                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-1384


JOTAYNUN LEE, Individually, and on behalf of himself and
the minor children of Jataynun Trayvon Fleming, Deceased,
and as Administrator of the Estate of Jataynun Trayvon
Fleming, Deceased,

                 Plaintiff - Appellant,

           v.

TODD JAMES BEVINGTON,

                 Defendant - Appellee,

           and

CITY OF RICHMOND, VIRGINIA; WESLEY E. MOORE; JOHN DOE, Nos.
1-20, being members of the Richmond Police Department SWAT
Team who responded to, and shot at the decedent at 304
Beaufort Hill Drive, Richmond, VA 23225; JOHN DOE, Nos. 11-
20, being United States Marshals Service members who were
part of the response team that shot at decedent,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   Robert E. Payne, Senior
District Judge. (3:12-cv-00471-REP)


Argued:   March 22, 2016                     Decided:   May 5, 2016


Before NIEMEYER and MOTZ, Circuit Judges, and Max O. COGBURN,
Jr., United States District Judge for the Western District of
North Carolina, sitting by designation.
Affirmed by unpublished opinion.       Judge Cogburn wrote    the
opinion, in which Judge Niemeyer and Judge Motz joined.


ARGUED: Kenechukwu C. Okoli, LAW OFFICES OF K.C. OKOLI, P.C.,
New York, New York, for Appellant.    Donald Cameron Beck, Jr.,
MORRIS & MORRIS, P.C., Richmond, Virginia, for Appellee.      ON
BRIEF: John B. Mann, JOHN B. MANN, P.C., Richmond, Virginia, for
Appellant.   Antoinette Morgan Walker, MORRIS & MORRIS, P.C.,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
COGBURN, District Judge:

     The Estate of Jataynun Trayvon Fleming (“Appellant” when

referring    to    the   estate,   or   “Fleming”       when   referring      to    the

decedent)    appeals      an   order    of    the    district       court    granting

summary judgment to Detective Todd James Bevington (“Bevington”

or “Appellee”) in this 42 U.S.C. § 1983 excessive force action.

The district court determined that Bevington did not violate

Fleming’s Fourth Amendment rights when he used deadly force in

seizing    Fleming,      and   alternatively        found    that    Bevington      was

entitled to summary judgment on his asserted qualified immunity

defense. We affirm.

                                         I.

     We review a district court’s grant of summary judgment de

novo.     Estate    of   Armstrong      ex    rel.    Armstrong      v.     Vill.    of

Pinehurst, 810 F.3d 892, 895 (4th Cir. 2016). Summary judgment

shall be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.”             Fed. R. Civ. P. 56(a). A factual

dispute is genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is

material only if it might affect the outcome of the suit under

governing law. Id. When ruling on a summary judgment motion, a

court   must      view   the   evidence       and    any    inferences      from    the

                                          3
evidence in the light most favorable to the nonmoving party.

F.D.I.C. v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013). “Where

the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party, there is no genuine issue

for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). In the end, the question posed by a

summary judgment motion is whether the evidence “is so one-sided

that one party must prevail as a matter of law.” Anderson, 477

U.S. at 252.

       “Because this is a deadly force case, ‘the witness most

likely to contradict [the officers'] story—the person shot dead—

is unable to testify.’” Ingle ex rel. Estate of Ingle v. Yelton,

439 F.3d 191, 195 (4th Cir. 2006) (quoting Scott v. Henrich, 39

F.3d 912, 915 (9th Cir. 1994)). In such situations, “a court

must    undertake   a     fairly     critical       assessment    of   the    forensic

evidence, the officer's original reports or statements and the

opinions of experts to decide whether the officer's testimony

could   reasonably      be   rejected    at     a    trial,”     instead     of   merely

accepting a potentially self-serving version of events relayed

by the officers.        Id. (citations omitted).

                                         II.

                                         A.

       On   July    14,      2010,    officers        of   the    Richmond        Police

Department (“RPD”) arrived at Fleming’s family home in Richmond,

                                          4
Virginia, to execute a warrant for Fleming’s arrest on charges

of robbery and use of a firearm in the commission of a felony.

