                                     PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 16-2214


ARLEAN K. BROWN, as the Personal Representative of Melvin K. Lawhorn,

                   Plaintiff - Appellee,

            v.

BRIAN ELLIOTT; JIM MATTHEWS, individually and in his official capacity as
the Sheriff of Kershaw County; KERSHAW COUNTY SHERIFF’S OFFICE;
KERSHAW COUNTY,

                   Defendants - Appellants.


                                     No. 16-2218


ARLEAN K. BROWN, as the Personal Representative of Melvin K. Lawhorn,

                   Plaintiff - Appellant,

            v.

BRIAN ELLIOTT; JIM MATTHEWS, individually and in his official capacity as the
Sheriff of Kershaw County; KERSHAW COUNTY SHERIFF’S OFFICE; KERSHAW
COUNTY,

                   Defendants - Appellees.


Appeal from the United States District Court for the District of South Carolina, at
Columbia. J. Michelle Childs, District Judge. (3:14-cv-01188-JMC)


Argued: September 15, 2017                             Decided: November 21, 2017
Before MOTZ, TRAXLER, and KEENAN, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Traxler
and Judge Keenan joined.


ARGUED: H. Thomas Morgan, Jr., DUBOSE-ROBINSON, PC, Camden, South
Carolina, for Appellants/Cross-Appellees. Jordan Christopher Calloway, MCGOWAN,
HOOD & FELDER, LLC, Rock Hill, South Carolina, for Appellee/Cross-Appellant. ON
BRIEF: Robert V. Phillips, MCGOWAN, HOOD & FELDER, LLC, Rock Hill, South
Carolina, for Appellee/Cross-Appellant.




                                        2
DIANA GRIBBON MOTZ, Circuit Judge:

          This case arises from the fatal police shooting of Melvin Lawhorn. His personal

representative, Arlean Brown, brought this action in state court, asserting Fourth

Amendment excessive force claims, pursuant to § 1983, and various state law claims

against Kershaw County, the County Sheriff’s Office, Sheriff Jim Matthews, and Deputy

Sheriff Brian Elliott (collectively, “the Defendants”). After the Defendants removed the

case, the district court dismissed Ms. Brown’s § 1983 claims against the County and the

Sheriff’s Office and against Sheriff Matthews and Deputy Elliott in their official

capacities. The court then granted summary judgment on Ms. Brown’s claims against

Sheriff Matthews and Deputy Elliott in their personal capacities, holding them entitled to

qualified immunity, and remanded the state law claims to state court. In the course of

litigation, the district court also imposed a monetary discovery sanction on the

Defendants. The Defendants appeal that discovery sanction. Ms. Brown cross-appeals,

challenging the discovery sanction as insufficient and contending that Sheriff Matthews

and Deputy Elliott are not entitled to qualified immunity. For the reasons that follow, we

affirm.



                                              I.

                                             A.

          The traffic stop at the center of this case occurred on February 28, 2012, around

8:23 p.m. That evening, officers with the Kershaw County Sheriff’s Office, including

Deputy Elliott, received a tip from a confidential informant that Melvin Lawhorn would

                                              3
be purchasing and transporting a large quantity of cocaine in a truck along a given rural

road and that Lawhorn “usually carr[ies] a gun . . . when he goes and picks up dope.”

The detectives set up a perimeter along the route. When the truck passed Deputy Elliott,

it was speeding and crossed the center line, so he initiated a traffic stop by activating his

blue lights.   The truck pulled over.      Deputy Elliott approached the truck from the

passenger side, where Lawhorn, the suspect, was sitting with his window halfway down.

Deputy Mickey Sellers approached the truck from the driver’s side. The driver, Darryl

Herbert, kept his foot on top of the accelerator with the truck’s engine still running.

       As Deputy Elliott arrived at the passenger door, Lawhorn jumped toward the

driver’s seat, put his left foot on top of the driver’s foot on the gas pedal, and attempted to

shift the truck into drive. The deputies shouted “freeze” and “don’t move.” Deputy

Elliott leaned inside the passenger-side window to grab Lawhorn. However, Lawhorn

successfully shifted the truck into drive, and the truck began moving forward. Moments

later, Deputy Elliott, who stated that he feared for his life and that of the other officers,

reached for his gun and fired one shot into the truck, striking Lawhorn in the back and

killing him.

       The magistrate judge recommended and the district court held that Deputy Elliott

(and Sheriff Matthews) were entitled to qualified immunity, because, even viewing the

evidence in the light most favorable to Ms. Brown, Deputy Elliott did not violate clearly

established law. Ms. Brown challenges the grant of qualified immunity.




