                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-2076


STEVEN WAYNE THOMAS,

                Plaintiff - Appellee.

          v.

R. V. HOLLY, individually; MARK MELTON, individually;         M. D.
SMITH,   individually;   KEN    GILSTRAP,   individually;     JUSTIN
MATTHEWS, individually; DON LLOYD, individually; DARIN        SMITH,
individually;     CLINT   BABB,    individually;   C.   B.    ESTES,
individually;   BRYAN    ALLEN,    individually;    BILL     MARCUM,
individually; SHERIFF TRACY CARTER, individually and         in his
official capacity as Lee County Sheriff,

                Defendants - Appellants,

          and

PABLO MORA, individually; JOHN DOE 15, individually; JOHN DOE
14, individually; JOHN DOE 13, individually; JOHN DOE 12,
individually;    JOHN   DOE   11,    individually;  JOHN  DOE  10,
individually;    JOHN    DOE   9,    individually;  JOHN   DOE  8,
individually;    JOHN    DOE   7,    individually;  JOHN   DOE  6,
individually; JOHN DOE 5, individually; JOHN DOE 4, individually
and in his official capacity as a Corrections Officer for the
North   Carolina    Department    of   Corrections;  JOHN  DOE  3,
individually and in his official capacity as a Corrections
Officer for the North Carolina Department of Corrections; JOHN
DOE 2, individually and in his official capacity as a
Corrections Officer for the North Carolina Department of
Corrections; JOHN DOE 1, individually and in his official
capacity as a Corrections Officer for the North Carolina
Department of Corrections; GERALD BRANKER, in his official
capacity as Administrator for Central Prison, North Carolina
Department of Corrections; NURSE DOE; NORTH CAROLINA DEPARTMENT
OF CORRECTIONS; LEE COUNTY SHERIFF’S DEPARTMENT; LEE COUNTY,
NORTH CAROLINA; DEFENDANTS YET TO BE IDENTIFIED, individually;
NURSE DOE, individually and in her official capacity as a Nurse
for Central Prison, North Carolina Department of Correction,

                Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:10-cv-00052-BO)


Argued:   May 15, 2013                   Decided:   July 17, 2013


Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


ARGUED: Bradley O. Wood, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC,
Winston-Salem, North Carolina, for Appellants.     Edward Hardy
Lewis, BLANCHARD, JENKINS, MILLER, LEWIS & STYERS, PA, Raleigh,
North Carolina, for Appellee. ON BRIEF: James R. Morgan, Jr.,
WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem, North
Carolina, for Appellants.     Kieran J. Shanahan, Brandon S.
Neuman, John E. Branch, III, SHANAHAN LAW GROUP, PLLC, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

        In this action brought pursuant to 42 U.S.C. § 1983, ten

officers of the Lee County, North Carolina Sheriff’s Department

appeal the district court’s denial of their respective motions

for   summary      judgment     asserting        qualified       immunity.      Four      of

these    same   officers        plus   one       additional       officer    appeal      the

district court’s denial of their respective motions for summary

judgment    asserting       public     officer        immunity      in     regard   to    a

related claim under North Carolina common law.                             We affirm in

part,     vacate    in    part,    and       remand       for    further     proceedings

consistent with this opinion.



                                             I

                                             A

        Given the procedural posture of this case, the facts are

set forth by viewing the evidence in the record and drawing all

reasonable inferences therefrom in the light most favorable to

the plaintiff, as the nonmoving party.                          Henry v. Purnell, 652

F.3d 524, 531 (4th Cir. 2011) (en banc).

        At approximately 2:13 p.m. on April 27, 2009, Deputy Justin

Matthews (Deputy Matthews) of the Lee County, North Carolina

Sheriff’s Department (the Sheriff’s Department) responded to a

radio     dispatch       call    reporting         “two     white     males     damaging

property” at the rural intersection of St. Andrews Church Road

                                         - 3 -
and Meadowview Road, near Sanford, North Carolina.                       (J.A. 3376).

The intersection is located in Deputy Matthews’ normal patrol

area.

       As   he   arrived      at   the     scene   in   his    patrol    car,     Deputy

Matthews ran over part of an address sign lying in the road;

such    sign     presumably        a    casualty   of    the    reported        property

destruction.       Deputy Matthews pulled up his patrol car behind a

pickup truck parked partially on the roadway of Meadowview Road

because he saw two unknown white men standing beside the truck

in a grassy area.             Prior to exiting his patrol car, Deputy

Matthews radioed in his location and the truck’s license plate

number to the Sheriff’s Department.

       Deputy    Matthews     is       approximately    five-feet,      eight     inches

tall and weighs approximately 215 pounds.                      Steven Wayne Thomas

(Plaintiff),      one    of    the       two   white    men    spotted     by     Deputy

Matthews, is approximately five-feet, ten inches tall and weighs

approximately 210 pounds.                Josh Gross (Gross), the other white

man    spotted    by    Deputy         Matthews,   is   approximately       six-feet,

one-inch tall and weighs approximately 265 pounds.

       After seeing Deputy Matthews arrive on the scene, Plaintiff

walked around to the back quarter panel of the driver’s side of

Deputy Matthews’ patrol car.                By this time, Deputy Matthews had

exited his patrol car, leaving his driver’s side door open, and

had started talking with Gross.                Deputy Matthews asked Gross in

                                           - 4 -
a calm manner something along the lines of “[W]hat’s going on

here? What’s the problem?”        (J.A. 1145).        Identifying Plaintiff

as   his   friend,     Gross   responded     that    Plaintiff      was    having

troubles, that Plaintiff had lost his mind, that something was

wrong with Plaintiff, and that Plaintiff needed help.                      At all

times relevant to this case, Plaintiff and Gross were unarmed.

     As    Plaintiff    approached    Deputy    Matthews      on   the    driver’s

side of his patrol car, Plaintiff held his hands up in front of

his face with his palms turned outward.              Plaintiff continued to

approach Deputy Matthews until he got within an arm’s length of

Deputy Matthews and told him:          “‘Sir, I have lost my mind[.]’”

(J.A. 1529).    At this point, Deputy Matthews extended his arm to

push Plaintiff backward in order to obtain a reactionary gap

between them while saying “‘Back the f*ck up.’”                    (J.A. 1531).

Plaintiff immediately approached Deputy Matthews again, getting

within an arm’s length of Deputy Matthews for a second time.

