                                       PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-2142


ESTATE OF WAYNE A. JONES BY ROBERT L. JONES AND BRUCE A.
JONES, Administrators of the Estate of Wayne A. Jones,

                     Plaintiff - Appellant,

              v.

THE CITY OF MARTINSBURG, WEST VIRGINIA; PFC. ERIK HERB; PFC.
DANIEL NORTH; PTLM. WILLIAM STAUBS; PTLM. PAUL LEHMAN; PFC.
ERIC NEELY,

                     Defendants - Appellees.



Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, Chief District Judge. (3:13-cv-00068-GMG-RWT)


Submitted: March 26, 2020                                          Decided: June 9, 2020
                                 Amended: June 10, 2020


Before GREGORY, Chief Judge, and FLOYD and THACKER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by published opinion. Judge Floyd wrote
the opinion in which Chief Judge Gregory and Judge Thacker joined.


Christopher E. Brown, THE BROWN FIRM PLLC, Alexandria, Virginia, for Appellant.
Philip W. Savrin, FREEMAN MATHIS & GARY, LLP, Atlanta, Georgia, for Appellees.
FLOYD, Circuit Judge:

       In 2013, Wayne Jones, a black man experiencing homelessness, was stopped by law

enforcement in Martinsburg, West Virginia for walking alongside, rather than on, the

sidewalk. By the end of this encounter, Jones would be dead. Armed only with a knife

tucked into his sleeve, he was tased four times, hit in the brachial plexus, kicked, and placed

in a choke hold. In his final moments, he lay on the ground between a stone wall and a

wall of five police officers, who collectively fired 22 bullets. Jones’s Estate sued under 42

U.S.C. § 1983, bringing a Fourth Amendment claim against the officers and a Monell claim

against the City of Martinsburg. In protracted litigation, the Estate has been kicked out of

district court three times. Most recently, the district court granted summary judgment to

the defendants on both claims, holding that the officers are protected by qualified immunity

and that the City cannot be liable under a Monell theory for failing to train those officers.

Although we agree that the City is insulated from Monell liability premised on one incident

of excessive force, we reverse the grant of summary judgment to the officers on qualified

immunity grounds, as a reasonable jury could find that Jones was both secured and

incapacitated in the final moments before his death.



                                              I.

       In reviewing the district court’s grant of summary judgment, we state the facts in

the light most favorable to the Estate. See Yates v. Terry, 817 F.3d 877, 881 (4th Cir. 2016).

Having previously done so, we largely reiterate our description of the facts in Estate of



                                              2
Jones v. City of Martinsburg, 726 F. App’x 173, 174–75 (4th Cir. 2018), with a few

elaborations when relevant to our qualified immunity analysis.

      Around 11:30 p.m. on March 13, 2013, Officer Paul Lehman of the Martinsburg

Police Department (MPD) was on patrol when he spotted Jones walking in the road, instead

of on the sidewalk, near downtown Martinsburg, West Virginia. A state law and a city

ordinance both require that pedestrians use sidewalks when available. See W. Va. Code

§ 17C-10-6(a); Martinsburg, W. Va. Ordinance § 371.06(a). Jones was a 50-year-old black

man and weighed 162 pounds. He was experiencing homelessness and had been diagnosed

with schizophrenia.

      Lehman followed Jones in his marked police car for one minute. Lehman then

parked his car near Jones, exited the vehicle, and asked Jones why he was walking in the

street. Lehman asked Jones for identification; Jones replied that he did not have any

identification. Lehman then asked to search him for weapons. Jones first asked, “What’s

a weapon?” When Lehman explained that this meant “anything—guns, knives, clubs,”

Jones acknowledged that he did have “something.”

      The encounter quickly escalated. Lehman called the MPD for backup and began to

demand that Jones put his hands on the police car. Jones did not comply and instead tried

to move away from Lehman. Lehman began to repeatedly shout, “Put your hands on the

car.” Jones responded, “What are you trying to do?”; “What do you want?”; and “What

did I do to you?” Lehman never answered Jones’s questions. Lehman then pulled out his

taser and discharged it on Jones. Officer Daniel North reached the scene at approximately

the same time that Lehman was discharging his taser. North tased Jones as well. The

                                           3
officers reported that the tasers appeared to have no effect on Jones. According to Lehman,

Jones then “hit” Lehman in the face in such a way that his toboggan was pulled over his

eyes.

