                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 11-2248


TERRY A. GANDY, Individually and as Administrator of the
Estate of David Charles Gandy, Deceased,

                 Plaintiff - Appellant,

           v.

NEAL PATRICK ROBEY, c/o Stafford County Sheriff’s Office;
JOHN DOES 1-25; JANE DOES 1-25; JOSEPH D. PITTMAN,

                 Defendants – Appellees,

           and

CHARLES E. JETT, c/o Stafford         County   Sheriff’s    Office;
COMMONWEALTH OF VIRGINIA,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:10-cv-00065-LMB-TCB)


Argued:   October 24, 2012                     Decided:    April 4, 2013


Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and R. Bryan
HARWELL, United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
ARGUED: Peter Christopher Grenier, BODE & GRENIER, LLP,
Washington, D.C., for Appellant.      Jeff W. Rosen, PENDER &
COWARD, PC, Virginia Beach, Virginia; Robert R. Musick, THOMPSON
MCMULLAN PC, Richmond, Virginia, for Appellees. ON BRIEF: Andre
M. Gregorian, BODE & GRENIER, LLP, Washington, D.C., for
Appellant.   Robert A. Dybing, THOMPSON MCMULLAN PC, Richmond,
Virginia, for Appellee Joseph D. Pittman.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Terry      A.    Gandy    (“Terry”)           brought   this     action     under   42

U.S.C.      §   1983    alleging        that     Sergeant      Joseph    D.   Pittman      and

Deputy Sheriff Neal P. Robey of the Stafford County, Virginia,

Sheriff’s Office (“SCSO”) used constitutionally excessive force

in   the    shooting         death    of   her    husband      David    Gandy     (“Gandy”).

Terry      also    asserted          wrongful     death     claims      against     Sergeant

Pittman and Deputy Robey under Virginia law.                           The district court

granted Sergeant Pittman’s motion for summary judgment on both

the § 1983 and the wrongful death claims.

       The court denied Deputy Robey’s summary judgment motion,

however, and Terry’s claims against him proceeded to trial.                                The

jury    answered       special       interrogatories,          concluding     that    Deputy

Robey used excessive force against Gandy, but that Deputy Robey

“had a reasonable belief” that Gandy “posed an imminent threat

of causing death or serious bodily injury” to himself or others.

Based      on   the    jury’s        responses,       the   district     court     concluded

Deputy     Robey       was    entitled     to    qualified      immunity      and    entered

judgment in his favor on the § 1983 claims.                        As for the wrongful

death claims against Deputy Robey, the jury returned a defense

verdict.

       Terry appeals on several grounds.                       We affirm the order of

the district court granting summary judgment to Sergeant Pittman

but vacate the district court’s entry of judgment in favor of

                                                 3
Deputy Robey and remand Terry’s excessive force claim against

Deputy Robey for a new trial.

                                             I.

                                             A.

       On    June   29,     2008,      following   an    argument     with     his    son

Matthew, Gandy told his wife Terry that he was going to get a

gun from his neighbor Jordan Von Schwanitz and kill himself.

Gandy told Von Schwanitz that he “was having a problem out back”

and needed a gun.           J.A. 528.        Von Schwanitz gave him a loaded

Sig Sauer 380.        That evening, Terry saw Gandy sitting at a table

in their basement with a holstered gun in front of him.                          Terry

tried to grab the gun from the table, but Gandy pulled it away

and went into the backyard with the gun and a beer.                         Both Terry

and Von Schwanitz followed Gandy outside and pleaded for him to

turn over the gun, but Gandy refused.                    During this time, Gandy

was seated on a brick retaining wall a short distance from the

door to the basement; Terry could not see the gun but assumed it

was behind him.

       Terry called Matthew and asked him to come home, explaining

that   Gandy    was    in       possession    of   a    gun   and   was     threatening

suicide.       Matthew returned and went into the backyard to talk

with   his    father      and    Von   Schwanitz,      who    was   still    trying    to

convince Gandy to give up the gun.                 Like Terry, Matthew did not



                                             4
see the gun but assumed it was behind Gandy because Gandy kept

putting his hand behind his back.

       Shortly before 11:00 p.m., Matthew called 911.                             He told the

dispatcher that Gandy had a gun and was in the backyard with Von

Schwanitz and Terry, and that Gandy was upset following a family

argument     earlier     in    the    day.          Matthew       further   revealed       that

Gandy was a nightly drinker, struggled with anger issues, and

was    under    a     doctor’s       care       for    psychological         difficulties.

Matthew also indicated that Gandy was taking “quite a bit of

medication.”          J.A.    746.         He   advised      that     authorities        should

approach with caution and that if Gandy saw or heard police

officers, he would shoot himself.

