Argued: January 30, 2019
from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
Chief District Judge. (5:13-ct-03087-BO)
REYNERI, COVINGTON & BURLING LLP, WASHINGTON, D.C., FOR
BRANDON CHRISTIAN, CITY OF FAYETTEVILLE, FAYETTEVILLE, NORTH
CAROLINA, FOR APPELLEE.
RICHARD RAINEY, COVINGTON & BURLING LLP, WASHINGTON,
D.C., FOR APPELLANT.
C. THORNTON, CRANFILL SUMNER & HARTZOG LLP, RALEIGH,
NORTH CAROLINA, FOR APPELLEE.
WILKINSON, WYNN, and HARRIS, Circuit Judges.
HARRIS, Circuit Judge.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
appealed, and we reversed. See Harris v. Pittman,
668 Fed.Appx. 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 court was required to view the facts
"in the light most favorable" to Harris.
Id. Its failure to do so meant that the district
court had not answered the critical question in the case:
"whether, construing the facts in the light most
favorable to Harris (i.e., Harris was lying on the ground
when Pittman, still on top of him, fired the final shots), a
reasonable officer would have probable cause to believe that
Harris posed a significant threat of death or serious
physical injury to the officer or others." Id.
(citing Tennessee v. Garner, 471 U.S. 1, 3, 11-12
(1985) (describing Fourth Amendment standard for use of
deadly force)). Accordingly, we vacated the grant of summary
judgment and remanded with instructions "to determine,
in the first instance, if construing the salient facts in the
light most favorable to Harris, Pittman is entitled to
qualified immunity." Id.
remand, the district court again granted summary judgment to
Pittman. This time, the court assumed that Pittman was
standing over Harris when he fired the final shots. But even
under those circumstances, the court held, his use of force
was objectively reasonable as a matter of law. That the final
shots were (by assumption) fired while Pittman was standing
over Harris, the court reasoned, did not render them
unreasonable, given record evidence "that the shots were
fired in rapid succession" and the preceding
"relentless" attacks on Pittman by Harris,
"even after [Harris was] struck by a taser." J.A.
393. And "[n]otably," the court concluded,
"from the location of [Harris's] wounds, it appears
that Pittman intended his shots only to disable
Harris's own assertions did not establish a
constitutional violation, the court held, Pittman was
entitled to summary judgment under the first prong of the
qualified immunity analysis. And in any event, the court
continued, Pittman would be entitled to summary judgment
under the second prong, because even if Harris could
establish a violation of his Fourth Amendment right to be
free of excessive force, that right was not clearly
established with the requisite specificity at the time of the
timely noticed this appeal and again submitted uncounseled
and informal briefing. We appointed counsel for Harris, who
filed a brief on his behalf, and heard argument in the case.
appeal, Harris argues that the district court erred by
failing to follow this court's mandate and construe the
evidence in the light most favorable to him on summary
judgment. According to Harris, when viewed under the proper
standard - construed in the light most favorable to him, with
all reasonable inferences drawn in his favor - the record
evidence would allow a reasonable jury to find that Pittman
violated his clearly established constitutional rights. We
holding is a narrow one. How an ultimate fact-finder might
weigh and evaluate the parties' accounts and the other
evidence in this case is not the question before us. The only
issue on appeal is whether, at this early stage of the
litigation and before a jury has had a chance to assess
witness credibility and other evidentiary issues, it can be
said that Pittman is entitled to qualified immunity as a
matter of law. We conclude that genuine factual disputes
bearing directly on ...