Fleming was also suspected of being involved in a homicide and

home invasion committed earlier that day. When police entered

the residence, Fleming retreated and barricaded himself in an

upstairs bathroom. Officers present on the scene reported that

Fleming refused to exit the bathroom and repeatedly threatened

to shoot the police officers.

       After that initial interaction, the RPD officers dispatched

a SWAT team to the residence; Bevington was a member of that

SWAT team. The commander of the SWAT team, Lieutenant Mauricio

Tovar (“Tovar”), communicated to the SWAT officers, including

Bevington,     the   threats   that      Fleming      had   made    to    the     RPD

officers. Tovar also showed the SWAT officers Fleming’s “wanted

poster,” which described Fleming as “armed and dangerous” and

advised that he “[would] not go quietly.” J.A. 357. The poster

also     included      Tovar’s        handwritten           notes        describing

communications he had received from RPD officers investigating

the homicide. Those notes indicated that Fleming was possibly

armed   with   a   handgun   and   had       made   statements   that     he    “will

shoot” and was “not going down without a fight.” J.A. 354. When

Fleming’s father, Jotaynun Lee (“Lee”), arrived at the residence

and spoke with officers on the scene, he told the officers that

Fleming did not have a gun.

                                         5
      After      Tovar    briefed    Bevington       and    the    other    SWAT     team

members     on   the     foregoing    information,         the    SWAT   team    members

staged themselves in a spare bedroom across the hall from the

master bedroom, which connected with the bathroom where Fleming

remained barricaded. Police negotiators deployed a “throw phone”

into the bathroom, which allowed for audio communication between

Fleming and negotiation officers, as well as video surveillance

of   the    scene   in    the   bathroom.     The    negotiation         team   informed

Tovar that based on the video surveillance relayed through the

throw phone, Fleming appeared to have a gun tucked into his

waistband. Tovar communicated this fact to Bevington and other

SWAT team members in the staging area. The negotiation team,

using      the   throw     phone,     attempted       to    convince       Fleming    to

peacefully surrender for several hours. In addition, throughout

the course of the negotiations, Bevington repeatedly instructed

Fleming on how to surrender, telling him to come out of the

bathroom with his hands up.

      While       barricaded,        Fleming        communicated         with     police

negotiators and members of the SWAT team, telling them he wanted

to speak to his father and that he wanted a cigarette. At one

point during the standoff, negotiators informed the SWAT team

members that Fleming had asked what the SWAT officers would do

if he “came out with his junk.” J.A. 355, 365. SWAT officers,

including Bevington, heard Fleming repeat this question from the

                                          6
bathroom, yelling at the SWAT team, “What are you-all going to

do when I come out with my junk? What are you going to do when I

come out with my shit? You-all better get ready to kill me,” and

“you-all are going to have to shoot it out with me.” J.A. 365,

751-52, 795. Officers interpreted “junk” to be a slang word for

“gun” or “weapon.”

       After      several        hours,     Fleming      stopped    responding         to

communications from the negotiators and began breathing heavily.

Based on communications with the negotiators, Tovar determined

that Fleming was preparing to exit the bathroom in a violent

manner. Tovar then decided to fire tear gas into the master

bathroom from outside the house in order to force Fleming to

exit and surrender. In preparation for the tear gas deployment,

Bevington and the other SWAT team members put on gas masks.

       At   the   time     the    gas     was   deployed,     Officer    Wesley      Moore

(“Moore”) was the first officer in the single-file SWAT line,

kneeling and holding a ballistic shield. Bevington was stationed

as   the    second    officer      in   the     team,   standing   directly       behind

Moore and providing “cover to a lethal threat.” J.A. 368. Moore

was positioned in the doorway of the spare bedroom; Bevington

was leaning over the top of Moore, holding a rifle. The SWAT

team   members       in    line    behind       Moore   and   Bevington       were    also

carrying     rifles       and    service    pistols;    one    carried    a    Taser   to



                                                7
deploy if necessary. The last two officers in line were part of

the “arrest team” responsible for handcuffing Fleming.