       The   dispatcher       sent    officers         to    the    scene   based     on    the

information     Matthew        provided         during      his    911   call.       Sergeant

Pittman responded to the scene along with Deputies Robey, Ed

McCollough     and     Brian    Davis.           Sergeant         Pittman   was    the    shift

supervisor     and     ranking       law    enforcement           officer   present.         He

concluded      that    the     situation         was     highly      dangerous      and    that

immediate action was required to protect Gandy and the others

with   him.      Sergeant       Pittman         considered        calling   for     the    SWAT

Team, but he rejected that option because he feared it would

take too long for SWAT to deploy.                      He also rejected the option

of calling in a hostage negotiator, given Matthew’s admonition



                                                5
that Gandy might shoot himself if he saw or heard any police

officers.

      According      to     Matthew,    when      the   law     enforcement          officers

arrived    at   the       Gandy    house,     Matthew        explained        to     Sergeant

Pittman that Gandy was calm.               Nonetheless, Sergeant Pittman went

forward     with    his      immediate      action      plan       pursuant         to    which

Sergeant Pittman and Deputy McCullough would enter the backyard

rapidly to surprise Gandy, announce themselves and, if Gandy

failed    to    surrender         immediately,       subdue        him      using        tasers.

Deputy Robey’s assignment was to carry his M-4 rifle and provide

deadly    force       if     warranted.            Sergeant         Pittman         did     not

specifically        direct        Deputy     Robey      when          and     under        what

circumstances       to     use    deadly    force.         He    assumed       that      Deputy

Robey, with whom he had worked for more than a year, understood

that SCSO policy permitted an officer to use deadly force in the

face of a threat involving the risk of serious bodily harm or

death to the officer or others.                   Deputy Davis was to serve as

Deputy Robey’s backup in the event lethal force was required and

Deputy Robey was unable to act.

      As planned, the officers entered Gandy’s backyard through

the   privacy      fence     gate.      According       to      Sergeant       Pittman,      he

loudly    announced        “Sheriff’s      Office.      Let      me    see     your      hands.

Drop the gun.         Drop the gun.”             J.A. 403.         Almost immediately

after    entering,        both    Sergeant       Pittman     and      Deputy       McCullough

                                             6
fired their tasers at Gandy, who was seated near the gate on a

brick retaining wall.            Both attempts were unsuccessful.                The

officers then shouted “Drop your gun,” but Gandy ran toward a

door in the rear of the house.              It appeared to Deputy Robey that

Gandy had a gun in his left hand and was reaching for the door

with his right hand.            According to Deputy Robey, Gandy looked

towards him and raised his left hand in the direction of Deputy

Robey and McCullough.           Believing that Gandy was about to shoot

either him or McCullough, Deputy Robey fired and struck Gandy

three times—once on the left side of the chest, once on the left

side of his back, and once on the right side of his back.                       Gandy

fell forward through the door into the basement and came to rest

on   his   stomach.       Officers      removed     Terry,     Matthew,    and    Von

Schwanitz    from   the    scene      and   then   examined     Gandy.     Sergeant

Pittman    and   Deputy    Davis      recovered    the   Sig    Sauer    380,   still

holstered,       from   under      Gandy’s      torso.         Deputy    McCollough

testified that he saw the gun under Gandy as well.                         Sergeant

Pittman indicated in a post-incident debriefing that he noticed

a significant amount of blood pooling under Gandy’s upper chest

where he had an exit wound, but subsequent tests revealed no

blood on the gun.

      The civilian witnesses, however, presented a dramatically

different    version      of    the    officers’     conduct.       According      to

Matthew, Terry and Von Schwanitz, the officers did not announce

                                            7
themselves when entering the backyard.                  Terry and Von Schwanitz

conceded that the officers yelled “drop the gun,” but they claim

the officers did so only after having fired their tasers.                           All

three witnesses claimed that Gandy was shot immediately after

the officers ordered him to drop the gun and deny that Gandy had

time    to   glance,    turn   his     body,   or    raise    his     arm   in   Deputy

Robey’s direction.

                                         B.

       Terry filed this action under 42 U.S.C. § 1983 alleging

that    Deputy    Robey    used      constitutionally        excessive      force    in

shooting and killing Gandy and that Sergeant Pittman is also

liable for the use of such force on Gandy.                    Terry also asserted

a wrongful death claim under Virginia law, alleging that the

conduct of Sergeant Pittman and Deputy Robey was willful and

wanton or at least grossly negligent.                 Both defendants moved for

summary judgment.         The district court granted summary judgment

to     Sergeant   Pittman,      concluding       that    he     was     entitled     to

qualified immunity because his discretionary tactical decision

was    reasonable      under   the    circumstances.          The   district     court

denied    summary   judgment      to    Deputy      Robey,    however,      concluding

that there was a genuine issue of fact as to whether Gandy

turned and raised his arm toward Deputy Robey.                         The district

court explained that



                                          8
     if you believe the testimony of the Gandy family
     members and if you believe the forensic experts that
     the plaintiffs have presented, [who] painted a picture
     in which it’s dark, Mr. Gandy is running towards the
     house, his back is to the officer, and he does not
     turn to the officer to threaten him or McCullough[,] .
     . . there would be no proper justification for Robey
     to have fired at Mr. Gandy . . . .

