Lowery v. Stovall

• Decision Date: 06 August 1996
• Docket Number: No. 95-1729,95-1729
• Citation: 92 F.3d 219
• Parties: Jerry LOWERY, Plaintiff-Appellant, v. Larry STOVALL; T.E. Redd, Defendants-Appellees, and City of South Boston, Virginia; J.V. Simmons, Individually and in his official capacity as a police officer, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 219

92 F.3d 219

Jerry LOWERY, Plaintiff-Appellant, v. Larry STOVALL; T.E. Redd, Defendants-Appellees and City of South Boston, Virginia; J.V. Simmons, Individually and in his official capacity as a police officer Defendants.

No. 95-1729.

United States Court of Appeals Fourth Circuit.

Argued Feb. 2, 1996.

Decided Aug. 6, 1996.

ARGUED: G. Rodney Sager, Rod Sager & Associates, Richmond, Virginia, for Appellant. John Henry O'Brion, Jr., Cowan & Owen, P.C., Richmond, Virginia, for Appellees. ON BRIEF: Carey M. Friedman, Gavin T. Pinchback, Third-Year Law Student, T.C. Williams School of Law, Rod Sager & Associates, Richmond, Virginia, for Appellant.

Before HALL and HAMILTON, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Judge HALL and Senior Judge PHILLIPS joined.

OPINION

HAMILTON, Circuit Judge:

Jerry Lowery appeals the district court's grant of summary judgment in favor of Thomas Redd and Larry Stovall on his claims that Redd and Stovall subjected him to an unreasonable seizure in violation of his Fourth Amendment rights. See 42 U.S.C. §§ 1983 & 1985. For the reasons discussed below, we affirm.

I

This action arises out of an early morning traffic stop on February 1, 1991. Redd, a police officer for the City of South Boston, Virginia (South Boston), was on routine patrol when he noticed a car driving with its headlights off through the lot of a construction company. Redd followed the car and called in the car's license plate number to the dispatcher's office. Redd subsequently learned that the registered owner's license had been suspended. At approximately 1:45 or 1:50 in the morning, Redd spotted the car again and proceeded to stop the car, believing that the driver was driving with a suspended license. Stovall, another officer with South Boston, arrived shortly after Redd stopped the car to provide back-up. During the stop, the driver, who was Lowery, accompanied Redd to the patrol car and sat in the front passenger seat while Redd called the dispatcher's office to find out why his license had been suspended. At this point, the parties' versions of the events in question diverge.

According to Lowery, he got out of the patrol car to show Redd what he had in his pants pockets. Then Stovall, who had been in the back seat of Redd's patrol car, got out of the patrol car and, for no reason, shot Lowery in the head. Lowery then claims that, as he attempted to get back in the patrol car to lay his head on the seat, he scratched Redd on the face with his fingernails.

The officers, however, present a dramatically different version of the incident. According to Redd and Stovall, while Redd was in the process of writing Lowery a ticket for driving with a suspended license, Lowery began going through his left pants pocket. At this point, Redd asked Lowery what he had in his pocket and then reached over to pat down Lowery's pocket. Lowery then reached into his pants pocket, pulled out an object, pushed Redd against the driver's side door, and used the object to cut Redd on the face. Because Redd felt a burning sensation, he "yelled out knife." (J.A. 1420). Stovall, who had been sitting in the back of the patrol car and saw that Redd was bleeding, attempted to stop Lowery by grabbing him and punching him in the back of his neck. Stovall's attempts to restrain Lowery failed, but Stovall's actions caught Lowery's attention because Lowery then started to climb over the patrol car's front seat in an attempt to attack Stovall. Lowery swung at Stovall in an attempt to cut him with the object, but Stovall fended off this attack by catching Lowery's arm. Stovall then drew his firearm and shot Lowery. Although Stovall tried to shoot Lowery in the shoulder, he shot Lowery in the head when Lowery ducked as Stovall fired. The object that Lowery used to cut Redd, rather than a knife, turned out to be a black magnetic key holder that was approximately three inches long and one inch wide.

After the shooting, Virginia charged Lowery with maliciously causing bodily injury to Redd with the intent to maim, disfigure, disable or kill him in violation of Va. Code § 18.2-51.1. ¹ Prosecution on this charge was delayed because Lowery was initially deemed incompetent to stand trial due to his injuries.