     Soon after the tear gas canisters were launched into the

bathroom where Fleming was barricaded, Fleming exited the master

bathroom, 1 moved into the master bedroom, and advanced toward the

officers, who were waiting approximately 13 feet away in the

threshold of the door to the spare bedroom across the hall.

     Moore and Bevington both testified that when Fleming exited

the master bathroom, his hands were outstretched toward the SWAT

team.    They   both   testified   that    Fleming   was   holding    a    black

cylindrical object wrapped in some sort of cloth, and that they

perceived this object as a gun. What Moore and Bevington thought

was a gun was later determined to be a woman’s high-heeled shoe

wrapped in a t-shirt. As Fleming came toward the officers, Moore

fired a single shot at him. Moore later testified that he shot

because he feared for his life and thought that Fleming was

going to shoot him or another member of the SWAT team.

     Bevington     testified   that       as   Fleming   came   out   of     the

bathroom and moved toward the officers, Moore shifted upwards a

     1 Appellant argues that a dispute of material fact exists as
to how much time elapsed between the tear gas being thrown into
the bathroom and Fleming running out of the bathroom. Moore
stated at his deposition that only seconds elapsed; Sergeant
Charles Hayes (another SWAT member) estimated that it took
between three and seven minutes. Though disputed, this fact is
not material to resolution of the excessive force question
before us.


                                      8
few    inches,       knocking      Bevington’s         gun     slightly.    Bevington

believed that the shot fired by Moore had come from Fleming.

Bevington testified that after the first shot was fired, Fleming

was still coming toward the officers with his hands straight out

in front of him, holding what appeared to be a weapon. Bevington

then fired several shots at Fleming. 2 Bevington testified that

after he fired the first round of shots, Fleming fell to the

ground but was still pointing his “weapon” at the officers and

attempting to get back up as the officers approached. Moore also

testified that after Fleming fell to the ground, he was still

holding what appeared to be a weapon and was pointing it toward

the officers. Bevington continued to fire until Fleming rolled

over       and   Bevington       could    no       longer    see   Fleming’s     hands.

Bevington        stated   that    the    time      between   the   first   and   second

round of shots he fired was “less than seconds.” J.A. 382. Moore

and Bevington fired a total of nine rounds at Fleming, who was

struck multiple times in his hands, arms, torso, and chest.

       2
       Appellant argues that a genuine dispute of material fact
exists as to Bevington’s locations when Fleming exited the
bathroom and when he was shot seconds later. The district court
properly concluded that though a factual dispute existed as to
Bevington’s precise location at those times, resolution of those
disputed facts was immaterial to the excessive force analysis.
See Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 539-40
(E.D. Va. 2015) (“Whether Bevington was removed from Fleming by
thirteen feet or ten feet or five feet makes no difference to
the circumstances confronting the SWAT unit and Bevington as
Fleming exited the bathroom and advanced toward the unit.”).



                                               9
      When    the   shooting    ceased,      the   two     arresting       officers

handcuffed Fleming, removed him from the scene, and placed him

in a waiting ambulance. 3 After being transported to a hospital,

Fleming was pronounced dead within 30 minutes. Upon inspecting

the   scene   after   the    shooting,    officers   did     not    find    a   gun.

Photographs of the scene reveal a woman's high-heeled shoe and a

blood-stained, light-colored t-shirt on the floor of the master

bedroom.

      Appellant     argues   that   a    genuine   issue    of     material     fact

exists as to Fleming’s location and positioning at the time he

was shot. Appellant notes that during his interview three days

after the shooting, Bevington told investigators he shot Fleming

with a second round while Fleming was still on the ground and

trying to get up, describing it as: “he’s kind of laying toward

us and he has this item in his hand still…what I believe was a

gun and he tries to get up again.” J.A. 553. Years later, at his

deposition, he testified that he shot Fleming again while he was




      3Appellant argues that a disputed issue of material fact
exists as to who handcuffed Fleming after he was shot based on
statements made by Lieutenant Stephen McQuail after the shooting
and a declaration that he later signed in April 2013. See J.A.
1255; 1253 (explaining that multiple officers assisted in
placing handcuffs on Fleming). In addition to finding no genuine
factual dispute between the officer’s statements, the issue of
who handcuffed Fleming after the shooting is irrelevant to the
inquiry before us.



