                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 16-1294


TERESA ANN HENSLEY, as relator on behalf of the State of North Carolina, and as
Administrator of the Estate of David Lee Hensley; H.H., a minor, by and through her
parent and next friend; RACHELLE FERGUSON, Individually, and as relator on behalf
of the State of North Carolina,

                    Plaintiffs – Appellees,

             v.

MICHAEL SCOTT PRICE, Individually and in his Official Capacity as Lieutenant of
Haywood County Sheriff’s Department; KEITH ALLEN BEASLEY, Individually and in
his Official Capacity as Deputy Sheriff of Haywood County Sheriff’s Department;
WEST AMERICAN INSURANCE COMPANY, Corporate Surety on the official bond
of the Sheriff of Haywood County; THE OHIO CASUALTY INSURANCE
COMPANY, Corporate Surety on the official bond of the Sheriff of Haywood County,

                    Defendants – Appellants,

              and

BOBBY R SUTTLES, Individually and in his Official Capacity as former Sheriff of
Haywood County; JOHN DOE, #1; JOHN DOE, #2; LARRY BRYSON; DAVID
MITCHELL,

                    Defendants.


Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Martin K. Reidinger, District Judge. (1:14-cv-00193-MR-DLH)


Argued: March 30, 2017                                    Decided: November 17, 2017

                            Amended: November 17, 2017
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Duncan
joined. Judge Shedd wrote a dissenting opinion.


Patrick Houghton Flanagan, CRANFILL, SUMNER & HARTZOG, LLP, Charlotte,
North Carolina, for Appellants. Russell Lyway McLean, III, MCLEAN LAW FIRM,
PA, Waynesville, North Carolina, for Appellees.




                                        2
AGEE, Circuit Judge:

       Deputies Michael Price and Keith Beasley (collectively, the “Deputies”)—both

employed by the Haywood County, North Carolina, Sheriff’s Department—shot and

killed David Hensley outside his home on the morning of August 9, 2012.                       The

plaintiffs—Hensley’s widow and two daughters—brought suit against the Deputies in

both their individual and official capacities under 42 U.S.C. § 1983 and North Carolina

law in the United States District Court for the Western District of North Carolina. The

Deputies asserted federal qualified immunity and related state defenses in a motion for

summary judgment, which the district court denied. For the reasons that follow, we

affirm the district court’s judgment. 1



                                                I.

                                                A.

       On an interlocutory appeal raising the issue of qualified immunity, the Court

views the facts in the light most favorable to the plaintiffs. Pegg v. Herrnberger, 845

F.3d 112, 117 (4th Cir. 2017). We summarize the facts viewed in that light as follows,

recognizing the Deputies’ forecast of evidence is markedly to the contrary.

       1
           The plaintiffs also sued West American Insurance Co. and The Ohio Casualty
Insurance Co., which are also parties to this appeal. The insurance companies concede that
under North Carolina law, the plaintiffs’ claims against them rise and fall with the claims against
the Deputies. See generally N.C. Gen. Stat. § 162-8 (requiring sheriff’s to be bonded); White v.
Cochran, 229 S.E.2d 334, 339 (N.C. Ct. App. 2013) (noting that the sheriff may be sued only
“where the surety is joined as a party”; collecting cases). Because we affirm the district court’s
order denying the Deputies immunity from suit, we also affirm the district court’s denial of
summary judgment to West American and Ohio Casualty.



                                                3
       In August 2012, the Deputies 2 responded to a domestic disturbance call at

Hensley’s home around 6:15 a.m. When the pair arrived, they parked their cars in the

front yard and remained in the vehicles facing the home’s porch. Shortly thereafter,

Hensley; his older daughter, Rachelle Ferguson; and his minor daughter, H.H., walked

out of the home and onto the porch together. Hensley held a handgun.

       The Deputies noticed the handgun, but took no action—they neither announced

their presence nor asked Hensley to drop the gun. Instead, they watched as Hensley

briefly struggled with both Ferguson and H.H., striking Ferguson with the handgun.

After that altercation ended, the Deputies watched as Hensley walked off the porch and

into the yard toward them. When he reached the yard, Hensley looked back at his

daughters on the porch. According to plaintiffs’ pleadings and proffer of evidence,

Hensley still held the handgun with its muzzle pointed at the ground as he descended the

porch stairs and walked toward the Deputies.

       Throughout this series of events, Hensley and the Deputies did not acknowledge

each other’s presence. Hensley never raised the gun toward the Deputies or made any

overt threats toward them. For their part, the Deputies never ordered him to stop, to drop

the gun or issued any type of warning. The Deputies concede that neither of them ever

spoke to Hensley.

       Shortly after Hensley descended the porch and walked into the yard, the Deputies

exited their vehicles and shot and killed him.

       2
           We refer to the Deputies’ conduct jointly here and throughout this opinion because the
plaintiffs treat them as one actor.


                                               4
                                              B.

       In July 2014, the plaintiffs—Teresa Ann Hensley (Hensley’s wife), in her capacity

as administrator of Hensley’s estate; Ferguson; and H.H.—filed suit against the Deputies

in both their individual and official capacities in the district court.         The operative

complaint asserted claims against the Deputies for the violation of Hensley’s Fourth

Amendment right to be free from unreasonable seizure, as enforced by 42 U.S.C. § 1983.

As relevant here, the complaint also asserted supplemental claims under North Carolina

law, including: (1) assault; (2) negligent infliction of emotional distress, (“NIED”); and

(3) wrongful death, pursuant to N.C. Gen. Stat. § 28A-18-2. 3 The plaintiffs sought both

compensatory and punitive damages.

       After discovery, the Deputies moved for summary judgment, arguing that they

were entitled to qualified immunity from the plaintiffs’ individual-capacity § 1983 claims

on the ground that they acted reasonably in using deadly force. They also contended that

they were entitled to public official immunity and related defenses under North Carolina

law on the plaintiffs’ individual capacity assault, NIED, and wrongful death claims.




       3
         The district court had original jurisdiction over the plaintiffs’ § 1983 claim under 28
U.S.C. § 1331. It had supplemental jurisdiction over each of the plaintiffs’ state law claims
under 28 U.S.C. § 1367.

        The complaint also asserted additional claims under the North Carolina constitution, as
well as for the state law tort of intentional infliction of emotional distress. The plaintiffs’
voluntarily abandoned their state constitutional claims. The district court granted the Deputies
summary judgment on the plaintiffs’ intentional infliction of emotional distress claim. Neither
claim is at issue in this appeal.



                                               5
Finally, the Deputies argued that, if the court resolved their immunity defenses favorably

to them, the plaintiffs’ official capacity claims failed as a matter of law.

       The district court entered an order denying the Deputies’ motion for summary

judgment on the issue of qualified immunity, and concluded that:

       [T]he legal question is whether [the] [p]laintiffs’ forecast of evidence can
       give rise to a reasonable inference that the [D]eputies objectively lacked
       probable cause to believe that [Hensley] posed a threat of serious physical
       harm to them. Taking the evidence in the light most favorable to the
       [p]laintiffs, . . . a reasonable jury could conclude that the [Deputies] had no
       objective basis upon which they could base a decision to use deadly force
       against [Hensley].

Hensley v. Suttles, 167 F. Supp. 3d 753, 762 (W.D.N.C. 2016). The district court also

rejected the Deputies’ public official immunity defense and other state defenses on the

same ground. Id. at 766–67.

       The Deputies noted a timely appeal. We have jurisdiction pursuant to 28 U.S.C.

§ 1291 and the collateral order doctrine. Winfield v. Bass, 106 F.3d 525, 528–29 (4th Cir.

1997) (“To the extent that an order of a district court rejecting a governmental official’s

qualified immunity defense turns on a question of law, it is a final decision within the

meaning of § 1291 under the collateral order doctrine[.]”). See generally Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).