        Jones broke away and ran down the street. North pursued him on foot and was the

first officer to catch up with him. According to North, Jones’s hands were “about to go

up,” and he “took that as [Jones] may try to assault him.” Unless he was clairvoyant, North

could not have known that Jones’s hands were “about” to be raised. North then “struck

[Jones] in the brachial.”

        Officer William Staub arrived at the scene and ran toward Jones and

North. Jones had “cornered himself” in “a stoop entranceway to a bookstore, up a couple

steps.” North stated that he told Jones to “just get on the ground, just listen to what we’re

saying,” to which Jones replied: “I didn’t do anything wrong.” Staub said that “North had

his taser out but he wasn’t doing nothing” when Staub approached. Jones then moved his

hands up. The night of the incident, Staub said that “the guy kind of put his hands up like

‘alright’ [resigned tone], so me and North both kind of grabbed his hands.” Staub and

North grabbed Jones, and the three tumbled down the stairs such that North was thrown

away from Staub and Jones. Staub “chipped” a bone in his thumb during the fall. Staub

wrestled Jones to the ground and put him in “a choke hold, just to kind of stop him from

resisting.” A loud choking or gurgling sound, which seems to be coming from Jones, is

audible on Staub’s audio recorder at this time.

        Lehman rejoined the group, and Officers Eric Neely and Erik Herb arrived, bringing

the number of MPD officers on the scene to five. Jones was on the ground with his feet

                                             4
facing down, moving in a swimmer’s kick-like motion. One officer can be heard loudly

calling Jones a “motherf**ker.” At least one officer can be seen kicking Jones as he lay

on the ground. Officer Neely tased Jones for a third time, and North then applied “a drive

stun without any probes.” The officers reported that these efforts to stun Jones had no

visible effect.

       Staub was on his knees on the ground and still had Jones in a choke hold when he

felt “like a scratch on my hand,” which he initially “didn’t think much of” because they

“were rolling around on the concrete.” Then, “a second or two later,” at approximately the

same time that Officer Neely tased Jones, Staub felt “a sharp poke in [his] side,” which

“alarmed” him. Staub reported that he then “saw the subject’s right hand with a fixed blade

knife in his hand” and shouted, “He’s got a knife! He’s got a knife!” Neely also reportedly

saw “a weapon in [Jones’s] right hand.” At least one officer called to “Get back, get back!”

       Having learned of the knife, the officers simultaneously drew back approximately

five feet. As they moved back, Jones’s left arm dropped lifelessly. Jones was motionless

on the ground, laying “with his right side on the ground” and his “right elbow . . . on the

ground.” All five officers drew their firearms and formed a semi-circle around the

recumbent Jones, who was between the officers and the bookstore wall. The officers

ordered Jones to drop the weapon.      Jones remained motionless and did not verbally

respond. Lehman reported that Jones “did not make any overt acts with the knife towards

the officers.” On the night of the incident, Staub similarly reported that as the officers

stepped back, Jones “still had the f**king knife in his hand and he wasn’t f**king doing

nothing.” Seconds later, the five officers fired a total of 22 rounds at Jones, causing 23
                                             5
wounds, and killing him where he lay on the sidewalk. Neely fired the first shot, but the

next rounds immediately followed. Most of the bullets entered Jones’s back and buttocks.

Jones died shortly before midnight.

       In the immediate aftermath on the scene, one or two of the shooting officers called

for emergency medical services, but none of them rendered aid themselves.            When

searching Jones’s lifeless body, officers found a small fixed blade knife tucked into his

right sleeve. After being told that state police were coming to investigate, officers can be

heard saying that the incident would be a “cluster” and that they were going to “have to

gather some f**king story.”

       At the time of the shooting, MPD’s aggression response policy was to “meet your

aggression with the suspect’s aggression.” J.A. 141. Under that policy, incidents of

physical force must be necessary, objectively reasonable, and proportionate. J.A. 142.

MPD did not have any program or policy pertaining to interactions with people with mental

illness. According to the deposition testimony of Chief of Police Kevin Miller, he decided

to conduct such a training after the shooting.