              . . .

          . . . [T]here is evidence through the testimony
     of the family members who say that Gandy’s left hand
     was never pointing towards the officers, [and] that he
     was running towards the door . . . .

J.A. 1070-71.

     The claims against Deputy Robey thus proceeded to trial.

Following      the    presentation    of       evidence,   the   district    court

instructed the jurors that “[a] law enforcement officer has the

right    to     use     such     force     as     is   necessary     under     the

circumstances,”        and     that   “[w]hether       the   force    used     was

reasonable or unreasonable is a question to be determined by

[the jury] in light of all of the evidence received in this

case.”   J.A. 1208.          The district judge further explained to the

jury the following:

          You must determine the degree of force that a
     reasonable and prudent police officer would have
     applied under the facts and circumstances shown from
     the evidence . . . . In determining whether or not
     Deputy Robey used excessive force, you may consider
     the extent of the injury suffered, the need for
     application of force, the relationship between the
     need and the amount of force used, the threat
     reasonably perceived by Deputy Robey, and any efforts
     made to temper the severity of a forceful response.

              . . .
                                           9
          The reasonableness of a particular use of force
     must be judged from the perspective of a reasonable
     officer on the scene, rather than with hindsight . . .
     [and] must allow for the fact that police officers are
     often forced to make split-second judgments under
     circumstances that are tense, uncertain, and rapidly
     evolving about the amount of force that is necessary
     in a particular situation.

          This reasonableness inquiry is an objective one.
     The question is whether Deputy Robey’s actions were
     objectively reasonable in light of the facts and
     circumstances confronting him without regard to his
     underlying intention or motivation.

J.A. 1208-09.

     The district court then gave the jury a special verdict

form, to which Terry agreed.   The jury answered these special

interrogatories as follows:

          1. Has the plaintiff, Terry A. Gandy, established
     by a preponderance of the evidence that defendant Neal
     Patrick Robey was grossly negligent in the performance
     of his duties when he shot David Charles Gandy?

           Answer: No

     2. Has the plaintiff, Terry A. Gandy, established by a
     preponderance of the evidence that defendant Neal
     Patrick Robey engaged in willful and wanton misconduct
     and with conscious disregard when he shot David
     Charles Gandy?

           Answer: No

     3. Has the plaintiff, Terry A. Gandy, established by a
     preponderance of the evidence that defendant Neal
     Patrick Robey violated David Charles Gandy’s Fourth
     Amendment right to be free from excessive use of
     force, or his Fourteenth Amendment [right] not to be
     deprived of life without due process of law, when he
     shot David Charles Gandy?

          Answer: Yes


                               10
          4. Do you find that at the time that he shot
     David Charles Gandy, Deputy Neal Patrick Robey had a
     reasonable belief that Mr. Gandy posed an imminent
     threat of causing death or serious bodily injury to
     Deputy Robey or to other persons present at the scene?

            Answer: Yes

J.A. 961-62.       The jury awarded Terry $267,000 in compensatory

damages    but    did    not   award     punitive    damages.       The   parties

declined    the    district      court’s      invitation    to   have   the   jury

polled, and the court discharged the jurors.

     Immediately after dismissing the jury, the district court

set aside the jury’s verdict awarding compensatory damages to

Terry on her § 1983 claim.               The district court explained that

because    the    jury   found    that    Deputy    Robey   “had   a    reasonable

belief that Mr. Gandy posed an imminent threat of causing death

or serious bodily injury to Deputy Robey or to other persons

present at the scene,” J.A. 962, he was entitled to qualified

immunity.     The district court concluded it was compelled to set

aside the verdict, and Terry did not object. 1



     1
         The district court stated the following:

          There is a legal inconsistency to some degree in
     this verdict in that . . . the jury . . . answer[ed]
     “yes” to the 1983 [question], but they also answered
     “yes” to question No. 4, which is clearly the factual
     predicate finding as to liability on the 1983 matter,
     that is, whether or not the officer would be entitled
     to qualified immunity. That question we’ve all agreed
     pertained to that issue.

(Continued)
                                         11
     Following trial, Terry obtained new counsel who then moved

to alter or amend the judgment and reinstate the jury award.

Terry contended that the special verdict form, to which she did

not object at trial, was flawed in that it incorrectly stated a

subjective qualified immunity standard and that it was drafted

in such a way as to permit the jury to award damages even if it

answered “yes” to the qualified immunity question.             She argued

that the only reasonable way to harmonize the jury’s apparently

inconsistent answers was for the district court to reinstate the

jury’s award of damages or order a new trial altogether.                The

district court denied the motion to alter or amend the judgment,

and this appeal ensued.

                                  II.

     Terry’s    fundamental   claim    is   that   Sergeant   Pittman   and

Deputy Robey used constitutionally excessive force against Gandy


           . . . I do believe that the Court is required
     under [these] findings to set aside this verdict, and
     I think [plaintiff’s counsel is] acknowledging that
     with the nodding of [his] head and the body language .
     . . .

