PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JERRY LOWERY,
Plaintiff-Appellant,

v.

LARRY STOVALL; T. E. REDD,
Defendants-Appellees,
                                                                      No. 95-1729
and

CITY OF SOUTH BOSTON, VIRGINIA;
J. V. SIMMONS, Individually and in
his official capacity as a police
officer,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Chief District Judge.
(CA-92-4-D)

Argued: February 2, 1996

Decided: August 6, 1996

Before HALL and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Hamilton wrote the opinion, in
which Judge Hall and Senior Judge Phillips joined.

_________________________________________________________________

COUNSEL

ARGUED: G. Rodney Sager, ROD SAGER & ASSOCIATES, Rich-
mond, Virginia, for Appellant. John Henry O'Brion, Jr., COWAN &
OWEN, P.C., Richmond, Virginia, for Appellees. ON BRIEF:
Carey M. Friedman, Gavin T. Pinchback, Third-Year Law Student,
T.C. Williams School of Law, ROD SAGER & ASSOCIATES, Rich-
mond, Virginia, for Appellant.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

Jerry Lowery appeals the district court's grant of summary judg-
ment in favor of Thomas Redd and Larry Stovall on his claims that
Redd and Stovall subjected him to an unreasonable seizure in viola-
tion of his Fourth Amendment rights. See 42 U.S.C. §§ 1983 & 1985.
For the reasons discussed below, we affirm.

I

This action arises out of an early morning traffic stop on February
1, 1991. Redd, a police officer for the City of South Boston, Virginia
(South Boston), was on routine patrol when he noticed a car driving
with its headlights off through the lot of a construction company.
Redd followed the car and called in the car's license plate number to
the dispatcher's office. Redd subsequently learned that the registered
owner's license had been suspended. At approximately 1:45 or 1:50
in the morning, Redd spotted the car again and proceeded to stop the
car, believing that the driver was driving with a suspended license.
Stovall, another officer with South Boston, arrived shortly after Redd
stopped the car to provide back-up. During the stop, the driver, who
was Lowery, accompanied Redd to the patrol car and sat in the front
passenger seat while Redd called the dispatcher's office to find out
why his license had been suspended. At this point, the parties' ver-
sions of the events in question diverge.

According to Lowery, he got out of the patrol car to show Redd
what he had in his pants pockets. Then Stovall, who had been in the
back seat of Redd's patrol car, got out of the patrol car and, for no
reason, shot Lowery in the head. Lowery then claims that, as he
attempted to get back in the patrol car to lay his head on the seat, he
scratched Redd on the face with his fingernails.

                     2
The officers, however, present a dramatically different version of
the incident. According to Redd and Stovall, while Redd was in the
process of writing Lowery a ticket for driving with a suspended
license, Lowery began going through his left pants pocket. At this
point, Redd asked Lowery what he had in his pocket and then reached
over to pat down Lowery's pocket. Lowery then reached into his
pants pocket, pulled out an object, pushed Redd against the driver's
side door, and used the object to cut Redd on the face. Because Redd
felt a burning sensation, he "yelled out knife." (J.A. 1420). Stovall,
who had been sitting in the back of the patrol car and saw that Redd
was bleeding, attempted to stop Lowery by grabbing him and punch-
ing him in the back of his neck. Stovall's attempts to restrain Lowery
failed, but Stovall's actions caught Lowery's attention because Low-
ery then started to climb over the patrol car's front seat in an attempt
to attack Stovall. Lowery swung at Stovall in an attempt to cut him
with the object, but Stovall fended off this attack by catching Low-
ery's arm. Stovall then drew his firearm and shot Lowery. Although
Stovall tried to shoot Lowery in the shoulder, he shot Lowery in the
head when Lowery ducked as Stovall fired. The object that Lowery
used to cut Redd, rather than a knife, turned out to be a black mag-
netic key holder that was approximately three inches long and one
inch wide.