       One month after Jones’s death, his Estate sued the City of Martinsburg and then-

unknown police officers in federal court. The amended complaint alleged three § 1983

claims: (1) that the five named officers used excessive force in violation of the Fourth

Amendment; (2) that the officers violated the Fourteenth Amendment by killing Jones,

thereby wrongfully depriving his family of a familial relationship with him; and (3) that

the City of Martinsburg was liable under a variety of Monell theories, including failure to

train and failure to discipline the police officers. See Monell v. Dep’t of Soc. Servs., 436

                                             6
U.S. 658 (1978).

       We now hear the third appeal in this case. The first two appeals pertained to

dismissals based on inadvertent admissions by the Estate during discovery. The defendants

had sent a Request for Admissions, to which the Estate responded two days late. At first,

the district court deemed the facts admitted and granted the defendants’ motion for

summary judgment. The Estate appealed, arguing that although it had not moved to

withdraw the admissions, its late response was a constructive motion under Federal Rule

of Civil Procedure 36(b).     This Court remanded the case “for consideration of the

discretionary factors in Rule 36(b) in determining whether to allow the withdrawal of the

admissions.” Estate of Jones v. City of Martinsburg, 655 F. App’x 948, 949 (4th Cir. 2016).

       On remand, the district court denied withdrawal of the admissions, and again

granted summary judgment in favor of the defendants. The Estate appealed, and we held

that the Estate could not withdraw the admissions because it waived that right by failing to

file a timely objection. Estate of Jones, 726 F. App’x at 177. Thus, the Estate is deemed

to have admitted the following:

       (1) Wayne A. Jones advised an officer that he had ‘something’ when the
       officer asked [him] if he had a weapon;
       (2) Wayne A. Jones failed to comply with commands of officers to stop
       resisting;
       (3) Wayne A. Jones was carrying a knife on his person;
       (4) officers gave verbal commands for Wayne A. Jones to drop his knife
       before they fired their weapons;
       (5) Wayne A. Jones refused to drop his knife; and
       (6) Wayne A. Jones stabbed an officer with his knife, prior to any officer
       firing their service guns.

Id. at 176 (internal quotation marks omitted).


                                             7
       Despite these detrimental admissions, we reversed the district court’s grant of

summary judgment on the excessive force claims. We explained that the district court had

improperly considered the facts in the light most favorable to the officers, rather than the

Estate; ignored “discrepancies among the officers’ accounts”; and assumed that Jones

presented an ongoing threat as he lay on the ground because he still had the knife. Id. at

179. We concluded that a reasonable jury could find excessive force, because “it is not

clear that Jones continued to pose an immediate threat of physical harm to the officers at

the time they shot and killed him.” Id. We also identified two pieces of evidence

corroborating that Jones was not wielding a knife when he was shot. First, he was laying

on his right side and the knife was in his right hand. Second, “at least one police officer”

said that Jones “‘did not make any overt acts with the knife towards the officers’ once they

stepped back.” Id.

       Upon remand, the defendants asked the court to consider whether the officers were

shielded by qualified immunity, and whether the City could be liable under Monell. For

the third time, the district court granted the defendants’ motion for summary judgment,

holding that qualified immunity applied because Jones was not “secured” under clearly

established law, and holding that no Monell liability lay for a single incident. J.A. 578,

582. The district court dismissed the case with prejudice, and the Estate timely appealed.



                                            II.

       For the first time, we consider whether the five officers who shot and killed Jones

as he lay on the ground are protected by qualified immunity. We review the district court’s

                                             8
grant of summary judgment de novo. Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 537

(4th Cir. 2017). Awarding the officers summary judgment on qualified immunity grounds

is only appropriate if they demonstrate “that there is no genuine dispute as to any material

fact and [that they are] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We

view the evidence in the light most favorable to the Estate and draw any reasonable

inferences in its favor. See id.; see also Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011)

(en banc).

       Qualified immunity shields police officers who commit constitutional violations

from liability when, based on “clearly established law,” they “could reasonably believe that

their actions were lawful.” See Booker, 855 F.3d at 537–38; see also Maciariello v.

