                                PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                                 No. 18-6219


JOHNNIE WILLIAMS,

               Plaintiff - Appellee,

         and

SON ODARIOUS WILLIAMS,

               Plaintiff
         v.

LANCE CORPORAL KYLE STRICKLAND

               Defendant - Appellant

         and

CPL HEROUX; SGT WALTER CRIDDLE; BEAUFORT COUNTY SHERIFF
OFFICE; RAYMOND S. HEROUX,

               Defendants.


                                 No. 18-6220


JOHNNIE WILLIAMS,

               Plaintiff - Appellee,

         and

SON ODARIOUS WILLIAMS,
                   Plaintiff,

            v.

RAYMOND S. HEROUX,

                   Defendant - Appellant,

            and

CPL HEROUX; SGT WALTER CRIDDLE; BEAUFORT COUNTY SHERIFF
OFFICE; LANCE CORPORAL KYLE STRICKLAND,

                   Defendants.


Appeals from the United States District Court for the District of South Carolina, at
Beaufort. Patrick Michael Duffy, Senior District Judge. (9:15-cv-01118-PMD)


Argued: December 13, 2018                                   Decided: March 5, 2019


Before KEENAN, FLOYD, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Floyd wrote the opinion in which Judge Keenan
and Judge Thacker joined.


ARGUED: Elloree A. Ganes, HOOD LAW FIRM, LLC, Charleston, South Carolina;
Mary Bass Lohr, HOWELL, GIBSON & HUGHES, P.A., Beaufort, South Carolina, for
Appellants. Jordan Calloway, MCGOWAN, HOOD & FELDER, LLC, Rock Hill, South
Carolina for Appellee. ON BRIEF: Whitney B. Harrison, MCGOWAN, HOOD &
FELDER, LLC, Columbia, South Carolina, for Appellee.




                                            2
FLOYD, Circuit Judge:

    Johnnie Williams brought suit under 42 U.S.C. § 1983 against two law enforcement

officers: Kyle Strickland and Raymond Heroux. Williams claimed that the officers

violated his Fourth Amendment rights by using deadly force while arresting him. The

officers moved for summary judgment on the basis of qualified immunity. The district

court denied their motions, and the officers now appeal. For the reasons that follow, we

affirm.



                                            I.

    On June 29, 2012, Williams drove from Georgia to South Carolina to visit a relative.

His six-year-old son was with him.      When Williams and his son arrived in South

Carolina, they stopped at a gas station.    There, Williams ran into an acquaintance,

Anthony Ancrum, who needed a ride to his apartment. Ancrum’s apartment complex

was nearby, and Williams offered to drive him.

    On the way to the apartment complex, Williams crossed paths with Officer Heroux,

who was on duty in a patrol car. Heroux ran Williams’s license plate through dispatch

and learned that the plate had been stolen. He followed Williams into the parking lot of

the apartment complex, where he turned on his blue lights. In response, Williams pulled

into a parking space.    Heroux got out to approach him.      Two other officers, Kyle

Strickland and Walter Criddle, arrived on the scene.

    What happened over the next several seconds forms the heart of this appeal. When



                                            3
Heroux was about ten feet from Williams’s car, Williams shifted the car into reverse and

cut the wheel, causing the front end of the car to swivel in Heroux’s direction. Heroux,

believing himself to be in danger, stepped back and drew his gun. At the same time,

Strickland started walking toward Williams’s car. Williams then put the car in drive,

straightened out, and drove toward Strickland.

      Heroux and Strickland opened fire on the car. Crucially, it is not clear—at this

stage—how far Williams got before Heroux and Strickland started shooting. He may

have been headed toward Strickland. He may have been passing by Strickland, such that

Strickland was alongside the car and out of the car’s trajectory. Or he may have already

driven past Strickland, such that Strickland, like Heroux, was behind the car.