After the shooting, Virginia charged Lowery with maliciously
causing bodily injury to Redd with the intent to maim, disfigure, dis-
able or kill him in violation of Va. Code § 18.2-51.1.1 Prosecution on
this charge was delayed because Lowery was initially deemed incom-
petent to stand trial due to his injuries.
_________________________________________________________________
1 Section 18.2-51.1 in pertinent part states

          Malicious bodily injury to law-enforcement officers; penalty;
          lesser included offense. -- If any person maliciously causes
          bodily injury to another by any means including the means set
          out in § 18.2-52, with intent to maim, disfigure, disable or kill,
          and knowing or having reason to know that such other person is
          a law-enforcement officer . . . engaged in the performance of his
          public duties as a law-enforcement officer, such person shall be
          guilty of a Class 3 felony. . . .

                    3
Lowery subsequently commenced this § 1983 action against Redd
and Stovall2 alleging that they had violated his constitutional rights.
Specifically, Lowery's complaint alleged that Stovall's use of force
violated his Fourth Amendment right to be free from unreasonable
seizures, which is applied to the states through the Fourteenth
Amendment. Lowery's complaint also alleged that Redd owed him a
duty to protect him from Stovall's use of excessive force and that
Redd breached this duty. The defendants subsequently moved for
summary judgment. The district court, finding no evidence that either
South Boston or its police chief was deliberately indifferent to Low-
ery's constitutional rights, granted summary judgment in favor of
them. The district court, however, denied Redd's and Stovall's motion
for summary judgment because (1) Redd had not yet been deposed
and (2) Rainey v. Conerly, 973 F.2d 321 (4th Cir. 1992), precluded
the application of qualified immunity because the parties presented
irreconcilable accounts of why Lowery was shot.

Lowery, Redd, and Stovall appealed the district court's initial order
granting summary judgment, and based upon the reasoning of the dis-
trict court, we affirmed in toto the district court's decision. Lowery v.
Redd, 14 F.3d 595, 1993 WL 527998 (4th Cir. Dec. 21, 1993) (unpub-
lished), cert. denied, 114 S. Ct. 2676 (1994).

While this case was pending on remand, Lowery, who had been
found competent to stand trial, pleaded guilty to violating Va. Code
§ 18.2-51.1. In addition to pleading guilty, Lowery signed a statement
admitting that (1) he maliciously attacked Officer Redd, (2) he
intended to kill him, if necessary, to escape, and (3) he knew of the
consequences that his guilty plea would have on his civil suit:

          3. I was selling cocaine in South [B]oston before my arrest
          and the cocaine I had with me when the officers
          arrested me was possessed by me for later sale.

          4. On February 1, 1991 when I was arrested, I cut Officer
          Thomas E. Redd on the face with a metal key holder
_________________________________________________________________
2 Lowery also named South Boston and its police chief as defendants
in his lawsuit, alleging that the violation of his constitutional rights was
caused by an official policy or custom of these two defendants.

                    4
          because I wanted to escape custody. I knew he would
          find my cocaine. I intended to maim and disable him
          and at the time Officer Stovall shot me I was intending
          to kill Redd if I had to [in order] to get away.

          ...

          6. I have discussed this thoroughly with my attorney Mr.
          Crowder, including the implications of this plea for my
          civil case. Having considered all of this I believe it is
          in my best interest to proceed.

          7. I have delayed pleading guilty because of the pendency
          of the civil suit I filed for my injuries in this episode.
          At all times I was guilty of these charges, and I knew
          I was.

(J.A. 686).

Finally, in taking Lowery's guilty plea, the state trial judge meticu-
lously reviewed Lowery's statement to make certain that each of the
statements was indeed true and that Lowery understood the state-
ments. After taking Lowery's guilty plea and hearing a summary of
the state's evidence from a prosecution witness, the trial judge
accepted Lowery's guilty plea, finding Lowery was"in fact guilty of
each charge." (J.A. 769).

Based on Lowery's guilty plea and statement, Stovall refiled his
motion for summary judgment and Redd supplemented his previous
motion for summary judgment, arguing that Lowery's guilty plea ren-
dered the parties' factual dispute moot. Although summary judgment
based on qualified immunity is inappropriate "where what actually
happened . . . need[s] to be resolved by the trier of fact in order to
reach a decision on the applicability of qualified immunity," Rainey,
973 F.2d at 324, the district court found that it did not need to resolve
the conflicting versions of the shooting because Lowery was pre-
cluded by the doctrine of judicial estoppel from disputing that he
maliciously attacked Redd before Stovall shot him.

