                                   UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 16-6032


NICHOLAS LEE JONES,

                    Plaintiff – Appellant,

             v.

TIMOTHY GROSS, Baltimore City School Police; BALTIMORE CITY BOARD
OF SCHOOL COMMISSIONERS,

                    Defendants – Appellees,

             and

BALTIMORE CITY POLICE DEPARTMENT,

                    Defendant.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:13-cv-02643-JFM)


Argued: December 6, 2016                                     Decided: January 13, 2017


Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished opinion. Judge Duncan wrote the opinion, in which Judge
Niemeyer and Judge Wynn joined.
ARGUED: Christopher Thaddeus Longmore, DUGAN, MCKISSICK & LONGMORE,
LLC, Lexington Park, Maryland, for Appellant. Amanda Lee Costley, BALTIMORE
CITY PUBLIC SCHOOLS, Baltimore, Maryland, for Appellees. ON BRIEF: Tammy
L. Turner, Chief Legal Counsel, Office of Legal Counsel, BALTIMORE CITY PUBLIC
SCHOOLS, Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                            2
DUNCAN, Circuit Judge:

       Plaintiff-Appellant Nicholas Lee Jones brought suit under 42 U.S.C. § 1983

against Officer Timothy Gross, 1 alleging Gross violated his Fourth Amendment rights by

using lethal force to effectuate a seizure. The district court granted Gross’s motion for

summary judgment and Jones appealed. For the reasons that follow, we conclude that

Gross’s actions were objectively reasonable and he is entitled to qualified immunity on

the facts taken in the light most favorable to Jones. 2        Accordingly, we affirm the

judgment in favor of Gross, although on different grounds.



                                              I.

                                             A.

       The following facts are undisputed.

       On the night of October 3, 2010, Jones and two other men entered a Family Dollar

Store in Baltimore, Maryland. It was dark and raining; the men wore masks. Jones,


       1
         Jones also named Baltimore City Board of School Commissioners and Baltimore
City Police Department as Defendants under Monell v. Department of Social Services,
436 U.S. 658 (1978), which permits local governments to be held liable for the
constitutional violations of their officials. Id. at 690­91. The district court bifurcated the
instant claim from the Monell claim prior to summary judgment.
       2
         Although Gross raised qualified immunity as an affirmative defense in his
answer, neither party briefed the issue on appeal. At oral argument, counsel for Gross
confirmed that the applicable standard is qualified immunity. “It is well accepted . . . that
without filing a cross-appeal or cross-petition, an appellee may rely upon any matter
appearing in the record in support of the judgment below.” Blum v. Bacon, 457 U.S. 132,
137 n.5 (1982).


                                              3
using a box cutter as a weapon, emptied the cash register. A second robber pointed a gun

at two employees and demanded they lay face down on the ground. The third robber

acted as a lookout.

       Gross, a school police officer, was across the street at a Wendy’s restaurant getting

dinner at the time of the robbery.      As Gross was leaving the restaurant, a civilian

informed him that a robbery was in progress and he went to investigate. The store doors

were locked, but Gross observed Jones emptying the cash register, the gunman holding

an employee hostage, and the lookout. When the lookout saw Gross, he alerted the others

to Gross’s presence. The lookout unlocked the doors and the robbers prepared to exit the

store. The three men--still masked--huddled together with the gunman holding a gun to

an employee’s head. Jones carried a backpack with the stolen money. Once outside, the

gunman pushed the employee to the ground and Jones fled northbound on Harford Road.

Before Jones ran the length of the store, he was shot by Gross.

                                            B.

       The principal disagreement in this case centers around the moments just before

Gross discharged his weapon. 3 Gross stated in his deposition that he fired in response to

an initial shot from one of the robbers. Jones counters that it was impossible for Gross to


       3 Jones also insists a dispute exists as to whether he was shot in the back.
However, as discussed below, this is not a genuine issue of material fact. Jones points to
a discrepancy in Gross’s accounts, not a dispute between the parties. Gross stated in his
deposition that the men were facing each other when Gross shot him, but later noted in
his motion for summary judgment that he shot Jones from behind. The undisputed
medical records determine that Jones was shot in the back.