Sumner, 973 F.2d 295, 298 (4th Cir. 1992) (“Officials are not liable for bad guesses in gray

areas; they are liable for transgressing bright lines.”). To determine whether qualified

immunity applies, we conduct a two-step inquiry, in either order: (1) whether a

constitutional violation occurred; and (2) whether the right was clearly established at the

time of the violation (here, on March 13, 2013). See Booker, 855 F.3d at 538. Because

this appeal arises from a summary judgment, and because we previously held that a jury

could find that the officers violated Jones’s Fourth Amendment right to be free from

excessive force, Estate of Jones, 726 F. App’x at 179, this appeal turns on whether Jones’s

right was clearly established. 1


       1
         The defendants contend that we already answered this question in our 2016
opinion, in which we noted that the discovery admissions “constructively resolved all of
the material issues in dispute, giving the motion a dispositive effect.” See Estate of Jones,
(Continued)
                                              9
       To determine whether this right was clearly established, we must first define the

right at the “appropriate level of specificity.” See Booker, 855 F.3d at 539 (citation

omitted). Although Tennessee v. Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490

U.S. 386 (1989), guide our analysis of whether deadly force is unconstitutionally excessive,

those cases define the right generally and “do not by themselves create clearly established

law outside ‘an obvious case.’” White v. Pauly, 137 S. Ct. 548, 552 (2017) (citation

omitted); see also Graham, 490 U.S. at 396 (holding that among the factors to be

considered under the Fourth Amendment’s “objective reasonableness” standard are “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”). In the context of an ongoing police encounter such as this one, we “focus

on the moment that the force is employed.” See Henry, 652 F.3d at 531.

       Here, there are two distinct facts that separately define Jones’s right to be free from

excessive force at an appropriate level of specificity: (1) Jones, although armed, had been

secured by the officers immediately before he was released and shot; and (2) Jones,

although armed, was incapacitated at the time he was shot. Because it was clearly

established that officers may not shoot a secured or incapacitated person, the officers are




655 F. App’x at 949. However, at that time, we did not independently consider the merits;
we were explaining that the district court deemed those admissions to be dispositive, and
yet that court did not consider the discretionary factors in Rule 36(b) in its discovery ruling.
When we reached the merits of the excessive force claim in our 2018 opinion, we held that
the admissions were not dispositive. See Estate of Jones, 726 F. App’x at 179. Our
holdings are consistent and are not a result of any ambiguity in relevant Fourth Amendment
law, as the defendants suggest.
                                              10
not entitled to qualified immunity.



                                             A.

       First, the officers are not protected by qualified immunity because, viewing the

evidence in the light most favorable to the Estate, Jones was secured before he was shot.

A reasonable jury viewing the videos could find that Jones was secured when he was

pinned to the ground by five officers. The defendants emphasize that Jones was not

handcuffed, and that, as admitted, he stabbed an officer. Yet in 2013, it was already clearly

established that suspects can be secured without handcuffs when they are pinned to the

ground, and that such suspects cannot be subjected to further force. Indeed, as early as

1993, this Court held that a reasonable officer would know that once he had pinned a 100-

pound woman to the ground, he should not further shove her into the pavement, cracking

her teeth. Kane v. Hargis, 987 F.2d 1005, 1008 (4th Cir. 1993). Like Jones, Kane was not

handcuffed. Just as one officer pinning a 100-pound suspect secured her, so too could five

officers pinning 162-pound Jones secure him.

       Moreover, before Jones’s death, 2 this Court held that a police officer used excessive

force when he continued to tase a domestic violence suspect after that suspect had dropped

his weapon and fallen to the ground. Meyers v. Baltimore Cty., 713 F.3d 723 (4th Cir.

2013). After three justified uses of a taser, the suspect dropped a baseball bat and fell. Id.



       2
       The Estate’s counsel apparently believed Meyers was decided after Jones’s death.
See Reply Br. 6. However, Meyers was decided on February 1, 2013; Jones was killed on
March 13, 2013.
                                             11
at 733. “Several officers” then “sat on [his] back, and [he] only was able to move his legs.”

Id. As in Jones’s case, the participating officers in Meyers offered conflicting testimony

as to whether the suspect was still actively resisting arrest, or whether his body had

“stiffened” and “did not pose a continuing threat.” Id. Ultimately, this Court held in

Meyers that “[i]t is an excessive and unreasonable use of force for a police officer

repeatedly to administer electrical shocks with a taser on an individual who no longer is

armed, has been brought to the ground, has been restrained physically by several other

officers, and no longer is actively resisting arrest.” Id. at 734. The officer there was not

protected by qualified immunity because he “us[ed] unnecessary, gratuitous, and

disproportionate force to seize a secured, unarmed citizen . . . .” Id. at 735 (emphasis

added) (quoting Bailey v. Kennedy, 349 F.3d 731, 744–45 (4th Cir. 2003)).

