                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-1353


RAINA CONNOR,    Administratrix    of   the   Estate   of   Adam   Wade
Carter,

                 Plaintiff - Appellee,

           v.

TAVARES THOMPSON, in his official and individual capacities;
WAKE COUNTY SHERIFF DONNIE HARRISON, in his official and
individual capacities; THE OHIO CASUALTY INSURANCE COMPANY,

                 Defendants – Appellants,

           and

XYZ CORPORATION, in its capacity as Surety on the official
bond of the Sheriff of Wake County; JOHN AND JANE DOES 1-10,
individually and in their official capacities as Deputy
Sheriffs of Wake County; WAKE COUNTY; ASHLEY STEINBERGER;
KELLY MITCHELL,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
Senior District Judge. (5:12-cv-00701-H)


Argued:   January 26, 2016                        Decided:     May 2, 2016


Before AGEE and THACKER, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.


ARGUED: James Nicholas Ellis, POYNER SPRUILL LLP, Raleigh, North
Carolina, for Appellants. Huntington MacCallum Willis, MARTIN &
JONES, PLLC, Raleigh, North Carolina, for Appellee.    ON BRIEF:
Caroline P. Mackie, POYNER SPRUILL LLP, Raleigh, North Carolina;
Roger A. Askew, Jennifer McGuire Jones, WAKE COUNTY ATTORNEY’S
OFFICE, Raleigh, North Carolina, for Appellants.        Hoyt G.
Tessener, G. Christopher Olson, MARTIN & JONES, PLLC, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Todd McElfresh called 911 to request help transporting

his nephew, Adam Carter, to a local psychiatric hospital because

Carter was threatening to kill himself.                 Tavares Thompson, a

Wake County, North Carolina, Sheriff’s Deputy, was the first to

respond.      When   Thompson    encountered     Carter,       the   latter   was

holding what appeared to be a paring knife.                     Thompson, upon

seeing the knife, instructed Carter to drop it.                      When Carter

failed to comply, Thompson fired his gun twice.                      Both shots

struck Carter, resulting in his death.

            Raina Connor, 1 acting as the administratrix of Carter’s

estate, (“Appellee”) subsequently sued Thompson, along with Wake

County Sheriff Donnie Harrison and the Ohio Casualty Insurance

Company     (collectively,    “Appellants”). 2          Appellee’s      complaint

alleges,     inter   alia,      that    Thompson’s       actions       constitute

excessive    force   and   assault     and   battery,    and    that    the   Wake

County     Sheriff   failed     to     provide   adequate        training     and


     1 Appellee’s name is spelled “Conner” in the third amended
complaint below, and that spelling has been used by the parties
in numerous documents submitted to both the district court and
this court.   But her name appears as “Connor” in the initial
complaint and on the district court’s and this court’s dockets.
It is unclear which version of Appellee’s name is a misspelling,
so we use the spelling consistent with the docketing notice that
initiated this appeal.
     2 The complaint also names a number of additional defendants
who do not join in this appeal.



                                       3
supervision to its employees and is liable for Carter’s death

pursuant      to       Monell   v.     New    York     City      Department       of    Social

Services,      436      U.S.    658    (1978).            The    district    court      denied

Appellants’ motion for summary judgment on each of these claims,

and Appellants filed this appeal in response.                           We affirm in part

and dismiss in part.

                                               I.

                                               A.

              On February 11, 2012, Adam Carter was living with his

uncle, Todd McElfresh, in Raleigh, North Carolina, along with a

third roommate, Tom Boykin.                  When McElfresh and Boykin woke that

morning,      they      found   Carter       drunk    and       suicidal.        Carter,   who

struggled      with      alcoholism,         indicated      that    he    was    willing    to

speak    to        a    doctor.          Carter       told        his    uncle      that    he

“need[ed] . . . help,” J.A. 574, 3 and later asked McElfresh to

“[c]all Holly Hill,” id. at 586, which is a psychiatric hospital

in Raleigh.        McElfresh made the call, but nobody answered.