Deputy Matthews, for a second time, pushed Plaintiff backward.

Undeterred, Plaintiff approached Deputy Matthews a third time,

getting within an arm’s length of Deputy Matthews for a third

time.

     At this point, Deputy Matthews felt Plaintiff had pinned

him in between his open driver’s side door and his patrol car.

Accordingly,    Deputy    Matthews    drew     his   taser,    pointed      it   at

Plaintiff, and yelled at him three times to get down on the

                                     - 5 -
ground.      Seeing     the    situation    unfold,     Gross   told   Plaintiff:

“‘Wayne, he’s going to shock you.              He’s going to shock you.            Get

on the ground.      He’s going to shock you.’”            (J.A. 1541).

     Instead of complying with Deputy Matthews’ command to get

down on the ground, Plaintiff started backing up and turning

clockwise away from Deputy Matthews.                  With his taser set in

probe mode, Deputy Matthews activated his taser, causing two

thin wires approximately seven feet long with metal prongs on

each end to shoot out of the taser and into Plaintiff’s mid-back

near his left shoulder blade, delivering a five second cycle of

electrical     shock      to    Plaintiff’s      body     “designed     to       cause

electro-muscular        disruption,    effectively        freezing”    Plaintiff’s

“muscles    and   thereby      temporarily     disabling      him.”     Meyers     v.

Baltimore County, Md., 713 F.3d 723, 728 n.3 (4th Cir. 2013).

By this time, Plaintiff and Deputy Matthews were at the rear of

Deputy Matthews’ patrol car.           Once tased, Plaintiff fell to the

ground and asked Deputy Matthews not to tase him again.

     Through      the   radio    microphone     on   Deputy     Matthews’    lapel,

Deputy     Matthews      immediately       advised    a    dispatcher       at    the

Sheriff’s Department and Deputy Ken Gilstrap (Deputy Gilstrap),

who was on route to the scene, that he had deployed his taser.

Deputy Matthews continued to command Plaintiff to stay on the

ground.    Plaintiff ignored those commands and tried to get up in

order to get away.         Once Plaintiff got to his hands and knees,

                                       - 6 -
Deputy Matthews tased him for a second time, thereby shocking

Plaintiff for another five seconds.              Although Plaintiff fell to

the ground on his back, he started to get up again.                       Deputy

Matthews responded by tasing Plaintiff a third time (another

five   seconds),     which    dropped    Plaintiff   to    the   ground   again.

Plaintiff, having now figured out the function of the wire leads

embedded in his back, reached back and broke off the wire leads.

       Deputy Matthews continued to command Plaintiff to stay on

the ground.    Refusing to comply, Plaintiff stood up.                With the

probe mode of his taser inoperable, Deputy Matthews attempted to

gain control of Plaintiff by pepper spraying him in the face.

       Immediately    after    being    pepper   sprayed,   Plaintiff     turned

away from Deputy Matthews and ran approximately the length of a

football field, crossing St. Andrews Church Road along the way.

Plaintiff exhibited no reaction to being pepper sprayed.                  Deputy

Matthews pursued Plaintiff across the road on foot.                   While in

pursuit of Plaintiff, Deputy Matthews used his lapel microphone

to report in to dispatch that the subject had disabled his taser

and that he was in pursuit of him on foot.

       In the meantime, Gross flagged down Deputy Gilstrap and

pointed him in the direction of the chase.                 Gross also crossed

the road and repeatedly called to Plaintiff to come back and

stop    running.        Hearing     Gross’       voice    from   approximately

fifty-feet away, Plaintiff made a u-turn and started running

                                       - 7 -
straight toward Gross’ voice like he’d been “shot . . . out of a

gun.”   (J.A. 1165).          Deputy Matthews followed Plaintiff pretty

close behind.       When Plaintiff neared Gross, Gross tackled him to

the ground in a football style tackle, got on his back, and

started telling him that everything would be alright.

      By this time, Deputy Matthews had caught up with Plaintiff

and   had    his   handcuffs     out.      Once    Deputy      Matthews    got    the

handcuffs near Plaintiff’s right arm, Gross clicked one handcuff

on that arm.       Gross then grabbed Plaintiff’s left arm and got it

behind his back.         At this point, Deputy Matthews told Gross to

back up and get out of the way.                   As Gross complied, Deputy

Matthews got on Plaintiff’s back and got a hold of Plaintiff’s

handcuffed     arm.       Plaintiff’s     face     was    to    the   ground,     and

although he was moving his body in a squirming manner, he did

not try to get up or fight back.

      By this time, Deputy Gilstrap had arrived on the scene.

Deputy Gilstrap tased Plaintiff three times for five seconds

each time in prong mode within the course of a minute and then

joined Matthews in holding Plaintiff on the ground by sitting on

one   side   of    Plaintiff’s    buttocks      and     his    corresponding     leg.

Deputy Gilstrap weighs approximately 185 pounds.

      Gross,      who   was   standing    in    front    of    Plaintiff   at    this

point, then witnessed Detective Clinton Babb (Detective Babb),

who had recently arrived on the scene, punch Plaintiff in the

                                        - 8 -
back of his head four or five times in rapid succession with a

closed       fist    and     with    great    force.       When      Gross     called    for

Detective Babb to stop hitting Plaintiff, Detective Babb jumped

up, got in Gross’ face and told him to “‘Back the f*ck up! Back

the f*ck up!’”           (J.A. 1176).

       Deputy Sheriff Brian Estes (Deputy Estes), who had also

recently arrived on the scene, then got down on the ground by

Plaintiff and struck him in the left side of his face several

times      with     great    force     with    his    knee. 1     Detective       Sergeant

William Marcum (Detective Sergeant Marcum) subsequently walked

Gross across the street.

       Deputy Gilstrap took over control of Plaintiff’s handcuffed

arm,       while    another      officer,     Detective       R.V.     Holly    (Detective

Holly), got on top of Plaintiff near his shoulders and put his

knee       between       Plaintiff’s    shoulder       blades     in    an     attempt   to

handcuff his free arm.               Detective Babb then tased Plaintiff four

more times for five second cycles within one and a half minutes.