                                        10
on   the   ground,   trying   to   get    up,   but   still   pointing   what

Bevington thought to be a weapon at the officers.

      Moore testified that after he fired his shot, Fleming fell

to the ground within a matter of seconds, and as Moore moved

toward him, Fleming “was on his back kind of sitting up a little

bit, and he had at least one hand pointed up, [and] I could see

the weapon in his hand at that time.” J.A. 786. When questioned

as to whether he heard gunfire other than his own before Fleming

fell to the ground, Moore testified, “when he was coming towards

me, I fired the one round. That’s all I heard. As we moved up,

that’s when I heard more gunshots. At that point…[h]e was kind

of up, probably kind of leaning up…[h]e was laying down sideways

with his weapon pointed up.” J.A. 789. Moore reiterated that

though Fleming was on the ground, he was still pointing what he

believed to be a weapon at the SWAT team. At that point, Moore

heard the shots that Bevington fired at Fleming.

      To the extent that this testimony constitutes a factual

discrepancy, we do not find it material to resolution of the

matter at hand. Both Moore and Bevington testified that Fleming

was attempting to get up, and either still had the “weapon” in

his hand, or was actively pointing it at the officers, after

Bevington fired the first volley of shots. As the district court

properly found:



                                     11
      The second volley was fired a split-second after the
      first one, and, of course, Bevington, when he fired
      that volley, was informed by all the previously
      recounted facts just as he was when he fired the first
      volley. In addition, Bevington, as did Moore, saw
      that, although Fleming was down and wounded, he also
      was trying to get up and, in the process, he was still
      pointing at the police officers what was reasonably
      thought to be a gun. And, Bevington knew that the man
      pointing what he reasonably thought was a gun had
      threatened to kill the police officers. He then made a
      split-second reaction to fire the second volley at a
      man who was a threat to him and other officers and who
      was still resisting arrest. On the record here,
      whether Fleming was on the floor, or not, is not
      material to the determination whether…Bevington acted
      reasonably to the presented risk when firing the
      second volley.

Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 540 (E.D. Va.

2015).

      As to the other alleged genuine issues of material fact

raised by Appellant, addressed supra, we find that they are not

truly disputed factual discrepancies, not material to resolution

of   the   question   before   us,   or   merely   facts   that   Appellant

attempts to discredit in favor of his speculative version of

events. As this court has previously noted,

      In cases where officers are hurriedly called to the
      scene of a disturbance, the reasonableness of their
      response must be gauged against the reasonableness of
      their perceptions, not against what may later be found
      to have actually taken place. It will nearly always be
      the case that witnesses to a crime differ over what
      occurred. That inevitable confusion, however, need not
      signify a difference of triable fact. What matters is
      whether the officers acted reasonably upon the reports
      available to them and whether they undertook an
      objectively reasonable investigation with respect to


                                     12
     that information in light of the exigent circumstances
     they faced.

Gooden v. Howard Cty., Md., 954 F.2d 960, 965 (4th Cir. 1992).

We find that none of the factual disputes raised by Appellant

are triable issues that would ultimately affect the outcome of

this case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

     Appellant   also   contends   that   two   inferences   should   have

been drawn in his favor at the summary judgment stage. First,

based on the fact that Fleming emerged from a bathroom full of

tear gas, Appellant asks the court to infer that Fleming’s eyes

were stinging and closed in response to the gas, and thus, that

he must not have been able to see where he was going. Second,

Appellant contends that the court should have inferred from the

testimony of the officers, some of whom did not report to the

investigators immediately after the shooting that they saw a

shoe or cloth near Fleming, that the shoe and cloth were planted

by one or more officers after the shooting but before the police

crime scene unit took photographs of the scene. We find such

inferences to be unsupported by the record and based wholly on

speculation. While the court is cognizant of the fact that there

is no testimony in this case from the one person who could have

potentially   contradicted   the    testimony     of   the   officers—the

decedent—there is simply no evidence in the record that would


                                   13
allow     us   to    make    such      inferences.       Appellant’s        assertions

essentially     amount      to    a   request     for   the   court    to   doubt   the

testimony in this case and rely instead on unfounded conjecture.