                                              II.

The Deputies raise two arguments on appeal. First, they contend that the district court

erred in denying them qualified immunity from suit and allowing the plaintiffs’ § 1983



                                               6
claim to proceed. Second, the Deputies argue that the district court erred in denying the

application of their North Carolina state law defenses.

                                            A.

       This Court reviews the district court’s denial of qualified immunity de novo,

taking all the facts in the light most favorable to the non-moving party, here, the

plaintiffs. Pegg, 845 F.3d at 117. As a practical matter, this means that the Court

“accept[s] the facts as the district court articulated them when it determined whether

summary judgment was appropriate, and then . . . determine[s] whether, based on those

facts, a reasonable person in the [Deputies’] position could have believed that [they]

w[ere] acting in conformity with clearly established law at the time.” Id. We also review

the denial of public official immunity and other state law defenses de novo. See Bailey v.

Kennedy, 349 F.3d 731, 739 (4th Cir. 2003).

                                            B.

       In reviewing a denial of summary judgment based on qualified immunity, we may

only consider whether, on the undisputed facts and the facts considered in the light most

favorable to the plaintiffs, the defendants violated clearly established law. See Iko v.

Shreve, 535 F.3d 225, 233–35 (4th Cir. 2008). In this procedural posture, we may not

credit defendant’s evidence, weigh the evidence, or resolve factual disputes in the

defendants’ favor. For example, we may not take as true the Deputies’ assertion that

once Hensley stepped off the porch he had the muzzle of the gun pointed toward them in

a “shoot-from-the-hip” position. Similarly, we may not accept their contention that when

Hensley stepped onto the porch he initially pointed the gun at them. While a jury could

                                              7
well believe the evidence forecast by the Deputies, we take the facts in the light most

favorable to the plaintiffs to determine the applicable questions of law and ignore any

contrary factual claims. 4      See Mitchell v. Forsyth, 472 U.S. 511, 528–29 (1985)

(observing that the “question of immunity is separate from the merits of the underlying

action for purposes of [an interlocutory appeal under the collateral order doctrine] even

though a reviewing court must consider the plaintiff’s factual allegations in resolving the

immunity issue”); Pegg, 845 F.3d at 117.



                                               III.

                                                A.

       We turn first to the Deputies’ qualified immunity argument related to the

plaintiffs’ § 1983 claim.

                                                1.

       Section 1983 “creates a cause of action against any person who, acting under color

of state law, abridges a right arising under the Constitution or laws of the United States.”

Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013). In the case at bar, the plaintiffs

have alleged that the Deputies violated Hensley’s Fourth Amendment right to be free

from unreasonable seizures. Even though the plaintiffs have alleged a constitutional

violation, the Deputies are “entitled to invoke qualified immunity, which is more than a

       4
          We note the forecast of most of the relevant evidence in this case is at polar opposites.
Indeed, if the undisputed evidence were as forecast by the Deputies, they would likely be entitled
to qualified immunity. However, that is not the state of the record at the summary judgment
stage.


                                                8
mere defense to liability; it is immunity from suit itself,” if they meet the requirements.

Id.; see also Mitchell, 472 U.S. at 526. “Qualified immunity protects officers who

commit constitutional violations but who, in light of clearly established law, could

reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011) (en banc).

       Under the two-step process set out by the Supreme Court in Saucier v. Katz, 533

U.S. 194 (2001), we may ask “whether a constitutional violation occurred.” Henry, 652

F.3d at 531. If we conclude that a constitutional violation has occurred, we then examine

“whether the right violated was clearly established.” Id. A right is “clearly established”

when “its contours are sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Cooper, 735 F.3d at 158 (internal alteration and

quotation marks omitted). Although we may exercise our discretion in determining

which of the two prongs to analyze first, Pearson v. Callahan, 555 U.S. 223, 236 (2009),

the Deputies have failed to raise—and, therefore, have waived—any argument that the

right at issue was not clearly established. See Fed. R. App. P. 28(a)(8)(A) (“[T]he

argument . . . must contain . . . appellant’s contentions and the reasons for them[.]);

Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (noting failure to

comply with Rule 28 results in abandonment on appeal). 5 Consequently, we examine

only the first Saucier prong, “whether a constitutional violation occurred.”


       5
          The dissent disagrees with our waiver analysis. See Dissenting Op. § II.B.1. But the
Rules of Appellate Procedure are quite clear: “[a brief’s argument section] must contain . . . [the]
appellant’s contentions and the reasons for them, with citations to the authorities and parts of the
(Continued)
                                                 9
record on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A) (emphasis added). Appellate
courts “are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991) (per curiam). Similarly, it is not our job “to wade through the record
and make arguments for either party.” Friedel v. City of Madison, 832 F.2d 965, 969 (7th Cir.
1987). Here, the Deputies’ opening brief contains none of the development required by the rule.
It contains no argument on the “clearly established” prong of the qualified immunity test. It
contains no citation to cases actually applying the “clearly established” prong of the qualified
immunity test. And it contains no citations to the record to indicate that the Deputies preserved
the argument below.

        The dissent tacitly acknowledges the Deputies’ abdication on this point, as it can only
muster two instances in which the Deputies mention the second prong of the qualified immunity
test in their opening brief. And even then, a cursory reading reveals that they do so only in a
boilerplate recitation of the applicable legal standard.

        The dissent cannot bolster its faulty waiver analysis by referencing and analyzing
irrelevant concerns. For example, the dissent points out that the Deputies referenced the second
prong of the qualified immunity analysis in a Rule 28(j) letter. While true, that does not alter our
analysis. Nor could it. Under the Rules of Appellate Procedure, waiver is analyzed based on the
content of the opening brief; again, “[a brief’s argument section] must contain . . . [the]
appellant’s contentions and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A). We have held that this rule
does not allow for preservation where an argument is raised for the first time in a reply brief. See
A Helping Hand, LLC v. Balt. Cty., 515 F.3d 356, 369 (4th Cir. 2008). It follows all the more
strongly that a Rule 28(j) letter, filed after even the reply brief, is a wholly inappropriate and
ineffectual means of preserving an argument on appeal. In fact, we have so held: “We do not
countenance a litigant’s use of Rule 28(j) as a means to advance new arguments couched as
supplemental authorities.” United States v. Ashford, 718 F.3d 377, 381 (4th Cir. 2013). Were
we to treat Rule 28(j) as an independently sufficient means of advancing an argument not raised
in the briefs we would run “the risk of [issuing] an improvident or ill-advised opinion . . . on an
unbriefed issue.” Ashford, 718 F.3d at 381. Thus, by failing to preserve the issue in their
opening brief, the Deputies waived it. No subsequent filing can revive it.

        Our dissenting colleague also overstates the perceived inefficiency of finding a waiver at
this stage. As the dissent sees it, the Deputies could raise the second prong of the qualified
immunity test again on remand, which they could then appeal. That construct, however,
contravenes the operation of the mandate rule. The mandate rule is a “specific application of the
law of the case doctrine” that “forecloses relitigation of issues expressly or impliedly decided by
the appellate court” on remand. United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). To be sure,
the Deputies may again raise qualified immunity at an appropriate time at trial, but the mandate
rule prohibits a “do-over” at the summary judgment stage. See Willingham v. Crooke, 412 F.3d
553, 559 (4th Cir. 2005) (“Thus, while the purely legal question of whether the constitutional
right at issue was clearly established is always capable of decision at the summary judgment
(Continued)
                                                10
       That inquiry asks: when viewing the facts in the light most favorable to the

plaintiffs, did the Deputies violate Hensley’s Fourth Amendment right to be free from

unreasonable seizures when deadly force was exercised against him? “The use of deadly

force is a seizure subject to . . . the Fourth Amendment.” Tennessee v. Garner, 471 U.S.