This time, however, the taser was set in stun mode.                             Stun mode

is     used        for    pain      compliance       rather     than     to     physically

incapacitate the subject.               In stun mode, the electrical shock is

delivered          through    the    electrodes      of   the    taser       device   being

       1
       Plaintiff’s expert witness regarding the appropriate use
of force opined that Detective Babb’s punches and Deputy Estes’
knee strikes constituted the use of deadly force.



                                             - 9 -
applied       directly         to   the     subject’s          skin    rather       than       through

electrical wires.

       While Plaintiff remained on the ground with three officers

still    on    top    of       him,   Plaintiff’s          other      arm     was       successfully

handcuffed      with       a    second      set     of    handcuffs         which       were    linked

together with the first set secured on his other arm.                                             Once

Plaintiff was fully handcuffed, everyone stood up but Plaintiff.

Deputy     Matthews            then    advised           the    dispatcher          to     call    an

ambulance.           Plaintiff’s           ankles      were     then     shackled,         at    which

point, Plaintiff sat up.                    Officers asked Plaintiff to stand up

but he refused.            Eventually, some officers got Plaintiff to his

feet     and    helped          him    walk       to      a    waiting        ambulance          which

transported      Plaintiff            to    the     hospital       for       emergency         medical

care.     Five additional law enforcement officers arrived on the

scene at various times, but none were involved in attempting to

arrest or subdue Plaintiff.

       Based     upon          reasonable         inferences          from        the    record,    a

reasonable jury could find that, as the direct result of the

just    described       incident,           Plaintiff          suffered       a    fractured       jaw

requiring surgery and suffered significant damage to the root of

a tooth.        All parties involved later learned that Plaintiff’s

erratic behavior was caused by his exposure to herbicides and

insecticides that he mixed together in order to spray on tobacco

plants at his nearby farm.

                                              - 10 -
                                             B

       Of    relevance       on    appeal,    Plaintiff       brought      the    present

action against eleven defendants.                  The claims at issue on appeal

are:     (1) § 1983 excessive force claims against Deputy Matthews,

Deputy      Gilstrap,       Detective      Babb,    and    Deputy       Estes    in    their

individual         capacities        (collectively          the     Excessive          Force

Defendants);         (2)    § 1983    bystander       liability         claims    against

Sheriff      Tracy    Carter      (Sheriff       Carter),    Sergeant      Darin       Smith

(Sergeant Smith), Deputy Mark Melton (Deputy Melton), Deputy Don

Lloyd (Deputy Lloyd), Detective Sergeant Marcum, and Lieutenant

Bryan Allen (Lieutenant Allen) in their individual capacities

(collectively         the    Bystander       Defendants);         and    (3)     state-law

assault      and     battery      claims    against       Deputy    Matthews,         Deputy

Gilstrap, Deputy Estes, Detective Babb, and Detective Holly in

their       individual      capacities       (collectively         the     Assault      and

Battery Defendants).              Plaintiff seeks compensatory and punitive

damages.

       All of the § 1983 defendants moved for summary judgment on

the basis of qualified immunity.                   Additionally, the Assault and

Battery Defendants moved for summary judgment with respect to

Plaintiff’s assault and battery claims on the basis of North

Carolina’s doctrine of public officer immunity.




                                           - 11 -
       In a written order, the district court denied all of these

motions       for    summary       judgment     in    toto.       This        timely          appeal

followed.



                                               II

       The         Excessive        Force      Defendants         contend              they      are

respectively         entitled       to     qualified     immunity       from           Plaintiff’s

claims      alleging       each     used     excessive    force    in       seizing        him    in

violation of his right to be free from unreasonable seizures of

his person under the Fourth Amendment, U.S. Const. amend. IV,

and    therefore,          the     district     court     erred        by     denying          their

respective          motions      for     summary     judgment     asserting             qualified

immunity.           We     review      the   district     court’s       denials           of    such

motions       de     novo,       construing     the     facts     in        the    light        most

favorable      to        the   non-moving      party,    here    Plaintiff.               Orem    v.

Rephann, 523 F.3d 442, 445 (4th Cir. 2008).

       As     is     relevant       here,     under     the    doctrine           of    qualified

immunity,          law     enforcement       officers     performing              discretionary

duties “are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.”       Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).                                  This

sets     up    the        following        two-pronged        inquiry:             (1)     Did     a

constitutional or statutory violation occur?; and (2) If so, was

                                             - 12 -
the    right    violated     clearly       established      at    the     time    of   the

officer’s conduct?          Saucier v. Katz, 533 U.S. 194, 201 (2001),

overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009);

Evans v. Chalmers, 703 F.3d 636, 646 (4th Cir. 2012).                            We have

discretion to determine which prong “should be addressed first

in light of the circumstances in the particular case at hand.”

Pearson, 555 U.S. at 236.

       With respect to each Excessive Force Defendant, the first

prong asks whether he violated Plaintiff’s right to be free of

“seizures effectuated by excessive force.”                        Schultz v. Braga,

455 F.3d 470, 476 (4th Cir. 2006).                    In answering this question,

we    employ     a     standard     of    objective      reasonableness,          testing

whether    the       officer’s     actions      are   objectively       reasonable     in

light of the facts and circumstances confronting him.                            Scott v.

Harris, 550 U.S. 372, 381 (2007); Graham v. Connor, 490 U.S.

386, 397 (1989).           The subjective intent or motivation of the

officer is irrelevant.             Graham, 490 U.S. at 397.               In assessing

the objective reasonableness of the force used, “a court must

focus on the moment that the force is employed,”                            Henry, 652

F.3d at 531, in light of the totality of the circumstances,

including       “the    severity    of    the    crime    at     issue,   whether      the

suspect poses an immediate threat to the safety of the officers

or    others,    . . . whether       he    is    actively      resisting     arrest     or

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

                                          - 13 -
and “[t]he extent of the plaintiff’s injury,” Jones v. Buchanan,

325 F.3d 520, 527 (4th Cir. 2003).                             Moreover, “force justified

at the beginning of an encounter is not justified even seconds

later    if       the     justification            for    the    initial       force    has    been

eliminated.”             Waterman v. Batton, 393 F.3d 471, 481 (4th Cir.

2005).        As     we    have       previously         cautioned,     “[t]he     calculus     of

reasonableness must embody allowances for the fact that police

officers      are       often     forced      to     make      split-second       judgments——in

circumstances that are tense, uncertain and rapidly evolving——

about the amount of force that is necessary in a particular

situation.”             Park     v.    Shiflett,         250    F.3d    843,    853    (4th    Cir.