This we will not do. See Local Union 7107 v. Clinchfield Coal

Co., 124 F.3d 639, 640 (4th Cir. 1997) (“Fanciful inferences and

bald speculations of the sort no rational trier of fact would

draw or engage in at trial need not be drawn or engaged in at

summary judgment.”).

                                             B.

        Lee,   in   his   capacity      as    the   Administrator      of     Fleming’s

Estate, brought this § 1983 action in the Eastern District of

Virginia,      alleging     that      Bevington’s       actions    constituted      an

unlawful seizure of Fleming's person under the Fourth Amendment. 4

The     district    court        granted     Bevington’s      Motion    for     Summary


      4 Appellant’s Amended Complaint asserted three counts
against Bevington and other officers. In addition to the Fourth
Amendment excessive force claim asserted in Count I, Count II
alleged that Bevington violated Lee's and Fleming's children’s
substantive due process rights by depriving them of their
liberty interest “in the companionship, care, custody, and
management” of Fleming. Count III alleged that Bevington caused
Fleming “to suffer great pain, suffering and anguish” during the
July 14, 2010 standoff and subsequent shooting. On March 27,
2013, the district court dismissed, pursuant to Fed. R. Civ. P.
12(b)(6), Counts II and III of the Amended Complaint, as well as
Count I to the extent that it alleged claims on behalf of Lee
individually and Fleming's minor children. Appellant’s argument
on appeal challenges only the district court’s disposition of
Count I on summary judgment, thus making the excessive force
claim and related qualified immunity question the only issues
before us on appeal.


                                             14
Judgment on March 18, 2015, finding that Bevington was entitled

to summary judgment on the merits of Appellant’s excessive force

claim    and,       accordingly,      entitled       to    summary      judgment       on    the

basis of qualified immunity. This appeal followed.

                                             III.

                                              A.

       “Qualified          immunity      protects              officers        who      commit

constitutional          violations       but        who,       in     light     of     clearly

established         law,   could     reasonably       believe         that    their    actions

were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

2011) (en banc). “Officials will receive immunity unless the §

1983 claim satisfies a two-prong test: (1) the allegations, if

true,    substantiate          a    violation       of     a    federal       statutory      or

constitutional right and (2) the right was clearly established

such    that    a    reasonable      person     would      have       known    his    acts    or

omissions violated that right.” Brockington v. Boykins, 637 F.3d

503, 506 (4th Cir. 2011) (citation and internal quotation marks

omitted). The court may address these questions in either order,

but Appellant’s case will survive summary judgment “only if we

answer both questions in the affirmative.” Estate of Armstrong

ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 898 (4th

Cir.    2016)        (citing       Pearson   v.     Callahan,         555    U.S.     223,   232

(2009)). Here, considering the facts in the light most favorable

to   Appellant,        Bevington’s      conduct       did       not    violate       Fleming’s

                                              15
constitutional         rights        and        our   inquiry        thus    ceases       after

resolving the first prong.

                                                 B.

       Appellant alleges that Bevington violated Fleming’s Fourth

Amendment right to be free from unreasonable seizures—a right

that extends to seizures accomplished by excessive force.                                    See

Graham v. Connor, 490 U.S. 386, 394 (U.S. 1989). “A claim that a

police officer employed excessive force is analyzed under the

Fourth Amendment under an ‘objective reasonableness’ standard.”