          . . .

          Anything further we need to address at this time?

          [PLAINTIFF’S COUNSEL]:       No, Your Honor.

J.A. 1240-41.




                                  12
that resulted in his death.                    The Fourth Amendment guarantees the

“right to be free from unreasonable searches and seizures, which

encompasses           the     right    to   be    free        of    arrests,       investigatory

stops,       or       other     seizures       effectuated          by        excessive     force.”

Schultz v. Braga, 455 F.3d 470, 476 (4th Cir. 2006); see Graham

v. Connor, 490 U.S. 386, 388 (1989). 2                         Whether a law enforcement

officer          used       excessive       force       depends          on     the    “objective

reasonableness” of the action in question.                               Graham, 490 U.S. at

388 (internal quotation marks omitted).                              The force used by an

officer          is     not    excessive         if     the    officer’s          “actions        are

‘objectively reasonable’ in light of the facts and circumstances

confronting [him], without regard to [his] underlying intent or

motivation.”            Id. at 397; Schultz, 455 F.3d at 477.                          “To gauge

objective reasonableness, a court examines only the actions at

issue and measures them against what a reasonable police officer

would do under the circumstances.”                            Rowland v. Perry, 41 F.3d

167,       172    (4th        Cir.    1994).           The    use    of       deadly      force    is


       2
       Terry also challenges the dismissal of her excessive force
claim under the Due Process Clause of the Fourteenth Amendment.
This challenge is without merit. “The Fourth Amendment governs
claims of excessive force during the course of an arrest,
investigatory stop, or other seizure of a person.”       Riley v.
Dorton, 115 F.3d 1159, 1161 (4th Cir. 1997) (en banc) (internal
quotation marks omitted)).       The Fourteenth Amendment, by
contrast, provides the framework for deciding the excessive
force claims of arrestees or pretrial detainees.     See Orem v.
Rephann, 523 F.3d 442, 446 (4th Cir. 2008).



                                                  13
constitutionally        reasonable     “[w]here    the    officer      has   probable

cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others.”                          Tennessee

v. Garner, 471 U.S. 1, 11 (1985).

       Civil liability, however, does not automatically attach to

every     constitutional       violation.          Government       officials        are

entitled to qualified immunity as a matter of law so long as

they    have      not   violated      “clearly     established         statutory        or

constitutional rights of which a reasonable person would have

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

other   words,      courts     ask    “whether    it     would    be    clear      to    a

reasonable       officer     that    his    conduct      was     unlawful     in     the

situation he confronted.”             Saucier v. Katz, 533 U.S. 194, 202

(2001).          Qualified immunity extends to government officials'

objectively       reasonable     mistakes,      “regardless       of    whether      the

government official's error is a mistake of law, a mistake of

fact, or a mistake based on mixed questions of law and fact.”

Pearson     v.    Callahan,     555    U.S.      223,    231     (2009)      (internal

quotation      marks    omitted).       “[T]he     immunity      inquiry      must      be

filtered through the lens of the officer’s perceptions at the

time of the incident in question.”              Rowland, 41 F.3d at 173.

       Such a perspective serves two purposes. First, using
       the officer’s perception of the facts at the time
       limits second-guessing the reasonableness of actions
       with the benefit of 20/20 hindsight. Second, using
       this perspective limits the need for decision-makers

                                           14
      to sort through conflicting versions of the “actual”
      facts, and allows them to focus instead on what the
      police officer reasonably perceived. In sum, the
      officer’s subjective state of mind is not relevant to
      the qualified immunity inquiry but his perceptions of
      the objective facts of the incident in question are.

Id.   (citations     omitted).       The     qualified     immunity   defense

“protects all but the plainly incompetent or those who knowingly

violate the law,” and it “protects law enforcement officers from

bad guesses in gray areas and ensures that they are liable only

for transgressing bright lines.”            Waterman v. Batton, 393 F.3d

471, 476 (4th Cir. 2005) (citation and internal quotation marks

omitted).

      With these principles in mind, we consider Terry’s specific

challenges to the district court’s rulings.

                                     III.

      Terry    raises    several   challenges   to   the   district    court’s

entry of summary judgment in favor of Sergeant Pittman.                    We

briefly address them below.

                                      A.

      Terry first contends that Sergeant Pittman violated Gandy’s

Fourth Amendment rights when he fired his taser at Gandy.                   We

disagree.      For   a   plaintiff   to    prevail   on   an   excessive-force

claim under the Fourth Amendment, there must first have been a

seizure.      See County of Sacramento v. Lewis, 523 U.S. 833, 843-

45 & n.7 (1998).          “[A] Fourth Amendment seizure requires ‘an


                                      15
intentional acquisition of physical control’ which occurs ‘only

when there is a governmental termination of freedom of movement

through means intentionally applied.’”                     Melgar v. Greene, 593

F.3d 348, 354 (4th Cir. 2010) (quoting Brower v. Cnty. of Inyo,

489   U.S.    593,     596-97       (1989)    (emphasis     omitted)).        Thus,    no

seizure      occurs    when     a    law     enforcement    officer     shoots   at     a

fleeing suspect but fails to hit him and halt his movement.