2001).     Notably, “[a]t the summary judgment stage, once we have

viewed     the          evidence       in    the     light       most    favorable       to    the

nonmovant, the question of whether the officer’s actions were

reasonable is a question of pure law.”                          Henry, 652 F.3d at 531.

     If       a     violation         of    Plaintiff’s         constitutional         right    is

established,            the    second       prong    of    qualified      immunity       analysis

asks whether such right was clearly established at the time of

the claimed violation.                  Harlow, 457 U.S. at 819.                “The relevant,

dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Saucier,          533     U.S.    at       202.      In     answering      this       dispositive

inquiry, we “ordinarily need not look beyond the decisions of

                                                  - 14 -
the Supreme Court, this court of appeals, and the highest court

of the state in which the case arose . . . .”                            Edwards v. City

of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999) (quotation marks

and alteration marks omitted) (ellipses in original).

       Based upon the following qualified immunity analysis, we

hold that Deputy Matthews and Deputy Gilstrap are entitled to

qualified immunity from Plaintiff’s excessive force claims, but

that    Detective        Babb     and    Deputy        Estes    are    not        entitled   to

qualified immunity at the summary judgment stage.

       A.    Deputy Matthews.

       Plaintiff claims that Deputy Matthews’ actions in tasering

and pepper spraying him constituted excessive force in violation

of    his    Fourth      Amendment       right    to    be     free    from       unreasonable

seizures.        We agree with Deputy Matthews that he is entitled to

qualified          immunity      because         his     actions       are        objectively

reasonable in light of the facts and circumstances confronting

him.     The first relevant factor in our reaching this conclusion

is the severity of the crime at issue.                       Graham, 490 U.S. at 396.

At the outset, Deputy Matthews responded to an emergency report

that two white men were destroying someone’s property.                                  While

willful      and    wanton      injury    to     real    property      is     a   misdemeanor

crime       in     North     Carolina,         N.C.     Gen.     Stat.        § 14-147,      it

nonetheless is more than a minor one.                        Moreover, consistent with

the     report      of     criminal      conduct        to     which    Deputy       Matthews

                                           - 15 -
responded, when he arrived at the scene, he observed two white

men and ran over part of an address sign lying in the road.                      A

reasonable officer would have concluded that these two men were

the subjects of the property destruction dispatch call.                       This

factor cuts in favor of Deputy Matthews.

       The second relevant factor is whether Plaintiff posed an

immediate threat to the safety of Deputy Matthews or others.

Graham, 490 U.S. at 396.            Shortly after Deputy Matthews arrived

on the scene, one of the two men informed Deputy Matthews that

his    friend,   the    other    white    man,   had   lost    his    mind,   that

something was wrong with him, and that he needed help.                   At this

point, a reasonable officer already would be guarded about his

own safety and would have reasonably believed that these two men

were    the   subjects      of    the    property      destruction     dispatch.

Plaintiff, who Deputy Matthews had just been told had lost his

mind and needed help, then approached Deputy Matthews with his

hands up in front of his face until he came within an arm’s

length of Deputy Matthews.              At this point, Plaintiff verbally

confirmed that he indeed had lost his mind.                    After attempting

unsuccessfully to put a safe reactionary gap between himself and

Plaintiff several times while being hemmed in between his open

patrol car door and his patrol car, Deputy Matthews reasonably

perceived to be physically threatened by this self-proclaimed

(and    bystander      confirmed)    crazy     man   despite    the   fact    that

                                      - 16 -
Plaintiff was unarmed.              This factor cuts in favor of Deputy

Matthews.

      Given     the    circumstances          thus    far,     Deputy   Matthews    acted

reasonably in commanding that Plaintiff drop to the ground while

pointing his taser at Plaintiff.                 The next factor now comes into

play:     Was Plaintiff actively resisting arrest or attempting to

evade arrest by flight?                 Id.     While Deputy Matthews did not

announce    that      he   was    placing      Plaintiff       under    arrest,    he    did

command Plaintiff to get down on the ground in order to secure

his     (Deputy    Matthews’)       own       safety.          Deputy    Matthews       then

observed Plaintiff attempt to flee the scene of his crime in an

unstable mental condition instead of complying with the command

to get down on the ground.                    Accordingly, this factor cuts in

favor of Deputy Matthews as well.

      The last factor considers the extent of Plaintiff’s injury.

Jones,    325     F.3d     at    527.     The        record    shows    that   Plaintiff

suffered two minor puncture wounds as the result of the two

taser prongs entering his back.                 The record shows that Plaintiff

suffered no injury from the pepper spray.                       In the big scheme of

potential injuries from the use of excessive force, this factor

cuts in favor of Deputy Matthews.

      Focusing on the moment that force was employed, in light of

the     totality      of    the    circumstances,             Deputy    Matthews    acted

reasonably in tasering Plaintiff the first time in an attempt to

                                          - 17 -
temporarily subdue him and secure the scene.                      While tasering a

suspect “in general, is more than a non-serious or trivial use

of force,” it is “less than deadly force . . . .”                         Mattos v.

Agarano, 590 F.3d 1082, 1087 (9th Cir. 2010).                          For the same

reasons, Deputy Matthews acted reasonably in tasering Plaintiff

the    second     and   third      times   when     Plaintiff       defied    Deputy

Matthews’ commands to remain on the ground.

       We   now   consider    the    pepper      spraying.        Focusing    on   the

moment that force was employed (after Plaintiff broke the wire

leads of Deputy Matthews’ taser and stood up), in light of the

totality of the circumstances, Deputy Matthews acted reasonably

in using his pepper spray, which is a non-lethal, and normally

only    temporarily     incapacitating           device,     in   an    attempt    to

temporarily subdue Plaintiff and secure the scene.                        Gaddis ex

rel. Gaddis v. Redford Tp., 364 F.3d 763, 774 (6th Cir. 2004)

(pepper spray is non-lethal, temporarily incapacitating tool of

law enforcement).

       Because    Plaintiff     could    not     forecast    sufficient      evidence

for a reasonable jury to find that Deputy Matthews had violated

Plaintiff’s right to be free from unreasonable seizures, the

district    court    erred    in    denying      Deputy    Matthews’     motion    for

summary judgment based upon qualified immunity.




                                        - 18 -
       B.    Deputy Gilstrap.