              McElfresh then called a friend, who, after listening

to an explanation of Carter’s situation, advised McElfresh to

call    911.           McElfresh      did    get     an    answer       there,    and   after




         3Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.



                                               4
emergency responders were en route, the dispatcher stayed on the

line and tried to talk Carter out of attempting suicide.

           The     efforts     were   not      entirely      successful.        After

speaking to the dispatcher for a few minutes, Carter handed the

phone    back    to   McElfresh,      and     walked   to     the   kitchen.       He

retrieved a paring knife and attempted, unsuccessfully, to cut

his wrist while Boykin tried to talk him out of it.

            Deputy Thompson arrived shortly thereafter.                       He met

McElfresh outside the house and followed him into an entrance

foyer.    McElfresh then proceeded alone up a four-step stairwell

leading to the living room where Carter was waiting.                        McElfresh

told Carter that his ride had arrived, and both men started

downstairs      toward   the    foyer.        Carter   was    still   holding     the

paring knife he had used to try to cut his wrist.

            Thompson saw the knife when Carter was about halfway

down the four stairs.          He drew his gun and told Carter to drop

the knife.      The command was repeated several times, by Thompson

as well as McElfresh and Boykin, but Carter did not comply.

When Carter reached the bottom of the stairs, Thompson fired

twice, killing him.

                                         B.

           Aside      from     this   general     description,        the     parties

dispute what exactly happened between the time Thompson saw the

knife and the time he fired his weapon.                      The district court

                                         5
properly recognized that, at the summary judgment stage, all

disputes of material fact must be resolved in favor of Appellee,

the non-moving party.    Given the posture of this appeal, we must

accept, 4   and   therefore   incorporate,   the   district   court’s

characterization of the disputed facts:

            [T]he details of the brief time (mere
            second[s]    to   minutes)    between    Deputy
            Thompson entering the residence and the
            firing of his weapon[] are disputed. . . .
            Chief among the disputes are (1) exactly
            where   Deputy  Thompson    was   standing   in
            relation to the front door (whether back
            against a wall or directly in front of the
            door); (2) the position of the knife during
            Carter’s descent on the stairs (whether he
            changed hands, raised the knife, etc.); and,
            (3) Carter’s speed and agility in descending
            the stairs (whether falling down drunk or
            lunging at the deputy).       However, viewing
            the evidence in the light most favorable to
            the non-moving party, here the plaintiff,
            the     court      notes     the      following
            evidence: Thompson testified that he saw
            Carter with the knife in his hand while
            Carter was on the second step and while
            Thompson had just crossed the threshold of
            the front door.      The front door remained
            opened at all times.     The knife Carter had
            in his hand was a small paring knife.
            Carter slowly staggered down two steps while
            holding on to the wall to support himself.
            McElfresh testified that Carter never rushed
            toward Thompson or made any aggressive moves
            or steps.

Conner ex rel. Carter v. Wake Cty., No. 5:12-cv-701, 2015 WL

1125065, at *2 (E.D.N.C. Mar. 12, 2015).

     4   See infra Part III.A.



                                  6
                                             C.

            Based on the foregoing, Appellee sued Appellants, on

October 25, 2012, in the United States District Court for the

Eastern District of North Carolina.                      Appellee’s Third Amended

Complaint    asserts      in     relevant         part    causes    of    action    for

excessive force, inadequate training and supervision, and Monell

liability pursuant to 42 U.S.C. § 1983, as well as assault and

battery pursuant to North Carolina state law.

            On    May     30,    2014,        Appellants        moved    for    summary

judgment.    The district court denied the motion with respect to

each claim at issue in this appeal.                   It found “substantial fact

questions    in   dispute       which        preclude     the    entry    of   summary

judgment as to the excessive force claim.”                         Conner, 2015 WL

1125065, at *3.         It further reasoned, “[a]s summary judgment on

the   excessive    force       claim    is       precluded   because      of   disputed

facts, so also is a decision on qualified immunity at this stage

of the litigation,” id., and the court went on to deny summary

judgment    on    the    Monell    liability,            inadequate      training   and

supervision, and assault and battery claims as well.                        Appellants

timely appealed.

