UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN LONDON and JACQUELYN
LONDON, Administrators of the
Estate of John Dewees London, II,
Plaintiffs-Appellants,

v.
                                                                 No. 97-1042
ALFONZA HAMILTON; THE CHARLOTTE
POLICE DEPARTMENT; CHIEF OF
POLICE OF THE CHARLOTTE POLICE
DEPARTMENT; THE CITY OF
CHARLOTTE,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
H. Brent McKnight, Magistrate Judge.
(CA-95-347-3-McK)

Argued: March 5, 1998

Decided: April 22, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and CLARKE,
Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Pamela Anne Hunter, Charlotte, North Carolina; Ned
Clifton Cannon, Jr., Gastonia, North Carolina, for Appellants.
W. Clark Goodman, WOMBLE, CARLYLE, SANDRIDGE & RICE,
Charlotte, North Carolina, for Appellees. ON BRIEF: G. Michael
Barnhill, WOMBLE, CARLYLE, SANDRIDGE & RICE, Charlotte,
North Carolina; Stephanie Webster, Deputy City Attorney, CITY OF
CHARLOTTE, Charlotte, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

John London and Jacquelyn H. London, administrators of the estate
of their deceased son, John DeWees London, II, ("London") filed suit
pursuant to 42 U.S.C.A. §§ 1983 (West Supp. 1997) & 1988 (West
1994 & Supp. 1997) and N.C. Gen. Stat. § 28A-18-2 (Michie 1997),
against Alfonza Hamilton, an officer of the Charlotte Police Depart-
ment, and the Chief of Police of the Charlotte Police Department, in
their individual and official capacities; the Charlotte Police Depart-
ment; and the City of Charlotte (collectively "Appellees"). The Lon-
dons appeal the magistrate judge's* opinion and order granting
Appellees' motion for summary judgment in its entirety, arguing pri-
marily that the district court erred in determining that the officers' use
of deadly force was objectively reasonable under the circumstances.
We affirm the district court's judgment because the officers' belief
that London posed a significant threat of death or serious physical
injury to themselves or others was reasonable under the circum-
stances.

We review a district court's grant of summary judgment de novo.
See Higgins v. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th
_________________________________________________________________
*The parties consented to the jurisdiction of a magistrate judge pursu-
ant to 28 U.S.C.A. § 636(c)(1) (West 1993). For convenience, we refer
to the magistrate judge as "the district court" throughout the opinion.

                     2
Cir. 1988). Summary judgment is appropriate "if the pleadings, depo-
sitions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex v. Catrett,
477 U.S. 317, 322 (1986). When considering whether summary judg-
ment is proper, all inferences to be drawn from the underlying facts
must be viewed in the light most favorable to the nonmoving party.
See Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970).
Viewed in the light most favorable to the Londons, the facts are as
follows.

London, the decedent, had a history of severe mental illness. He
was first hospitalized in 1989 and was diagnosed as a paranoid
schizophrenic. London was subsequently committed involuntarily for
psychiatric treatment on numerous occasions by his mother, Jacque-
lyn London. At the time of the events giving rise to this appeal, Lon-
don resided with his mother in Charlotte, North Carolina.

On September 18, 1993, at approximately 9:00 p.m., Jacquelyn
London, her daughter Crystal, and her sister-in-law returned to Jac-
quelyn London's home from shopping. London was in his room with
the door locked. As she was preparing for bed, Jacquelyn London
noticed that the loaded .38 caliber pistol that she kept on top of the
television in her bedroom was missing. Fearing that London had the
gun, Jacquelyn London, Crystal, and the sister-in-law left the resi-
dence.

At 11:50 p.m., from a nearby convenience store, Crystal called 911
and asked for the police. Minutes later, several Charlotte Mecklen-
burg Police Department officers arrived at the convenience store and
met with the London family. Crystal requested that the officers go
into the residence and remove the gun from her brother's possession.
The officers advised the London family that they could not forcibly
enter the residence and remove the gun without a warrant or involun-
tary commitment papers. Nevertheless, the officers accompanied the
London family to the residence, briefly searched the residence, and
knocked on London's bedroom door. They received no response.