      One of Heroux’s shots hit Williams in the back. 1 Williams lost control of the car and

crashed into a tree. He was airlifted to the hospital for emergency surgery, after which he

was placed in a medically induced coma. Despite several subsequent surgeries, Williams

has, among other things, “lost the full and proper function of his bowels, lungs, and other

bodily systems.” J.A. 45.

      Years later, Williams was charged with three counts of assault and battery related to

the incident. He pleaded guilty. As part of his plea deal, he admitted that he had

deliberately rotated the car in Heroux’s direction and that he had driven towards

Strickland. Notably, Williams also agreed as part of his plea deal that the officers had

started shooting only after his car had driven past them.


1
    Ancrum, too, was injured, but he is not party to this action.

                                                4
      In 2015, Williams filed a § 1983 suit against Strickland, Heroux, and other

defendants who are no longer parties to the action. He alleged that by firing on him

during the course of his arrest, the officers had subjected him to excessive force, violating

his rights under the Fourth Amendment.

      After discovery, Strickland and Heroux each moved for summary judgment on the

basis of qualified immunity. In relevant part, the officers argued that they were entitled

to summary judgment because the undisputed facts showed that they had not violated

Williams’s clearly established rights. More specifically, they argued that when they

opened fire on Williams, they believed that Williams was about to hit Strickland with his

car; under those circumstances—according to the officers—Williams had no clearly

established right to be free from the use of deadly force.

      The district court denied the officers’ motion. The court determined that a reasonable

jury, viewing the evidence in the light most favorable to Williams, could conclude that

when the officers discharged their weapons, Williams’s car was either (a) in the process

of passing Strickland or (b) already past Strickland. According to the district court, if

either (a) or (b) were true, then the officers’ use of deadly force would have violated

rights that we clearly established in Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005).

Since a reasonable jury could conclude that the officers had acted in a way that violated

Williams’s clearly established rights, the district court held that the officers were not

entitled to summary judgment. The officers now appeal. 2


2
    We note that Heroux brings an additional appeal, separate from Strickland. Below,

                                              5
                                            II.

    Our first task here is to determine whether, and to what extent, we may subject the

district court’s order to appellate review. Generally, our jurisdiction is limited to final

decisions of the district court. 28 U.S.C. § 1291; Martin v. Duffy, 858 F.3d 239, 246 (4th

Cir. 2017). This means that we cannot normally review a district court’s order denying

summary judgment, since orders denying summary judgment are interlocutory, not final.

Hensley v. Horne, 297 F.3d 344, 347 (4th Cir. 2002). There are, however, exceptions.

One exception is the “collateral order doctrine,” which “permits appellate review of a

small class of orders that are conclusive, that resolve important questions separate from

the merits, and that are effectively unreviewable on appeal from the final judgment in the

underlying action.” Adams v. Ferguson, 884 F.3d 219, 223–24 (4th Cir. 2018) (internal

quotation marks omitted).

    A district court’s denial of summary judgment on the basis of qualified immunity is a

collateral order and therefore subject to immediate appellate review, despite being

interlocutory. Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008). Our review of such

Heroux moved for summary judgment on the ground that Williams’s claim against him
was untimely. The district court denied his motion. He asks us to reverse. But a denial
of summary judgment on statute-of-limitations grounds is an interlocutory order, and in
general, such orders are not immediately appealable. Cf. Martin Marietta Corp. v.
Gould, Inc., 70 F.3d 768, 769–70 (4th Cir. 1995) (reviewing order denying summary
judgment on statute-of-limitations grounds because the district court had certified its
order for appeal). Heroux fails to advance any argument as to why we should—or may—
exercise appellate jurisdiction over the district court’s rejection of his statute-of-
limitations defense in this case. Accordingly, we leave that portion of the district court’s
order undisturbed.