                                         II.

            “We review de novo a district court’s decision to deny

a summary judgment motion asserting qualified immunity.                        Summary

judgment is appropriate ‘if the movant shows that there is no

                                             7
genuine       dispute    as   to    any   material            fact    and    the    movant   is

entitled to judgment as a matter of law.’”                             Smith v. Ray, 781

F.3d 95, 100 (4th Cir. 2015) (citation omitted) (quoting Fed. R.

Civ. P. 56(a)).           “In reviewing [a] district court’s decision

denying qualified immunity, we generally accept the facts as the

court viewed them.”              Danser v. Stansberry, 772 F.3d 340, 345

(4th Cir. 2014).

                                          III.

                                             A.

               “[W]e    first      satisfy     ourselves         of    our       jurisdiction”

before proceeding to decide this case.                          Cooper v. Sheehan, 735

F.3d 153, 157 (4th Cir. 2013).                     Appellee has argued that we are

without       jurisdiction         because     this       appeal       turns       solely    on

disputes of fact.         We disagree with that characterization.

               “[D]enial of a claim of qualified immunity, to the

extent that it turns on an issue of law, is an appealable ‘final

decision’       within    the      meaning         of    28     U.S.C.      § 1291 . . . .”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).                                   On the other

hand,     a    “District        Court’s      determination            that       the   summary

judgment record . . . raised a genuine issue of fact . . . [i]s

not a final decision.”                Johnson v. Jones, 515 U.S. 304, 313

(1995)    (internal       quotation       marks         omitted).           In   combination,

these    two     rules    allow      us   to       review       the    legal       conclusions

underlying a district court’s denial of qualified immunity in an

                                               8
interlocutory      appeal       but      do   not    permit      us   to    reconsider     any

“determin[ation] . . . of . . . which facts a party may, or may

not, be able to prove at trial.”                    Id.    “In other words, . . . we

have jurisdiction over a claim that there was no violation of

clearly    established         law       accepting       the    facts   as    the   district

court viewed them.”             Winfield v. Bass, 106 F.3d 525, 530 (4th

Cir. 1997) (en banc).

            For     this       reason,        we    do    not     consider        Appellants’

assertions that Carter had his knife extended in a thrusting

position or that Deputy Thompson had his back to a wall at the

time of the shooting.               The district court identified both issues

as disputed, writing, “Chief among the [factual] disputes are

(1) exactly where Deputy Thompson was standing in relation to

the [open] front door . . . [and] (2) the position of the knife

during Carter’s descent on the stairs.”                           Conner ex rel. Carter

v. Wake Cty., No. 5:12-cv-701, 2015 WL 1125065, at *2 (E.D.N.C.

Mar. 12,    2015).            The   district        court’s      articulation       of   these

disputes in the light most favorable to the Appellee -- that

Carter never raised the knife or “made any aggressive moves” and

that   “Thompson        had    just      crossed     the       threshold     of    the   front

door[,] [which] remained opened at all times,” id. -- binds us.

            Nonetheless,             the      appeal       need       not    be     dismissed

outright.         The    crux       of     Appellants’         argument      is   the    legal

contention that Thompson is entitled to qualified immunity on

                                               9
any view of the factual record -- including the view adopted by

the district court.              Resolving that contention is within our

jurisdiction, and occasional reference to alternative views of

the facts does not strip the jurisdictionally appropriate claim

from the case.            See Cooper, 735 F.3d at 158 (“Although the

Officers       mention    evidence     that       they    believe     will    ultimately

disprove Cooper’s version of the facts, for purposes of this

appeal they have accepted the facts as viewed by the district

court.     Proceeding from that foundation, the Officers make the

legal     argument        that     they      did        not     contravene         Cooper’s

constitutional rights.            In these circumstances, we are satisfied

of       our      jurisdiction          under            the      collateral             order

doctrine . . . .”).