                                             4
“return fire” because the robber’s gun was an inoperable BB gun. Jones concedes,

however, that they used the gun with the intent to persuade others that it was real.

                                             C.

       Jones pleaded guilty to armed robbery in the Circuit Court for Baltimore City on

June 28, 2012. While incarcerated, Jones filed this 42 U.S.C. § 1983 action against Gross

in the United States District Court for the District of Maryland, alleging excessive force

in violation of his Fourth Amendment rights. Gross’s answer generally denied liability

and also asserted various affirmative defenses, including qualified immunity. Gross

moved for summary judgment, which the district court granted. This appeal followed.



                                             II.

       On appeal, Jones advances two arguments: (1) the district court used the wrong

legal standard and, (2) even under the proper legal standard, whether Gross fired his

weapon in response to gunfire from the robbers is a genuine dispute of material fact that

precludes summary judgment. Gross counters that this fact is not material and, even if

we accept Jones’s version of the shooting, the district court properly granted summary

judgment on the basis of qualified immunity.

       Summary judgment is appropriate when, as a matter of law, no reasonable jury

could find for the nonmovant because there are no disputed genuine issues of material

fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247­48 (1986). “Only disputes over

facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.            Factual disputes that are irrelevant or

                                             5
unnecessary will not be counted.” Id. at 248 (citation omitted). We review the district

court’s grant of summary judgment de novo, taking the facts in the light most favorable

to Jones, the nonmovant. Id. at 255.

       In considering a qualified-immunity defense, our inquiry at the summary judgment

stage is two-fold. We ask (1) whether the officer violated a federal right and (2) whether

that right was clearly established such that the officer was on notice that his actions

violated the law. Tolan v. Cotton, 134 S. Ct. 1861, 1865–66 (2014) (per curiam). We use

our discretion as to the order in which to address the two prongs. Pearson v. Callahan,

555 U.S. 223, 236 (2009). If the officer “did not violate any right, he is hardly in need of

any immunity and the analysis ends right then and there.” Abney v. Coe, 493 F.3d 412,

415 (4th Cir. 2007).



                                             III.

                                             A.

       Jones first argues that we must reverse because the district court used the wrong

legal standard. The district court, without citing legal justification, explained the grant of

summary judgment in the following paragraph:

       An armed robbery is not completed until the robber or robbers successfully
       flee the scene and divide up the loot obtained during the robbery. In this
       case that had not yet occurred at the time the shot was fired. An armed
       robber runs the risk that he or she will be shot during the course of the
       robbery. That is a risk that Jones ran.

J.A. 188. The district court erred in so stating. A robbery is complete once a thief has

control of, and moves, the goods. See Harris v. State, 728 A.2d 180, 188­89 (Md. 1999).

                                              6
         The district court also failed to consider applicable governing precedent. The

Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985), cautioned that lethal force

may not be used simply to stop a suspect from escaping law enforcement. Id. at 11. An

officer may only use deadly force when “it is necessary to prevent the escape and the

officer has probable cause to believe that the suspect poses a significant threat of death or

serious physical injury to the officer or others.” Id. at 3. Once a suspect no longer poses

a threat, it is no longer reasonable--and therefore no longer constitutional--for law

enforcement to use deadly force. Waterman v. Batton, 393 F.3d 471, 481­82 (4th Cir.

2005).

         However, the district court’s error in calculating the duration of an armed robbery

does not afford Jones relief. We “review judgments not opinions” and are “entitled to

affirm the district court on any ground that would support the judgment in favor of the

party prevailing below.” Catawba Indian Tribe of South Carolina v. City of Rock Hill,

501 F.3d 368, 372 n.4 (4th Cir. 2007) (per curiam). We hold that, on de novo review of

the undisputed facts in the record, it was objectively reasonable for Gross to use lethal

force against Jones.

                                             B.

         Accepting--as we must--the facts as Jones posits, he cannot demonstrate a

violation of a federal right because Gross had probable cause to believe that Jones posed

a threat to Gross or others. Claims that law enforcement used excessive force in the

course of making an arrest implicate the Fourth Amendment right against unreasonable

seizures. Graham v. Connor, 490 U.S. 386, 388 (1989). In deciding whether a Fourth

                                              7
Amendment violation occurred, courts must balance “the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.” Garner, 471 U.S. at 8 (quoting

United States v. Place, 462 U.S. 696, 703 (1983)). We judge an officer’s actions by an

objective standard, based on the totality of the circumstances. Graham, 490 U.S. at 397.