                                              4
                                               B.

       During discovery, Ms. Brown requested that the Defendants produce copies of

“any and all videos, dash cam, body cam, etc., from the officers’ body cams and/or

vehicles involved in the incident.” She also requested, “If no videos are produced . . .

explain in detail why there are no videos.” The Defendants responded, “There are no

dash or body cameras involved in this incident.” In response to an interrogatory asking

for the “make and model number of the dash cams in the two vehicles involved in the

incident,” the Defendants similarly answered that “[t]hese vehicles were not equipped

with dash cams at the time of the incident.”

       But in a batch of photos produced by the non-party South Carolina Law

Enforcement Division, which investigates officer-involved shootings, Ms. Brown

discovered photos of a police car showing what looked like a video camera mounted

inside the windshield. It is undisputed that the photos depict the car driven that night by

one of the deputies present at the traffic stop.

       Ms. Brown moved for default judgment as a sanction for this asserted discovery

violation. The district court agreed that “the defendants did not accurately respond to

[Ms. Brown’s] discovery requests regarding the existence of cameras in the police

vehicles involved in this case.” The court, however, refused to grant Ms. Brown a default

judgment, instead ordering the Defendants to pay Ms. Brown the attorney’s fees and

costs “incurred in connection” with the matter, which the court found to be $11,550.




                                               5
       On appeal, the Defendants challenge the district court’s award of attorney’s fees.

Ms. Brown cross-appeals, arguing that the court should have granted a default judgment

as a sanction for the discovery violation.



                                             II.

       We first address the qualified immunity question, reviewing de novo the district

court’s award of summary judgment. See Meyers v. Baltimore Cty., 713 F.3d 723, 730

(4th Cir. 2013).

                                             A.

       Qualified immunity shields officials from civil liability so long as their conduct

“does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)

(per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)) (internal quotation

marks omitted).

       The Supreme Court initially required that the inquiry proceed in a sequential two-

step process — a court should first decide whether the plaintiff had shown a violation of a

constitutional right, and only if so, determine whether the right at issue was “clearly

established” at the time of the defendant’s alleged misconduct. See Saucier v. Katz, 533

U.S. 194, 201 (2001). In 2009, however, the Court changed course, holding that a court

may “skip ahead to the question whether the law clearly established that the officer’s

conduct was unlawful in the circumstances of the case.” Pearson, 555 U.S. at 232, 236

(quoting Saucier, 533 U.S. at 201) (internal quotation marks omitted). Thus, we may

                                             6
“skip ahead to the question whether the law clearly established that the officer’s conduct

was unlawful in the circumstances of the case.” Id. at 232 (emphasis added) (quoting

Saucier, 533 U.S. at 201) (internal quotation marks omitted). We take that approach in

this case.

       To resolve whether the law is “clearly established,” a court must initially ascertain

the “circumstances of the case.”       Id. (quoting Saucier, 533 U.S. at 201) (internal

quotation marks omitted). At summary judgment, in the qualified immunity context as in

others, courts must view the evidence in the light most favorable to the party opposing

summary judgment. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). The Supreme Court

has emphasized “the importance of drawing inferences in favor of the nonmovant, even

when . . . a court decides only the clearly-established prong” of the qualified immunity

analysis.     Id.   Thus, when resolving the issue of qualified immunity at summary

judgment, a court must ascertain the “circumstances of the case” by crediting the

plaintiff’s evidence and drawing all reasonable inferences in the plaintiff’s favor.

       A court must then ask whether the official’s conduct under these “circumstances”

violated “clearly established law.” See Plumhoff v. Rickard, 134 S. Ct. 2012, 2023

(2014).      We do not, however, “define clearly established law at a high level of

generality,” because the “dispositive question is ‘whether the violative nature of

particular conduct is clearly established.’” Luna, 136 S. Ct. at 308 (quoting Ashcroft v.

al–Kidd, 563 U.S. 731, 742 (2011)). “[O]fficials can still be on notice that their conduct

violates established law even in novel factual circumstances,” Hope v. Pelzer, 536 U.S.