Smith   v.    Ray,   781      F.3d    95,       100-01      (4th   Cir.     2015)    (quoting

Henry, 652 F.3d at 531). Excessive force does not arise if an

officer’s actions “are ‘objectively reasonable’ in light of the

facts   and    circumstances          confronting           [him],    without       regard    to

[his] underlying intent or motivation.” Id. (quoting Graham, 490

U.S.    at   397).     “The    test        of    reasonableness        under    the       Fourth

Amendment is not capable of precise definition or mechanical

application…[but] requires a careful balancing of the nature and

quality of the intrusion on the individual's Fourth Amendment

interests against the countervailing governmental interests at

stake.”      Armstrong,       810    F.3d        at   899    (internal       citations       and

quotation      marks    omitted).           Three      factors       guide     us    in    this

balancing: 1) the severity of the crime at issue; 2) the extent

to which the suspect poses an immediate threat to the safety of

the officers or others; and 3) whether the suspect is actively

                                                 16
resisting    arrest      or      attempting      to    evade      arrest   by   flight.

Graham, 490 U.S. at 396. “Ultimately, the question to be decided

is   ‘whether    the   totality      of    the    circumstances          justifie[s]    a

particular      sort   of     ...    seizure.’”        Smith,      781   F.3d   at   101

(quoting Tennessee          v.   Garner,    471       U.S.   1,   8–9    (1985)).    This

court has previously noted that, as opposed to considering an

officer’s actions piecemeal in a “segmented sequence of events,”

“[t]he   better    way      to   assess    the    objective        reasonableness      of

force is to view it in full context, with an eye toward the

proportionality of the force in light of all the circumstances.”

Id. at 101-02 (quoting Rowland v. Perry, 41 F.3d 167, 173 (4th

Cir. 1994)). In addition, our determination of reasonableness

must account “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. As the district court noted,

      No citizen can fairly expect to draw a gun on police
      without risking tragic consequences. And no court can
      expect any human being to remain passive in the face
      of an active threat on his or her life…the Fourth
      Amendment   does   not  require  omniscience.  Before
      employing deadly force, police must have sound reason
      to believe that the suspect poses a serious threat to
      their safety or the safety of others. Officers need
      not be absolutely sure, however, of the nature of the
      threat or the suspect's intent to cause them harm—the
      Constitution does not require that certitude precede
      the act of self protection.


                                           17
Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 542 (E.D. Va.

2015) (quoting Elliott v. Leavitt, 99 F.3d 640, 644 (4th Cir.

1996)).

     Upon    de    novo    review,       we   find        that    the    totality    of    the

circumstances here justifies the seizure that took place.                             As to

the first Graham factor, the crime at issue was severe. Officers

were attempting to arrest Fleming for his alleged involvement in

a robbery accomplished by use of a firearm. The officers were

also aware that Fleming was a suspect in a homicide committed

earlier     that    day.     The    fact       that        Fleming      was   accused      of

committing such violent crimes weighs against Appellant.

     As     to     the    second        Graham       factor,       the      uncontroverted

testimony indicates that the officers reasonably believed that

Fleming posed an immediate threat to their safety. In addition

to being aware of the fact that Fleming was wanted for violent

crimes, the officers had been briefed on information from RPD

indicating that Fleming was likely armed. They also received

reports     from    the     negotiation            team    that     video     surveillance

revealed    what    appeared       to   be    a     weapon       tucked   into     Fleming’s

waistband. Moreover, Fleming made overt threats to the SWAT team

officers    on     the    scene    implying         that    he    was     armed.    Once   he

emerged from the bathroom holding what appeared to be a weapon

pointed at the officers, there existed a reasonable perception

that Fleming posed an immediate risk to their safety. While it

                                              18
was     later       determined        that       Fleming       was     not      armed,       he

intentionally          created       the   perception        that     he     was.     Fleming

continued      to   point      the    apparent      weapon     at    the     officers      even

after    Moore      and   Bevington        fired     their     initial       shots.       These

undisputed facts indicate that Bevington could reasonably have

determined that Fleming posed a threat to his safety, as well as

that of his fellow officers, over the course of the rapidly

evolving and uncertain scenario that unraveled once Fleming came

out of the bathroom.