       Fairly        characterizing          Plaintiff’s        allegations         against

Deputy Gilstrap, Plaintiff claims that Deputy Gilstrap’s actions

in tasering him three times while he lay prone and unarmed on

the ground with Deputy Matthews sitting on his back in control

of   his    right     handcuffed          arm   constituted      excessive      force    in

violation       of    his    Fourth       Amendment     right     to    be    free     from

unreasonable         seizures.        This      claim   need    not    detain    us    long

because, assuming arguendo that Deputy Gilstrap’s tasering of

Plaintiff three times violated Plaintiff’s right to be free of

seizures     effectuated        by    excessive      force,     the    unlawfulness      of

Deputy Gilstrap’s actions was not clearly established at the

time    Deputy       Gilstrap    took      such    actions.       Significantly,         in

contrast to the state of affairs at the moment that Detective

Babb began to tase Plaintiff, at the moment that Deputy Gilstrap

began to tase Plaintiff, the evidence, viewed in the light most

favorable to Plaintiff, establishes that Plaintiff was not yet

effectively      secured.            We    have   found    no    relevant       authority

establishing         that   Deputy    Gilstrap’s        actions—tasering        a    person

who, among other things, is not secured—transgressed a bright

line.       See Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.

1992) (“Officials are not liable for bad guesses in gray areas;

they are liable for transgressing bright lines.”).                           Accordingly,

we agree with Deputy Gilstrap that he is entitled to qualified

                                            - 19 -
immunity from Plaintiff’s excessive force claim against him, and

the district court erred in denying Deputy Gilstrap’s motion for

summary judgment based upon qualified immunity.

       C.   Detective Babb.

       Fairly     characterizing        Plaintiff’s         allegations          against

Detective Babb, Plaintiff claims that Detective Babb’s actions

in punching him four or five times in the back of the head with

a closed fist and with great force while:                   (1) he lay face down

on the ground; (2) unarmed; (3) with one arm handcuffed behind

his back being held by Deputy Matthews who was sitting on his

back; and (4) while Deputy Gilstrap sat on one side of his

buttocks and the corresponding leg, constituted excessive force

in    violation   of   his    Fourth    Amendment        right    to     be   free    from

unreasonable      seizures.      Plaintiff        also    claims       that     Detective

Babb’s      actions    in    tasering    him      four     times        after    he   was

effectively secured also constituted unconstitutional excessive

force.      We agree with the district court that Detective Babb is

not entitled to qualified immunity at the summary judgment stage

with respect to either set of actions.                   Viewing the evidence in

the    summary    judgment    record    in    the   light        most    favorable     to

Plaintiff, Detective Babb’s actions (the punching and tasering)

are    objectively      unreasonable         in   light     of     the        facts   and

circumstances confronting him, and the law in this regard was

clearly established at the time that Detective Babb took them.

                                       - 20 -
           1. Punching Plaintiff in the back of his head.

     Of   the   relevant   factors    in     our   objective    reasonableness

analysis with respect to Detective Babb’s actions in punching

Plaintiff in the back of his head, the first (the severity of

the crime) cuts in favor of Detective Babb, while the last three

cut in favor of Plaintiff.         The severity-of-the-crime factor is

the same as in the case of Deputy Matthews.                  Speaking to the

second    factor,   at    the    moment    that     Detective    Babb   punched

Plaintiff, Plaintiff posed no immediate threat to the safety of

the officers on the scene or others.               At that moment, Plaintiff

was unarmed, pinned face down to the ground by two officers of

comparable size sitting on top of him, and his right arm was

handcuffed and pulled behind his back by one of those officers.

Indeed, Defendants’ own expert witness on excessive force, John

Combs, testified during his deposition in this case that the

record contains no evidence that any officers at the scene were

in   imminent    threat     of    death    or      serious     bodily   injury.

Similarly, John Combs opined that Plaintiff never displayed any

resistance rising to the level of deadly force.                    This factor

cuts in favor of Plaintiff.

     Speaking to the third factor, the evidence viewed in the

light most favorable to Plaintiff establishes that Plaintiff,

although squirming on the ground, was effectively incapable of

actively resisting or attempting to evade arrest by flight at

                                    - 21 -
the    moment     that      Detective          Babb    starting      punching        him    or

thereafter.          This factor cuts in favor of Plaintiff.                       Speaking

to the fourth factor, the evidence viewed in the light most

favorable       to     Plaintiff        establishes        that      Detective        Babb’s

punching caused Plaintiff to suffer abrasions to and bruising

and    swelling       of   his    face.         This     factor     cuts     in   favor      of

Plaintiff.

       Dave Cloutier, Plaintiff’s expert witness regarding the use

of    force,    testified        that    the    manner    in   which       Detective       Babb

punched Plaintiff in the back of his head with a closed fist and

with great force constituted the use of deadly force.                             Moreover,

in his expert witness report, Cloutier points out that according

to the Sherriff’s Department’s written policy:                         “Deputies shall

not    deliberately        strike       another       person   on    the     head,    spinal

column, groin, solar plexus, kidneys, or throat with any issued

or    authorized       equipment        or     other    object      unless    the     deputy

reasonably believes that his life or the life of a third party

is threatened.’”           (J.A. 2167) (emphasis in report).

       Focusing on the moment that force was employed, in light of

the totality of the circumstances, Detective Babb’s actions were

objectively      unreasonable           in    punching     Plaintiff       four      or    five

times in the back of the head with a closed fist and with great

force in an effort to arrest him.                      See Tennessee v. Garner, 471

U.S. 1, 11 (1985) (“The use of deadly force to prevent the

                                             - 22 -
escape of all felony suspects, whatever the circumstances, is

constitutionally unreasonable.”); id. (“Where the suspect poses

no immediate threat to the officer and no threat to others,”

officers may not use deadly force to apprehend the suspect.).

The law in this regard was clearly established prior to April

27, 2009.         Id.        In sum, viewing the evidence in the summary

judgment record in the light most favorable to Plaintiff, we

hold that prior to April 27, 2009, a reasonable law enforcement

officer in Detective Babb’s position would have known that he

was “transgressing” a “bright line” with regard to his punching

actions.     Maciariello, 973 F.2d at 298.

      In     sum,       the    district       court     correctly       concluded       that

Detective     Babb      is    not    entitled    to     qualified      immunity    at    the

summary judgment stage with respect to Detective Babb’s actions

in punching Plaintiff in the back of the head.