Meanwhile, Sergeant Davis attempted to phone London, but Lon-
don did not answer the telephone. Sergeant Davis then attempted to

                    3
contact London's psychiatrist. London's psychiatrist was not avail-
able, so Sergeant Davis spoke with the psychiatrist on call, who rec-
ommended either leaving London in his room until he was ready to
come out on his own or obtaining involuntary commitment papers.
The London family continued to insist that the officers forcibly enter
London's bedroom and take the gun away from him. The officers
refused to do so without a warrant or involuntary commitment papers,
so the London family and the officers left the residence.

At approximately 2:30 a.m., the local magistrate's office radioed
the Charlotte Police Department and told the dispatcher that involun-
tary commitment papers had been prepared for London and asked the
dispatcher to have London picked up and taken to Cedar Springs hos-
pital. The on-duty Captain sent a Special Weapons and Tactics Unit
(SWAT) team to the residence because of the potential danger Lon-
don posed to himself and others.

When the officers entered the house to serve the commitment
papers on London, London came out of his room armed with the pis-
tol. Officer Chipman pointed his gun at London and asked him to
drop the weapon. London did not drop the gun and ordered the offi-
cers to leave the house. When the officers refused to leave, London
asked Officer Chipman to shoot him. Officer Chipman cautiously per-
suaded London to go back into his bedroom.

London later came back out of his room and sat down on a couch
in the upstairs loft area with his back to the officers. The officers con-
tinued to plead with London to drop the weapon and told him that
they were there to help him. London's father arrived and also begged
him to put the gun down. All attempts to plead with London failed.
The officers considered the possibility of using tear gas, but rejected
it because of the proximity of their own personnel and the potential
for startling London.

After some time, London went to the top of the stairs, sat down on
the top stair, and began sliding down the stairs one stair at a time.
London still had the pistol in his right hand with his hands resting on
his thighs. Sergeant Baker was standing barely within the front door-
way of the residence, shielded by a ballistic shield. Officer Hamilton
was also standing near the doorway, but Officer Hamilton's head and

                     4
the left side of his body were completely exposed. Sergeant Baker and
Officer Hamilton continued to ask London to drop the gun, repeatedly
stating, "[d]on't do it." (J.A. 44). London finally stopped on the sev-
enth step and made eye contact with Officer Hamilton. London was
within six to seven feet of Sergeant Baker and Officer Hamilton. Lon-
don raised the pistol, pointing it at Sergeant Baker and Officer Hamil-
ton. Sergeant Baker squeezed his pistol, preparing to fire. Officer
Hamilton, fearing for Sergeant Baker's and his own safety, fired one
shot from his shotgun which struck London in his chest, left arm, and
hand, resulting in London's death.

The Londons argue that the officer's actions were unreasonable
because they could have used safer alternatives to deadly force such
as remaining outside the house, using a hostage negotiator, or simply
doing nothing. The district court determined, however, that Officer
Hamilton's fear for his own and Sergeant Baker's safety was objec-
tively reasonable and that his use of force was not excessive and,
therefore, granted summary judgment on the Londons'§ 1983 claims.
Alternatively, the district court held that Officer Hamilton was enti-
tled to qualified immunity on the Londons' § 1983 claims. Since the
district court found there was no underlying constitutional violation
and Officer Hamilton was entitled to qualified immunity, the district
court held there was no municipal or supervisory liability against
either the Chief of Police or the City of Charlotte. In addition, the dis-
trict court concluded that under North Carolina law the Charlotte
Police Department is not a legal entity subject to being sued. The dis-
trict court additionally found that Officer Hamilton acted reasonably
in his use of deadly force pursuant to state law and granted summary
judgment on the Londons' state law wrongful death claim pursuant to
N.C. Gen. Stat. § 28A-18-2 (Michie 1997). Finally, the district court
granted summary judgment on the Londons' state law claims for neg-
ligent employment and supervision, finding that Officer Hamilton did
not act negligently and there was no evidence of any prior acts of neg-
ligence by Hamilton.

We have reviewed the record, briefs, and pertinent case law in this
matter, and we have had the benefit of oral argument. Our careful
review persuades us that the rulings of the district court were correct.
Accordingly, we affirm on the reasoning set forth in the district
court's thorough opinion. See London v. Hamilton , C.A. No.

                     5
3:95CV347 (W.D.N.C. Nov. 26, 1996).

AFFIRMED

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