               Accordingly,      we   proceed      to     resolve    the     question       of

whether    the    facts,    as    viewed     by    the     district    court,       entitle

Thompson to qualified immunity.                After doing so, we will address

whether    our    jurisdiction        extends      to     the    remaining    issues       on

appeal.

                                           B.

               We turn, then, to Appellants’ primary contention --

that     Thompson    is     entitled      to      qualified       immunity        from    the

excessive force claim raised in this case.

               “Qualified     immunity         protects         officers     who     commit

constitutional       violations        but        who,     in     light      of     clearly

                                           10
established   law,   could   reasonably   believe   that   their   actions

were lawful.”     Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

2011) (en banc).      A “qualified immunity analysis,” therefore,

“typically involves two inquiries: (1) whether the plaintiff has

established the violation of a constitutional right, and (2)

whether that right was clearly established at the time of the

alleged violation.”     Raub v. Campbell, 785 F.3d 876, 881 (4th

Cir. 2015).     We consider each inquiry in turn, beginning with

the question whether Appellee could establish before a trier of

fact that Thompson used unconstitutionally excessive force when

he shot Carter.

                                   1.

          A “claim that law enforcement officials used excessive

force in the course of making an arrest, investigatory stop, or

other ‘seizure’ of [a] person” is “properly analyzed under the

Fourth Amendment’s ‘objective reasonableness’ standard.”           Graham

v. Connor, 490 U.S. 386, 388 (1989).        Consequently, we evaluate

the facts “from the perspective of a reasonable officer on the

scene, and the use of hindsight must be avoided.           Additionally,

the reasonableness of the officer’s actions . . . [must be]

determined based on the information possessed by the officer at

the moment that force is employed.”          Waterman v. Batton, 393

F.3d 471, 477 (4th Cir. 2005) (citations omitted).



                                   11
            The    objective        reasonableness         standard      “requires     a

careful balancing of the nature and quality of the intrusion on

the     individual’s       Fourth        Amendment       interests      against      the

countervailing governmental interests at stake.”                        Smith v. Ray,

781 F.3d 95, 101 (4th Cir. 2015) (quoting Graham, 490 U.S. at

396).      To perform this balancing, we look to “the facts and

circumstances of each particular case,” with an eye toward three

factors:    “the       severity    of    the    crime    at    issue,    whether     the

suspect poses an immediate threat to the safety of the officers

or    others,    and    whether     he    is    actively      resisting    arrest     or

attempting to evade arrest by flight.”                  Graham, 490 U.S. at 396.

            In this case, Thompson deployed deadly force, which

requires that a particular governmental interest be at stake to

satisfy    our     balancing       test.        Because       “[t]he    intrusiveness

of . . . deadly force is unmatched,” it may only be used when an

“officer has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the

officer or others.”            Tennessee v. Garner, 471 U.S. 1, 3, 9

(1985).

            Our task, then, is to determine whether the facts and

circumstances      found     by     the     district       court     establish     this

requisite probable cause.           We hold that they do not.

            The    first     and    third       Graham    factors      plainly    favor

Appellee here.          Neither provides a basis on which a reasonable

                                           12
officer could conclude that Carter posed a threat of death or

serious injury to others.

            As to the first factor, Carter                   had committed no crime

known to Thompson.              His uncle called 911 because Carter was

suicidal and needed help.              “When the subject of a seizure ‘ha[s]

not    committed    any       crime,   this     factor      weighs      heavily          in    [the

subject’s] favor.”             Estate of Armstrong ex rel. Armstrong v.

Vill. of Pinehurst, 810 F.3d 892, 899 (4th Cir. 2015) (quoting

Bailey v. Kennedy, 349 F.3d 731, 743-44 (4th Cir. 2003)).

