Harris v. Pittman

• Decision Date: 18 June 2019
• Docket Number: No. 17-7308,17-7308
• Citation: 927 F.3d 266
• Parties: Herman HARRIS, Plaintiff - Appellant, v. Zachary PITTMAN, Fayetteville Police Department, Defendant - Appellee, and Moose Butler, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

927 F.3d 266

Herman HARRIS, Plaintiff - Appellant,

v.Zachary PITTMAN, Fayetteville Police Department, Defendant - Appellee,andMoose Butler, Defendant.

No. 17-7308

United States Court of Appeals, Fourth Circuit.

Argued: January 30, 2019

Decided: June 18, 2019

ARGUED: Rafael Reyneri, COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Donald Brandon Christian, CITY OF FAYETTEVILLE, Fayetteville, North Carolina, for Appellee. ON BRIEF: Richard Rainey, COVINGTON & BURLING LLP, Washington, D.C., for Appellant. James C. Thornton, CRANFILL SUMNER & HARTZOG LLP, Raleigh, North Carolina, for Appellee.

Before WILKINSON, WYNN, and HARRIS, Circuit Judges.

Reversed and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Wynn joined. Judge Wilkinson wrote a dissenting opinion.

PAMELA HARRIS, Circuit Judge:

This is the second time we have addressed this § 1983 action, in which plaintiff Herman Harris alleges that police officer Zachary Pittman used excessive force in arresting him after an intense hand-to-hand struggle between the men. Previously, we reversed the district court’s grant of summary judgment to Officer Pittman on qualified immunity grounds, finding that the district court erred when it failed to construe the evidence in the light most favorable to Harris. On remand, the district court again held that Pittman is entitled to qualified immunity as a matter of law.

We must reverse for a second time. The district court again based its qualified immunity holding on inferences drawn in favor of Officer Pittman. But as we held in our prior decision, the court was obligated to construe the salient facts in the light most favorable to Harris, as the party opposing summary judgment. And on Harris’s version of the disputed facts, construed in the light most favorable to him, a reasonable jury could find a violation of Harris’s clearly established Fourth Amendment rights. Because there remain genuine factual disputes bearing on Pittman’s entitlement to qualified immunity, the district court erred in awarding summary judgment to Pittman.

I.

A.

This case centers around Officer Pittman’s use of deadly force at the conclusion of a violent, hand-to-hand struggle between Pittman and Harris. The parties agree that Pittman shot Harris several times at point-blank range. And Harris does not dispute that Pittman’s first shot, into his chest, was justified by the intensity of the struggle and the threat he posed to Pittman’s safety. As we have held, however, even where an initial use of deadly force is reasonable, the repeated use of force may be constitutionally excessive if circumstances change in a material way. See Waterman v. Batton , 393 F.3d 471, 481 (4th Cir. 2005). And so the critical disagreement here is over the precise circumstances under which Pittman fired his final shots at Harris: whether, as Pittman says, a deadly struggle was ongoing, with Harris standing over Pittman, as Pittman fired; or whether, as Harris has it, the struggle was over, with Harris lying on the ground, wounded

and unarmed, when Pittman stood above him and fired two more shots into his chest and leg.

The events leading up to this confrontation began when a Fayetteville, North Carolina police officer noticed a vehicle that had been reported stolen the previous night. The officer alerted other officers in the area to be on the lookout for the suspects involved, described as "early- to mid-teenage black males." J.A. 237–38. One nearby officer spotted Harris, a then-38-year-old black male whom the parties now agree had no role in the reported vehicle theft. Nonetheless, the officer "noticed that [Harris] was on his cell phone, walking at a fast pace, sweating excessively and appeared to be nervous." J.A. 245. Further, according to the officer, Harris "avoided eye contact and had rapid head and hand movement." Id. Based on this information, the officer determined that Harris was behaving suspiciously and turned his vehicle to pursue Harris.

Harris began to run, and as he fled, he came into Officer Pittman’s line of sight. Pittman got out of his squad car and gave chase. According to Pittman, as he gained on Harris, he threatened to use his taser on Harris in an attempt to stop his flight. Harris continued running, and Pittman eventually caught him at the edge of a wooded bramble and tackled him down a steep incline into some shrubs.