       Concededly, as deemed admitted and unlike the suspects in Meyers and Kane, Jones

was armed with a knife, which was tucked into his sleeve, and yet which he somehow used

to stab an officer. Although problematic for the Estate, these admitted facts do not preclude

a jury from finding that he was secured. It was already established that armed suspects can

be secured even before an officer disarms them. See Young v. Prince George’s Cty., 355

F.3d 751, 757–58 (4th Cir. 2004) (holding that force used against a person already in

handcuffs, who was cooperating during a traffic stop and informed the officer that he was

armed, was excessive). Given the relatively inaccessible location of the knife, and the

physical inability to wield it given his position on the ground, the number of officers on

Jones, and Jones’s physical state by this time, it would be particularly reasonable to find

that Jones was secured while still armed.

                                             12
       The obvious retort is that a suspect who stabs an officer is not secured. But even

given that admission, there remains a genuine question of fact as to whether Jones was

secured at any point after Staub felt the knife, and before the officers simultaneously

backed away. Staub called out multiple times that Jones had a knife, and another officer

yelled to get back, all before the officers retreated. 3 To be sure, the incident moved quickly.

But during all of this, Jones was still on the ground, with five officers on him. A jury could

reasonably find that Jones was secured before the officers backed away, and that the

officers could have disarmed Jones and handcuffed him, rather than simultaneously release

him.

       If Jones was secured, then police officers could not constitutionally release him,

back away, and shoot him. To do so violated Jones’s constitutional right to be free from

deadly force under clearly established law.



                                              B.

       Second, and even were it to find that Jones was not secured, a jury could still

reasonably find that he was incapacitated by the time of the shooting. Jones had been tased

four times, hit in the brachial plexus, kicked, and placed in a choke hold, at which point

gurgling can be heard in the video. A jury could reasonably infer that Jones was struggling

to breathe. He lay on his side and stomach on the concrete with five officers on him. And



       3
         Notably, Officer Staub did not say that he was stabbed, and it is unclear whether
the other officers even knew that he was injured until after they shot Jones. Only Neely
claims to have seen the stabbing.

                                              13
when the officers got up and backed away, viewing the evidence in the light most favorable

to the Estate, the officers saw his left arm fall limply to his body.

       Unsurprisingly, it was clearly established in 2013 that officers may not use force

against an incapacitated suspect. In 2011, this Court held in Brockington v. Boykins that

“a reasonable officer would have recognized that deadly force was no longer needed after

[a suspect] was injured and helpless with his back on the ground.” 637 F.3d 503, 504–05

(4th Cir. 2011). After an officer shot a suspect and the suspect fell backwards, we

concluded that the officer used excessive force by shooting that suspect six more times

when he was “unable to get up or otherwise defend himself.” Id. Even though the initial

shooting was concededly justified, we agreed that it was excessive force to shoot the

suspect “once he was already immobilized.”           See id. at 507.    Like the suspect in

Brockington, Jones appears helpless and immobilized at the time of his death.

       Again, unlike Jones, the suspect in Brockington was unarmed. Id. But it was also

clearly established at the time of Jones’s death that simply being armed is insufficient to

justify deadly force. See Henry, 652 F.3d at 534 (holding that shooting a “fleeing,

nonthreatening misdemeanant” was unlawful, even when that suspect had a firearm); see

also Young, 355 F.3d at 757 (“The fact that a suspect is armed, however, does not render

all force used by an officer reasonable.”). And, viewing the evidence in the light most

favorable to the Estate, Jones was not even wielding the knife when the officers shot him;

it was pinned under the right side of his body, which was on the ground, and tucked into

his sleeve.



                                              14
       Finally, the officers contend that Jones should have dropped the knife upon their

commands, and that his failure to do so places his shooting in the gray zone where qualified

immunity applies. 4 But again, the fact that he did not move or respond corroborates that

he was incapacitated, and the reasonable officer would have recognized that fact. Indeed,

Lehman reported that Jones “did not make any overt acts with the knife towards the

officers,” and Staub reported that Jones “wasn’t f**king doing nothing.” And yet five

officers wasted no time, giving Jones mere seconds to comply before firing. The officers

shouting “drop the knife” seconds before shooting him was, at best, farcical because it was

impossible for an incapacitated person to drop a knife tucked into his sleeve.