            As     to    the     third    factor,       nothing         in    the       district

court’s    view    of    the    facts     supports      a   conclusion            that       Carter

intended to flee, nor was he actively resisting arrest.                                      Viewed

in the light most favorable to Appellee, the evidence would show

that    Carter    slowly       staggered       down   the    steps       in       the    general

direction    of    the    Deputy       after    his    uncle      said       to    follow       him

because Carter’s ride to Holly Hill had arrived.                              Such behavior

imparts no indication that would create a governmental interest

in    inflicting    deadly       force.        See    Smith,      781    F.3d       at       102-03

(Where an arrestee “did not strike at [the arresting officer],

attempt to flee the scene, or even turn her back to him,” the

third Graham factor did not authorize use of force.).

            Here,       the    parties’    arguments        center       on       whether       the

second    factor    nonetheless          favored      the   use    of        force,      namely,

whether     Carter’s       actions       are     reasonably        believed             to    have

                                            13
constituted an immediate threat to Thompson or another person.

Viewing      the     record      in    the    light      most    favorable     to     Appellee,

Carter possessed a paring knife, refused to comply with repeated

commands to drop the weapon, and continued down the stairs (and

thus       closer    to    Thompson)         rather      than   stopping.        As    for    the

knife, we have held “the mere possession of a [deadly weapon] by

a suspect is not enough to permit the use of deadly force. . . .

Instead, deadly force may only be used by a police officer when,

based on a reasonable assessment, the officer or another person

is    threatened          with     the    weapon.”         Cooper,      735    F.3d     at    159

(emphasis in original). 5                And while Carter stubbornly maintained

possession          of    his    knife,       the    assumed     circumstances         Thompson

confronted do not establish that Carter threatened anyone with

it.

               For        the      present          inquiry,      the      district         court

appropriately            assumed      that      Carter      never    raised      his     knife,

changed hands, or acted aggressively with it.                           We have held that

holding a weapon in a non-threatening position while “ma[king]

no sudden moves[] . . . fail[s] to support the proposition that

a    reasonable          officer      would    have      had    probable      cause    to    feel

       5
       See also Pena v. Porter, 316 F. App’x 303, 312 (4th                                   Cir.
2009) (“Absent any additional factors which would give                                        the
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.”).



                                                    14
threatened.”          Cooper, 735 F.3d at 159.                      Thompson, moreover, had

been   informed         that      Carter         was       suicidal,         which       could       have

explained the reason for holding the knife.                                    See id. at 160

(concluding          that    where        police          officers        failed     to        identify

themselves       and    had    created           a    “nocturnal        disturbance”            on    the

plaintiff’s property, the plaintiff’s “rationale for bearing a

firearm while investigating [that] disturbance . . . ‘should

have   been      apparent         to      [the       Officers]        at     the     time      of     the

shooting.’” (quoting Pena v. Porter, 316 F. App’x 303, 312 (4th

Cir. 2009))).

             The       district         court        also        assumed     that        Carter       was

“slowly     stagger[ing] . . .                 while       holding      on    to     the       wall    to

support himself.”              Conner, 2015 WL 1125065, at *2.                                 Evidence

that   an       individual          can      barely         walk    contravenes            a     police

officer’s argument that deadly force was necessitated by the

risk that the individual might charge and attack the officer.

See Clem v. Corbeau, 284 F.3d 543, 552 (4th Cir. 2002).

             Viewing          the       district            court’s        assumed         facts       in

totality,       we    fail     to      see     how        they    would     give     a    reasonable

officer     “probable         cause       to     believe         that      [Carter]       pose[d]       a

significant threat of death or serious physical injury to the

officer or others.”            Garner, 471 U.S. at 3.                      Those assumed facts

depict a non-aggressive, partially incapacitated, non-criminal

holding     a    knife       in     his      own          residence       while      providing         no

                                                     15
indication that the knife was about to be used to harm someone

else. 6       Using     deadly       force   against       such    an       individual    is

unconstitutional, and the district court, therefore, did not err

by   denying        Appellants’       motion      for    summary       judgment    on    the

question           whether      Thompson’s         actions        violated        Carter’s

constitutional rights.