1, 7 (1985). “A reasonable officer is entitled to use deadly force where [he] has probable

cause to believe that a suspect poses a threat of serious physical harm, either to [himself]

or to others.” Cooper, 735 F.3d at 159 (internal alterations and quotation marks omitted)

(emphasis added). To determine whether such probable cause existed here, we ask

whether the Deputies’ use of deadly force was “objectively reasonable in light of the facts

and circumstances confronting them, [viewed in the light most favorable to the plaintiffs,]

without regard to [the Deputies’] underlying intent or motivation.” Graham v. Connor,

490 U.S. 386, 397 (1989). We assess the reasonableness of their conduct based on the



stage, a genuine question of material fact regarding whether the conduct allegedly violative of
the right actually occurred must be reserved for trial.”) (internal alterations and quotation marks
omitted)); see also Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (indicating that a government
defendant may raise qualified immunity, once denied, at a subsequent stage of a proceeding
because a different legal standard and inquiry governs). But although the Deputies may be able
to pursue qualified immunity at a later stage of the proceeding, the mandate rule “restricts the
district court’s authority on remand” to reconsider that issue in a summary judgment motion.
Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007).

        Any harshness the waiver rule engenders is offset by its clarity: a party must do more
than “take[] a passing shot at [an] issue” to properly preserve it for appellate review. Grayson O
Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th 2017). The party must actually “develop [its]
argument.” Belk, Inc. v. Meyer Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012). Here, the
Deputies’ bare recitation of the elements of a qualified immunity defense does not clear that
hurdle. They failed to “take a passing shot at the issue.” As appellants, they were required to
state their “contentions and the reasons for them.” Fed. R. App. P. 28(a)(8)(A). This, the
Deputies utterly failed to do.



                                                11
totality of the circumstances, Yates v. Terry, 817 F.3d 877, 883 (4th Cir. 2016), and based

on the information available to the Deputies “immediately prior to and at the very

moment they fired the fatal shots.” Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir.

1991) (internal alterations and quotation marks omitted).

       With these guiding principles in mind, we turn to the Deputies’ argument.

                                             2.

       The Deputies contend that the district court erred in denying their motion for

summary judgment on the plaintiffs’ § 1983 claim because their use of deadly force

against Hensley was reasonable under the circumstances. To support their argument, the

Deputies maintain that, even viewing the facts in the light most favorable to the plaintiffs,

it is clear that Hensley emerged from his home with gun in hand, that Hensley hit

Ferguson shortly before coming off the porch and advancing toward them, and that the

entire series of events took only a brief time. The Deputies posit that their use of deadly

force against Hensley in such circumstances was clearly reasonable because he both

demonstrated a propensity for violence and came toward them with a gun.

       In rejoinder, the plaintiffs contend that the Deputies acted unreasonably for two

reasons. First, the plaintiffs point out that under their version of the facts, when the

Deputies killed Hensley, he was pointing the gun at the ground and was threatening

neither the Deputies nor his daughters. As the plaintiffs proffer, Hensley’s altercation

with Ferguson had concluded by the time he walked off the porch; therefore, because he

never raised his weapon toward the Deputies, he was not immediately threatening to

anyone at the scene. Second, the plaintiffs argue that the Deputies’ actions were all the

                                             12
more unreasonable here because they shot without warning Hensley to drop the gun or

communicating with him in any way.

         At this stage of the proceedings, we must agree with the plaintiffs. If a jury

credited the plaintiffs’ evidence, it could conclude that the Deputies shot Hensley only

because he was holding a gun, although he never raised the gun to threaten the Deputies.

Indeed, he never pointed the gun at anyone. Moreover, the Deputies had ample time,

under the plaintiffs’ evidence, to warn Hensley to drop his gun or stop before shooting

him, but they concede they never gave any such warning. Because the use of force in

such circumstances would be objectively unreasonable, we must affirm the district

court’s summary judgment order denying the Deputies qualified immunity on the § 1983

claim.

         First, if we assume, as we must, the credibility of the plaintiffs’ evidence, we

cannot say that Hensley posed a threat of serious physical harm to either the Deputies or

his daughters at the time the Deputies fired the fatal shot. The lawful possession of a

firearm by a suspect at his home, without more, is an insufficient reason to justify the use

of deadly force. Indeed, it is unreasonable for an officer to believe “that a suspect poses a

threat of serious physical harm, either to [himself] or to others,” merely because that

suspect possesses a firearm. Cooper, 735 F.3d at 159 (internal alterations and quotation

marks omitted); see also Pena v. Porter, 316 F. App’x 303, 312 (4th Cir. 2009) (“Absent

any additional factors which would give [officers] probable cause to fear for their safety

or for the safety of others, the mere presence of a weapon is not sufficient to justify the

use of deadly force.”).

                                             13
       Under the plaintiffs’ version of the facts, this case bears a noteworthy resemblance

to our decision in Cooper v. Sheehan—another case where law enforcement used deadly

force against a non-threatening suspect. There, the officers responded to a domestic

disturbance at Cooper’s home. Cooper, 735 F.3d at 155. Rather than announce their

presence, one officer simply “tapped on the window [of Cooper’s home] with his

flashlight.” Id. (internal quotation marks omitted). In response, Cooper “peered out the

back door” and “called out for anyone in the yard to identify himself,” but the officers did

not respond. Id. Faced with silence, Cooper went outside to investigate the noise and

brought with him a twenty-gauge shotgun. Id. “With the butt of the firearm in his right

hand and its muzzle pointed toward the ground, Cooper opened the back door and took

two or three steps on to his darkened porch.” Id. (internal quotation marks omitted). By

that time, the officers were out of Cooper’s line of sight; nor could they see him. Id.

When Cooper came upon the officers, “[r]eacting to the sight of Cooper and his shotgun,

the [o]fficers drew their service weapons and commenced firing without warning.” Id. at

156.

       On those facts, we held that the officers’ use of deadly force violated Cooper’s

Fourth Amendment rights because Cooper never raised the shotgun toward the officers

and “the mere possession of a firearm by a suspect is not enough to permit the use of

deadly force.” Id. at 159. We reasoned, “an officer does not possess the unfettered

authority to shoot a member of the public simply because that person is carrying a

weapon.” Id.



                                            14
      So too here. The Deputies responded to a domestic disturbance at Hensley’s

home, but had no specific information about the situation. When they arrived shortly

after dawn, Hensley and his daughters stepped out of the home and onto the porch.

Hensley had a handgun, but never raised it toward the Deputies. According to the

plaintiffs’ evidence, if believed by a jury, Hensley made no threatening statements or

actions toward anyone in the moments immediately preceding the shooting. Instead,

Hensley stepped off the porch and into the yard, keeping the handgun pointed toward the

ground at all times. Nevertheless, almost immediately after he stepped into the yard, the

Deputies opened fire on Hensley and killed him without warning. If a jury credited the

plaintiffs’ version of the facts, it could reasonably conclude that because Hensley never

raised the gun to the officers, and because he never otherwise threatened them, the

Deputies shot Hensley simply because he had possession of a firearm. As we held in

Cooper, such conduct violates the Fourth Amendment. Cf. 735 F.3d at 158–60.

      Moreover, although the plaintiffs admit that Hensley and Ferguson were engaged

in a brief altercation on the porch, that fact does not change our calculus. The short

struggle between Hensley and Ferguson had little bearing on whether Hensley was

prepared to take the substantial step of escalating a domestic disturbance into a

potentially deadly confrontation with two armed police officers.        Thus, under the

plaintiffs’ version of the facts, no reasonable officer could have believed that Hensley

posed a threat of serious physical harm to the Deputies at the time they used deadly force

against him.   Nor are we persuaded that Hensley’s attack on Ferguson made the

Deputies’ use of deadly force imperative to protect her from serious physical injury.