When the men came to a stop, a hand-to-hand struggle ensued. Pittman attempted to use his taser against Harris, and alleges that Harris tried to use the taser against him as well. Both times, however, the men were able to deflect the taser’s aim, and though each felt the partial effects of the discharges, Pittman "could not use the [t]aser to [his] advantage" to effectuate Harris’s arrest and secure his own safety. J.A. 241. The struggle continued to escalate, and though the parties dispute who first reached for Pittman’s firearm, the two men fought for control of the gun. The gun fired while in Pittman’s holster, and the bullet struck Harris’s right ring finger, severing part of it.

According to Pittman, Harris then wrestled the gun away from Pittman, pointed it at Pittman’s face, and pulled the trigger. But for a firearm malfunction, Pittman says, Harris would have killed him. The gun did not go off, however, and Pittman regained control of the weapon. Pittman then fired the first of his intentional shots at Harris, striking him in the chest. As noted above, Harris does not argue that Pittman lacked justification for this initial use of deadly force.

Thus, while Harris disputes some of the preceding details, it is at this point that the parties’ narratives diverge in ways most significant to this appeal. There remains some overlap in their accounts: The parties agree that Pittman now had full control over his weapon, leaving Harris unarmed; Pittman does not contend either that Harris was armed or that he mistakenly believed him to be armed. And they agree that Pittman continued to fire his gun at Harris. But the parties vigorously dispute the factual circumstances directly attendant to those final shots, which form the basis for Harris’s excessive force claim.

On Pittman’s account, there was no material change in circumstances as he fired at Harris. According to Pittman, once he regained control of his firearm, he was lying on the ground and saw Harris standing a few feet away. Fearing another attack, Pittman "fired [his] weapon until [ ] Harris fell," consistent with training that had taught him to fire until a perceived threat is eliminated. J.A. 242. Although Pittman does not specify how many shots he fired, he is adamant that he fired each at roughly the same time and under the same circumstances: Pittman was on the ground, and Harris was on his feet, presenting an imminent threat to Pittman’s life and safety.

On Harris’s account, by contrast, Pittman fired three shots, and the circumstances changed significantly between the first shot and the second two. According to Harris, Pittman’s initial shot, which "hit[ ] him in his right chest area," had "lift[ed] him off his feet," J.A. 379, so that he was lying on the ground badly wounded

. Pittman then got to his feet and stood over Harris, who "was not trying to escape, nor ... showing any further resistance." J.A. 329. And then, Harris says, while he was lying bleeding and subdued on the ground, Pittman shot him twice more, once in the chest and then in the back of his left leg. The final shot struck Harris in the left buttock, broke his femur on the way through his body, and exited his body near his groin, suggesting that Harris rolled onto his stomach before Pittman fired for the last time.

B.

Harris initiated this § 1983 action against Pittman, proceeding pro se – that is, without the assistance of counsel – and alleging that Pittman used excessive force against him in violation of his Fourth Amendment rights. Pittman moved for summary judgment, asserting qualified immunity as a defense.

The district court granted Pittman’s motion for summary judgment. As the district court explained, a defendant like Pittman is entitled to qualified immunity at the summary judgment stage if (1) the facts, viewed in the light most favorable to the plaintiff – here, Harris – do not demonstrate a violation of the plaintiff’s constitutional rights; or (2) they do, but the relevant constitutional right was not clearly established at the time of the alleged violation. J.A. 206–07; see also Waterman , 393 F.3d at 476. Focusing on the first prong, the district court held that Pittman had not violated Harris’s Fourth Amendment rights because Pittman’s use of force was objectively reasonable as a matter of law.

In making that determination, the district court appeared to credit Pittman’s account of the immediate circumstances under which he fired at Harris. As the district court described the relevant facts, Pittman regained control of his gun while he was lying on the ground, and then, having turned on his gun light, saw "Harris standing a few feet from him." J.A. 208 (emphasis added). Able to see only a "partial silhouette" of Harris, the district court went on, "Pittman believed that Harris was still a threat and his life was in danger." Id. Still on the ground, Pittman fired at the upright Harris and then, when Harris did not fall, continued to fire. Under those circumstances, the district court concluded, no genuine dispute of material fact remained as to whether Pittman’s use of force had been objectively reasonable under the Fourth Amendment.

Harris appealed, and we reversed. See Harris v. Pittman , 668 F. App'x 486 (4th Cir. 2016) (per curiam). The parties’ "different versions of the salient facts," we held, gave rise to a material dispute over "what occurred when Pittman fired the final shots at Harris," including "whether Harris was standing or lying down." Id. at 487. Instead of resolving that dispute in Pittman’s favor at the summary judgment stage, the district...