730, 741 (2002), as “when extreme though unheard-of actions violate the Constitution,”

                                             7
Camreta v. Greene, 563 U.S. 692, 728 (2011).          But the state of the law must be

“‘sufficiently clear’ that every ‘reasonable official would have understood that what he is

doing violates’” the law in the circumstances the defendant confronted. al-Kidd, 563

U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Malley

v. Briggs, 475 U.S. 335, 341 (1986) (stating that qualified immunity protects “all but the

plainly incompetent or those who knowingly violate the law”). Thus, for example, the

Supreme Court in White v. Pauly reversed a denial of qualified immunity, because the

lower court “failed to identify a case where an officer acting under similar circumstances

as [the defendant] was held to have violated the Fourth Amendment,” and it was “not a

case where it is obvious that there was a violation of clearly established law.” 137 S. Ct.

548, 552 (2017) (per curiam).

       Turning to the “circumstances” of the case at hand, the parties agree on all the

facts set forth above, including the fact that Deputy Elliott was leaning inside the truck

when the decedent, Lawhorn, put the truck in motion. The parties dispute, however,

whether Deputy Elliott was “stuck” in the truck and being “dragged” by it at the moment

he fired his gun. Deputy Elliott and Deputy Aaron Threatt, who was also on the scene,

testified that Deputy Elliott was “stuck” and “dragged.” But Ms. Brown offered evidence

— including the testimony of the truck’s driver, Darryl Herbert — that Deputy Elliott

was neither “stuck” nor “dragged.” Given this conflict in the evidence, the district court,

in accord with the recommendation of the magistrate judge, correctly “assumed . . . that

Elliott was not [stuck or] dragged.”



                                            8
       The magistrate judge further concluded, and the district court agreed, that whether

Deputy Elliott was dragged was “immaterial,” because, even assuming that he was not

dragged, he was entitled to qualified immunity. 1 This was so, the magistrate judge

reasoned, because it was undisputed that Lawhorn placed Deputy Elliott in danger by

“placing the truck in motion while [Deputy] Elliott was leaning in through the passenger

window” (emphasis added).       As the district court noted, although Ms. Brown filed

lengthy exceptions to the magistrate judge’s report, she never directly disputed this

assessment by the magistrate judge that “immediately prior to and at the very moment

[Deputy Elliott] fired the fatal shot,” he was “substantially leaning inside the cab of the

truck.” On appeal, Ms. Brown does briefly make such an argument; we will assume that

she preserved it by her general exceptions to the magistrate judge’s report.

       Deputy Elliott, of course, testified that his torso was inside the truck when he fired

the shot, as did Deputy Threatt. Ms. Brown, however, states that “[s]everal pieces of

evidence . . . indicate no part of Elliott’s body was inside the truck at the time he fired.”

Appellee/Cross-Appellant Br. 42. In support of this claim, she cites the testimony of

       1
         Ms. Brown, repeatedly, and incorrectly, insists this conclusion lies at odds with
our statement in Rainey v. Conerly, 973 F.2d 321, 324 (4th Cir. 1992), that, in that case,
“a determination of what actually happened [was] absolutely necessary to decide whether
[the officer] could reasonably have believed that his actions were lawful.” But, of course,
as we made clear in Rainey, “what actually happened” only “need[s] to be resolved by the
trier of fact” if that determination is necessary “in order to reach a decision on the
applicability of qualified immunity.” Id. (distinguishing Gooden v. Howard Cty., 954
F.2d 960, 965–66 (4th Cir. 1992) (en banc), where, for this reason, it was not necessary to
determine what “actually happened”). Here, it is not necessary to resolve this dispute.
Rather, for purposes of summary judgment, like the district court, we credit Ms. Brown’s
witnesses and assume that Deputy Elliott was not “stuck” in the truck or “dragged” by it.


                                             9
Darryl Herbert, who drove the truck, Deputy Sellers, and her biomechanical expert. But

none of these witnesses (or anyone else) so testified.

       Ms. Brown’s reliance on the testimony of Darryl Herbert, the driver of the truck, is

particularly inexplicable, for he, like Deputies Elliott and Threatt, unequivocally testified

that Deputy Elliott’s torso was inside the truck when the shot was fired. 2 Although

Herbert stated that he was certain that Deputy Elliott was not dragged by the truck, he

was equally certain that Deputy Elliott’s “body it’s [sic] . . . torso part . . . [was] . . .

inside the window[]” of the truck. Herbert vividly recalled that Deputy Elliott was

“reaching in the window, grabbing” Lawhorn and as Lawhorn shifted the truck into drive

and it began moving, Deputy Elliott “kept screaming stop, stop. And I was screaming the

same thing, stop, stop. . . . [A]nd then after a few seconds, bop.” Neither Deputy Sellers

nor the expert offered contrary testimony. Deputy Sellers explained that he had turned

away from the truck to return to his car and so did not see Deputy Elliott at the critical

moment when the shot was fired. As for the expert, while he opined that Deputy Elliott

could not have been dragged by the truck when he fired the shot, he did not opine that

Deputy Elliott’s torso was or must have been outside the truck when he fired the shot.