                                           15
When the Deputies fired on Hensley, his physical conflict with Ferguson had ended.

Hensley had ventured off the porch, away from Ferguson, and out into the yard. See

Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (“[F]orce justified [in one

moment] is not justified even seconds later if the justification for the initial force has

been eliminated.”). Whether the Deputies could have used deadly force during Hensley’s

altercation with Ferguson is not at issue here. But assuming the Deputies could have

done so, by the time Hensley made it down the steps and into the yard, any “justification

for the initial force ha[d] been eliminated.” Id. 6

       In any event, even if the Deputies reasonably could have believed that Hensley

posed a threat of serious physical harm, their failure to warn him—or to order him to

drop the gun—before employing deadly force creates an additional impediment. Before

an officer may use deadly force, he should give a warning if it is feasible. See Garner,

471 U.S. at 11–12 (“[I]f the suspect threatens the officer with a weapon or there is

probable cause to believe that he has committed a crime involving the infliction or

threatened infliction of serious physical harm, deadly force may be used if necessary to

prevent escape, and if, where feasible, some warning has been given.” (emphasis added)).

       6
          Our dissenting colleague maintains that no constitutional violation occurred, but cites
only generalities and otherwise irrelevant facts to support that conclusion. In cases like this one,
we must evaluate all of the facts and circumstances. Graham, 490 U.S. at 397. We are not
permitted to make credibility determinations or weigh competing evidence. As discussed in
detail above, the facts, viewed in the light most favorable to the plaintiffs, suggest that Hensley
had walked away from Ferguson and did not threaten serious physical harm against the Deputies
at the time they shot him. Nor do we put much stock in the dissent’s assertion that Hensley
“responded to the[] [Deputies’] presence by immediately retrieving a gun and coming outside to
confront them.” Dissenting Op. 33. While true that Hensley retrieved the gun in response to the
Deputies’ presence, that fact was not known to them at the time the fatal shot was fired.
Consequently, that fact is irrelevant to our analysis. Greenidge, 927 F.2d at 792.


                                                16
We have reasoned that a warning is not feasible if “the hesitation involved in giving a

warning could readily cause such a warning to be [the officer’s] last.” McLenagan v.

Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994); see also id. (noting that, there, “a warning

might easily have cost the officer his life”); cf. Elliott v. Leavitt, 99 F.3d 640, 643 (4th

Cir. 1996) (holding that an officer’s use of deadly force was reasonable when a

handcuffed suspect pointed a small handgun at him and the officer ordered the suspect to

drop his weapon, which the suspect ignored). More simply put, an officer should give a

warning before using deadly force unless there is an immediate threatened danger.

       Because a jury crediting the plaintiffs’ version of the facts could conclude that the

Deputies were not in any immediate danger when they fired their weapons, the failure to

warn Hensley also weighs against them. In the moments leading up to the fatal shooting,

the Deputies watched Hensley descend the steps from the porch into the yard. They

watched him pause and look back to the house. And they briefly watched as Hensley

walked toward them. While this scene played out in front of them, the Deputies concede

they never ordered Hensley to drop the gun or warned that they would shoot. While we

have no doubt the circumstances confronting the Deputies were tense and fast moving,

that fact alone does not obviate Garner’s warning admonition.

       The Deputies contend that none of the reasons noted above are a sufficient basis

upon which to affirm the district court’s denial of qualified immunity. To support their

argument, they direct us to four cases in which we extended qualified immunity to

officers who used deadly force: Anderson v. Russell, 247 F.3d 125 (4th Cir. 2001);

Sigman v. Town of Chapel Hill, 161 F.3d 782 (4th Cir. 1998); Elliott, 99 F.3d 640; and

                                            17
Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991). According to the Deputies, these cases

compel the opposite result from that reached by the district court. We disagree.

       Anderson and Slattery are factually different from the case at bar in legally

significant ways. In Anderson, this Court concluded that a Maryland police officer was

justified in using deadly force when a subdued suspect repeatedly lowered his hands

toward what the officer perceived to be a gun, in violation of the officer’s verbal

commands. See 247 F.3d at 128–29, 130–32. Even though the suspect was merely trying

to turn off his Walkman, we observed that “[a]ny reasonable officer in [the officer’s]

position would have imminently feared for his safety and the safety of others.” Id. at

131. Likewise, in Slattery, we concluded that a Virginia police officer was justified in

using deadly force when a suspect in the passenger seat of a stopped car repeatedly

lowered his hands toward an object out of the officer’s view, in violation of the officer’s

commands. 939 F.2d at 214–17. Although the object turned out to be a beer bottle, id. at

215, this Court held that “a reasonable officer [nevertheless] could have had probable

cause to believe that [the plaintiff] posed a deadly threat,” id. at 216–17.

       In both cases, once the officer issued a verbal command, the character of the

situation transformed. If an officer directs a suspect to stop, to show his hands or the like,

the suspect’s continued movement likely will raise in the officer’s mind objectively grave

and serious suspicions about the suspect’s intentions. Even when those intentions turn

out to be harmless in fact, as in Anderson and Slattery, the officer can reasonably expect

the worst at the split-second when he acts. Here, the Deputies gave Hensley no command

to stop, drop the gun, or raise his hands. Because they gave no warning, the Deputies had

                                              18
no reason to suspect that Hensley posed an immediate threat other than the fact that he

was holding a gun that was not pointed at them, but at the ground. Such conduct runs

headlong into our holding in Cooper: “the mere possession of a firearm by a suspect is

not enough to permit the use of deadly force.” 735 F.3d at 159.

       Sigman is similarly unhelpful to the Deputies’ position. Hensley’s conduct in the

moments before his death bears little resemblance to the suspect in Sigman. There, we

held that a North Carolina police officer was justified in using deadly force against a

suspect who, despite the surrounding police officers’ commands to stop, advanced on him

with a knife. 161 F.3d at 787. Prior to the shooting, the suspect had threatened to kill—

at various times—himself, his girlfriend, and the officer. Id. at 784–85, 787. The suspect

also had swung a knife at the officer through an open window in his home. Id. On those

facts, we approved the use of deadly force because the suspect “was willing to use his

knife on others,” had made threats on the officer’s life, and did not obey the officer’s

commands to stop. Id. at 787.

       In Elliott, the defendant officers shot and killed a suspect who, while restrained in

handcuffs in a police car, pointed a gun at them and ignored the officers’ order to drop

the weapon. See 99 F.3d at 642–43. The facts here, when viewed most favorably to the

plaintiffs, also bear no resemblance to the facts of Elliott. Hensley never pointed the gun

at the Deputies nor received a command to stop or drop the gun.

       In sum, we conclude that the district court correctly denied the requested grant of

qualified immunity. If a jury were to credit the plaintiffs’ evidence, it could conclude

that Hensley never raised the gun, never threatened the Deputies, and never received a

                                            19
warning command. In that circumstance, the Deputies were not in any immediate danger

and were not entitled to shoot Hensley. Under those circumstances, the Deputies are not

entitled to qualified immunity.

                                                B.

       We next address the Deputies’ arguments as to the plaintiffs’ state law claims.

                                                1.

        The Deputies first argue that the plaintiffs’ assault claim fails as a matter of law,

relying principally on the arguments they advanced in support of their qualified immunity

defense. 7 We disagree.