             2.     Tasering Plaintiff Four Times.

      Next     we    consider        whether      Detective       Babb’s     actions      in

tasering      Plaintiff         four    times         amounted    to      excessive      and

unreasonable force under the circumstances.                       The answer is yes.

While tasering a suspect “in general, is more than a non-serious

or   trivial      use    of    force    but     less    than     deadly    force    . . .”

Mattos, 590 F.3d at 1087, focusing on the moment that force was

employed,      in    light      of     the     totality     of    the     circumstances,

Detective      Babb’s         actions     were    objectively          unreasonable       in

                                             - 23 -
tasering     Plaintiff four times while Plaintiff was effectively

secured.     By this point in time, Plaintiff lay unarmed, face

down on the ground, had three fellow officers sitting on top of

him   (Deputy      Matthews,       Deputy      Gilstrap,       and     Detective      Holly)

holding him down, one of those officers held Plaintiff’s right

handcuffed        arm    behind        his     back,    and,     although           Plaintiff

struggled in a squirming manner, Plaintiff did not attempt to

get up off the ground.             See Meyers, 713 F.3d at 734 (“It is an

excessive and unreasonable use of force for a police officer

repeatedly to administer electrical shocks with a taser on an

individual    who       no    longer    is    armed,     has    been       brought    to    the

ground,     has     been       restrained        physically          by    several     other

officers, and no longer is actively resisting arrest.”).

      The law in this regard was clearly established prior to

April 27, 2009.         Id. (law clearly established in March 2007 that

police     officer’s          tasering        suspect     who        was     unarmed        and

effectively secured with several officers sitting on his back

violated suspect’s Fourth Amendment right to be free from the

use of excessive and unreasonable force).                       Viewing the evidence

in the summary judgment record in the light most favorable to

Plaintiff,       the    material        distinction       on     this       point     between

Detective    Babb’s          tasering   of     Plaintiff       and    Deputy       Gilstrap’s

tasering    of    Plaintiff       is    that,    in     contrast      to     the    state    of

affairs    when    Gilstrap       tasered       Plaintiff,      when       Detective       Babb

                                             - 24 -
tasered Plaintiff, Plaintiff was effectively secured.                        By the

time Detective Babb tasered Plaintiff, Plaintiff had three (not

one) officers sitting on top of him holding him down and was

suffering the physical effects of Detective Babb’s and Deputy

Estes’ sequential use of deadly force on his head.

      In    sum,     the   district      court        correctly    concluded      that

Detective    Babb    is    not   entitled     to   qualified      immunity   at    the

summary judgment stage with respect to Detective Babb’s actions

in tasering Plaintiff.

      D.   Deputy Estes.

      Turning to Deputy Estes, Plaintiff claims that Detective

Estes’ actions in striking him in the left side of his face

several times with great force with his knee while he lay face

down on the ground, unarmed, with one arm handcuffed behind his

back, being held by Deputy Matthews sitting on his back, and

with Deputy Gilstrap sitting on one side of his buttocks and his

corresponding leg, constituted excessive force in violation of

his   Fourth       Amendment     right   to      be     free   from   unreasonable

seizures.    We agree with the district court that Deputy Estes is

not entitled to qualified immunity.                    Deputy Estes’ actions in

striking Plaintiff in the left side of his face several times

with great force with his knee are objectively unreasonable in

light of the facts and circumstances confronting him, and the



                                      - 25 -
law    in   this   regard     was   clearly     established      at   the    time    he

engaged in such actions.

       As in the case of Detective Babb, of the relevant factors

in    our   objective    reasonableness       analysis      of   Detective    Estes’

actions, the first (the severity of the crime) cuts in favor of

Deputy Estes, but the last three cut in favor of Plaintiff.                         The

severity-of-the-crime         factor    is    the    same   as   in   the    case    of

Deputy      Matthews    and   Detective      Babb.      Addressing     the    second

factor      (whether    Plaintiff    posed     an    immediate    threat     to     the

safety of the officers on the scene or others), at the moment

that Deputy Estes started striking Plaintiff on the left side of

his face with great force with his knee, Plaintiff posed no

immediate threat to the safety of the officers on the scene or

others.      Plaintiff was unarmed, pinned face down on the ground

by two officers of comparable size sitting on top of him, his

right arm was handcuffed and pulled behind his back, and one of

the officers sitting on top of him had control of his handcuffed

arm.     At the time of Deputy Estes’ forceful knee strikes to the

left side of Plaintiff’s face, none of the officers at the scene

were in imminent threat of death or serious bodily injury, and

Plaintiff displayed no resistance rising to the level of deadly

force.

       With respect to the third factor (whether Plaintiff was

actively resisting or attempting to evade arrest by flight), the

                                       - 26 -
evidence      viewed      in   the   light     most    favorable       to    Plaintiff

establishes that Plaintiff, although squirming on the ground at

the time that Deputy Estes started forcefully striking him in

the face with his knee, was effectively incapable of actively

resisting      arrest     or   attempting      to     evade       arrest    by    flight.

Accordingly,       this    factor    cuts    in    favor     of    Plaintiff.           With

respect to the fourth factor (the extent of Plaintiff’s injury),

the evidence viewed in the light most favorable to Plaintiff

establishes that Deputy Estes’ actions caused Plaintiff severe

injury.      Specifically, Deputy Estes struck Plaintiff in the left

side of his face with such force that he fractured Plaintiff’s

jaw and severely damaged the root of one of Plaintiff’s teeth.

       Moreover, as in the case of Detective Babb’s strikes to the

back    of    Plaintiff’s      head,    Dave      Cloutier,       Plaintiff’s      expert

witness regarding the use of force, testified that the manner in

which     Deputy    Estes      struck    Plaintiff      in    the     left       side    of

Plaintiff’s face with his knee constituted the use of deadly

force.       Furthermore, as quoted above, the Sheriff’s Department’s

written policy against deliberately striking a suspect on the

head with an object, unless the officer reasonably believes that

his life or the life of a third party is threatened, prohibited

Deputy Estes’ actions under the circumstances.