                                             2.

              We turn, then, to the second inquiry in our qualified

immunity      analysis:        Was   this    constitutional        violation       clearly

established when it occurred?

              Even     when    state      officials      violate   the       Constitution,

“[t]he doctrine of qualified immunity shields [the] officials

from       civil     liability       so   long     as    their     conduct       does    not

violate clearly              established         statutory        or        constitutional

rights.”       Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per

curiam)       (internal        quotation     marks       omitted).           A   right    is

sufficiently         clearly     established        to    expose       an    official     to

       6
       If this case proceeds to trial, the trier of fact would
not be bound to accept this set of assumed facts as we are.
Accordingly, our conclusion that Thompson’s use of force was
objectively unreasonable and our underlying reasoning -- both of
which are expressly based on a set of facts that the ultimate
trier of fact need not accept -- likewise do not bind that trier
of fact on remand.     See, e.g., Clem, 284 F.3d at 552 (“Of
course, [the plaintiff] ultimately may not be able to prove
these facts, but, if he can, . . . [the defendant officer]
violated [the plaintiff]’s Fourth Amendment right to be free
from excessive police force.”)



                                             16
liability if “every reasonable official would have understood

that    what    he    is    doing        violates       that    right.”         Id.    (quoting

Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).                              “This is not

to   say    that      an    official          action     is     protected      by     qualified

immunity unless the very action in question has previously been

held    unlawful;      but       it    is    to   say   that     in   the     light    of     pre-

existing law the unlawfulness must be apparent.”                                 Anderson v.

Creighton,      483    U.S.       635,      640   (1987)       (citation      omitted).        We

evaluate whether the unlawfulness of a particular violation was

apparent “in light of the specific context of the case, not as a

broad    general       proposition.”               Mullenix,       136    S.     Ct.    at    308

(quoting    Brosseau         v.       Haugen,     543    U.S.    194,    198     (2004)       (per

curiam)).

               In    this    case,          Thompson     confronted       a    suicidal       and

obviously impaired but non-aggressive man who refused to drop a

knife      held       in     a        non-threatening           manner        while     “slowly

stagger[ing]” down stairs.                   Conner, 2015 WL 1125065, at *2.                  The

front door remained open behind Thompson at all times.                                 We think

the unconstitutionality of using deadly force in that specific

context was apparent.

               Three decades ago, the Supreme Court set forth the

requirement         that     police          officers         limit     deadly        force    to

situations where “probable cause to believe that the suspect

poses a significant threat of death or serious physical injury

                                                  17
to the officer or others” exists.                         Garner, 471 U.S. at 3.                  And

we     have    since    held       that    officers          who      commit        a     violation

“manifestly included within” the “core constitutional principle”

announced      in    Garner    are       not    entitled         to    qualified         immunity.

Clem, 284 F.3d at 553 (quoting Buonocore v. Harris, 65 F.3d 347,

357 (4th Cir. 1995)).

               Thompson’s violation fits within that principle.                                    No

reasonable      officer    could         think       that    a     suicidal,        non-criminal

individual holding a small paring knife and otherwise acting in

a nonthreatening manner who had difficulty standing and walking

presents       justification        to     deviate          from      Garner’s          bright-line

proscription.          Garner, therefore, constitutes sufficient notice

to   bar      qualified    immunity        in       this     case.          See     Weinmann       v.