        Under North Carolina law, a plaintiff may maintain a civil action for assault

arising from an arrest if it is accomplished by excessive force. See Myrick v. Cooley, 371

S.E.2d 492, 496 (N.C. Ct. App. 1988). 8 “Although the officer has discretion, within


       7
          While the district court’s denial of summary judgment on the plaintiffs’ assault claim is
not ordinarily immediately appealable under the collateral orders doctrine, we nevertheless may
exercise appellate jurisdiction under the doctrine of pendent appellate jurisdiction. Pendent
appellate jurisdiction is “a judicially-created, discretionary exception to the final judgment
requirement.” Rux v. Republic of Sudan, 461 F.3d 461, 475 (4th Cir. 2006). This exception is
“narrow” and applies only “(1) when an issue is inextricably intertwined with a question that is
the proper subject of an immediate appeal”; or (2) “when review of a jurisdictionally insufficient
issue is necessary to ensure meaningful review of an immediately appealable issue.” Id. (internal
quotation marks omitted). Claims are “inextricably intertwined if the same specific question will
underlie both the appealable and the non-appealable [claims], such that resolution of the question
will necessarily resolve [both claims] at once.” Scott v. Fam. Dollar Stores, Inc., 733 F.3d 105,
111 (4th Cir. 2013). Here, because our analysis of the assault claim turns entirely on our analysis
of the Deputies’ qualitied immunity defense, the Deputies’ challenge to that claim is
“inextricably intertwined” with that defense.
       8
           We note that the issue of whether public official immunity can apply to intentional tort
claims, like the plaintiffs’ assault claim, splits courts in North Carolina. Compare, e.g., Hawkins
v. State, 453 S.E.2d 233, 242 (N.C. Ct. App. 1995) (holding that public official immunity does
(Continued)
                                                20
reasonable limits, to judge the degree of force required under the circumstances, when

there is substantial evidence of unusual force, it is for the jury to decide whether the

officer acted as a reasonable and prudent person or whether he acted arbitrarily and

maliciously.” Id. (internal quotation marks omitted). “The question of whether an officer

has used excessive force is judged by a standard of objective reasonableness.” Jordan v.

Civil Service Bd., 570 S.E.2d 912, 917 (N.C. Ct. App. 2002) (internal alteration and

quotation marks omitted).

       As previously noted, the facts taken in the light most favorable to the plaintiffs

show that the Deputies’ conduct was not objectively reasonable. The evidence viewed in

that light indicates that the Deputies shot Hensley under no imminent threat and without

warning. Thus, the district court correctly concluded that plaintiffs’ assault claim could

proceed as a matter of law.

                                                 2.

       We next address the Deputies’ assertion that they are entitled to public official

immunity under North Carolina law on the plaintiffs’ NIED and wrongful death claims,

as well as on the issue of whether they would be able to seek punitive damages in




not apply to intentional tort claims), with Campbell v. Anderson, 576 S.E.2d 726, 730 (N.C. Ct.
App. 2003) (concluding otherwise). In an unpublished decision, we previously have applied
public official immunity to intentional tort claims. See Ayala v. Wolfe, 546 F. App’x 197, 202
(4th Cir. 2013). Because we resolve the assault claim on the same reasoning used by the district
court, it is unnecessary to address the application of the public official immunity bar as it relates
to this claim.


                                                 21
conjunction with their state tort claims. 9 Public officials in North Carolina usually are

immune from suit for actions taken in their official capacities. See Grad v. Kaasa, 321

S.E.2d 888, 890 (N.C. 1984). A deputy sheriff carrying out his duties is such a public

official. See Messick v. Catawba Cty., 431 S.E.2d 489, 496 (N.C. Ct. App. 1993),

abrogated on other grounds by Boyd v. Robeson Cty., 621 S.E.2d 1 (N.C. Ct. App. 2005).

Thus, the Deputies would be entitled to public official immunity so long as they did not

act (1) “outside the scope of [their] official authority,” (2) with malice, or (3) in a corrupt

manner. Wilcox v. City of Asheville, 730 S.E.2d 226, 230 (N.C. Ct. App. 2012).

       Before the district court, the plaintiffs argued that the Deputies acted with malice.

Public official immunity “is unavailable to officers who violate clearly established rights

because an officer acts with malice when he does that which a man of reasonable

intelligence would know to be contrary to his duty.” Bailey, 349 F.3d at 742 (internal

quotation marks omitted). Under North Carolina law, a law enforcement officer has a

duty not to use deadly force upon another person unless, among other things, it is

“reasonably necessary . . . [t]o defend himself or a third person from what he reasonable

believes to be the use or imminent use of deadly physical force [or] [t]o effect an

arrest[.]” N.C. Gen. Stat. § 15A-401(d)(1)–(d)(2).

       Once again, taking the evidence in the light most favorable to the plaintiffs, the

district court correctly denied the Deputies public official immunity because the use of

       9
           We have jurisdiction over the Deputies’ interlocutory appeal of the public official
immunity issue under the collateral order doctrine because, under North Carolina law, public
official immunity, like qualified immunity, “is an immunity from suit.” Bailey, 349 F.3d at 738–
39.


                                              22
deadly force was not reasonably necessary under the circumstances. 10 Under that view of

the evidence, the Deputies shot Hensley despite the fact that he posed no immediate

threat of serious harm to either them or his daughters. Hensley simply walked down the

porch stairs and into the yard with his gun pointed toward the ground. The Deputies then

shot Hensley without any warning. The evidence so construed could lead a jury to

reasonably conclude that the Deputies acted with malice under North Carolina law.

       Accordingly, we must conclude at this stage of the proceedings that the Deputies

acted contrary to their duty to use deadly force only when reasonably necessary. In that

circumstance, the Deputies are not entitled to public official immunity under North

Carolina law.



                                             IV.

       For these reasons, we conclude that the district court appropriately denied the

Deputies qualified immunity on the plaintiffs’ § 1983 claim and state law assault claim,

as well as public official immunity on their NIED, wrongful death and punitive damages

claims brought under North Carolina law. The judgment of the district court is

                                                                                 AFFIRMED.




       10
           Here too, the Deputies have waived any argument that the violation at issue here was
not “clearly established.”



                                              23
SHEDD, Circuit Judge, dissenting:

       Reasonableness under the Fourth Amendment “is evaluated from the perspective

of the officer on the scene, not through the more leisurely lens of hindsight.” Abney v.

Coe, 493 F.3d 412, 416 (4th Cir. 2007). Today’s decision, however, continues the shift

that began in Henry v. Purnell, 652 F.3d 524 (4th Cir. 2011) (en banc), where “judge[s]

engage[] in post hoc evaluation of police conduct . . . [and] imagine some alternative

means by which the objectives of the police might have been accomplished.” United

States v. Sharpe, 470 U.S. 675, 686-87 (1985). Here, the majority has transformed a

chaotic series of events that took place in a matter of seconds into a routine police call

whereby, if only the Deputies 1 had acted as the majority would prefer, perhaps David Lee

Hensley might still be alive. While Hensley’s death is a tragedy, tragedy does not equal

liability. When the undisputed facts are judged from the Deputies’ perspective, it

becomes apparent that they did not violate Hensley’s constitutional rights. Moreover,

even assuming otherwise, the district court erred in determining if the Deputies violated

clearly established law. Therefore, I respectfully dissent.



                                              I.

       Just after 6 a.m. on the morning of August 9, 2012, Shirley Ferguson, Hensley’s

mother-in-law, called 911 to report a possible domestic disturbance at Hensley’s home.

Hensley had been agitated overnight, telling his daughter Rachelle that they were the only

       1
         Like the majority, I refer collectively to Lieutenant Michael Price and Deputy David
Beasley as “the Deputies.”


                                             24
people left on Earth and asking Rachelle to call his wife and have her come home from

work. Hensley also indicated that he wanted to die. When Shirley called to check on

Rachelle, Hensley answered and told her he was “going to kill GDB [sic] with a knife”

before slamming the phone down. Hensley’s behavior during the phone call prompted

Shirley’s 911 call.