                                             6
orders is limited to a narrow legal question: if we take the facts as the district court gives

them to us, 3 and we view those facts in the light most favorable to the plaintiff, is the

defendant still entitled to qualified immunity? Id.; see also Brown v. Elliott, 876 F.3d

637, 641–42 (4th Cir. 2017) (“[W]hen resolving the issue of qualified immunity at

summary judgment, a court must ascertain the circumstances of the case by crediting the

plaintiff’s evidence and drawing all reasonable inferences in the plaintiff’s favor.”

(internal quotation marks omitted)); Waterman, 393 F.3d at 473 (“In reviewing the denial

of summary judgment based on qualified immunity, we accept as true the facts that the

district court concluded may be reasonably inferred from the record when viewed in the

light most favorable to the plaintiff.”).     Significantly, we cannot reach whether the

plaintiff has produced enough evidence to survive summary judgment. Winfield v. Bass,

106 F.3d 525, 530 (4th Cir. 1997) (en banc).

    What this amounts to is: We may review the portion of the district court’s order

denying Strickland and Heroux’s motions for summary judgment on the basis of qualified

immunity. But our review may reach only one question: would the officers be entitled to

qualified immunity if a jury concluded that they had fired on Williams when they were

no longer in the trajectory of Williams’s car? We turn to that question now.


3
  This is not to say that we are strictly confined to the four corners of the district court’s
order: we may assume some facts when the district court does not explicitly state them,
provided that we draw all inferences in the plaintiff’s favor. See Smith v. Ray, 781 F.3d
95, 98 (4th Cir. 2015) (“To the extent that the district court has not fully set forth the facts
on which its decision is based, we assume the facts that may reasonably be inferred from
the record when viewed in the light most favorable to the plaintiff.” (internal quotation
marks omitted)).

                                               7
                                             III.

    Qualified immunity “protects government officials from liability for violations of

constitutional rights that were not clearly established at the time of the challenged

conduct.” Iko, 535 F.3d at 233. Given this standard, we must determine two things.

First, if Strickland and Heroux fired on Williams after they were no longer in the path of

Williams’s car, did they violate Williams’s Fourth Amendment right to freedom from

excessive force? Second, as of June 29, 2012, was it clearly established that using deadly

force against Williams after the officers were no longer in the car’s trajectory would

violate Williams’s right to freedom from excessive force? 4 The answer to both questions

is yes.



                                             A.

    The Fourth Amendment prohibits law enforcement officers from using excessive

force to make a seizure.      Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003).

“Whether an officer has used excessive force is analyzed under a standard of objective

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

    Because deadly force is extraordinarily intrusive, it takes a lot for it to be reasonable.

See Tennessee v. Garner, 471 U.S. 1, 9 (1985) (“The intrusiveness of a seizure by means



4
 We do not need to answer these questions in sequence. Pearson v. Callahan, 555 U.S.
223, 236 (2009). But in this case, we see no reason not to.

                                              8
of deadly force is unmatched.”). Indeed, an officer may reasonably apply deadly force to

a fleeing suspect—even someone suspected of committing a serious felony—only if the

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

or serious physical injury to the officer or others.” Id. at 3. 5 And even a “significant

threat of death or serious physical injury” to an officer does not justify the use of deadly

force unless the threat is “immediate.” Id. at 3, 11; accord Henry, 652 F.3d at 532.

    Over a decade ago, we applied these principles when deciding Waterman v. Batton, a

case that bears striking similarities to the one at hand. There, we held that officers who

used deadly force against the driver of a car had not violated the Fourth Amendment

when, in the aftermath of a high-speed chase (during which the driver had reportedly

tried to run an officer off the road), the officers were standing in or immediately adjacent

to the car’s forward trajectory, and the car “lurched forward” and “began to accelerate,”

such that the officers reasonably believed that the car was going to run them over “in

approximately one second.” 393 F.3d at 474-76, 475 n.6. We also held that the same

officers had violated the Fourth Amendment to the extent that they started to use deadly

force, or continued to use deadly force, once the car had driven by them—i.e., once it was

no longer reasonable for them to believe that the car was about to run them (or their

fellow officers) over. Id. at 482. This was true even though mere seconds separated the

point at which deadly force was lawful from the point at which deadly force was


5
  Nothing in the record or the parties’ briefs suggests that Williams posed a significant
threat to anyone but the officers at any point during the encounter at issue; therefore,
there is no need for us to consider the “or others” portion of the standard.