       By shooting an incapacitated, injured person who was not moving, and who was

laying on his knife, the police officers crossed a “bright line” and can be held liable. See

Wilson, 893 F.3d at 222. “Indeed, it is just common sense that [shooting] someone who is




       4
          Because Jones did not drop the knife when so commanded, the defendants claim
that his case is “materially indistinguishable” from Wilson v. Prince George’s County, 893
F.3d 213 (4th Cir. 2018), and Kisela v. Hughes, 138 S. Ct. 1148 (2018), guaranteeing
qualified immunity. Resp. Br. 10. In Kisela, a police officer shot a woman through the
fence, when she had reportedly been acting erratically, refused to drop a knife, and was
standing mere feet from another civilian. See 138 S. Ct. at 1150–51. The Ninth Circuit
denied the officer qualified immunity, but the Supreme Court reversed. Id. at 1151–54. In
sharp contrast, Jones lay on the ground, with a wall behind him. Unlike Kisela, there is no
evidence of any bystanders, whatsoever. And viewing the evidence in the light most
favorable to the Estate, Jones was completely incapacitated. In Wilson, this Court held that
a police officer was protected by qualified immunity when he shot a man who had
reportedly just assaulted his girlfriend, and who was walking and stumbling towards the
officer with a knife, stabbing himself and slitting his own throat. 893 F.3d at 216–17.
Again, unlike the man in Wilson, Jones was laying on the ground, atop his knife. These
cases do not remotely suggest that the police shooting at issue here falls in a similar gray
zone.
                                            15
already incapacitated is not justified under these circumstances.” Brockington, 637 F.3d

at 508.

                                        *     *      *

          Having zoomed in on the precise moments before Jones’s death, we pull back for

context.     The defendants portray Jones as a fleeing, armed suspect, who was not

cooperating with law enforcement and had even reportedly “hit” an officer, displacing that

officer’s hat. Non-cooperation with law enforcement has never given officers carte blanche

to use deadly force against a suspect; luckily for many of us, neither has being “armed”

with a small knife. Jones was not an armed felon on the run, nor a fleeing suspect luring

officers into a high-speed car chase. Jones was walking in the road next to the sidewalk,

away from the dark shadows and blind corners of buildings at night. He was without

housing and had a knife on his person. As a pedestrian, he should have been on the

sidewalk, but Officer Lehman never told him that.

          Instead, Officer Lehman quickly escalated the encounter.      Lehman asked for

identification, which Jones did not have. He asked if Jones had a weapon, to which Jones

responded by asking what a weapon is. There are myriad reasons why he may have asked

that, including that he simply did not know whether a knife would count. Perhaps Lehman

might have suspected mental health challenges; recall that Jones was diagnosed with

schizophrenia. In any event, when told that “weapon” includes a knife, Jones admitted he

had “something.” Rather than follow the officer’s command to put his hands on the

vehicle, Jones continued to ask what he had done wrong. So Lehman tased him.

          Jones took off on foot, but quickly cornered himself in a bookstore stoop. What we

                                              16
see is a scared man who is confused about what he did wrong, and an officer that does

nothing to alleviate that man’s fears. That is the broader context in which five officers took

Jones’s life.

       For the foregoing reasons, the district court erred by holding that the officers are

protected by qualified immunity. In 2013, it was clearly established that law enforcement

may not constitutionally use force against a secured, incapacitated person—let alone use

deadly force against that person. 5




                                             III.

       Turning to the Estate’s Monell claim against the City of Martinsburg, we first

consider how its claim is framed on appeal. The Estate’s theory is that this single incident

demonstrates the City’s failure to adequately train police officers on the use of force.

According to the Estate, Jones’s shooting “reveal[s] a desperate need for more or different

training,” because the officers repeatedly ignored the “many options short of shooting and

killing Jones.” Opening Br. 24–25. Although the Estate mentioned two other instances of

excessive force in its Complaint, it no longer relies on those incidents, and it does not




       5
         Because a reasonable jury could find that Jones was secured, incapacitated, or
both, we need not reach whether the officers’ actions were so “flagrantly unlawful” as to
refute any claim of qualified immunity. See Browder v. City of Albuquerque, 787 F.3d
1076, 1082–83 (10th Cir. 2015) (holding that “some things are so obviously unlawful that
they don’t require detailed explanation,” and explaining that “it would be remarkable if the
most obviously unconstitutional conduct should be the most immune from liability only
because it is so flagrantly unlawful that few dare its attempt”).