       Two Haywood County Sheriff’s Deputies, Lieutenant Michael Price and Deputy

Keith Beasley, responded to the call. As relayed to the Deputies, the call was a civil

disturbance involving a person possibly under the influence of drugs: the subject was on

his porch yelling and screaming at someone inside his house. The Deputies drove

separate marked vehicles to the residence. As they approached Hensley’s home, an

elderly man flagged down Lieutenant Price to tell him that Hensley had kept the

neighborhood up all night. The dispatcher also called the Deputies to provide an update:

Shirley had called 911 a second time and indicated that Hensley may have hurt her

granddaughters. As they approached Hensley’s residence, Lieutenant Price was the lead

car. Lieutenant Price, however, missed the turn for Hensley’s driveway; Deputy Beasley

thus pulled in first and began proceeding down the driveway.

       Inside the house, Hensley saw the police cars approaching, ran into his bedroom,

and reached under his mattress to retrieve the key to his gun safe. He then opened the safe

and removed a long-nose revolver. Rachelle and her sister, H.H., attempted to stop




                                            25
Hensley, but were unable to do so. All three then exited the house onto the front porch

and saw the two police cars in their driveway. 2

       Lieutenant Price and Deputy Beasley were stopped in front of the residence as

Hensley and his daughters spilled out onto the porch. Hensley was openly carrying the

gun as he exited the house, and both Deputies saw him with the weapon. In response to

seeing Hensley with a gun, Deputy Beasley immediately threw himself down across his

front seat and put his car in reverse. Because, however, Deputy Beasley could not be sure

of Lieutenant Price’s location and was concerned about injuring Lieutenant Price, he put

his car back into park and remained in a position of cover lying across the front seat.

Lieutenant Price radioed, “It’s a gun! Gotta gun!” and backed his car further up the

driveway. (J.A. 633). Lieutenant Price then exited his vehicle taking a “low ready”

position.

       At that point, Hensley and Rachelle briefly wrestled for the gun. Hensley won the

struggle and struck Rachelle in the back of the head with the gun. Rachelle and H.H.

screamed for help from the Deputies, but neither officer issued a verbal command or

approached the house. 3 After striking Rachelle with the gun, Hensley let go of her and

proceeded down the porch steps. Rachelle testified that, while she did not see Hensley

drop the gun, she lost sight of the gun as he left the porch. H.H. testified that the gun was

       2
          There is no dispute that Hensley knew the vehicles were police cars.
       3
           Lieutenant Price testified that he did not issue a command because events were
unfolding “so fast” and he found that he “couldn’t say nothing” because he was so frightened by
the situation. (J.A. 546). It is difficult to imagine a trained officer being that scared if he did not
perceive that he was facing an extremely dangerous situation. Deputy Beasley was still lying
down in the front seat of his car and did not see Hensley’s altercation with Rachelle.


                                                  26
not in Hensley’s right hand, but that she could not see his left hand. She also testified that

his hands remained by his side as he left the porch. Before Hensley stepped off the porch,

he turned to tell H.H. that he loved her.

       Hensley left the porch and stepped into the front yard before veering off and

walking directly toward Deputy Beasley’s car. As Hensley was leaving the porch, Deputy

Beasley, afraid that he was going to be trapped in his car, kicked open his vehicle door,

exited the vehicle, and began quickly moving to a defensive position at the back of his

car further away from the oncoming Hensley. Deputy Beasley saw that Hensley, who was

about 30 feet away, was walking toward him with the gun in his hand. Deputy Beasley

fired three shots as he continued moving away from the perceived threat. At roughly the

same time, Lieutenant Price, concerned that Deputy Beasley was pinned inside his

vehicle, fired two shots at Hensley as Hensley headed toward Deputy Beasley’s car. 4

Hensley was killed by a single bullet to the head.

       North Carolina State Bureau of Investigation Agents recovered a long-nosed

revolver, which matched the description of the gun given by the Deputies, from

underneath Hensley’s body. Following an investigation, no charges were brought against

Lieutenant Price or Deputy Beasley. The audio log of the patrol cars’ communications




       4
          The Deputies both testified that Hensley was aiming the weapon at Deputy Beasley and
attempted to cock or fan the hammer on the revolver at the time they decided to shoot. While this
information provides fuller context to the Deputies’ testimony, for purposes of our review, we
accept the district court’s crediting of H.H. and Rachelle’s testimony that Hensley’s hands were
at his sides at the time of the shooting.


                                               27
shows that less than fifteen seconds elapsed from the time Lieutenant Price stated, “It’s a

gun! Gotta gun!” to the time shots were fired. (J.A. 633).

       Hensley’s family (the Plaintiffs) filed this civil action, raising a variety of state and

federal claims, including a 42 U.S.C. § 1983 claim for excessive force. Following

discovery, the Deputies moved for summary judgment, arguing that they were entitled to

qualified immunity. The district court denied the motion. Hensley v. Suttles, 167

F.Supp.3d 753 (W.D.N.C. 2016). The court explained that, accepting the Plaintiffs’

version of events, Hensley was holding the gun at his side as he exited the porch and

began walking toward the Deputies and that, “[i]f the defendant did not point his gun at

Beasley as he made his way across the front yard, as Plaintiffs’ forecast of evidence

shows, then no reasonable officer could have objectively concluded that the decedent was

a danger to the deputies’ lives or safety warranting the use of deadly force.” Id. at 763.

Given this conclusion, the court then determined that “both prongs of the qualified

immunity analysis are satisfied” because “(1) Defendants violated decedent’s

constitutional rights when they unlawfully seized him . . . through the use of excessive

force, and (2) it was clearly established at the time that the deputies could not seize the

decedent in the manner in which they did.” Id. at 764. The Deputies timely appealed.




                                              28
                                             II.

       I would reverse. 5 On these facts, summary judgment is appropriate for the

Deputies on the § 1983 claim because they did not violate Hensley’s constitutional rights.

“We review de novo a district court’s denial of summary judgment and qualified

immunity, construing all facts in the light most favorable to the nonmovant.” Orem v.

Rephann, 523 F.3d 442, 445 (4th Cir. 2008). For appeals involving qualified immunity,

we accept the facts as stated by the district court and determine “whether, based on those

facts, a reasonable person in the defendant’s position could have believed that he or she

was acting in conformity with the clearly established law at the time.” Gray–Hopkins v.

Prince George’s Cty., 309 F.3d 224, 229 (4th Cir. 2002). “In reviewing a district court’s

decision rejecting a defendant’s assertion of qualified immunity, we apply the analysis set

forth by the Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001), as modified by the

Court’s later decision in Pearson[v. Callahan, 555 U.S. 223 (2009)].” Danser v.

Stansberry, 772 F.3d 340, 346 (4th Cir. 2014). Pursuant to Saucier and Pearson, we ask

whether the Deputies violated Hensley’s constitutional rights and, if so, “whether the

right at issue was ‘clearly established’ at the time of the events in question.” Id. We may

use our “discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first.” Pearson, 555 U.S. at 236.




       5
          In light of my conclusion that the Deputies are entitled to summary judgment on the
excessive force claim, I would also reverse on the two state law claims addressed by the
majority.


                                             29
       “Qualified immunity protects officers who commit constitutional violations but

who, in light of clearly established law, could reasonably believe that their actions were

lawful.” Henry, 652 F.3d at 531. When asking if a right is clearly established at the time

of the constitutional violation, we do not ask “whether the right allegedly violated was

established ‘as a broad general proposition’ but whether ‘it would be clear to a reasonable

official that his conduct was unlawful in the situation he confronted.’” Raub v. Campbell,

785 F.3d 876, 882 (4th Cir. 2015) (quoting Saucier, 533 U.S. at 201–202). The Supreme

Court recently reiterated that:

       While this Court’s case law “do[es] not require a case directly on point” for
       a right to be clearly established, “existing precedent must have placed the
       statutory or constitutional question beyond debate.” Mullenix v. Luna, 136
       S.Ct. 305, 308 (2016). In other words, immunity protects “all but the
       plainly incompetent or those who knowingly violate the law.” Id.