McClone, 787 F.3d 444, 451 (7th Cir. 2015) (holding that Garner

(and Graham) provided adequate clearly established law to guide

an   officer’s       conduct       when    he       encountered         an    armed        suicidal

person “who is neither resisting arrest nor threatening anyone

save himself” even where no circuit precedent was more directly

analogous);      Mercado      v.    City       of    Orlando,         407    F.3d       1152,    1160

(11th Cir. 2005) (Where officers found a suicidal individual

“crying on the floor of his kitchen with a loose cord around his

neck and a kitchen knife placed up to, but not poking into, his

chest,” the decision to use deadly force was “‘so far beyond the

hazy    border      between    excessive            and    acceptable        force        that    the

                                                18
official had to know he was violating the Constitution [based on

Garner and other broadly stated excessive force articulations]

even without caselaw on point.’”                    (alterations omitted) (quoting

Willingham v. Loughnan, 321 F.3d 1299, 1303 (11th Cir. 2003)).

             There       is     also     existing       Fourth          Circuit       precedent

concerning        the     use    of    force        against       an     armed,       but   non-

threatening        individual.              Most     specifically,            we     held   that

officers     who    acted       in    2007    were     not    entitled          to    qualified

immunity after deploying deadly force against an individual who

“stood at the threshold of his home, holding [a] shotgun in one

hand,” but otherwise doing nothing “to support the proposition

that a reasonable officer would have had probable cause to feel

threatened.”            Cooper,       735    F.3d     at     159;       see     id.    at   160.

Accepting     Appellee’s         version      of     events,      Thompson,           acting   in

2012, had no less notice that deadly force was clearly unlawful

when he fired as Carter descended two steps inside his home,

refused to drop a paring knife, but otherwise did nothing to

support     the    conclusion         that   he     posed    an     immediate         threat   to

anyone’s safety.

             As     the       district       court     recognized,            then,     summary

judgment in Thompson’s favor is precluded at both steps of the

qualified immunity analysis.                  The facts, as we must view them

for purposes of summary judgment, would be sufficient to support

a   trier   of     fact’s       finding      that    shooting          Carter      amounted    to

                                              19
excessive force.     Moreover, a reasonable officer would know that

shooting Carter under the circumstances presented by Appellee’s

version of the facts would be unlawful.

                                      C.

            Appellants    challenge    the     district   court’s      summary

judgment decision on two other fronts.           They assert the decision

erroneously withheld summary judgment on the remaining § 1983

claims and further argue North Carolina’s doctrine of public

officers’    immunity    precludes   the   pending   assault    and    battery

claim.     However, our conclusion that Thompson is not entitled to

qualified immunity at this stage of the litigation forecloses

both objections.

                                      1.

            Appellants argue they are entitled to summary judgment

on   the   constitutional   claims    lodged    against   the   Wake    County

Sheriff -- an inadequate training and supervision claim and a

claim brought pursuant to Monell v. New York City Department of

Social Services, 436 U.S. 658 (1978). 7          Having declined to award

qualified immunity to Thompson, however, we lack jurisdiction to

consider these claims.



      7For simplicity’s sake, we will refer to these two claims
collectively as “supervisory claims” throughout the remainder of
this opinion.   The jurisdictional analysis that follows is the
same for each claim.



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            Generally,        “[a]n       erroneous       ruling       on    [supervisory]

liability       may   be    reviewed      effectively        on    appeal         from      final

judgment.”        Swint     v.    Chambers     Cty.      Comm’n,       514   U.S.        35,    43

(1995).         Accordingly,       the    denial     of    Appellants’            motion       for

summary judgment with respect to the claims against the Wake

County Sheriff “[i]s not an appealable collateral order.”                                     Id.;

see also Evans v. Chalmers, 703 F.3d 636, 654 n.11 (4th Cir.

2012)     (“We    recognize        that     because        cities      do     not       possess

qualified immunity from § 1983 claims, we do not have appellate

jurisdiction under the collateral order doctrine to hear the

City’s appeal of the Monell claims.”                  (citation omitted)).

