                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-1929



CODY HASTINGS MASSASOIT, Executor for Tallas
Hastings Tomeny, Deceased; STEPHEN PHELPS,

                                             Plaintiffs - Appellees,

           versus


LANE   CARTER,  Sheriff,   In  his official
capacity; FIDELITY AND DEPOSIT COMPANY OF
MARYLAND; RANDALL BUTLER, Deputy, In his
individual and official capacity,

                                             Defendants - Appellants,

           and


MOORE COUNTY SHERIFF DEPARTMENT,

                                                            Defendant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.   Russell A. Eliason,
Magistrate Judge. (1:04-cv-00151)


Argued:   September 27, 2007             Decided:    November 15, 2007


Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Samuel G. WILSON, United States District Judge for the Western
District of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.
ARGUED: James Redfern Morgan, Jr., WOMBLE, CARLYLE, SANDRIDGE &
RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellants.
Stewart Wayne Fisher, GLENN, MILLS & FISHER, Durham, North
Carolina; Robert Mauldin Elliot, ELLIOT, PISHKO & MORGAN, P.A.,
Winston-Salem, North Carolina, for Appellees. ON BRIEF: Bradley O.
Wood, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Winston-Salem,
North Carolina, for Appellants. Carlos E. Mahoney, GLENN, MILLS &
FISHER, P.A., Durham, North Carolina, for Appellee Stephen Phelps.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     During a traffic stop, Moore County (N.C.) Deputy Sheriff

Randall Butler shot and killed Tallas Tomeny and shot and seriously

wounded Stephen Phelps.   Phelps and Tomeny’s estate (collectively,

“appellees”) filed an action under 42 U.S.C. § 1983 and North

Carolina state law against Butler, Lane Carter, and Fidelity and

Deposit    Company   of   Maryland   (“Fidelity”)   (collectively,

“appellants”).* The appellants moved for summary judgment, arguing

that Butler’s actions were (1) reasonable or, alternatively, (2)

protected by qualified immunity.     The district court denied the

motion, and the appellants now appeal.       Finding no error, we

affirm.

                                 I

     In their complaint, the appellants claim that (1) Butler

violated their right to be free from the use of excessive force and

(2) Carter and Fidelity have derivative liability for Butler’s

actions.   The appellees moved for summary judgment, arguing that

(1) Butler’s use of force was reasonable because he had probable

cause to believe that the appellants posed a serious threat to

Butler’s safety or the safety of others, or alternatively, (2) if

Butler’s use of force was unreasonable, he is nonetheless entitled

to qualified immunity because the right violated was not “clearly


     *
      Carter is the sheriff of Moore County and Fidelity is the
surety on Carter’s bond, which North Carolina law requires that
sheriffs purchase. N.C. Gen. Stat. § 162-8.

                                 3
established.”      Saucier v. Katz, 533 U.S. 194, 201 (2001); see

Tennessee v. Garner, 471 U.S. 1, 11 (1985).           The district court

denied the appellants’ motion because the appellees’ version of the

facts would not entitle the appellants to summary judgment on

either the question of reasonableness or qualified immunity.

      We review de novo the district court’s denial of a motion for

summary judgment.      Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir.

2007).     On a motion for summary judgment, we view the facts in the

light most favorable to the non-moving party. See Scott v. Harris,

127 S. Ct. 1769, 1776 (2007).         Under this standard, the record

indicates the following facts.

      As part of their training for the Green Beret Special Forces,

Tomeny and Phelps participated in an exercise termed “Operation

Robin Sage.”      Operation Robin Sage has been conducted for over

forty years in and around Moore County.             During the exercise,

soldiers join with civilian volunteers to overthrow the government

of   the   fictional   country   of   “Pineland.”     The   soldiers   must

accomplish their mission, avoid capture, and maintain their roles

throughout the exercise.

      On February 23, 2002, civilian volunteer Charles Leiber drove

a Ford Ranger pick-up truck with Tomeny in the passenger seat and

Phelps in the truck bed.      Tomeny possessed a bag, which contained

an M-4 assault rifle.       While on patrol, Butler pulled over the

pick-up truck because he felt the occupants’ behavior indicated


                                      4
that they might be searching for robbery targets.          Butler led

Leiber to his patrol car for questioning.     After leaving Leiber in

the patrol car, Butler led Tomeny from the pick-up truck passenger

seat to the truck bed so that he could search Tomeny’s bag.    Butler

never saw the gun in the bag because the compartment containing the

gun remained closed.    During the search, Tomeny and Butler tussled

for the bag.     Butler pushed Tomeny away and threw the bag to one

side.    Tomeny raised his hands and did not bump Butler or reach for

Butler’s service weapon.    Butler drew his service weapon with the

safety off.      Then, Butler reholstered his service weapon and

sprayed Tomeny in the eyes with pepper spray until the pepper spray

appeared to run out.    Tomeny yelled and screamed when sprayed, but

did not threaten Butler with physical force.     As Tomeny rubbed his

eyes from the pepper spray with both hands at his head, Butler

pulled his service weapon and shot Tomeny twice.         While Butler

pepper sprayed Tomeny, Phelps fled the pick-up truck bed, grabbed

the bag, and ran toward the woods.     As he was running, Phelps heard

the shots fired at Tomeny and turned suddenly.     Because of the wet

pavement, Phelps slipped and fell to his hands and knees.      Phelps

did not attempt to open the bag.       Without warning Phelps, Butler

shot him twice.

        Under these facts, which we reiterate are in the light most

favorable to Tomeny and Phelps, Butler’s actions were (1) neither

reasonable because he had insufficient justification for his use of


                                   5
deadly force, (2) nor protected by qualified immunity because, at

the time of the shootings, it was clearly established that the use

of deadly force was not justified under these facts.   Accordingly,

we affirm the decision of the district court. Massasoit v. Carter,

439 F. Supp. 2d 463 (M.D.N.C. 2006).

                                                          AFFIRMED




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