                     5
Because the district court precluded Lowery from disputing that he
maliciously attacked Redd before being shot by Stovall, it held that
Stovall was entitled to qualified immunity because"Stovall's behav-
ior would appear objectively reasonable from the perspective of the
officer at the time of the shooting." (J.A. 1006). The district court also
held, regardless of the propriety of its ruling concerning judicial
estoppel, that Redd was entitled to qualified immunity on Lowery's
claim that Redd breached his alleged duty to protect him because
there was no clearly established standard to govern Redd's actions.
Lowery then noted this appeal.

II

Lowery claims that Stovall's shooting him for allegedly no reason
constituted the use of excessive force, and thus, violated his Fourth
Amendment right to be free from unreasonable seizures. In judging
the reasonableness of a seizure, we consider three factors: "[1] the
severity of the crime at issue, [2] whether the suspect poses an imme-
diate threat to the safety of the officers or others, and [3] whether he
is actively resisting arrest or attempting to evade by flight." Graham
v. Connor, 490 U.S. 386, 396 (1989). In addition, "[t]he `reasonable-
ness' of a particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight." Id.

Stovall claims that he is entitled to qualified immunity on Lowery's
excessive force claim. A defendant, such as Stovall, is entitled to
qualified immunity if his conduct did not contravene"clearly estab-
lished statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The clearly established standard for the use of excessive force at the
time of this incident was whether a reasonable officer in Stovall's
place could have had probable cause to believe that Lowery posed a
threat of serious harm to himself or Redd. See Tennessee v. Garner,
471 U.S. 1, 11 (1985); McLenagan v. Karnes, 27 F.3d 1002, 1006-07
(4th Cir.) (citing Garner), cert. denied , 115 S. Ct. 581 (1994). We
have stated that an officer in Stovall's position is entitled to qualified
immunity if "a reasonable officer possessing the same particularized
information as [Stovall] could have, in light of Garner, believed that
his conduct was lawful. . . ." McLenagan, 27 F.3d at 1007.

                     6
We have no doubt that Lowery's present allegations, if true, consti-
tute a violation of his clearly established rights. But Stovall contends
that Lowery's present allegations are irrelevant. Specifically, Stovall
argues that Lowery is precluded from making these allegations by the
doctrine of judicial estoppel because his present allegations are incon-
sistent with his prior guilty plea. Thus, Stovall reasons that he is enti-
tled to qualified immunity because Lowery's admission that he
maliciously attacked Redd shows that a reasonable officer in Stovall's
place could have believed that shooting Lowery was lawful.

Lowery, however, contends that his present allegations cannot be
precluded by the doctrine of judicial estoppel. We disagree.

A

We first discuss the principles underlying the doctrine of judicial
estoppel. When a party attempts to assert a position that is inconsis-
tent with a prior position that the party has successfully asserted in
another court, courts have a number of steps that they may take to
prevent such an attempted abuse of the judicial process. For example,
courts may apply collateral estoppel (also known as issue preclusion)
or equitable estoppel to prevent the attempted abuse. In addition to
those doctrines, courts may apply the closely related doctrine of judi-
cial estoppel.3 "Judicial estoppel precludes a party from adopting a
_________________________________________________________________
3 Judicial estoppel is "[c]losely related to collateral estoppel, but [it is]
dissimilar in critical respects." Allen v. Zurich Ins. Co., 667 F.2d 1162,
1166 (4th Cir. 1982). For example, judicial estoppel does not require that
the issue be actually litigated in the prior proceeding or that the parties
meet the requirement of mutuality, even if the mutuality requirement is
recognized by state law, as it is here. See Selected Risks Ins. Co. v. Dean,
355 S.E.2d 579, 581 (Va. 1987). One reason for these differences is that
judicial estoppel is a matter of federal law, not state law, see Allen, 667
F.2d at 1167 n.2, especially when the court's jurisdiction is based on the
presence of a federal question rather than the diversity of the parties.

