Professional Documents
Culture Documents
No. 15-1384
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:12-cv-00471-REP)
Argued:
Decided:
May 5, 2016
the
to
the
decedent)
appeals
estate,
an
or
order
Fleming
of
the
when
referring
district
court
to
the
granting
Fleming,
and
alternatively
found
that
Bevington
was
Estate
of
Armstrong
ex
rel.
Armstrong
v.
Vill.
of
Pinehurst, 810 F.3d 892, 895 (4th Cir. 2016). Summary judgment
shall be granted if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.
must
view
the
evidence
and
3
any
inferences
from
the
undertake
fairly
critical
assessment
of
the
forensic
reasonably
be
rejected
at
trial,
instead
of
merely
On
July
14,
2010,
officers
of
the
Richmond
Police
the
threats
that
Fleming
had
made
to
the
RPD
included
Tovars
handwritten
notes
describing
with
handgun
and
had
made
statements
that
he
will
shoot and was not going down without a fight. J.A. 354. When
Flemings father, Jotaynun Lee (Lee), arrived at the residence
and spoke with officers on the scene, he told the officers that
Fleming did not have a gun.
5
After
members
on
Tovar
briefed
the
foregoing
Bevington
and
information,
the
the
other
SWAT
SWAT
team
team
members
the
scene
in
the
bathroom.
The
negotiation
team
informed
the
throw
phone,
attempted
to
convince
Fleming
to
barricaded,
Fleming
communicated
with
police
several
hours,
Fleming
stopped
responding
to
the
time
the
gas
was
deployed,
Officer
Wesley
Moore
the
second
officer
in
the
team,
standing
directly
behind
members
carrying
in
rifles
line
and
behind
service
Moore
pistols;
and
one
Bevington
carried
were
a
also
Taser
to
They
both
testified
that
Fleming
was
holding
black
testified
that
as
Fleming
came
out
of
the
few
inches,
knocking
Bevingtons
gun
slightly.
Bevington
believed that the shot fired by Moore had come from Fleming.
Bevington testified that after the first shot was fired, Fleming
was still coming toward the officers with his hands straight out
in front of him, holding what appeared to be a weapon. Bevington
then fired several shots at Fleming. 2 Bevington testified that
after he fired the first round of shots, Fleming fell to the
ground but was still pointing his weapon at the officers and
attempting to get back up as the officers approached. Moore also
testified that after Fleming fell to the ground, he was still
holding what appeared to be a weapon and was pointing it toward
the officers. Bevington continued to fire until Fleming rolled
over
and
Bevington
Bevington
stated
that
could
no
longer
the
time
between
see
the
Flemings
hands.
first
second
and
round of shots he fired was less than seconds. J.A. 382. Moore
and Bevington fired a total of nine rounds at Fleming, who was
struck multiple times in his hands, arms, torso, and chest.
2
When
the
shooting
ceased,
the
two
arresting
officers
handcuffed Fleming, removed him from the scene, and placed him
in a waiting ambulance. 3 After being transported to a hospital,
Fleming was pronounced dead within 30 minutes. Upon inspecting
the
scene
after
the
shooting,
officers
did
not
find
gun.
argues
that
genuine
issue
of
material
fact
10
on
the
ground,
trying
to
get
up,
but
still
pointing
what
11
the
question
before
us,
or
merely
facts
that
Appellant
12
also
contends
that
two
inferences
should
have
contradicted
the
testimony
of
the
officersthe
13
allow
us
to
essentially
make
amount
such
to
inferences.
request
for
Appellants
the
court
assertions
to
doubt
the
in
his
capacity
as
the
Administrator
of
Flemings
alleging
that
Bevingtons
actions
constituted
an
district
court
granted
Bevingtons
Motion
for
Summary
14
and,
accordingly,
entitled
to
summary
judgment
on
the
immunity
violations
law,
could
protects
but
officers
who,
reasonably
in
believe
light
that
who
commit
of
clearly
their
actions
were lawful. Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc). Officials will receive immunity unless the
1983 claim satisfies a two-prong test: (1) the allegations, if
true,
substantiate
violation
of
federal
statutory
or
that
reasonable
person
would
have
known
his
acts
or
2016)
(citing
Pearson
v.
