                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 07-1987



CHARLES RAYMOND NOEL; JACOB RALPH NOEL, individually and as
personal representative of the estate of Cheryl Lynn Noel;
RAMONA SCHWEIGER, to the use of Matthew Noel,

                Plaintiffs – Appellees,

           v.

CARLOS ARTSON, Officer, Badge No. 3836; DAVID SWEREN,
Officer, Badge #3794; MICHAEL GIDDINGS, Officer, Badge
#3305; MARK CRUMP, Sergeant, Badge #3389; ROBERT M.
GIBBONS, Sergeant, Badge #3904; BALTIMORE COUNTY, MARYLAND,

                Defendants – Appellants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:06-cv-02069-WMN)


Argued:   September 23, 2008                 Decided:   October 22, 2008


Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge,              and
Richard L. VOORHEES, United States District Judge for                the
Western District of North Carolina, sitting by designation.


Dismissed by unpublished per curiam opinion.


ARGUED: Paul M. Mayhew, BALTIMORE COUNTY OFFICE          OF LAW, Towson,
Maryland, for Appellants.   Terrell N. Roberts,           III, ROBERTS &
WOOD, Riverdale, Maryland, for Appellees.    ON          BRIEF: John E.
Beverungen, County Attorney, BALTIMORE COUNTY            OFFICE OF LAW,
Towson, Maryland, for Appellants.   Robert G. Landolt, Columbia,
Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Officer Carlos Artson and his co-defendants (“defendants”)

appeal the district court’s denial of qualified immunity in a

§ 1983    action    against     them.    We      agree    with   plaintiffs   that

defendants failed to properly raise their defense of qualified

immunity before the district court, and therefore dismiss the

appeal.



                                        I.

       At 4:30 a.m. on January 21, 2005, defendants, members of

the Baltimore County Police Department, executed a warrant at

the home of Cheryl and Charles Noel.                   Defendants had obtained

the warrant after finding evidence of personal drug use in trash

cans   behind      the   Noel   home.       On   the     morning   of   the   raid,

defendants opted to execute a “no-knock” entry because several

residents had prior criminal histories and two of the residents

owned registered handguns.

       After breaking down the front door and detonating a flash-

bang grenade, seven officers entered the house.                     Four of the

officers ran upstairs to the bedroom where Cheryl and Charles

Noel were sleeping.         Hearing the commotion, Cheryl Noel grabbed

her handgun and stood up out of bed.                   She was standing by the

bed with her gun pointed slightly downward at waist level when

two of the defendants kicked open the door and entered the room.

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Defendant Artson quickly fired two shots at Cheryl Noel, who

slumped to the floor at the foot of the bed with her right arm

resting on the bed, approximately eight inches from the gun.

Artson    told    her   to   get     away    from    the   gun.     At    this    point,

Charles    Noel    states      that    his       wife    remained    motionless     and

unresponsive, while Artson says that she continued to look at

the firing officer “like she’s trying to make a choice, make a

decision.”       Artson states that Cheryl Noel moved her hand toward

the gun, prompting him to fire a third shot into her chest.                         The

coroner found that the third shot, unlike the first two, was

immediately fatal.           The police later charged three residents of

the house with drug possession.

     Cheryl       Noel’s      survivors          filed     a     complaint       against

defendants for damages under 42 U.S.C. § 1983 and under the

common law of Maryland.            Following discovery, defendants filed a

Motion for Summary Judgment, which the district court denied on

September 6, 2007.           Several days later, defendants wrote to the

district court to ask whether it had considered and ruled on the

qualified     immunity       issue    and    whether       defendants     could    file

supplemental      briefs      on     the    issue.         The    court   noted    that

qualified immunity was not mentioned in the Motion for Summary

Judgment, but that it had considered the issue sua sponte and

concluded that “there were genuine issues of material fact as to

whether Defendants were entitled to qualified immunity” on both

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the “no-knock” and third shot issues.                     The court did not accept

further       briefing.          Defendants       then    appealed        the   denial         of

qualified immunity.



                                              II.

       On October 9, 2007, plaintiffs filed a motion to dismiss

defendants’ appeal on grounds that the defendants had waived

their claim of qualified immunity.                        We agree with plaintiffs

that defendants have waived their qualified immunity defense and

that the appeal must accordingly be dismissed.

       Defendants mentioned the immunity defense briefly in their

Answer,      but   the    defense     only    surfaced        in    the    Reply     to    the

Plaintiffs’ Opposition to the Motion for Summary Judgment in

anything like a full-blown form.                    Defendants explain that they

did    not     discuss     the     defense    earlier       because        they    believed

plaintiffs’ underlying constitutional claims lacked merit.

       Our cases have been consistent on one thing: that to be

preserved for appeal, the defense of qualified immunity must be

raised in a timely fashion before the district court.                                 E.g.,

Sales v. Grant, 224 F.3d 293, 296-97 (4th Cir. 2000) (barring

the defendant from pursuing his qualified immunity defense when

he    only    cursorily     mentioned    the        defense    in    his    answer        to    a

§ 1983 complaint); Suarez Corp. Indus. v. McGraw, 125 F.3d 222,

226    (4th    Cir.      1997)    (barring        the    defendant    from        raising      a

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qualified        immunity       defense    for    the   first    time     on     appeal);

Buffington v. Baltimore County, 913 F.2d 113, 120-21 (4th Cir.

1990) (holding that a party had abandoned its qualified immunity

defense in a § 1983 action by not raising the issue clearly in

the motion for summary judgment).

      The   case     on    which    defendants       rely,    Ridpath     v.     Board   of

Governors Marshall University, 447 F.3d 292 (4th Cir. 2006), is

not   to    the    contrary.           Ridpath    confirmed     that      “[g]enerally,

qualified immunity must be raised in an answer or a dismissal

motion,” but allowed for discretionary appellate review in some

circumstances.          447 F.3d at 305 (citing Fed. R. Civ. P. 8(c)).

In Ridpath, the court concluded that (1) the plaintiff was not

prejudiced by the district court’s consideration of the untimely

defense, because the court rejected the defense; (2) there was

no sign that the plaintiff sought to respond to the claim; and

(3) the plaintiff had fully addressed the qualified immunity

issue before the court of appeals.                   Id. at 306.       But Ridpath is

clear that review of untimely claims is within the discretion of

the appellate court.

      Here, plaintiffs would suffer prejudice because they had no

chance     to    address    the     issue    in     their    opposition     to    summary

judgment.          It     was    not      until   their      reply   to     plaintiffs’

opposition to the summary judgment motion that defendants even

argued     the    immunity       defense,     and    “[c]onsidering        an    argument

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advanced for the first time in a reply brief . . . entails the

risk of an improvident or ill-advised opinion . . . .”                             McBride

v. Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1211 (D.C. Cir.

1986).     Our cases require that an affirmative defense be raised

in a timely fashion for a reason: what happened here deprived

plaintiffs of any chance to brief the question and receive a

fully considered ruling.          The failure to raise the defense in a

timely fashion likewise deprived the district court of orderly

process    and   this   court     of    the     full    benefit    of   the    district

court’s     reasoning.       To        permit     appellate       review      in     these

circumstances would reward parties who bypass settled procedural

requirements, and would encourage imprecise practice before the

trial     courts.       Accordingly,       we     decline     to      entertain       this

interlocutory       appeal      and     remand         the   action     for        further

proceedings in the district court.

                                                                              DISMISSED




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