Judicial estoppel is also closely related to equitable estoppel. See Rand
G. Boyers, Comment, Precluding Inconsistent Statements: The Doctrine
of Judicial Estoppel, 80 Nw. U.L. Rev. 1244, 1248 (1986). Unlike equi-
table estoppel, a party asserting judicial estoppel does not have to prove
detrimental reliance because judicial estoppel is designed to protect the

                     7
position that is inconsistent with a stance taken in prior litigation. The
purpose of the doctrine is to prevent a party from playing fast and
loose with the courts, and to protect the essential integrity of the judi-
cial process." John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d
26, 28-29 (4th Cir. 1995) (citations and internal quotation marks omit-
ted). See also Mark J. Plumer, Note, Judicial Estoppel: The Refur-
bishing of a Judicial Shield, 55 Geo. Wash. L. Rev. 409, 435 (1987)
("Judicial estoppel is properly defined as a bar against the alteration
of a factual assertion that is inconsistent with a position sworn to and
benefitted from in an earlier proceeding.").

Courts have had difficulty in formulating a specific test for deter-
mining when judicial estoppel should be applied. See Patriot Cine-
mas, Inc. v. General Cinema Corp., 834 F.2d 208, 212 (1st Cir. 1987)
("The specific requirements, however, are `rather vague' and vary
from state to state and from circuit to circuit. In fact, some circuits
and jurisdictions have never recognized the doctrine.") (citations
omitted); Allen, 667 F.2d at 1166 ("The circumstances under which
judicial estoppel may appropriately be invoked are probably not
reducible to any general formulation of principle. .. ."). But, nonethe-
less, there are certain elements that have to be met before courts will
apply judicial estoppel.

First, the party sought to be estopped must be seeking to adopt a
position that is inconsistent with a stance taken in prior litigation. Id.
And the position sought to be estopped must be one of fact rather than
law or legal theory. Tenneco, 691 F.2d at 664-65; Plumer, supra, at
411.

Second, the prior inconsistent position must have been accepted by
the court. Teledyne, 911 F.2d at 1218; see Allen, 667 F.2d at 1167
_________________________________________________________________

integrity of the courts rather than any interests of the litigants. See
Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1220 (6th Cir. 1990);
Tenneco Chems. v. William T. Burnett & Co., Inc., 691 F.2d 658, 665
(4th Cir. 1982).

Therefore, judicial estoppel may apply in a particular case "where nei-
ther collateral estoppel nor equitable estoppel . . . would apply." Allen,
667 F.2d at 1166-67.

                     8
(finding that "the record conclusively shows" that the party had suc-
cessfully asserted a prior inconsistent position). The insistence upon
a court having accepted the party's prior inconsistent position ensures
that judicial estoppel is applied in the narrowest of circumstances.
Indeed, "the prior success rule narrows the scope of judicial estoppel
to the point at which the necessity of protecting judicial integrity out-
weighs the ramifications of that protection upon the litigant and the
judicial system." Boyers, supra note 3, at 1256. Because of the harsh
results attendant with precluding a party from asserting a position that
would normally be available to the party, judicial estoppel must be
applied with caution. See Faggert & Frieden, 65 F.3d at 29.

Finally, the party sought to be estopped must have"intentionally
misled the court to gain unfair advantage." Tenneco, 691 F.2d at 665.
Indeed, we have stated that this factor is the "determinative factor" in
the application of judicial estoppel to a particular case. Id.; Faggert
& Frieden, 65 F.3d at 29. Thus, courts will not apply judicial estoppel
"when a party's prior position was based on inadvertence or mistake."
Faggert & Frieden, 65 F.3d at 29. With these principles in mind, we
turn to consider whether the district court erred in applying the doc-
trine of judicial estoppel to preclude Lowery from contradicting the
statements he made when he pleaded guilty to violating Va. Code
§ 18.2-51.1.

B

Our review of the record shows that the district court properly
applied the doctrine of judicial estoppel to preclude Lowery from dis-
puting that he maliciously attacked Redd before Stovall shot him.