      The     third     factor—whether          Fleming      was     actively       resisting

arrest—is       also    not    favorable      to     Appellant.       Fleming       had    been

actively resisting arrest for several hours at the time he was

shot.    He     chose     to     emerge      from     the     bathroom       creating       the

impression that he was capable of, and intent on, shooting the

arresting officers instead of complying with their commands to

peacefully surrender.

      In sum, the totality of circumstances here is that Fleming

was     actively       resisting       arrest       for     violent    felony        charges,

threatened and taunted the police with suggestions that they

should be prepared to kill him, made statements directly to the

officers       implying       that    he   was     armed,     and     came    out     of    the

bathroom       after      a     multiple-hour         standoff        with      his       hands

outstretched toward the officers, pointing what appeared to be a

weapon    at    them.     The     district       court      properly       concluded       that

                                             19
considering the factual circumstances as a whole, “[n]o jury

instructed on the applicable law could conclude that Bevington

acted unreasonably in firing either the first or second volley”

of shots. Lee, 100 F. Supp. 3d at 541. While the loss of life

that occurred in the course of Fleming’s attempted arrest is

undeniably      heartrending,          the    totality         of     circumstances         here

clearly      justifies      the   actions          by   law    enforcement         that     took

place.

                                             IV.

       We have also considered Appellant’s arguments about experts

and find them to be either waived or abandoned. The “Statement

of Issues” section of Appellant’s brief raises as an issue for

consideration      on      appeal      whether      the    district         court     properly

precluded the expert testimony of Dr. Kenneth Okafor. Appellant

also stated in the “Summary of Argument” section of his brief

that   the    district        court    improperly         excluded         such    testimony.

However,     Appellant        never    addresses        the        issue    further    in    his

opening or reply brief, and made no mention of this issue at

oral   argument.      An      appellate       brief     “must        contain      appellant's

contentions     and     the    reasons       for    them,      with    citations       to    the

authorities     and     parts     of    the    record         on    which    the    appellant

relies....” Fed. R. App. P. 28(a)(8). To that effect, the failure

to raise or discuss an issue in an appellate brief renders that

issue abandoned. See Mayfield v. Nat'l Ass'n for Stock Car Auto

                                              20
Racing,      Inc.,    674    F.3d      369,    376-77   (4th        Cir.    2012).      Because

Appellant has failed to substantively argue the issue to the

court, cite legal authority, or point out any particular part of

the    record      relevant      to    his     assertion      regarding          Dr.    Okafor’s

testimony, we deem this issue abandoned.

       In addition, though Appellant did not articulate in the

“Statement of Issues” section of his brief any appellate issue

related to Appellee’s expert Matthew Nordel, he asserted in his

“Summary of Argument” section that the district court erred by

making a credibility determination as to this expert. We first

note   that     the    district        court      nowhere    cited     any       testimony      or

opinion from Mr. Nordel in the decision now before us on appeal,

and Appellant has failed to articulate where in the record the

district court made any finding or reference related to him. It

is    thus    unclear      that     the    district     court        made    a    credibility

determination as to this expert as Appellant claims. It is also

unclear      how     any    such      determination         could    have    affected          the

district      court’s        decision         on    summary         judgment.          Moreover,

Appellant has failed to cite any legal authority in support of

his position on this issue. Thus, we need not consider this

argument      because       it     fails     to    comply     with    Fed.       R.     App.    P.

28(a)(8). Even if the issue were properly before us, however, to

the extent Appellant challenges Mr. Nordel’s expert opinions as

to    the    trajectories        of    bullets      fired     at     Fleming,         any   facts

                                               21
related to the distance and angle from which the bullets were

fired    would   have   no   material   impact   on   our   analysis    of   the

alleged constitutional violation at hand in light of the rest of

the uncontroverted evidence discussed herein, even if such facts

had been accepted by the district court.

                                        V.

     Because Bevington’s actions did not constitute an unlawful

seizure in violation of Fleming’s Fourth Amendment rights, we

affirm    the    district     court’s    decision     granting   Bevington’s

summary judgment motion.

                                                                       AFFIRMED




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