                                             17
attempt to demonstrate a pattern of excessive force. The Estate has also abandoned any

claim within the Complaint that the City’s failure to train its officers on how to interact

with people with mental illness gives rise to Monell liability.

       For a municipality to be liable under § 1983 for failing to properly train police, the

failure to train must “amount[] to deliberate indifference to the rights of persons with whom

the police come into contact.” See City of Canton v. Harris, 489 U.S. 378, 388 (1989). If

the City’s failure to train reflects such a deliberate or consciously indifferent “policy,” then

its failure can fairly be said to be the “moving force [behind] the constitutional violation.”

See id. at 389 (alteration in original) (quoting Monell, 436 U.S. at 694). Additionally, the

training deficiency “must be closely related to the ultimate injury,” meaning it must cause

the incident. Id. at 391. Because Monell liability cannot be predicated on a theory of

respondeat superior¸ a single incident is almost never enough to warrant municipal

liability. See Semple v. City of Moundsville, 195 F.3d 708, 713–14 (4th Cir. 1999) (“[P]roof

of a single incident of the unconstitutional activity charged is not sufficient to prove the

existence of a municipal custom.”).

       However, the Supreme Court has left open the possibility that “in light of the duties

assigned to specific officers or employees the need for more or different training [may be]

so obvious, and the inadequacy so likely to result in the violation of constitutional rights,

that the policymakers of the city can reasonably be said to have been deliberately

indifferent to the need”—the so-called Canton exception. City of Canton, 489 U.S. at 390;

see also Bd. of the Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)

(“In Canton, we did not foreclose the possibility that evidence of a single violation of

                                              18
federal rights, accompanied by a showing that a municipality has failed to train its

employees to handle recurring situations presenting an obvious potential for such a

violation, could trigger municipal liability.”).

       At least as framed on appeal, Jones’s death is an isolated incident of excessive force

that cannot fall into the Canton exception, because Martinsburg did have an aggression

policy, and the Estate has not shown how or why that policy is deficient—except by

pointing to this single incident. MPD’s aggression response policy was to “meet your

aggression with the suspect’s aggression,” and required that incidents of physical force be

necessary, objectively reasonable, and proportionate. J.A. 141–42. The Estate does not

argue that the policy is facially unreasonable. Instead, it argues that this tragic incident

makes obvious that the policy was not sufficiently implemented in training.

       We take the Estate’s point to be that five officers simultaneously violated this

policy, and therefore the training must have been deficient. We agree that a reasonable

jury could find that the officers’ response violated the aggression policy. But Monell’s

deliberate indifference standard ensures that a municipality either knew or should have

known about the deficiency, so it could remedy that deficiency. At its core, the strict

Monell test asks for some level of notice. And five officers acting at once could not have

put the City on earlier notice of the need to better train its officers as to the existing use-of-

force policy. Here, the City apparently understood that it needed a use-of-force policy to

avoid the risk of likely constitutional violations, and it had one. The City cannot be liable

under Monell because the Estate cannot prove that any deficiency in training “reflect[ed] a

deliberate or conscious choice by a municipality . . . .” Doe v. Broderick, 225 F.3d 440,

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456 (4th Cir. 2000).

        Because we hold that the Estate has not shown deliberate indifference to the need

for better or different training on the use of force, we do not reach whether any failure in

training was the moving force behind the constitutional violation. As it is framed by the

Estate, the Monell claim cannot succeed, and the district court properly granted summary

judgment to the City. We thus affirm the district court’s dismissal as to the Monell claim

only.



                                            IV.

        Wayne Jones was killed just over one year before the Ferguson, Missouri shooting

of Michael Brown would once again draw national scrutiny to police shootings of black

people in the United States. Seven years later, we are asked to decide whether it was clearly

established that five officers could not shoot a man 22 times as he lay motionless on the

ground. Although we recognize that our police officers are often asked to make split-

second decisions, we expect them to do so with respect for the dignity and worth of black

lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another

death of a black man at the hands of police, this time George Floyd in Minneapolis. This

has to stop. To award qualified immunity at the summary judgment stage in this case

would signal absolute immunity for fear-based use of deadly force, which we cannot

accept. The district court’s grant of summary judgment on qualified immunity grounds is

reversed, and the dismissal of that claim is hereby vacated.



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AFFIRMED IN PART, VACATED IN PART,
AND REMANDED




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