       Focusing on the moment that force was employed, in light of

the totality of the circumstances, we hold that Deputy Estes’

                                        - 27 -
actions      were   objectively         unreasonable    in   striking         Plaintiff

several times in the left side of Plaintiff’s face with his knee

with such force that he fractured Plaintiff’s jaw and severely

damaged the root of one of Plaintiff’s teeth.                      See Garner, 471

U.S. at 11 (“The use of deadly force to prevent the escape of

all     felony         suspects,        whatever     the     circumstances,         is

constitutionally unreasonable.”); id. (“Where the suspect poses

no immediate threat to the officer and no threat to others,”

officers may not use deadly force to apprehend the suspect.).

The law in this regard was clearly established prior to April

27, 2009.        Id.     Viewing the evidence in the summary judgment

record in the light most favorable to Plaintiff, prior to April

27, 2009, a reasonable law enforcement officer in Deputy Estes’

position would have known that he was “transgressing” a “bright

line” with regard to his actions.                Maciariello, 973 F.2d at 298.

      In sum, the district court correctly concluded that Deputy

Estes   is    not      entitled    to   qualified    immunity      at    the    summary

judgment stage.



                                           III


      The     Bystander      Defendants       next     challenge        the    district

court’s denial of their respective motions for summary judgment

asserting qualified immunity.


                                         - 28 -
       Under the theory of bystander liability, an officer may be

liable only if such officer: “(1) knows that a fellow officer is

violating       an    individual’s      constitutional         rights;      (2)    has   a

reasonable opportunity to prevent the harm; and (3) chooses not

to act.”       Randall v. Prince George’s County, 302 F.3d 188, 204

(4th Cir. 2002) (footnote omitted).                     Here, given our holdings

with   respect       to   Plaintiff’s        excessive    force      claims,      Part   II

supra, any bystander liability in this case must be based upon

being a bystander to the unconstitutional conduct of Detective

Babb   and     Deputy     Estes.       We    address    each   Bystander       Defendant

individually.

       A. Detective Sergeant Marcum.

       We     hold    that    Detective      Sergeant     Marcum     is   entitled       to

qualified immunity, and therefore, the district court erred in

denying       his    motion   for   summary      judgment      asserting       qualified

immunity.       Detective Sergeant Marcum is the officer who walked

Gross across the street.               Detective Sergeant Marcum admits to

seeing the Excessive Force Defendants struggling with Plaintiff,

but    denies       seeing    anyone    punch,       strike,   or    kick    Plaintiff.

Plaintiff has presented no witness testimony or other evidence

to put this testimony in dispute, and Plaintiff cannot defeat

summary judgment by asserting that the jury might disbelieve

Detective Sergeant Marcum.              See Anderson v. Liberty Lobby, Inc.,

477    U.S.    242,     256   (1986)    (plaintiff       may   not    defeat      summary

                                            - 29 -
judgment by merely asserting the jury might, and legally could,

disbelieve defendant’s denial); 10A Charles Alan Wright, Arthur

R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice

and   Procedure    § 2726       (3d     ed.    1998)       (specific    facts    must    be

produced in order to put credibility in issue so as to preclude

summary judgment; unsupported allegations that credibility is in

issue will not suffice).

      B.    Deputy Melton.

      We    hold   that      Deputy      Melton       is     entitled    to     qualified

immunity, and therefore, the district court erred in denying

Deputy     Melton’s    motion     for    summary       judgment.        The   record     is

undisputed that Deputy Melton did not arrive at the scene until

after Plaintiff had been transported to the hospital.

      C. Deputy Lloyd.

      We    hold   that      Deputy      Lloyd     is       entitled     to     qualified

immunity, and therefore, the district court erred in denying his

motion for summary judgment.                  In his sworn declaration in this

case, Deputy Lloyd declares that he parked his patrol car at

least two hundred yards away from the scene (Plaintiff on the

ground).      Once parked, he radioed his location to dispatch in

case the need arose for him to get closer to the scene.                             After

Deputy     Lloyd   heard     over     his      radio       that   the   situation       was

resolved and that the subject was in custody, he left the area.

Plaintiff     points    to   no   evidence       in    the     record   to    contradict

                                         - 30 -
Deputy Lloyd’s version of events, and thus, Plaintiff has not

created a genuine issue of material fact with respect to his

bystander liability claim against Deputy Lloyd.                   Anderson, 477

U.S. at 256.

     D.    Lieutenant Allen.

     We   hold    that     Lieutenant    Allen   is    entitled   to    qualified

immunity, and therefore, the district court erred in denying his

motion for summary judgment.            In his sworn declaration in this

case, Lieutenant Allen declares that after he parked his patrol

car along the side of St. Andrew’s Church Road, he started to

walk toward the other vehicles.           He further declares that, as he

walked, he saw from thirty to forty feet away several deputies

struggling      with   Plaintiff.       Within   moments,    as   he   was   still

walking up, he saw the deputies finish handcuffing Plaintiff.

Lieutenant Allen denies seeing anyone strike, taser, or pepper

spray Plaintiff.         Plaintiff points to no evidence in the record

to contradict Lieutenant Allen’s version of events, and thus,

Plaintiff has not created a genuine issue of material fact with

respect   to     his   bystander     liability    claim    against     Lieutenant

Allen.    Anderson, 477 U.S. at 256.

     E. Sheriff Carter.

     We    hold    that    Sheriff    Carter     is    entitled   to   qualified

immunity, and therefore, the district court erred in denying his

motion    for    summary    judgment.      In    his    deposition     testimony,

                                      - 31 -
Sheriff Carter testified that as he was walking toward the scene

and still a considerable distance away, he observed Plaintiff on

the ground and Deputy Estes striking Plaintiff once or twice in

the head, neck, or back area with his knee.               Just moments later,

Sheriff Carter saw deputies successfully handcuff Plaintiff and

step back from him.        Sheriff Carter did not observe anyone else

hit or strike Plaintiff, taser him, or pepper spray him.                     Under

Sheriff Carter’s version of events, no reasonable jury could

find that Sheriff Carter had a reasonable opportunity to prevent

the harm caused by Deputy Estes.            By the time Sheriff Carter had

gotten close enough to take any preventative action, Plaintiff

was already handcuffed and all physical force against Plaintiff

had stopped.

     Plaintiff points to no evidence in the record to contradict

Sheriff Carter’s version of events, and thus, Plaintiff has not

created a genuine issue of material fact with respect to his

bystander liability claim against Sheriff Carter.                  Anderson, 477

U.S. at 256.