       Thus, viewing the evidence in the best light for Ms. Brown, for purposes of

summary judgment Deputy Elliott was neither “stuck” in the truck nor “dragged” by it,




       2
        As Ms. Brown herself notes, Herbert was “sitting less than five feet” from
Lawhorn. Appellant/Cross-Appellee Br. 38. Thus, he had an excellent vantage point to
determine whether Deputy Elliott’s torso was in the truck at the time of the fatal shot.

                                             10
but the evidence was undisputed that Deputy Elliott’s torso was inside the truck when he

fired the fatal shot.

                                             B.

       With these “circumstances of the case” in mind, we turn to the question of whether

any controlling authority clearly established that an officer must abstain from employing

deadly force when a suspect puts a vehicle in motion while the officer is leaning into it.

       Ms. Brown does not cite, nor have we found, a single case that so holds. In

arguing to the contrary, Ms. Brown principally relies on two clearly distinguishable

cases. The first is Krein v. Price, 596 F. App’x 184 (4th Cir. 2014), an unpublished

decision that cannot constitute “clearly established law,” see Booker v. S.C. Dep’t of

Corrs., 855 F.3d 533, 542–43 (4th Cir. 2017). The second is Waterman v. Batton, 393

F.3d 471 (4th Cir. 2005), on which Krein primarily relies. Those cases hold that an

officer violates the Fourth Amendment by continuing to fire shots at a motorist after the

motorist’s car has passed the officer.       See Waterman, 393 F.3d at 482 (“[O]nce

Waterman’s vehicle passed the officers, the threat to their safety was eliminated and thus

could not justify the subsequent shots.”). The critical circumstance in those cases was

that officers fired several shots after the driver “had passed [the officers] without veering

in their direction.” Id. (emphasis added); see also Krein, 596 F. App’x at 192 (finding

that officers fired shots “after the car had passed the police officers” (emphasis added)).

       Were we confronted with similar circumstances here, we would conclude that

Deputy Elliott violated clearly established law. But those are not the circumstances of

this case. When Deputy Elliott fired his gun, he was leaning into the window of a

                                             11
moving truck, not standing off to the side as the truck passed him without veering in his

direction.   He was, as police officers frequently are, “forced to make split-second

judgments — in circumstances that are tense, uncertain, and rapidly evolving.” Ryburn v.

Huff, 565 U.S. 469, 477 (2012) (per curiam) (quoting Graham v. Connor, 490 U.S. 386,

396–97 (1989)). No “existing precedent placed the conclusion that [Deputy Elliott] acted

unreasonably in these circumstances ‘beyond debate,’” Luna, 136 S. Ct. at 309 (quoting

al–Kidd, 563 U.S. at 741). Nor has Ms. Brown suggested that Deputy Elliott’s actions

were so “extreme” to place him “on notice that [his] conduct violated established law

even in novel factual circumstances.” See Camreta, 563 U.S. at 728; Hope, 536 U.S.

at 741. For these reasons, the Defendants are entitled to qualified immunity.

       Ms. Brown contends that we must “delv[e] into the reasons” that Deputy Elliott

“cites for his decision” to fire his weapon.      Appellee/Cross-Appellant Br. 38.      She

maintains that Deputy Elliott explained that he feared for his life and so justified his use

of force “for no other reason” than he was dragged by the truck, and since she offered

evidence that he was not dragged, he was not entitled to qualified immunity. Id. 3 But the

law is well-settled that the qualified immunity inquiry turns on “the objective

reasonableness of an official’s conduct, as measured by reference to clearly established

law,” not on the official’s “subjective intent.” Harlow v. Fitzgerald, 457 U.S. 800, 816–

18 (1982). Thus, “our Court has consistently conducted an objective analysis of qualified

       3
         Actually, this does not accurately characterize Deputy Elliott’s testimony. He
also testified that he feared injury or death because he might be “completely run over”
and that he feared for the safety of the other deputies, particularly given that Lawhorn
might be carrying a gun.

                                            12
immunity claims and stressed that an officer’s subjective intent or beliefs play no role.”