“Where the officer has probable cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others, it is not constitutionally unreasonable to

prevent escape by using deadly force.” Garner, 471 U.S. at 11.

       Reasonableness embodies an “allowance 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.”

Graham, 490 U.S. at 396–97. Thus, our perspective is “of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Id. at 396. We must also consider

“the severity of the crime at issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively resisting arrest.” Id.

       Here, all factors weigh in Gross’s favor. Gross witnessed three masked men

robbing a store, one of whom was holding a gun to a hostage’s head. It was reasonable

for Gross to believe that Jones--fleeing down a public road with a backpack at night and

in the rain--was also armed and dangerous. 4 The time between the robbers exiting the


       4
        Jones urges us to separate the incident into two segments: (1) the moment when
the robbers exited the store and (2) when Jones began running away. However, the
circumstances here differ from instances where we have separately reviewed the
(Continued)
                                               8
store and the shooting was undeniably brief, as Jones had not run the length of the store

before he fell from the shot. Police officers must make swift decisions with limited

information. Gross had probable cause to believe that Jones posed a threat to the safety

of others while attempting to elude law enforcement. We therefore hold that, on the

undisputed facts, Gross’s use of lethal force was objectively reasonable and, therefore,

Gross is entitled to qualified immunity. 5

                                             C.

           Jones contends that summary judgment is not warranted because the parties

  dispute whether Gross fired his weapon in response to a shot from one of the robbers.

However, this fact is immaterial because it does not “affect the outcome of the suit under

the governing law.” Liberty Lobby, Inc., 477 U.S. at 248.

       Jones and Gross both agree that, after robbing the store, Jones and the two other

men exited while holding an employee hostage. Gross then claims that the gunman

pushed the employee to the ground and Gross “saw the muzzle flash” as the robber “took



constitutionality of a noncontinuous use of force in a single encounter. See, e.g., Batton,
393 F.3d at 481. Jones and the other robbers were in constant motion as they exited the
store and, according to Jones’s own testimony, he immediately began running after
leaving the store. This is not an instance where there was a delay in the officer’s actions.
Rather, the robbers’ exit from the store and Jones’s flight were one uninterrupted
incident. Moreover, at the time Gross fired his weapon, “the justification for the initial
force” had not been “eliminated” and Gross acted reasonably based on the information
“possessed . . . at the moment that force [was] employed.” Id.
       5
        Because we hold that Gross did not violate Jones’s Fourth Amendment rights, we
need not address the second prong of the qualified immunity analysis--whether Gross
reasonably believed he was acting within the law. See Abney, 493 F.3d at 418.


                                             9
a shot” at him, at which point Gross returned fire. According to Jones, however, the

weapon used in the robbery was an inoperable BB gun, which, even if it was operational,

would not have emitted a muzzle flash. But Gross’s actions were objectively reasonable

regardless of whether he was returning fire. Gross, confronted in the dark and the rain

with three masked robbers--one of whom had been holding a gun to a person’s head--did

not know whether that gun was real or functional. Given the robbers’ evident willingness

to put others at risk, Gross reasonably presumed that the robbers posed a threat to himself

and others. 6

       For the reasons explained above, the judgment of the district court is

                                                                                AFFIRMED.




       6
         In an attempt to manufacture a genuine dispute of material fact, Jones also points
to contradictions in Gross’s account of the events. In Gross’s deposition he testified that
he was facing Jones when he shot him. However, Gross stated in his motion for
summary judgment that he shot Jones in the back. Gross’s differing versions do not
constitute a genuine dispute. To begin, an issue of material fact is one that “require[s] a
jury or judge to solve the parties’ differing versions of the truth at trial.” First Nat. Bank
of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968) (emphasis added). Here, Jones
takes issue with Gross’s conflicting accounts. Moreover, the uncontroverted medical
evidence indicates that Jones was shot in the back. Therefore, Gross’s inconsistency
would not preclude summary judgment because evidence in the record supports Jones’s
statement that he was shot from behind.


                                             10