White v. Pauly, 137 S.Ct. 548, 551 (2017) (emphasis added).

       Here, the Plaintiffs allege that the Deputies used excessive force. Excessive force

claims “should be analyzed under the Fourth Amendment and its ‘reasonableness’

standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). The standard is objective,

asking if a reasonable officer in the same circumstances would have concluded that the

existent threat justified the use of force. Id. at 397. A police officer may use deadly force

when the officer 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, 11,

(1985).

       In applying this standard, “[t]he ‘reasonableness’ of a particular use of force must

be judged from the perspective of a reasonable officer on the scene, rather than with the

                                             30
20/20 vision of hindsight.” Graham, 490 U.S. at 396. A reviewing court must make

“allowance for the fact that police officers are often forced to make split-second

judgments [here, certainly so]—in circumstances that are tense, uncertain, and rapidly

evolving.” Id. at 397. “The court’s focus should be on the circumstances at the moment

force was used and on the fact that officers on the beat are not often afforded the luxury

of armchair reflection.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996).

                                                  A.

       Judging the facts from the perspective of a reasonable officer on the scene, the

Deputies did not violate Hensley’s constitutional rights by using deadly force. The

Deputies were responding to a domestic disturbance call, one that turned out to be

extreme even for that category of calls because it involved an armed individual acting

irrationally who used force against what appeared to be a close family member in the

presence of the police. “[T]he volatility of situations involving domestic violence makes

them particularly dangerous. When officers respond to a domestic abuse call, they

understand that violence may be lurking and explode with little warning. Indeed, more

officers are killed or injured on domestic violence calls than on any other type of call.”

Mattos v. Agarano, 661 F.3d 433, 450 (9th Cir. 2011) (en banc) (internal quotation marks

omitted). While driving to Hensley’s residence, the Deputies learned that Shirley had

called 911 again to express concern for the safety of her grandchildren. In addition, a

neighborhood resident stopped Lieutenant Price to tell him that Hensley had been

keeping the neighborhood up the entire night. Thus, a reasonable officer would have



                                             31
known they were approaching a highly volatile situation with an agitated individual and

several potential victims.

       Upon arriving at Hensley’s residence, the Deputies were met by Hensley coming

onto the porch openly carrying and displaying a gun. In response to the police presence,

rather than attempting to diffuse the situation, Hensley began wrestling with his daughter

for control of the gun before striking her in the head with it. At that moment the violence

officers fear is lurking at every domestic disturbance call manifested itself before them.

Hensley then moved his daughter aside, stepped off the porch, and began walking toward

Deputy Beasley’s patrol car, closing to within 30 feet. 6

       Less than fifteen seconds elapsed from the time the officers pulled into the

driveway until the time the shots were fired. During that time, both officers took

defensive positions and postures—like Deputy Beasley throwing himself down on his

front seat—that were consistent with their belief that they were seriously under threat and

afraid for their lives. A reasonable officer would have believed that Deputy Beasley was

under imminent threat of serious physical harm: Hensley began a continuous pattern of

aggressive and threatening behavior from the moment the officers arrived and was within

30 feet of Deputy Beasley and armed with a gun—with no suggestion that he was




       6
         Incredibly, the majority views Hensley’s discarding of Rachelle after hitting her and
walking toward Deputy Beasley’s patrol car as ending the threat. At this point, a reasonable
officer would have perceived Hensley’s actions as escalation not diminution: an armed Hensley
who had already committed an assault in the Deputies’ presence was heading directly toward a
physical encounter with the police.


                                             32
slowing down or attempting to communicate with the Deputies—at the time the Deputies

fired. 7

           Cooper v. Sheehan, 735 F.3d 153 (4th Cir. 2013), which the majority relies upon,

does not require a different result. In fact, properly read, Cooper supports summary

judgment for the Deputies. Our holding in Cooper rested in part on the fact that Cooper

never knew the people on his property were police officers. We noted that, if the officers

had made their presence known, a fact undisputed in this case, that “they might have been

safe in the assumption that a man who greets law enforcement with a firearm is likely to

pose a deadly threat.” Id. at 159. Thus, Cooper supports the Deputies here: they arrived in

marked cars that Hensley identified and Hensley responded to their presence by

immediately retrieving a gun and coming outside to confront them. Once free of

Rachelle, Hensley advanced off the porch and toward Deputy Beasley’s marked police

car while carrying a gun. Under these facts, the Deputies were “safe in the assumption”

that Hensley “pose[d] a deadly threat.” Id. See also Elliott, 99 F.3d at 644 (“No citizen

can fairly expect to draw a gun on police without risking tragic consequences.”).

           Viewed without 20/20 hindsight, this case falls within the heartland of cases in

which we have consistently granted summary judgment to police officers using deadly

force. See, e.g., Anderson v. Russell, 247 F.3d 125, 131 (4th Cir. 2001) (“This Circuit has
           7
          The majority makes much of the fact that the Deputies did not warn Hensley before
firing. Garner provides that, in determining whether deadly force is permissible courts should
consider if it was feasible to give a warning. 471 U.S. at 12. As the majority recounts, a warning
is not feasible where “the hesitation involved in giving a warning could readily cause such a
warning to be” the Deputies’ last. McLenagan v. Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994).
Given the imminent threat to Deputy Beasley, a reasonable officer would not have believed a
warning was necessarily feasible.


                                               33
consistently held that an officer does not have to wait until a gun is pointed at the officer

before the officer is entitled to take action.”). See also Sigman v. Chapel Hill, 161 F.3d

782, 787-88 (1998) (no constitutional violation for lethal force against suspect who may

or may not have had a knife in his hand when suspect had earlier displayed and attacked

with the knife). Rather than making “allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances that are tense, uncertain, and

rapidly evolving,” Graham, 490 U.S. at 397, the majority has instead engaged in the type

of “armchair reflection,” we used to decry, Elliott, 99 F.3d at 642. At the time Hensley

descended the stairs and advanced, Deputy Beasley was trapped in his car and Lieutenant

Price had already witnessed Hensley use the gun as a weapon against Rachelle. There

was every reason to believe that Deputy Beasley was in imminent threat.

                                             B.

       After erroneously concluding that the Deputies violated Hensley’s right to be free

from excessive force, the majority avoids ruling upon whether they are entitled to

qualified immunity, instead finding that the Deputies waived the issue.

                                             1.

       To begin, I disagree with the majority’s assertion that the Deputies waived the

argument that their actions did not violate any clearly established rights. Although the

Deputies could have been more precise, in their brief they note that “the Court must

determine two issues: 1) did the Defendants violate Hensley’s constitutional rights; and

2) if so, was it clearly established at the time that the Defendants [sic] conduct was



                                             34
unconstitutional,” Appellant’s Br. at 14, and that “[b]oth questions must be answered yes

for the Plaintiffs to proceed,” Appellant’s Br. at 15.

       In addition, the history of this case before our court indicates the Deputies did not

waive their argument. After the Deputies filed their opening brief, the Appellees moved

to dismiss the appeal as interlocutory. The Appellees did not argue that the Deputies had

waived step two, but that the Deputies were arguing about fact disputes instead of legal

questions. In responding to the motion, the Deputies again made clear that “[a]s argued in

their Brief, even viewing the facts in the light most favorable to the Appellees, the

Defendant Officers did not violate any constitutional right and even if they did, it was not

clearly established at the time.” Appellant’s Response at 4, ECF No. 35 (emphasis

added). With the benefit of that explanation, a panel of this court denied the motion to

dismiss.

