                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 16-1686


MARCUS BOUNDS,

                    Plaintiff - Appellant,

             v.

DEPUTY BENJAMIN C. PARSONS, Individually and in his official capacity as
Deputy with the Wicomico County Sheriffʹs Department; CORPORAL CRISTAN
K. TAYLOR, Individually and in his official capacity as Corporal with the
Wicomico County Sheriffʹs Department; OFFICER KEITH HEACOOK,
Individually and in his official capacity as Officer with the Delmar Police
Department; OFFICER TRAVIS DALLAM, Individually and in his official
capacity as Officer with the Delmar Police Department,

                    Defendants - Appellees.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:15-cv-01033-JFM)


Argued: March 24, 2017                                          Decided: July 14, 2017


Before FLOYD and HARRIS, Circuit Judges, and John Preston BAILEY, United States
District Judge for the Northern District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Luke Americus Rommel, ROMMEL & ASSOCIATES, Salisbury, Maryland,
for Appellant. Kevin Bock Karpinski, KARPINSKI, COLARESI & KARP, PA,
Baltimore, Maryland, for Appellees. ON BRIEF: Jeffrey Bredeck, Megan G. Anderson,
ECCLESTON & WOLF, PC, Hanover, Maryland, for Appellees Heacook and Dallam.
Paul N. Rouhana, LAW OFFICE OF SEIGEL TULLY FURRER ROUHANA &
TULLY, Towson, Maryland, for Appellee Heacook.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Marcus Bounds sued four police officers under § 1983, alleging that the officers

used excessive force during his arrest. The district court granted the officers’ motion for

summary judgment. For the reasons that follow, we affirm.



                                             I.

       In the early morning of April 14, 2013, Benjamin C. Parsons, an officer with the

Wicomico County Sheriff’s Department in Maryland, responded to reports of a possibly

intoxicated driver slumped over the wheel of a vehicle on the side of a highway. Parsons

woke the driver – Marcus Bounds – and asked him to perform a field sobriety test.

Bounds refused, even after Parsons warned him that he would be arrested if he did not

take the test. Parsons then informed Bounds that he was under arrest and instructed him

to turn around and place his hands behind his back.

       At this point, the accounts of the parties diverge, at least in part. It is undisputed

that after initially complying with Parsons’s instructions, Bounds, with his hands out and

not behind his back, tried to turn around. According to Bounds, he was attempting to

assure Parsons, who was screaming at him, that he was not resisting arrest. According to

Parsons, Bounds was “clearly intoxicated, . . . failing police commands, and [] resisting

arrest,” and posed a threat to Parsons’s safety. J.A. 370. Parsons twice deployed his

taser against Bounds and then placed Bounds in handcuffs.

       As to the rest of the encounter, there is no testimony from Bounds, who was able

to remember only “bits and pieces.” J.A. 289. We do have the account of Parsons, along

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with those of three officers who arrived on the scene as back-up: Christopher Taylor,

Keith Heacook, and Travis Dallam. According to the officers, Bounds actively fought

their efforts to secure him in the back of the police car, jerking back and forth and

pushing his way out of the vehicle; was “very intoxicated [and] very disorderly”; and

refused to obey any of their commands. J.A. 88–89. We also have video footage from a

nearby security camera, which is generally consistent with the officers’ accounts. During

this stage of the encounter and before he finally was secured in the police car, Bounds

was tased a third time and brought to the ground several times by the officers.

       Bounds was tried and convicted under state law for driving while intoxicated and

resisting arrest. With respect to the resisting arrest charge, the Maryland trial court,

relying in part on the video evidence, specifically found that during the first part of his

encounter with Parsons, Bounds turned and appeared to pull away from Parsons even

after he was told that he was under arrest.

       Bounds served his sentence on his state convictions and then brought this action in

federal court under 42 U.S.C. § 1983, alleging that all four officers involved in his arrest

used excessive force against him. In a brief memorandum opinion, the district court

granted summary judgment to the officers. According to the district court, Bounds’s

version of events was refuted by the video tape evidence. Though the tape was “general

in nature, having been taken some distance away from the occurrence,” the district court

concluded that it confirmed the officers’ testimony. J.A. 420. Given the absence of a

genuine dispute of material fact, the court held, the officers were entitled to summary

judgment on Bounds’s claim of excessive force.