First, Lowery's present position regarding the circumstances of the
shooting is contradictory to the position he took when he pled guilty.
During his guilty plea hearing, Lowery admitted to maliciously
attacking Redd. Specifically, the trial judge, in taking Lowery's guilty
plea, asked if Lowery had cut Redd on the face with the metal key
holder to escape, and Lowery said that he had. Lowery's present posi-
tion, however, is that he did not attack Redd with the magnetic key
holder prior to the shooting and that Stovall shot him without reason.

Lowery argues that these positions are reconcilable. Specifically,
Lowery contends that his statement does not show when he cut Redd.

                     9
Thus, Lowery reasons that his statement is consistent with his present
position because the statement allegedly does not foreclose the possi-
bility that he cut Redd on the face by scratching Redd as he was try-
ing to crawl into the patrol car after being shot by Stovall.

Lowery's argument, however, is undercut by the plain language in
his statement accompanying his guilty plea:

          On February 1, 1991 when I was arrested, I cut Officer
          Thomas E. Redd on the face with a metal key holder
          because I wanted to escape custody. I knew he would find
          my cocaine. I intended to maim and disable him and at the
          time Officer Stovall shot me I was intending to kill Redd if
          I had to [in order] to get away.

(J.A. 686) (emphasis added). The "wanted to escape custody" lan-
guage cannot be reconciled with Lowery's claim that he scratched
Redd as he was trying to get back into the patrol car because the posi-
tions are diametrically opposed to each other. Because Lowery's pres-
ent position necessarily conflicts with his prior position, the first
requirement for applying judicial estoppel has been met.

Next, we consider whether the trial judge accepted Lowery's prior
inconsistent position. "[J]udicial acceptance means only that the first
court has adopted the position urged by the party . . . as part of a final
disposition." Edwards v. Aetna Life Ins. Co. , 690 F.2d 595, 599 n.5
(6th Cir. 1982). Although judicial estoppel does not apply to the set-
tlement of an ordinary civil suit because "there is no `judicial accep-
tance' of anyone's position,"4 the taking of a guilty plea in a criminal
proceeding is not similar to the settlement of a civil suit.

In taking the guilty plea, the trial judge had a duty to determine that
Lowery entered his guilty plea "voluntarily with an understanding of
the nature of the charge and the consequences of the plea." Va. S. Ct.
Rule 3A:8(b). The record of the plea proceeding shows beyond dis-
_________________________________________________________________
4 Reynolds v. Commissioner, 861 F.2d 469, 473 (6th Cir. 1988) (finding
a bankruptcy court's approval of a settlement between a debtor and one
of his creditors constitutes a "judicial acceptance" because the court has
a duty to make sure the settlement is fair and equitable).

                     10
pute that the trial judge carried out this mandate. Moreover, the record
here shows that the trial judge had a factual basis for finding Lowery
guilty. The trial judge asked Lowery whether each of the assertions
in the statement accompanying his guilty plea was true, rather than
whether he merely understood the statements. Further, the court heard
a summary of the state's evidence from a prosecution witness. Signif-
icantly, in sentencing Lowery, the trial judge stated that Lowery was
"in fact guilty of each charge." (J.A. 769). Thus, we find that the trial
judge accepted Lowery's position when he accepted his guilty plea.

Finally, we turn to the issue of whether Lowery's attempt to assert
his present position is an intentional attempt to mislead the court to
gain unfair advantage in this action. By pleading guilty, Lowery
received a drastically reduced sentence. Because of his criminal
record, Lowery was facing forty to sixty years imprisonment before
entering into a plea agreement with the State. In exchange for his
pleading guilty and signing the accompanying statement, the State
agreed to recommend that Lowery be sentenced to only ten years, sus-
pended after the service of two years in prison. After Lowery carried
out his part of the bargain, the State kept its word and recommended
that he receive a ten-year sentence with eight years suspended; a sen-
tence that the trial judge imposed upon him. But, after receiving the
benefit of the plea bargain, Lowery now wants to have it the other
way, arguing that we should find that he did not maliciously attack
Redd.