See, e.g., Cameron v. City of Pontiac, 813 F.2d 782, 785 (6th

Cir. 1987).        Because it is uncontroverted that Sergeant Pittman

missed Gandy when firing his taser, Terry’s claim clearly fails.

See Lewis, 523 U.S. at 845 n.7 (“Attempted seizures of a person

are beyond the scope of the Fourth Amendment.”).

                                              B.

      Next, Terry contends that even if Sergeant Pittman did not

personally use excessive force directly on Gandy, his conduct

nevertheless       effectively         caused       the   deprivation    of    Gandy’s

Fourth Amendment rights.              See Sales v. Grant, 158 F.3d 768, 776

(4th Cir. 1998) (applying the “principle of effective causation

by indirect means” in a § 1983 action alleging First Amendment

violations      in     the    public       employment      context).       Under       an

effective causation theory, the “requisite causal connection can

be established . . . by setting in motion a series of acts by

others which the actor knows or reasonably should know would

cause     others      to   inflict      the        constitutional   injury.”          Id.

                                              16
(quoting Gutierrez–Rodriguez v. Cartagena, 882 F.2d 553, 560–61

(1st Cir. 1989)).         Thus, Terry argues that Sergeant Pittman is

liable for formulating a plan that “set in motion” a series of

events that Sergeant Pittman knew or should have known would

cause the other officers to use constitutionally excessive force

against Gandy.         Terry argues, moreover, that Sergeant Pittman’s

plan to taser Gandy without first trying to calm him down by

communicating with him or trying other less drastic measures was

unreasonable      and     in    violation     of      various     police      training

procedures.

      Terry’s “effective causation” or “setting-in-motion” theory

strikes us as highly dubious in the excessive force context.                       In

determining whether an officer was justified in using deadly

force   based   on      “probable   cause     to    believe     that    the    suspect

pose[d] a threat of serious physical harm,” Garner, 471 U.S. at

11, we must focus on the moment when such force was employed.

See   Elliott     v.    Leavitt,    99   F.3d      640,   642    (4th   Cir.     1996)

(“Graham requires us to focus on the moment force was used;

conduct   prior    to    that   moment   is     not    relevant    in   determining

whether an officer used reasonable force.”); Carter v. Buscher,

973 F.2d 1328, 1332 (7th Cir. 1992) (“[P]re-seizure conduct is

not subject to Fourth Amendment scrutiny.”).                    A police officer’s

pre-seizure conduct, regardless of whether it was ill-advised or

violative of law enforcement protocol, is generally not relevant

                                         17
for   purposes      of    an     excessive       force        claim   under       the    Fourth

Amendment which looks only to the moment force is used.                                        See

Greenidge     v.    Ruffin,        927     F.2d        789,     791    (4th       Cir.    1991)

(explaining that “evidence of the officer’s alleged violation of

police    procedures           immediately         preceding          the     arrest”          was

irrelevant     to     whether          officer’s       use     of     deadly      force        was

constitutionally excessive).                Thus, the mere decision itself to

make a surprise entry as opposed to other alternatives affords

no basis for liability against Sergeant Pittman.                              Additionally,

there is no evidence that Sergeant Pittman ordered Deputy Robey

to    shoot   Gandy       or     intended        him     to     do    so    regardless          of

circumstances.           Since a Fourth Amendment seizure requires “an

intentional acquisition of physical control,” Melgar v. Greene,

593   F.3d    at    354    (emphasis       added)        (internal         quotation      marks

omitted), Terry cannot rely on Sergeant Pittman’s pre-seizure

plan to establish her excessive force claim.

      Moreover, even if this theory is viable in the excessive

force context, we agree with the district court that Sergeant

Pittman’s     decision      to    employ     a    quick,       dynamic      entry       that    he

believed would permit the officers to subdue Gandy with non-

lethal force was reasonable under the circumstances.                                 Sergeant

Pittman’s plan—adopted after considering and rejecting several

other    alternatives—was          a    thoughtful        approach         that    took    into

account the specific risk factors known to exist, particularly

                                            18
that Gandy was armed and had threatened to kill himself if he

saw or heard the police. The aim of the plan was to surprise and

subdue Gandy before he could harm himself or others.                              There was

nothing   before   the       district     court          to    suggest    that     Sergeant

Pittman knew or should have known that the course of action he

chose would in fact lead to the use of deadly force against

Gandy.    In   sum,    we     conclude     that          this    theory     was    properly

rejected at the summary judgment stage.

                                          C.

      Terry    also     contends        the     district          court     should       have

permitted her excessive force claim against Sergeant Pittman to

go   to    trial      on      a    theory           of        supervisory       liability.