Henry v. Purnell, 652 F.3d 524, 535 (4th Cir. 2001) (en banc). The relevant question is

fact-specific but objective, asking whether the law clearly established that an officer’s

conduct was unlawful in the particular circumstances he or she confronted. Deputy

Elliott’s subjective intent and his professed justifications for his use of force are

irrelevant to that inquiry. 4

       Our holding today, however, should not be read to suggest that Deputy Elliott’s

use of force here was in fact reasonable under the Fourth Amendment. We express no

view as to the alleged constitutional violation itself. Instead, we simply hold that existing

law did not clearly establish that an officer in Deputy Elliott’s situation violates the

Fourth Amendment by using deadly force. Accordingly, we affirm the grant of summary

judgment to the Defendants.


                                            III.

       Finally, we address the district court’s fee award, which it imposed as a sanction

for the Defendants’ discovery misconduct. “We review the imposition of discovery


       4
          Ms. Brown argues that Waterman, 393 F.3d at 477, is to the contrary. In
Waterman, we noted that because the officers there argued only that their use of force
was justified by the threat “posed to them and their fellow officers — as opposed to the
general public — we confine[d] our analysis to that issue.” Id. Contrary to Ms. Brown’s
suggestion, this statement did not open the door to probing an officer’s subjective beliefs.
Rather, the officers in Waterman simply declined to make a specific argument within the
objective qualified immunity inquiry — namely, the argument that the officers did not
violate clearly established law because circumstances objectively indicated a threat to the
public. The officers’ subjective beliefs about the threat posed by their circumstances
were irrelevant there as they are here.

                                             13
sanctions for abuse of discretion.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 329 (4th

Cir. 2011).

       The Defendants argue that the sanction was unwarranted. Ms. Brown contends in

response that the Defendants failed to preserve this argument for appeal, because they did

not present it in response to Ms. Brown’s motion, but rather only raised it in a later

motion for reconsideration. We need not resolve whether the Defendants waived their

argument, because we hold that the district court did not abuse its discretion by imposing

a monetary sanction.

       Federal Rule of Civil Procedure 37(c) provides that if a party “fails to provide

information” and the failure is not “substantially justified or is harmless,” “the court, on

motion and after giving an opportunity to be heard,” “may order payment of the

reasonable expenses, including attorney’s fees, caused by the failure.” Fed. R. Civ. P.

37(c)(1).

       The Defendants failed to provide the information that at least one officer’s car had

video camera equipment mounted inside the windshield. During discovery, Ms. Brown

requested that the Defendants produce copies of “any and all videos, dash cam, body

cam, etc., from the officers’ body cams and/or vehicles involved in the incident.” She

also requested, “If no videos are produced . . . explain in detail why there are no videos.”

The Defendants responded that “[t]here are no dash or body cameras involved in this

incident.” At the very least, this response was misleading by omission, since one of the

officer’s cars in fact had camera equipment mounted inside the windshield.              The

Defendants argue that because this car lacked the recording unit (usually found in the rear

                                            14
of the car) needed to actually record video, their responses were technically accurate. We

disagree. A reasonable person would not think that the statement “[t]here are no dash or

body cameras involved in this incident” means the same thing as “there was a dash

camera but it could not record video because it was missing a critical component.” To

the extent the Defendants wanted to specify exactly which components of the camera

system were present and which ones were not, it was incumbent on them to provide that

level of detail in response to Ms. Brown’s discovery requests. They did not.

       Moreover, we cannot conclude that the Defendants’ failure to provide information

was substantially justified or harmless. Rather, their inaccurate statements are especially

glaring given that in cases like this, a video recording of the incident frequently becomes

the pivotal piece of evidence in litigation. The Defendants’ failure to fully and accurately

explain the lack of video evidence needlessly prolonged litigation and required both

Ms. Brown and the district court to devote resources to the issue.

       Ms. Brown contends on cross-appeal that the district court did not go far enough

and should have granted a default judgment.         We disagree.      We have previously

“encouraged trial courts initially to consider imposing sanctions less severe than default.”

Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 41 (4th Cir. 1995) (reversing grant

of default judgment). Granting a default judgment for discovery violations, after all, ends

a case without resolving the underlying legal and factual disputes. While we have

affirmed grants of default where a party engaged in “repeated misconduct never wholly

remedied in the future,” see, e.g., Mut. Fed. Sav. and Loan Ass’n v. Richards & Assocs.,

872 F.2d 88, 94 (4th Cir. 1989), here there is no indication that the Defendants persisted

                                            15
in their misconduct after being sanctioned. Accordingly, we affirm the district court’s fee

award.



                                               IV.

         For the reasons stated, we affirm in all respects the judgment of the district court.

                                                                                   AFFIRMED




                                               16