                                             9
unlawful. Id. As we put it then, “force justified at the beginning of an encounter is not

justified even seconds later if the justification for the initial force has been eliminated.”

Id. at 481.

    Following Waterman, we have no difficulty concluding that if Strickland and Heroux

started or continued to fire on Williams after they were no longer in the trajectory of

Williams’s car, they violated Williams’s Fourth Amendment right to freedom from

excessive force. 6



                                             B.

    Despite having violated a plaintiff’s constitutional right, defendants may be entitled

to immunity from the plaintiff’s suit for damages if, at the time of the violation, the

plaintiff’s right was not “clearly established.” Williamson v. Stirling, 912 F.3d 154, 186

(4th Cir. 2018). To determine whether a right was clearly established, we typically ask

whether, when the defendants violated the right, there existed either controlling authority

(such as a published opinion of this Court) or a “robust consensus of persuasive

authority,” Booker v. S.C. Dep't of Corr., 855 F.3d 533, 544 (4th Cir. 2017) (internal

quotation marks omitted), that would have given the defendants “fair warning that their

conduct,” under the circumstances, “was wrongful,”          Williamson, 912 F.3d at 187

(internal quotation marks omitted).


6
 We note that this conclusion is consistent with our opinion in Krein v. Price, 596 F.
App’x 184, 189–90 (4th Cir. 2014), which dealt with similar circumstances and applied
Waterman in substantially the same way.

                                             10
    The “clearly established” inquiry has some important guideposts. On the one hand,

the Supreme Court instructs us “not to define clearly established law at a high level of

generality.”   Plumhoff v. Rickard, 572 U.S. 765, 779 (2014).         On the other hand,

defendants     can   violate   clearly established   law   even   under   “‘novel   factual

circumstances.’” Stirling, 912 F.3d at 187 (quoting Hope v. Pelzer, 536 U.S. 730, 741

(2002)); see also id. (stating that “clearly established law encompasses not only

specifically adjudicated rights, but also those [rights] manifestly included within more

general applications of the core constitutional principles invoked” (internal quotation

marks omitted)). Thus, although we must avoid ambushing government officials with

liability for good-faith mistakes made at the unsettled peripheries of the law, we need

not—and should not—assume that government officials are incapable of drawing logical

inferences, reasoning by analogy, or exercising common sense.              In some cases,

government officials can be expected to know that if X is illegal, then Y is also illegal,

despite factual differences between the two.

    That said, the instant case requires no subtle line-drawing: The right that the officers

allegedly violated falls well within the ambit of clearly established law. When we

decided Waterman, in 2005, we clearly established that (1) law enforcement officers

may—under certain conditions—be justified in using deadly force against the driver of a

car when they are in the car’s trajectory and have reason to believe that the driver will

imminently and intentionally run over them, but (2) the same officers violate the Fourth

Amendment if they employ deadly force against the driver once they are no longer in the



                                             11
car’s trajectory. 393 F.3d at 480–82. Waterman obviously and manifestly encompasses

the facts of this case. In light of Waterman, there can be no question that the right

Williams seeks to vindicate was clearly established on the day he was shot.

    To summarize: A reasonable jury could conclude that Strickland and Heroux acted in

a way that, as a matter of law, violated Williams’s clearly established federal rights—

specifically, his Fourth Amendment right to freedom from excessive force. Therefore,

the officers are not entitled to summary judgment on the basis of qualified immunity, and

the district court correctly denied their motions.



                                             IV.

    For the foregoing reasons, the judgment of the district court is

                                                                              AFFIRMED.




                                             12