“[S]upervisory     officials        may        be        held    liable      in     certain

circumstances for the constitutional injuries inflicted by their

subordinates.”        Shaw    v.   Stroud,      13       F.3d    791,     798     (4th   Cir.

1994).    To succeed on a supervisory liability claim under §

1983, a plaintiff must establish

     (1) that the supervisor had actual or constructive
     knowledge that his subordinate was engaged in conduct
     that posed “a pervasive and unreasonable risk” of
     constitutional injury to citizens like the plaintiff;
     (2) that the supervisor’s response to that knowledge
     was so inadequate as to show “deliberate indifference
     to or tacit authorization of the alleged offensive
     practices,”; and (3) that there was an “affirmative
     causal link” between the supervisor’s inaction and the
     particular constitutional injury suffered by the
     plaintiff.



                                          19
Id. at 799.         “Establishing a pervasive and unreasonable risk of

harm requires evidence that the conduct is widespread, or at

least has been used on several different occasions and that the

conduct engaged in by the subordinate poses an unreasonable risk

of   harm    of     constitutional        injury.”        Id.   (internal      quotation

marks omitted).           Terry has not identified what evidence, if any,

she proffered to show that Sergeant Pittman’s subordinates were

engaged in widespread unconstitutional conduct by using lethal

force under circumstances where the suspect posed no threat or

that he was aware but deliberately indifferent to such conduct.

Therefore, no triable issue was created on Terry’s supervisory

liability theory.

                                             D.

      Finally,       Terry    challenges      the    district        court’s   entry    of

summary      judgment      against     her    on    the   state      law    tort   claims

alleging wrongful death as a result of Sergeant Pittman’s gross

negligence or willful and wanton conduct.                        The district court

concluded that on the evidence before it, as a matter of law

“there      [was]    no    standard    of    care     that’s     been      violated”   by

Sergeant Pittman.            J.A. 1069.       On appeal, Terry contends that

Sergeant      Pittman       was   at      least     grossly      negligent     when    he

instructed        Deputy     Robey   to    shoot     Gandy      if   the    tasers    were

ineffective or it otherwise became necessary to do so.



                                             20
      We disagree.      Under Virginia law, gross negligence is “the

utter disregard of prudence amounting to complete neglect of the

safety of another.          It is a heedless and palpable violation of

legal duty respecting the rights of others which amounts to the

absence of slight diligence, or the want of even scant care.”

Chapman v. City of Va. Beach, 475 S.E.2d 798, 800-01 (Va. 1996)

(emphasis     added)        (citation      and       internal       quotation         marks

omitted).     Unquestionably, Sergeant Pittman exercised at least

some care in designing a plan that was intended to permit the

officers to disable Gandy and protect others (and Gandy himself)

using   non-lethal     force.       As    the    district        court     concluded    in

granting    summary    judgment      on    Terry’s      §   1983        excessive     force

claim, in light of the facts and circumstances known to Sergeant

Pittman at the time, his plan to respond was reasonable.                              Thus,

we cannot conclude that a jury question existed as to whether

Sergeant Pittman exercised even slight diligence in formulating

his plan to ensure that Gandy hurt neither himself nor others.

That Sergeant Pittman’s plan failed—in the sense that lethal

force   was   in     fact     used—does      not     mean        that    the   plan    was

unreasonable.

                                          IV.

      Terry   also     challenges         the    district         court’s      entry    of

judgment in favor of Deputy Robey.                 Although Terry’s argument is

not   entirely     clear,     the   thrust      of    it    is    that:    (1)   special

                                          21
interrogatory     #4    did    not    incorporate    the    proper      qualified

immunity standard; and (2) even if it did incorporate the proper

standard, the jury’s response to special interrogatory #4 was

inconsistent with and could not trump its response to special

interrogatory     #3    that   Deputy    Robey     violated    Gandy’s    Fourth

Amendment right to be free of the use of excessive force or the

jury’s concomitant award of damages.

                                        A.

       Terry contends that the language used by the district court

in   special   interrogatory     #4    improperly    directed     the    jury   to

determine the reasonableness of Deputy Robey’s conduct under a

subjective rather than objective standard.                 Although Terry now

takes exception to the substance of special interrogatory #4,

she failed to do so at trial.                In fact, Terry’s trial counsel

actually agreed to the district court’s proposed language:

       THE COURT:       I’m more concerned about question 4. I
       think that      is all that’s needed for the qualified
       immunity.

       [DEFENSE COUNSEL]:      Yeah, I think –

       [PLAINTIFF’S COUNSEL]:        We agree.

       [DEFENSE COUNSEL]:      I think that’s on target.

J.A.   1122.      By   specifically     affirming     the     district   court’s

qualified      immunity    special      interrogatory,        Terry’s    counsel

arguably invited the district court to use the very language

Terry now challenges on appeal, which would render this issue


                                        22
unreviewable on appeal.           See, e.g., United States v. Bennafield,

287    F.3d   320,   325   (4th    Cir.    2002)   (recognizing    that    invited

errors are necessarily waived errors that are not reviewable on

appeal).