Callahan,
555
U.S.
223,
232
Appellant,
Bevingtons
conduct
15
did
not
violate
Flemings
constitutional
rights
and
our
inquiry
thus
ceases
after
See
Graham v. Connor, 490 U.S. 386, 394 (U.S. 1989). A claim that a
police officer employed excessive force is analyzed under the
Fourth Amendment under an objective reasonableness standard.
Smith
v.
Ray,
781
F.3d
95,
100-01
(4th
Cir.
2015)
(quoting
and
circumstances
confronting
[him],
without
regard
to
at
397).
The
test
of
reasonableness
under
the
Fourth
Armstrong,
quotation
marks
810
F.3d
omitted).
at
Three
899
(internal
factors
guide
citations
us
in
and
this
resisting
arrest
or
attempting
to
evade
arrest
by
flight.
whether
particular
the
sort
totality
of
(quoting Tennessee
...
v.
of
the
circumstances
seizure.
Garner,
471
Smith,
U.S.
1,
781
89
justifie[s]
F.3d
at
(1985)).
101
This
better
way
to
assess
the
objective
reasonableness
of
17
Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 542 (E.D. Va.
2015) (quoting Elliott v. Leavitt, 99 F.3d 640, 644 (4th Cir.
1996)).
Upon
de
novo
review,
we
find
that
the
totality
of
the
As to
the first Graham factor, the crime at issue was severe. Officers
were attempting to arrest Fleming for his alleged involvement in
a robbery accomplished by use of a firearm. The officers were
also aware that Fleming was a suspect in a homicide committed
earlier
that
day.
The
fact
that
Fleming
was
accused
of
to
the
second
Graham
factor,
the
uncontroverted
from
the
what
negotiation
appeared
to
be
team
a
that
weapon
video
tucked
surveillance
into
Flemings
on
the
scene
implying
that
he
was
armed.
Once
he
was
later
determined
intentionally
continued
after
to
Moore
created
point
and
that
the
the
Fleming
perception
apparent
Bevington
was
that
weapon
fired
not
their
at
he
armed,
was.
the
Fleming
officers
initial
he
shots.
even
These
third
arrestis
also
factorwhether
Fleming
not
to
favorable
was
actively
Appellant.
resisting
Fleming
had
been
He
chose
to
emerge
from
the
bathroom
creating
the
impression that he was capable of, and intent on, shooting the
arresting officers instead of complying with their commands to
peacefully surrender.
In sum, the totality of circumstances here is that Fleming
was
actively
resisting
arrest
for
violent
felony
charges,
implying
after
that
a
he
was
armed,
multiple-hour
and
standoff
came
with
out
of
his
the
hands
at
them.
The
district
court
19
properly
concluded
that
heartrending,
justifies
the
the
totality
actions
by
of
law
circumstances
enforcement
that
here
took
place.
IV.
We have also considered Appellants arguments about experts
and find them to be either waived or abandoned. The Statement
of Issues section of Appellants brief raises as an issue for
consideration
on
appeal
whether
the
district
court
properly
the
However,
district
court
improperly
Appellant
never
addresses
excluded
the
such
issue
testimony.
further
in
his
argument.
An
appellate
contentions
and
the
reasons
authorities
and
parts
of
brief
for
the
must
them,
record
contain
with
on
appellant's
citations
which
the
to
the
appellant
Racing,
Inc.,
674
F.3d
369,
376-77
(4th
Cir.
2012).
Because
record
relevant
to
his
assertion
regarding
Dr.
Okafors
that
the
district
court
nowhere
cited
any
testimony
or
thus
unclear
that
the
district
court
made
credibility
how
any
courts
such
determination
decision
on
could
summary
have
affected
judgment.
the
Moreover,
because
it
fails
to
comply
with
Fed.
R.
App.
P.
the
trajectories
of
bullets
21
fired
at
Fleming,
any
facts
related to the distance and angle from which the bullets were
fired
would
have
no
material
impact
on
our
analysis
of
the
the
district
courts
decision
granting
Bevingtons
22