                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 13-2018


VALINDA STREATER, individually and as guardian ad litem for
minor other J.G.,

                 Plaintiff – Appellee,

           v.

MATTHEW WILSON, in his Individual and Official Capacity as
an Officer of the Charlotte Mecklenburg Police Department,

                 Defendant – Appellant,

           and

CITY OF CHARLOTTE,

                 Defendant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:11-cv-00548-MOC-DSC)


Argued:   March 20, 2014                    Decided:   April 7, 2014


Before DUNCAN, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished opinion.        Judge Duncan     wrote   the
opinion, in which Judge Agee and Judge Wynn joined.


ARGUED: Mark H. Newbold, Daniel Edward Peterson, OFFICE OF THE
CITY ATTORNEY, Charlotte, North Carolina, for Appellant.  Fred
William DeVore, IV, DEVORE, ACTON & STAFFORD, P.A., Charlotte,
North Carolina, for Appellee.     ON BRIEF: R. Harcourt Fulton,
OFFICE OF THE CITY ATTORNEY, Charlotte, North Carolina, for
Appellant. Fred W. DeVore, III, Derek P. Adler, DEVORE, ACTON &
STAFFORD, P.A., Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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DUNCAN, Circuit Judge:

      Valinda Streater filed suit against Officer Matthew Wilson,

a Mecklenburg County Police Officer, on behalf of her minor son,

J.G.,   alleging     that    Officer     Wilson       violated     J.G.’s    Fourth

Amendment   rights     by    employing       lethal   force   to    effectuate    a

seizure.    Officer Wilson filed this interlocutory appeal arguing

that the district court erred by denying his motion for judgment

as a matter of law on the ground of qualified immunity.                     For the

reasons set forth below, we affirm.


                                       I.

      The facts, set out in the light most favorable to Streater

as the non-moving party, follow.              See Anderson v. G.D.C., Inc.,

281 F.3d 452, 457 (4th Cir. 2002).

      On the evening of October 16, 2010, Officers Matthew Wilson

and Andrew Helms responded to a reported stabbing at Brandie

Glen Road in Charlotte, North Carolina.                The officers identified

the victim, Valinda Streater, standing outside a friend’s home.

Streater, who had been stabbed in the arm and abdomen by her

boyfriend, testified that she told the officers her assailant

had   already   fled    by    car.       Officer      Helms   transmitted      this

information and Streater’s description of the assailant as a

male weighing approximately 240 pounds by hand-held radio to all

officers in the North Division, which includes Officer Wilson.


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      Meanwhile, Officer Wilson spotted two people at a distance

of   about    fifty   feet,   one     of   whom   was   Streater’s    son,   J.G.,

weighing between 115 and 120 pounds, walking quickly toward the

scene.    J.G. was carrying a kitchen knife that he picked up at

home after learning that his mother had been stabbed.                   Standing

between J.G. and the other officer and civilians, Officer Wilson

saw what appeared to be a knife and unholstered his gun.                        He

ordered J.G. to drop his knife three times.                    J.G. failed to

immediately comply and continued to approach.

      J.G. stopped 31.9 feet away from Officer Wilson and dropped

the knife to his left.         Thus when Officer Wilson again told him

to disarm, J.G. responded, “Didn’t you just see me drop the

knife?”      Joint Appendix, J.A. 143.            Streater, who was standing

several      feet   away,   started    shouting,    “That’s   my     son,    please

don’t shoot.”         J.A. 119.        Although Officer Helms heard her,

Officer Wilson testified that he continued to believe J.G. to be

a suspect in the stabbing who was armed, dangerous, and non-

compliant.

      Based on his assessment, Officer Wilson fired a total of

four shots hitting J.G. twice.                 After the first two rounds,

Officer Wilson testified that he paused for two or three seconds

to reassess the situation before firing the third and fourth

shots, which he intended to be fatal.



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                                      II.

       Streater filed suit in Mecklenburg County Superior Court

against      Officer   Wilson   in   his    individual   capacity     under   42

U.S.C. § 1983 alleging that he violated J.G.’s Fourth Amendment

rights by employing deadly force to effectuate a seizure. 1                   The

case       proceeded   to   trial.   At     the   conclusion    of   Streater’s

evidence, Officer Wilson filed a motion for judgment as a matter

of law on the ground of qualified immunity. 2            The district court

denied his motion but the jury failed to reach a verdict.                After

the district court declared a mistrial, Officer Wilson filed a

renewed motion for judgment as a matter of law.                He again argued

that he is entitled to qualified immunity because he employed

reasonable force under the totality of the circumstances.

