnaghan, Ervin, Michael, and Motz voted for rehearing en banc. Chief Judge Wilkinson, and Judges Russell, Widener, Wilkins, Niemeyer, Hamilton, Luttig, and Williams voted against rehearing en banc.

Chief Judge Wilkinson filed an opinion concurring in the denial of rehearing en banc, in which Judges Russell, Widener, Wilkins, Niemeyer, Luttig, and Williams joined. Judge Motz filed an opinion dissenting from the denial of rehearing en banc, in which Judges Hall, Murnaghan, Ervin, and Michael joined.

The suggestion for rehearing en banc is hereby denied. Entered at the direction of Chief Judge Wilkinson for the Court.

WILKINSON, Chief Judge, concurring in the denial of rehearing en banc:

So it has come to this--my dissenting colleagues would require police officers to gamble with their lives in order to avoid civil liability. It is one thing for courts to deny qualified immunity on the basis of a violation of clearly established law. It is quite another to demand as a condition of that immunity that officers actually await the bullet.

The court's opinion in this case sets forth my position, 99 F.3d 640 (4th Cir.1996), and I would respond to the call for an en banc hearing only briefly here. The dissent effectively reads Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), and Behrens v. Pelletier, --- U.S. ----, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), to abolish the right of law enforcement officers to bring interlocutory appeals within this circuit. It converts even a mere statement that a material fact is undisputed into a forbidden debate over genuineness. If the dissent's position were to prevail, the role of courts under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), in promoting the purposes of qualified immunity on given facts will be severely stricken.

If qualified immunity does not obtain here, it will not obtain anywhere. All plaintiffs need do to receive an automatic trial is simply assert, without any evidence, that "the police are lying." The assertion that Elliott had no gun was only that--an assertion unsupported by any evidence, and I do not understand such bald assertions to substitute for material issues of fact. A skeptical look at police conduct is one thing, but the contention that the officers planted a gun on Elliott requires that courts embrace conspiracy theories of which Oliver Stone would be proud. In fact, not even appellees were so bold as to directly claim either that Elliott did not have a gun or that the gun found on him was planted by the police. Those assertions arise from insinuation embellished by imagination, and that is no replacement for material disputes of fact.

This case is not, as the dissent would have it, a contest over the officers' credibility. Faced with the potential danger of an aggressive, intoxicated suspect, officer Leavitt handcuffed Elliott and placed him in the police car. Shortly thereafter, he and officer Cheney saw Elliott pointing a gun at them at close range with his finger on the trigger. Extensive independent evidence corroborated the officers' account of events. A blue fiber was found caught on the trigger of the gun when it was retrieved from the scene of the incident. FBI laboratory analysis matched the blue fiber to those found on Elliott's blue shorts, indicating that Elliott indeed had the gun concealed on his person when he was stopped. Several months before the shooting, a motorist was involved in an altercation with Elliott where Elliott jumped on the motorist's car, smashed in a window with his foot, verbally abused the motorist, and drew his gun. The motorist signed an affidavit in which he identified the gun recovered from Elliott's body as the same weapon with which Elliott had threatened him in the prior incident. In addition, the medical report on Elliott's wounds concluded that "[t]he injuries of the right fingertips and base of the thumb" were "best explained by the deceased's having held an object at the time he sustained his injuries." This corroborates the officers' testimony that Elliott was pointing a gun.

The testimony of Leavitt's supervisor, Sergeant Brown, likewise supports Leavitt and Cheney's testimony that Elliott had the gun out when they fired at him. In his deposition, Sergeant Brown stated that immediately before the officers began firing, he heard Leavitt yell "gun, gun" and order Elliott to drop the weapon. This testimony may be discounted only if one assumes either that Leavitt spontaneously put on a masterful theatrical performance to deceive Sergeant Brown or that Sergeant Brown also participated in the "coverup." Brown also testified that the officers were standing immediately next to the passenger side of the police cruiser, where Elliott was seated, when the shooting took place. ^*

Critical portions of the evidence could not have been planted. The gun, for instance, had distinguishing features, a cut off barrel and white plastic grips. These are the very features which enabled the motorist to identify the weapon as Elliott's. Moreover, the officers could not have manufactured the wounds indicating that Elliott was holding a gun at the time he was shot. Together, this evidence substantiates the critical element of the officers' claim, that Elliott was pointing a gun when they shot him. Appellees' coverup theory also fails to explain the fact that the two officers reacted to the threat instantly and simultaneously, hardly the stuff of scripted conspiracy. In order to conclude that Elliott did not have a gun, one would have to ignore all this evidence and suppose that the defendant officers, Sergeant Brown, the motorist, and the medical examiner's staff were all part of an elaborate coverup. To expand the allegations that far transforms appellees' theory from the baseless to the absurd.

Even the dissent's efforts to create a case for plaintiffs falter. The fact that a suspect was intoxicated makes him no less dangerous and the fact that he was handcuffed tells us nothing about whether he was armed. The dissent's observation that the gun was unloaded does not alter the fact that Elliott had a gun, and that the officers saw the gun pointed directly at them. The officers' subjective intent in firing twenty-two bullets is simply irrelevant to the question whether the officers' behavior was objectively reasonable under Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The number of bullets fired is likewise irrelevant; if it was objectively reasonable for the officers to use deadly force, it was also objectively reasonable for the officers to continue firing until they were sure the threat to their lives had ceased.

Nothing in Johnson or Behrens sought to abolish interlocutory appeals in cases where the material facts are not in dispute. Disputed facts will exist in virtually every confrontation between citizens and law enforcement officers, but Behrens made clear that the mere existence of contested facts does not eliminate the right of officials to appeal a denial of qualified immunity. In fact, the Supreme Court stated as much in a sentence the dissent refuses to heed: "Denial of summary judgment often includes a determination that there are controverted issues of material fact, and Johnson surely does not mean that every such denial of summary judgment is nonappealable." Behrens, --- U.S. at ----, 116 S.Ct. at 842. When reviewing an interlocutory appeal pursuant to Mitchell v. Forsyth, Johnson instructs us not to second-guess a trial court on questions of "evidence sufficiency." See Johnson, --- U.S. at ----, 115 S.Ct. at 2156. Where the material facts are undisputed, however, an appellate court's determination that the defendant officers are entitled to qualified immunity does not require any reweighing of the evidence. Such a determination is a purely legal one involving only "whether or not certain given facts show[ ] a violation of 'clearly established' law." Id. at ----, 115 S.Ct. at 2155.

It is instructive to note just how pitifully little my dissenting colleagues would say suffices to vitiate qualified immunity and dismiss an appeal. Despite Johnson 's recognition that appellate review of a denial of qualified immunity will at times require a "detailed evidence-based review of the record," id. at ----, 115 S.Ct. at 2159, the dissent finds even so much as a mere reference to the evidence on defendants' side of the case to involve an impermissible reweighing. In fact, the dissent chastises the...