     F. Sergeant Smith.

     We    hold    that    Sergeant    Smith    is     entitled    to   qualified

immunity, and therefore, the district court erred in denying

Sergeant Smith’s motion for summary judgment.                     When Sergeant

Smith     arrived,    he   walked     up   to    where    the     officers     were

attempting    to     handcuff   Plaintiff      while   Plaintiff    was   on    the

                                      - 32 -
ground.     According to Sergeant Smith, “[t]here was five people

around [Plaintiff] and . . . I couldn’t do nothing.                  I couldn’t

get in there.    If I got in there, I’d have to push somebody out

of the way.”    (J.A. 1468).        Sergeant Smith admits that he saw a

deputy taser    Plaintiff     one     time   and   saw   Deputy    Estes   strike

Plaintiff once in the side of the head with his knee.                 He saw no

other force used against Plaintiff.

     Assuming    arguendo     that     Sergeant     Smith    understood       that

Deputy Estes and the officer who he saw taser Plaintiff one time

had used excessive force, no reasonable jury could find that

Sergeant Smith had a reasonable opportunity to prevent such harm

but nevertheless chose not to do so.                 Sergeant Smith had no

prior   knowledge     that   either    officer     would    take    such   action

against Plaintiff.       He only saw Deputy Estes knee Plaintiff in

the side of the face one time and only saw the other officer

taser Plaintiff one time.           Plaintiff offers no evidence to the

contrary.

     In sum, all of the Bystander Defendants are entitled to

qualified immunity.



                                       IV.

     The    Assault    and   Battery     Defendants      next     challenge   the

district court’s denial of their motion for summary judgment on

the basis that the doctrine of public officer immunity under

                                     - 33 -
North    Carolina       law    shields      them       from    Plaintiff’s      respective

North Carolina common law assault and battery claims.                              Because

under North Carolina law public officer immunity is an immunity

from suit rather than merely immunity from liability, we have

appellate jurisdiction over the Assault and Battery Defendants’

appeal in this regard.               Bailey v. Kennedy, 349 F.3d 731, 739

(4th Cir. 2003).

     Other       than   with     respect        to    Detective      Holly,     Plaintiff’s

assault    and    battery      claims      go    the    way     of   Plaintiff’s      § 1983

excessive force claims.                  In North Carolina, official immunity

protects a public official performing discretionary acts in the

course    of     his    official      duties         from     suit   in   his   individual

capacity, so long as the public official acted without malice or

corruption or outside the scope of his official duties.                               Evans,

703 F.3d at 656-67.                 “A defendant acts with malice when he

wantonly does that which a man of reasonable intelligence would

know to be contrary to his duty and which he intends to be

prejudicial or injurious to another.”                       In re Grad v. Kaasa, 321

S.E.2d 888, 890 (N.C. 1984).                “An act is wanton when it is done

of   wicked      purpose,      or    when       done    needlessly,        manifesting    a

reckless indifference to the rights of others.”                             Id. at 890–91

(internal quotation marks omitted).

     For the same reasons that we affirm the denial of qualified

immunity    with       respect      to    Plaintiff’s         § 1983      excessive    force

                                           - 34 -
claims against Detective Babb and Deputy Estes, we affirm the

denial of public officer immunity with respect to Plaintiff’s

North Carolina assault and battery claims against Detective Babb

and   Deputy    Estes.       Bailey,    349     F.3d    at    745   (“For    the     same

reasons that we affirm the denial of qualified immunity on the

§ 1983 excessive force claim, we affirm the denial of public

officers’ immunity on the [North Carolina] common law assault

and battery claim.”); Glenn-Robinson v. Acker, 538 S.E.2d 601,

615   (N.C.    Ct.    App.    2000)    (citizen      can      sue   law    enforcement

officer   for    assault     and     battery    if     “the    officer     used     force

against   plaintiff          which     was     excessive        under       the     given

circumstances” (internal quotation marks omitted)).

      We hold Deputy Matthews and Deputy Gilstrap are entitled to

public officer immunity under North Carolina law with respect to

Plaintiff’s North Carolina common law assault and battery claims

against them.         Plaintiff has not proffered sufficient evidence

for a reasonable jury to find that, with respect to any of

Deputy Matthews’ conduct toward Plaintiff, Deputy Matthews acted

with malicious intent, with corruption or outside the scope of

his duties.       Evans, 703 F.3d at 656-67.                    The same goes for

Deputy Gilstrap.

      Now for Detective Holly.               The evidence in the record is

undisputed     that    Detective      Holly’s    only      physical       conduct    with

respect to Plaintiff was getting on top of Plaintiff near his

                                       - 35 -
shoulders    and    putting    his   knee      between      Plaintiff’s      shoulder

blades while grabbing his free arm in an effort to help get him

fully handcuffed while Plaintiff lay prone on the ground.                          This

conduct is insufficient to defeat Detective Holly’s claim of

public officer immunity under North Carolina law.                      There is no

evidence that Detective Holly acted with malicious intent, with

corruption or outside the scope of his duties.



                                         V.

     In    conclusion,     we:   (1)     affirm     the     denial    of    Detective

Babb’s and Deputy Estes’ respective motions for summary judgment

(asserting    claims     for   qualified         immunity    and   public        officer

immunity) with respect to Plaintiff’s § 1983 excessive force

claims and his assault and battery claims under North Carolina

common law; (2) vacate the district court’s denial of Deputy

Matthews’ and Deputy Gilstrap’s respective motions for summary

judgment    (asserting     claims    for      qualified     immunity       and    public

officer immunity) with respect to Plaintiff’s § 1983 excessive

force   claims     and   his   assault     and    battery    claims    under       North

Carolina common law and remand this case to the district court

with instructions to grant such motions; (3) vacate the district

court’s denial of the Bystander Defendants’ respective motions

for summary judgment (asserting claims for qualified immunity)

with respect to Plaintiff’s § 1983 bystander liability claims

                                     - 36 -
and remand this case to the district court with instructions to

grant such motions; and (4) vacate the district court’s denial

of   Detective    Holly’s    motion   for     summary   judgment   (asserting

public officer immunity) with respect to Plaintiff’s assault and

battery claim under North Carolina common law and remand this

case   to   the   district   court    with    instructions   to    grant   such

motion.

                                                         AFFIRMED IN PART;
                                              VACATED AND REMANDED IN PART




                                     - 37 -