       Taking the facts in the light most favorable to Streater,

the district court held that Officer Wilson was not entitled to

qualified immunity.          It concluded that J.G.’s Fourth Amendment

right to be free from the use of deadly force when standing

       1
       Streater also filed various tort claims under state law
against Officer Wilson and state and federal claims against the
City of Charlotte that are not before us on appeal.
       2
       Streater argues on appeal that Officer Wilson’s delay in
asserting qualified immunity resulted in an abandonment of this
defense. Because we hold that Officer Wilson is not entitled to
qualified immunity here, we need not resolve any issues of
waiver. McAfee v. Boczar, 738 F.3d 81, 87 (4th Cir. 2013).




                                       5
still and over thirty feet away from Officer Wilson was clearly

established, and that no jury could find that the use of force

was reasonable in these circumstances.                 This appeal followed.


                                         III.

                                          A.

       We review a denial of a motion for judgment as a matter of

law de novo.        Anderson v. G.D.C., Inc., 281 F.3d at 457.                     “We

must view the evidence in the light most favorable to . . . the

nonmovant, and draw all reasonable inferences in her favor.”

Id.    “Judgment as a matter of law is proper only if ‘there can

be    but   one   reasonable    conclusion       as    to   the   verdict.’”       Id.

(quoting Anderson         v.   Liberty    Lobby,      Inc.,   477    U.S.   242,   250

(1986)).

       In    an   interlocutory      appeal      of    a    denial    of    qualified

immunity, we have jurisdiction “‘to the extent that [an appeal]

turns on an issue of law,’” but we cannot “re-weigh the evidence

in the record to determine whether material factual disputes

preclude summary disposition.”            Iko v. Shreve, 535 F.3d 225, 234

(4th Cir. 2008) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530

(1985)(emphasis omitted)).

       We confine our review therefore to the question of whether,

taking      the   facts   in   the   light      most    favorable     to    Streater,




                                          6
Officer Wilson is entitled to qualified immunity as a matter of

law.

                                             B.

       On appeal, Officer Wilson contends that he is entitled to

qualified immunity because his shooting of J.G. did not violate

the minor’s Fourth Amendment rights, and, in the alternative,

that J.G.’s right to be free from such force was not clearly

established.      We disagree.

       Qualified    immunity      shields         government      officials     in   their

individual capacities from civil liability “unless the § 1983

claim satisfies a two-prong test: (1) the allegations, if true,

substantiate        a      violation         of      a     federal     statutory        or

constitutional right and (2) the right was ‘clearly established’

such   that   a    reasonable     person          would    have   known   his    acts   or

omissions violated that right.”                     Brockington v. Boykins, 637

F.3d   503,   506       (4th   Cir.    2011)       (internal      citations     omitted).

“The burden of proof and persuasion with respect to a defense of

qualified     immunity         rests    on        the     official    asserting       that

defense.”      Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731

(4th Cir. 2013).         We consider each prong in turn.

                                             1.

       “Whether an officer has used excessive force is judged by a

standard of objective reasonableness.”                         Clem v. Corbeau, 284

F.3d   543,   550       (4th   Cir.    2002).            The   relevant   question      is

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“whether a reasonable officer in the same circumstances would

have concluded that a threat existed justifying the particular

use of force.”        Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir.

1996).

       It is undisputed here that Officer Wilson used a lethal

weapon with intent to kill.             The “intrusiveness of a seizure by

means of deadly force is unmatched,” and a police officer may

only employ such force where he “has probable cause to believe

that the suspect poses a threat of serious physical harm, either

to the officer or to others.”             Tennessee v. Garner, 471 U.S. 1,

9, 11 (1985).        If an individual “poses no immediate threat to

the officer and no threat to others, the harm resulting from

failing to apprehend him does not justify the use of deadly

force to do so.”           Id. at 11.     And, while the qualified immunity

doctrine accounts for mistakes police officers might make in the

line of duty, “the mistakes must be those of reasonable men,

acting     on    facts     leading     sensibly       to   their    conclusions    of

probability.”        Mazuz v. Maryland, 442 F.3d 217, 225 (4th Cir.

2006)    (quoting    Brinegar     v.    United    States,     338   U.S.    160,   176

(1949)).        We cannot agree with Officer Wilson that his decision

to employ lethal force to seize J.G. was a reasonable mistake.