       Out of an abundance of caution, however, we will review the

substance of special interrogatory #4 for plain error.                     See In

re Celotex Corp., 124 F.3d 619, 631 (4th Cir. 1997) (adopting

plain error review framework under United States v. Olano, 507

U.S.    725   (1993),      in   the    civil    context).     Terry     bears   the

substantial burden of demonstrating that (1) there is an error;

(2) the error is plain; (3) the error affects the appellant’s

substantial     rights;     and    (4)    the   error   affects   the    fairness,

integrity or public reputation of judicial proceedings.                         See

Olano, 507 U.S. at 732-37.

       We conclude that Terry’s challenge falters on the first

prong.     Terry contends that special interrogatory #4 “went only

to the subjective belief of Robey, and thus [asked the jury to

make] a finding [not] pertinent to qualified immunity.”                      Brief

of Appellant at 49.             Terry contends the district court should

have asked the jury to determine whether “a reasonable officer

on the scene” would have believed that Gandy posed an imminent

deadly    threat     rather     than     whether   “Robey   had   a     reasonable

belief” that Gandy posed such a threat.                     Id.    According to



                                          23
Terry, the language used by the court improperly asked the jury

to determine Deputy Robey’s subjective state of mind.

       We disagree.             Although the special interrogatory itself did

not    expressly      ask       whether    “a     reasonable       officer”   would      have

perceived      an     imminent      threat      of    grave   danger       from    Gandy    or

whether       such    a    perception       was      “objectively     reasonable,”         the

district court’s jury charge as a whole made abundantly clear

that the inquiry is objective not subjective.                          Terry would have

us divorce the special interrogatory from the context of the

accompanying jury instructions issued by the district court.                                As

we    have    often       observed,      however,       “we   do    not    view    a   single

instruction in isolation; rather we consider whether taken as a

whole and in the context of the entire charge, the instructions

accurately and fairly state the controlling law.”                           United States

v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996).                           Similarly,         “jury

interrogatories are considered in conjunction with the general

jury    charge       to     determine      if     the    interrogatories          adequately

presented the contested issues to the jury.”                          Sikes v. Gaytan,

218    F.3d    491,       493    (5th    Cir.   2000)    (internal        quotation     marks

omitted).            Because       the     court’s      instructions        as     a   whole




                                                24
repeatedly conveyed the idea that the relevant inquiry was an

objective one, we reject this argument. 3

                                        B.

       Finally, Terry contends that she is entitled to a new trial

under Rule 49 of the Federal Rules of Civil Procedure which

governs issues relating to special verdicts and general verdicts

with       answers   to   written   questions.     The    Rule   specifies    in

subsection (b)(4) that “[w]hen the answers are inconsistent with

each other and one or more is also inconsistent with the general

verdict, judgment must not be entered; instead, the court must

direct the jury to further consider its answers and verdict, or

must order a new trial.”              Fed. R. Civ. P. 49(b)(4).             Terry

asserts that the jury's response to special interrogatory #4 was

inconsistent with both its response to special interrogatory #3

that Deputy Robey violated Gandy's Fourth Amendment right to be

free of the use of excessive force and its concomitant award of

damages.         For      the   following    reasons,    we   agree   and     are

       3
       For the same reasons, we also reject Terry’s argument that
the form of special interrogatory #4 constituted plain error
because it did not include its own burden of proof instruction.
In charging the jury, the district court explained that Deputy
Robey denied that he employed excessive force “because under the
facts and circumstances confronting him when he shot Mr. Gandy,
he had a reasonable belief that Mr. Gandy posed an imminent
threat of death or serious physical injury to himself or others”
and that “Deputy Robey has the burden of proving the
reasonableness of that belief by a preponderance of the
evidence.” J.A. 1201-02.



                                        25
constrained          to   remand   Terry's      excessive     force        claim    against

Robey for a new trial.

          The district court submitted interrogatories #3 and #4 to

the jury in an effort to sort out the question of qualified

immunity.          Under the approach established in Saucier, analysis

of    a       qualified   immunity      claim     involves   a   two-step          procedure

“that asks first whether a constitutional violation occurred and

second         whether    the   right     violated    was    clearly           established.”

Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc)

(internal quotation marks omitted)). 4                  As previously suggested,

the       district    court     intended    interrogatory        #3       to    resolve   the

first         question    of    whether    Robey     committed        a    constitutional

violation by asking the jury:

          Has the plaintiff, Terry A. Gandy, established by a
          preponderance of the evidence that defendant Neal
          Patrick Robey violated David Charles Gandy’s Fourth
          Amendment right to be free from excessive use of
          force, or his Fourteenth Amendment [right] not to be
          deprived of life without due process of law, when he
          shot David Charles Gandy?