For the reasons aptly expressed by Professor Hazard, we find this
argument "too much to take":

          Particularly galling is the situation where a criminal con-
          victed on his own guilty plea seeks as a plaintiff in a subse-
          quent civil action to claim redress based on a repudiation of
          the confession. The effrontery or, as some might say it,
          chutzpah, is too much to take. There certainly should be an
          estoppel in such a case.

Geoffrey Hazard, Revisiting the Second Restatement of Judgments;
Issue Preclusion and Related Problems, 66 CORNELL L. REV. 564, 578
(1981). As it is clear that Lowery is "blowing hot and cold as the

                    11
occasion demands"5 or wanting to "have [his] cake and eat it too,"6
we conclude that Lowery's arguments are nothing more than an inten-
tional attempt to mislead the district court and this court to gain unfair
advantage in this action. Thus, the district court did not err in finding
that the doctrine of judicial estoppel precluded Lowery from arguing
that he did not maliciously attack Redd. See Lichon v. American Uni-
versal Ins. Co., 459 N.W.2d 288, 293 (Mich. 1990) (finding that if a
plea of nolo contendere constituted an admission of guilt then the
defendant would be judicially estopped from asserting he was inno-
cent of the charge to which he plead nolo contendere); People v.
Goestenkors, No. 5-94-0870, 1996 WL 88283, at **2-3 (Ill. App. Ct.
Feb. 29, 1996) (finding that after pleading guilty a party is estopped
from asserting his preplea position because "[t]he law will not tolerate
a party in a legal proceeding swearing under oath to the untruth of
some matter and then swearing under oath to the truth of that same
matter").

C

Next, we consider whether the district court properly concluded, in
light of Lowery's guilty plea, that Stovall was entitled to qualified
immunity.

Lowery has strenuously opposed the district court's use of his
guilty plea to preclude him from disputing whether he maliciously
attacked Redd before Stovall shot him. But, significantly, he has not
taken issue with the district court's conclusion that Stovall, upon see-
ing Lowery attack Redd and hearing Redd yell that Lowery had a
knife, would have had probable cause to believe that Lowery posed
a threat of serious harm to Redd. See Tennessee v. Garner, 471 U.S.
1, 11 (1985) (finding a police officer has the right to use deadly force
only if the officer had probable cause to believe that the suspect poses
a threat of serious harm to the officer or others). We believe Lowery's
decision not to take issue with the district court's conclusion was wise
because the district court properly found Stovall acted as a reasonable
_________________________________________________________________
5 Allen, 667 F.2d at 1167 n.3.
6 Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1177
(D.S.C. 1974).

                     12
officer would have in his situation, and therefore, Stovall is entitled
to qualified immunity. See McLenagan, 27 F.3d at 1007-08 ("We will
not second-guess the split-second judgment of a trained police officer
merely because that judgment turns out to be mistaken, particularly
where inaction could have resulted in death or serious injury to the
officer and others."); Slattery v. Rizzo, 939 F.2d 213, 216-17 (4th Cir.
1991) (finding police officer who shot the plaintiff while conducting
a sting operation was entitled to qualified immunity because the
police officer believed the plaintiff was coming at him with a weapon
that turned out to be a beer bottle).

Therefore, the district court's grant of summary judgment to Sto-
vall is affirmed.

D

Finally, we conclude that the district court's grant of summary
judgment in favor of Redd was proper. Lowery alleged that Redd
owed him a duty to protect him from Stovall's use of excessive force
and that Redd breached this duty. Having concluded that Stovall's use
of force was reasonable under the circumstances, Lowery's claim
against Redd necessarily fails.

Therefore, the district court's grant of summary judgment to Redd
is affirmed.7

III

Accordingly, for all the foregoing reasons, the grant of summary
judgment in favor of Stovall and Redd is affirmed.

AFFIRMED
_________________________________________________________________
7 In any event, the district court properly found that Redd would be
entitled to qualified immunity on this claim because there was no clearly
established standard to govern Redd's actions. See McLenagan, 27 F.3d
at 1008 n.9.



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