       Taking the facts and reasonable inferences in the light

most    favorable     to    Streater,     we    conclude     that    no    reasonable

officer     would     have     believed        J.G.    presented     a    threat   of

                                          8
immediate, serious injury justifying the application of deadly

force.    Significantly, we may separately consider non-continuous

uses of force during a single incident to determine if all were

constitutionally reasonable.          See Waterman v. Batton, 393 F.3d

471,   481    (4th   Cir.   2005).        Even      if   we    were    to     conclude,

therefore, that Officer Wilson could have reasonably perceived

J.G. to be a threat prior to firing his first two shots, we

cannot find that his third and fourth shots were justifiable as

a matter of law.

       Officer Wilson himself admits that he had time to pause

after the first two shots for a brief period to reassess the

situation and decide whether further force was necessary under

the totality of the circumstances.                  Contrary to his contention

on   appeal,      therefore,   we   are       not   confronted        here    with    the

“split-second judgments of a police officer to use deadly force

in a context of rapidly evolving circumstances, when inaction

could threaten the safety of the officers or others.”                          Milstead

v. Kibler, 243 F.3d 157, 165 (4th Cir. 2001).                     Nor do we risk

judging      an   officer’s    conduct         “with     the    20/20        vision   of

hindsight.”       Graham v. Connor, 490 U.S. 386, 396 (1989) (citing

Terry v. Ohio, 392 U.S. 1, 20-22 (1968)).                      At the point when

Officer Wilson chose to fire a third and then a fourth shot, he

knew or should have known that J.G. was over 30 feet away,

standing still, unarmed, complying with his orders, and making

                                          9
no attempt to escape.            His mistaken belief that J.G. posed an

immediate threat of serious physical injury to himself or to

Officer Helms and civilians, who were even further away, was

objectively       unreasonable.          We    hold     therefore     that   Officer

Wilson’s resort to deadly force violated J.G.’s Fourth Amendment

rights.    We must now determine whether J.G.’s right to be free

from excessive force under these facts was clearly established

at the time of the shooting.

                                          2.

       Whether     a    right    was    clearly       established     such   that   a

reasonable       officer    would      have    known    that   his    actions   were

unlawful must be analyzed “in light of the specific context of

the case, not as a broad general proposition.”                       Clem, 284 F.3d

at 549 (internal quotations and citations omitted).                     When making

this    determination,          we   typically        ask   “whether    a    closely

analogous situation ha[s] been litigated and decided before the

events at issue, making the application of law to fact clear.”

Id. at 553.            Further, in the rare case where the official’s

“conduct is so patently violative of the constitutional right

that reasonable officials would know without guidance from the

courts that the action was unconstitutional, closely analogous

pre-existing case law is not required to show that the law is

clearly established.”           Id. at 553 (quoting Mendoza v. Block, 27



                                          10
F.3d 1357, 1361 (9th Cir. 1994)).                     We have no troubling holding

that both standards are met here.

     In     Garner,       the     Supreme        Court       held       under     analogous

circumstances that it was clearly established that “[a] police

officer     may    not    seize     an     unarmed       nondangerous           suspect   by

shooting him dead.”             471 U.S. at 11.              Similarly, by the time

Officer Wilson reassessed the objective facts on the evening of

October 16, 2010, and decided to take what he called a “kill

shot,”     J.G.     had        disarmed,        was     neither         approaching       nor

threatening the officers or civilians, and based on the police

broadcast    and    Streater’s         protests,       was   not    a    suspect    in    the

domestic    assault.           Moreover,    even       accepting        Officer    Wilson’s

argument that these facts are not directly analogous to Garner,

J.G.’s    right     to    be    free     from    the     use   of       lethal    force    to

effectuate a seizure under the totality of the circumstances was

“manifestly       included      within    more     general     applications         of    the

core [Fourth Amendment] principle[s].”                    Pritchett v. Alford, 973

F.2d 307, 314 (4th Cir. 1992).                   We hold therefore that Officer

Wilson    violated       J.G.’s    clearly        established       Fourth        Amendment

rights.




                                           11
                                     IV.

     Because   we   hold    that   Officer      Wilson    is   not   entitled   to

qualified   immunity   as    a   matter    of   law,     the   district   court’s

denial of his renewed motion for judgment as a matter of law is


                                                                       AFFIRMED.




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