       Finally, the Deputies timely filed a letter under Federal Rule of Appellate

Procedure 28(j) after the Supreme Court issued its decision in White v. Pauly, 137 S.Ct.

548 (2017). In the 28(j) letter, the Deputies explained:

       White is relevant as plaintiff has failed to point to ‘clearly established law’
       that was violated, with a factually similar case. Plaintiff relies on Pena v.
       Porter which describes very different circumstances – the officers were
       looking for a suspect that was not Pena, went to Pena’s home in the middle
       of the night and saw him sleeping; he came to the door in response to
       knocks, holding a shotgun, and they immediately shot and killed him. The
       officers did not receive a 911 call regarding Pena, witness him hit his
       daughter in the head with a gun and advance on officers with a gun.

Appellant’s Supplemental Authorities at 1, ECF No. 37.




                                              35
       These actions sufficiently put the issue of whether the right was clearly established

before this court. The majority concludes otherwise, and then, hoping to avoid the

practical problem that the Deputies could raise qualified immunity again immediately on

remand and file another interlocutory appeal, see Behrens v. Pelletier, 516 U.S. 299

(1996) (holding that defendant may bring more than one interlocutory appeal based on

qualified immunity), proclaims that the mandate rule precludes the Deputies from raising

step two again until “an appropriate time at trial,” because the mandate rule “‘restricts the

district court’s authority’ to reconsider that issue in a summary judgment proceeding.”

Majority Op. at 11 n.5 (quoting Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007)). I do not

believe the mandate rule operates to restrict the Deputies from raising qualified immunity

again immediately on remand, but, to the extent the majority holds otherwise, I agree that

the Deputies can (and should) pursue qualified immunity at trial.

       Moreover, even if the Deputies did waive the argument that the law was not

clearly established, I would still reach the issue. The majority speaks of waiver in

absolute terms but, because waiver is judicially created, “we possess the discretion under

appropriate circumstances to disregard the parties’ inattention.” United States v. Holness,

706 F.3d 579, 592 (4th Cir. 2013). Factors we examine in determining whether to use this

discretion include whether the record is sufficiently developed to permit us to examine

the issue and whether addressing the issue would “enhanc[e] the efficiency of the

decisionmaking process” and conserve “judicial resources.” Id. Although we have never

decided if a “party may truly waive waiver,” we have used our discretion to excuse a

“supposed waiver” when the waiver argument is raised in an untimely fashion. United

                                             36
States v. Ashford, 718 F.3d 377, 380 (4th Cir. 2013) (internal quotation marks and

alterations omitted). After all, “waiver must be a two-way street.” Id. at 381. Here, the

Plaintiffs have not argued that the Deputies waived step two, the summary judgment

record is adequate to decide the issue, and a ruling would streamline proceedings by, as

explained below, correcting the district court’s erroneous recitation and application of the

qualified immunity standard.

       To be clear, the majority is sua sponte concluding that the Deputies waived this

argument. The Plaintiffs did not raise waiver in their brief. To the contrary, their brief at

several points discusses whether Hensley’s right was clearly established. See, e.g.,

Appellees’ Br. at 18 (“An objectively reasonable officer should know that shooting a man

who was carrying a gun pointing down to the ground on his own property, in a State with

open-carry laws, and not raising it in a threatening manner violates the Fourth

Amendment. The second prong of the qualified immunity analysis requires the Court to

examine whether [the Deputies] violated a clearly established right.”).

       In my view, the Plaintiffs waived the Deputies’ alleged waiver “by addressing the

claim on the merits without also making a waiver argument.” Norwood v. Vance, 591

F.3d 1062, 1068 (9th Cir. 2010). Instead of reaching this common sense conclusion, the

majority is choosing to affirm “on a ground that neither” party “had any reason to believe

might dispose” of the Deputies’ qualified immunity argument, Rohan v. Networks

Presentations LLC, 375 F.3d 266, 288 (4th Cir. 2004) (Shedd, J., dissenting). Their

actions represent the harshest use of the waiver rule I can remember during my time on

the court.

                                             37
                                             2.

       The majority’s faulty waiver ruling is made more troubling by the simple fact that

the district court, in my view, erred in analyzing whether the right at issue was clearly

established. The court accepted Garner as the clearly established law and then collapsed

qualified immunity’s two steps:

       The Plaintiffs asserts [sic] that the Defendants’ alleged harmful conduct—
       Price and Beasley’s unreasonable use of deadly force to ‘seize’ the
       decedent—was conduct clearly proscribed by the Constitution. While a
       police officer’s interaction with a person may or may not ultimately lead to
       the person’s seizure in a constitutional sense, “there can be no question that
       apprehension by the use of deadly force is a seizure subject to the
       reasonableness requirement of the Fourth Amendment.” Tennessee v.
       Garner, 471 U.S. 1, 7 (1985). Therefore, if the forecast of evidence would
       support a jury finding that the deputies’ use of deadly force was
       unreasonable, then both prongs of the pertinent test have been met.

Hensley, 167 F.Supp.3d at 761-62 (emphasis added).

       In other words, the court found that the Plaintiffs only had to prove that the

Deputies used excessive force, because the prohibition against using excessive force is

clearly established. The Supreme Court has consistently explained the error in this

approach:

       We have repeatedly told courts not to define clearly established law at a
       high level of generality. The dispositive question is whether the violative
       nature of particular conduct is clearly established. This inquiry must be
       undertaken in light of the specific context of the case, not as a broad general
       proposition. Such specificity is especially important in the Fourth
       Amendment context, where the Court has recognized that it is sometimes
       difficult for an officer to determine how the relevant legal doctrine, here
       excessive force, will apply to the factual situation the officer confronts.

Mullenix, 136 S.Ct. at 308 (internal alterations, citations, and quotation marks omitted).



                                             38
       More recently, again in the context of deadly force, the White Court explained that

“we have held that Garner and Graham do not by themselves create clearly established

law outside an obvious case.” White, 137 S.Ct. at 552 (internal quotation marks omitted).

This case is simply not an “obvious” case where Garner and Graham apply and,

accordingly, the district court committed error in so holding. 8 As a result of the

majority’s determination of the mandate, that error is now crystalized in the case.



                                              III.

       “The public interest . . . includes the substantial public concern for the safety of

police officers lawfully carrying out the law enforcement effort.” United States v. Sakyi,

160 F.3d 164, 167 (4th Cir. 1998). Today, this court takes yet another step in minimizing

that concern and continues its “significant departure from the precedent of this Court and

the Supreme Court.” Henry, 652 F.3d at 553 (Shedd, Circuit Judge, dissenting).

Collectively, our jurisprudence continues to raise the specter of a chilling effect on police

conduct, “prompting law enforcement officers to choose inaction in order to avoid risking

personal liability.” Id. Before today, when confronted by an armed person who had just

committed a violent crime and was advancing towards them, an officer was entitled to

believe that they were under imminent threat. Now, however, under the majority’s rule,

unless and until the officer has either issued a warning or waited for the armed individual

       8
          Apart from Garner and Graham, the district court pointed only to an unpublished
disposition, Pena v. Porter, 316 Fed. App’x 303 (4th Cir. 2009). The majority adds, and
misreads, Cooper, but that case was decided after the events here and cannot provide the clearly
established law the Court requires.


                                              39
to aim his weapon, further compounding the risk of officer harm, the officers must pause

before taking action or face § 1983 liability. Because neither caselaw from our Court nor

the Supreme Court supports § 1983 liability in such circumstances, I dissent. 9




       9
         Although I understand that police confrontations are under increased scrutiny, and a
new framework to assess proper officer conduct could evolve from this scrutiny, we are bound
by the law as currently propounded by the Supreme Court.


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