Lowery subsequently commenced this § 1983 action against Redd and Stovall ² alleging that they had violated his constitutional rights. Specifically, Lowery's complaint alleged that Stovall's use of force violated his Fourth Amendment right to be free from unreasonable seizures, which is applied to the states through the Fourteenth Amendment. Lowery's complaint also alleged that Redd owed him a duty to protect him from Stovall's use of excessive force and that Redd breached this duty. The defendants subsequently moved for summary judgment. The district court, finding no evidence that either South Boston or its police chief was deliberately indifferent to Lowery's constitutional rights, granted summary judgment in favor of them. The district court, however, denied Redd's and Stovall's motion for summary judgment because (1) Redd had not yet been deposed and (2) Rainey v. Conerly, 973 F.2d 321 (4th Cir.1992), precluded the application of qualified immunity because the parties presented irreconcilable accounts of why Lowery was shot.

Lowery, Redd, and Stovall appealed the district court's initial order granting summary judgment, and based upon the reasoning of the district court, we affirmed in toto the district court's decision. Lowery v. Redd, 14 F.3d 595, 1993 WL 527998 (4th Cir. Dec.21, 1993) (unpublished), cert. denied, --- U.S. ----, 114 S.Ct. 2676, 129 L.Ed.2d 811 (1994).

While this case was pending on remand, Lowery, who had been found competent to stand trial, pleaded guilty to violating Va. Code § 18.2-51.1. In addition to pleading guilty, Lowery signed a statement admitting that (1) he maliciously attacked Officer Redd, (2) he intended to kill him, if necessary, to escape, and (3) he knew of the consequences that his guilty plea would have on his civil suit:

3. I was selling cocaine in South [B]oston before my arrest and the cocaine I had with me when the officers arrested me was possessed by me for later sale.

4. On February 1, 1991 when I was arrested, I cut Officer Thomas E. Redd on the face with a metal key holder because I wanted to escape custody. I knew he would find my cocaine. I intended to maim and disable him and at the time Officer Stovall shot me I was intending to kill Redd if I had to [in order] to get away.

. . . . .

6. I have discussed this thoroughly with my attorney Mr. Crowder, including the implications of this plea for my civil case. Having considered all of this I believe it is in my best interest to proceed.

7. I have delayed pleading guilty because of the pendency of the civil suit I filed for my injuries in this episode. At all times I was guilty of these charges, and I knew I was.

(J.A. 686).

Finally, in taking Lowery's guilty plea, the state trial judge meticulously reviewed Lowery's statement to make certain that each of the statements was indeed true and that Lowery understood the statements. After taking Lowery's guilty plea and hearing a summary of the state's evidence from a prosecution witness, the trial judge accepted Lowery's guilty plea, finding Lowery was "in fact guilty of each charge." (J.A. 769).

Based on Lowery's guilty plea and statement, Stovall refiled his motion for summary judgment and Redd supplemented his previous motion for summary judgment, arguing that Lowery's guilty plea rendered the parties' factual dispute moot. Although summary judgment based on qualified immunity is inappropriate "where what actually happened ... need[s] to be resolved by the trier of fact in order to reach a decision on the applicability of qualified immunity," Rainey, 973 F.2d at 324, the district court found that it did not need to resolve the conflicting versions of the shooting because Lowery was precluded by the doctrine of judicial estoppel from disputing that he maliciously attacked Redd before Stovall shot him.

Because the district court precluded Lowery from disputing that he maliciously attacked Redd before being shot by Stovall, it held that Stovall was entitled to qualified immunity because "Stovall's behavior would appear objectively reasonable from the perspective of the officer at the time of the shooting." (J.A. 1006). The district court also held, regardless of the propriety of its ruling concerning judicial estoppel, that Redd was entitled to qualified immunity on Lowery's claim that Redd breached his alleged duty to protect him because there was no clearly established standard to govern Redd's actions. Lowery then noted this appeal.

II

Lowery claims that Stovall's shooting him for allegedly no reason constituted the use of excessive force, and thus, violated his Fourth Amendment right to be free from unreasonable seizures. In judging the reasonableness of a seizure, we consider three factors: " the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade by flight." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). In addition, "[t]he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id.

Stovall claims that he is entitled to qualified immunity on Lowery's excessive force claim. A defendant, such as Stovall, is entitled to qualified immunity if his conduct did not contravene "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The clearly established standard for the use of...