            Appellants           are   nevertheless         correct         that       we     have

pendent     jurisdiction          to     review     such     a    denial          in    certain

interlocutory         appeals.         Where      “our     determinations               of . . .

individual       officers’       qualified        immunities      fully       resolve          the

issue     of . . .        [supervisory]        liability,         we    [may]          exercise

pendent appellate jurisdiction over [such] claims.”                                Evans, 703

F.3d at 654 n.11; see also Altman v. City of High Point, 330

F.3d 194, 207 n.10 (4th Cir. 2003).                   “[F]ull[] resol[ution]” is

achieved    when      a    qualified      immunity       analysis       results          in    the

conclusion that no individual officer committed a constitutional

violation.       Evans, 703 F.3d at 654.                  Since supervisory “claims

require     a    predicate        constitutional           violation         to        proceed,”



                                            21
foreclosure of the individual predicate violation necessitates

dismissal of the supervisory claims.             Id.

              But the full resolution requirement is not met here,

where we concluded that Appellee has articulated a version of

events   that    would   allow    the   trier    of    fact    to    conclude     that

Thompson used excessive force.              When a predicate constitutional

violation in fact occurs, affirmatively establishing individual

and supervisory liability requires distinct showings.                      See City

of Canton v. Harris, 489 U.S. 378, 385 (1989); see also Shaw v.

Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (listing the elements

necessary to establish a constitutional violation pursuant to a

supervisory liability theory).              And there is no sense in which

confirming      the   existence    of   a    claim’s        prerequisite    can    be

understood as “fully resolv[ing] the claim[].”                   Altman, 330 F.3d

at 207 n.10.          “[I]n the face of a constitutional violation,”

therefore, “we lack subject-matter jurisdiction to entertain an

appeal   of    [supervisory]      claim[s]”     at    an    interlocutory    stage.

Martin v. City of Broadview Heights, 712 F.3d 951, 963 (6th Cir.

2013).

              Appellants’   request     that     we        reverse   the   district

court’s judgment with respect to the pending supervisory claims

is, accordingly, dismissed for lack of jurisdiction.




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                                           2.

               We do have jurisdiction to consider Appellants’ final

challenge -- whether the district court erred by denying their

motion    for     summary     judgment     with   respect        to   the    state     law

assault and battery claim.              Dismissal of that claim is required

by     North    Carolina’s     doctrine     of    public    officers’            immunity,

Appellants argue, because the summary judgment record is devoid

of   evidence      that      Thompson     acted   maliciously,        corruptly,       or

outside the scope of his authority.                   “[W]e have jurisdiction

over    [a]     police    officer[’s]      appeal    of    the    district         court’s

denial of public officers’ immunity” in an interlocutory appeal

“[b]ecause, under North Carolina law, public officers’ immunity

is an immunity from suit.”                Bailey v. Kennedy, 349 F.3d 731,

738-39 (4th Cir. 2003) (applying North Carolina law).

               But “public officers’ immunity . . . is unavailable to

officers who violate clearly established rights.”                           Bailey, 349

F.3d at 742.           So in cases where “a jury could find that no

reasonable officer could have believed his conduct to be lawful

in light of the circumstances known to him at the time[,] [a]

parallel       state   law   claim   of    assault   and    battery         is    subsumed

within the federal excessive force claim and so goes forward as

well.”         Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994)

(applying North Carolina law) (citation omitted).



                                           23
            That    holding      controls      this       case.       Our   denial    of

summary    judgment       on   Thompson’s          qualified        immunity   defense

necessarily entails our judgment that, on the required view of

the facts, no reasonable officer could have believed Thompson’s

conduct was lawful.            The state law assault and battery claim

based on the same conduct is thus “subsumed within the federal

excessive force claim,” Rowland, 41 F.3d at 174, and suffers its

same    fate.      We   affirm     the   district         court’s    conclusion     that

summary judgment is not appropriate.

                                         IV.

            For    the     foregoing      reasons,         the    judgment     of    the

district court is affirmed with respect to the excessive force

and    assault    and    battery    claims.         Appellants’       appeal   of    the

district    court’s      determination        of    the    supervisory      claims    is

dismissed for want of jurisdiction.

                                                                  AFFIRMED IN PART
                                                             AND DISMISSED IN PART




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