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       This timely appeal followed.



                                             II.

       We review the district court’s grant of summary judgment de novo. Estate of

Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 895 (4th Cir. 2016). In

so doing, we view “the evidence and all reasonable inferences drawn therefrom” in the

light most favorable to Bounds, the non-moving party. Id. at 895–96 (internal quotation

marks omitted). Summary judgment is appropriate only if no material facts are disputed

and the officers are entitled to judgment as a matter of law. Id.

       It appears that the district court granted summary judgment to the officers on the

merits of Bounds’s claim, without reaching the officers’ alternative argument that they

are entitled to qualified immunity. But we may affirm on any ground that would support

the district court’s judgment, Catawba Indian Tribe of S.C. v. City of Rock Hill, S.C., 501

F.3d 368, 372 n.4 (4th Cir. 2007), and we conclude that the officers are indeed entitled to

qualified immunity.

       “A government official sued under § 1983 is entitled to qualified immunity unless

the official violated a statutory or constitutional right that was clearly established at the

time of the challenged conduct.” Carroll v. Carman, 135 S. Ct. 348, 350 (2014). The

first prong of the qualified immunity inquiry asks whether the officer’s conduct actually

violated a federal right; the second, whether that right was clearly established at the time

of the violation, meaning that then-existing precedent was sufficiently clear that it put the

statutory or constitutional question “beyond debate.” Smith v. Ray, 781 F.3d 95, 100 (4th

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Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)); see Armstrong, 810

F.3d at 907. Here, we exercise our discretion to begin and end with the second question –

whether the asserted right was “clearly established” at the time of Bounds’s arrest. See

Smith, 781 F.3d at 100 n.3; Pearson v. Callahan, 555 U.S. 223, 236 (2009).

       As the district court acknowledged, the video tape of the occurrence, filmed at

night and from a distance, is not of perfect quality, and it is not unambiguous in all

respects. But taken together, the record evidence in the case puts beyond genuine dispute

that Bounds, at a minimum, was physically resistant and noncompliant with officer

instructions. And in 2013, when Bounds was arrested, relevant precedent did not clearly

prohibit an officer from using force, including a taser, in order to effectuate an arrest of a

suspect who physically resists. It was not until 2016, in Armstrong, that we made clear

that a taser “may only be deployed when a police officer is confronted with an exigency

that creates an immediate safety risk,” and not “in the face of stationary and non-violent

resistance to being handcuffed.” 810 F.3d at 909–10. Nor does Meyers v. Baltimore

Cty., Md., 713 F.3d 723 (4th Cir. 2013), decided before Bounds’s arrest, clearly establish

any limit on the use of force to restrain a suspect who is resisting: At the time excessive

force was applied in Meyers, the suspect “was not actively resisting arrest,” id. at 735

(emphasis added), whereas Bounds resisted arrest throughout, starting with his efforts to

turn and face Parsons while being handcuffed and continuing through the officers’

multiple efforts to secure Bounds in the police car.

       To satisfy the “clearly established” prong of the qualified immunity inquiry, we do

not require “a case directly on point.” Smith, 781 F.3d at 100 (quoting al-Kidd, 563 U.S.

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at 741). “[O]fficials can . . . be on notice that their conduct violates established law even

in novel factual circumstances.” Armstrong, 810 F.3d at 907 (quoting Hope v. Pelzer,

536 U.S. 730, 741 (2002)). “But they must, in fact, have notice in order to be held

liable.” Id. At the time of Bounds’s arrest, neither Meyers nor any other precedent

would have made clear to “every reasonable official,” see id. (internal quotation marks

omitted), that they were precluded from using force to effectuate the arrest of a physically

resistant and noncompliant suspect.      The officers are therefore entitled to qualified

immunity.



                                            III.

       For the foregoing reasons, we affirm the judgment of the district court.

                                                                                AFFIRMED




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