          4
       Terry argues that the Supreme Court overruled Saucier’s
two-part   test   and    made  the    qualified  immunity   and
constitutionally excessive force inquiries identical in Pearson
v. Callahan, 555 U.S. 223 (2009).    It most certainly did not.
Pearson abrogated Saucier only to the extent that Saucier made
it mandatory for courts to follow the two-step procedure in
order—courts may now address the Saucier prongs in any order at
their discretion. See Pearson, 555 U.S. at 236.



                                             26
J.A. 961 (emphasis added).              The jury answered “yes” to this

question.         In   interrogatory     #4,      which   the      district     court

intended to resolve the second question of whether Robey was

entitled     to    qualified      immunity     despite       the    constitutional

violation, the jury was asked:

     Do you find that at the time that he shot David
     Charles Gandy, Deputy Neal Patrick Robey had a
     reasonable belief that Mr. Gandy posed an imminent
     threat of causing death or serious bodily injury to
     Deputy Robey or to other persons present at the scene?

J.A. 962 (emphasis added).              The jury answered “yes” to this

question as well, but then reached a general verdict in Terry’s

favor, awarding her $267,000 in compensatory damages.

     In    responding    affirmatively       to    special    interrogatory       #3,

the jury concluded as a factual matter that Deputy Robey’s act

of shooting David constituted excessive force, in violation of

the Fourth Amendment.          This finding is inconsistent with the

jury’s answer to special interrogatory #4, in which the jury

concluded that Deputy Robey had a reasonable belief that David

posed   an   imminent    threat    of   causing     death    or    serious    bodily

injury to persons present at the scene of the incident.

     The     inconsistency     between       the     answers       to   these     two

questions is apparent because the factual question presented in

interrogatory #4, whether Deputy Robey reasonably believed that

David posed a threat of imminent harm, is a core component of

the issue addressed by special interrogatory #3, namely, whether

                                        27
the    force    employed         by    Deputy     Robey         was     excessive.        As    the

Supreme Court held in Graham v. Connor, 490 U.S. 386 (1989), an

analysis    of    the    reasonableness               of    a    particular      use    of    force

“requires careful attention to the facts and circumstances of

each particular case, including 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 or attempting to evade arrest by flight.”                                      Id.

at 396 (emphasis added).                  This court, too, has made clear that

the question of whether a suspect posed an immediate threat of

harm to an officer is a factor relevant to the analysis of an

excessive force claim under the Fourth Amendment.                                 See Waterman

v.    Batton,    393    F.3d       471,    477    (4th          Cir.    2005)   (holding        that

officers were not entitled to judgment as a matter of law on

merits of underlying excessive force claim because "a reasonable

jury could conclude . . . that a perception by the officers that

[plaintiff]      posed       a    threat     of   serious          physical      harm    to     them

would    have      been          unreasonable,”             but        nonetheless       awarding

qualified       immunity          because     the          unconstitutionality           of      the

officers'       conduct          was   not    clearly            established);          Jones    v.

Buchanan, 325 F.3d 520, 529 (4th Cir. 2003) (concluding that an

excessive force claim survived summary judgment because, under

the factors set forth in Graham, “[a] fact finder could conclude

that [the] evidence demonstrates that [the suspect] posed no

                                                 28
immediate threat to anyone before [law enforcement] entered the

processing       room     and     used    force");           Gray-Hopkins          v.     Prince

George's     County,      Md.,     309        F.3d     224,    231        (4th     Cir.    2002)

(affirming denial of qualified immunity where, “[b]ased on the

plaintiff’s version of the events giving rise to this case, . .

. he was not posing a threat to the safety of the officers or

others. . . . [A] trier of fact could clearly conclude that a

Fourth Amendment violation occurred”).

     Accordingly, the factual question of whether an individual

poses a threat of danger is a component of, and is subsumed by,

the broader question of whether the officer’s use of force to

seize an individual was excessive in violation of the Fourth

Amendment.        Unfortunately,         special        interrogatories            #3     and   #4

permitted the jury to answer these interrelated questions in an

inconsistent       manner.         According          to     the    jury,        Deputy    Robey

reasonably    believed          that    David        posed    an     imminent       threat      of

serious    harm,    yet    the    jury    concluded           that    Deputy       Robey     used

excessive force in preventing David from carrying out such a

threat of harm.

     In    addition       to    being     inconsistent             with    each     other,      of

course, these interrogatory answers are inconsistent with the

general verdict awarding Terry $267,000 in compensatory damages.

Despite    its     conclusion          that     Robey        reasonably          perceived      an

immediate threat from Gandy, it awarded damages as a result of

                                               29
his conduct.        These inconsistencies implicate Fed. R. Civ. P

49(b)(4) and leave us no choice but to remand for a new trial.

                                       V.

      For   these   reasons,    we    affirm   the   order   of   the   district

court granting summary judgment to Sergeant Pittman but vacate

the district court’s entry of judgment in favor of Deputy Robey

and remand Terry’s excessive force claim against Deputy Robey

for   a   new   trial   and   other    proceedings    consistent    with    this

opinion.

                                                             AFFIRMED IN PART,
                                                              VACATED IN PART,
                                                                  AND REMANDED




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