PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEANETTE TEEL TAFT, individually
and as guardian ad litem for minor
children, Onte Taft and Kimberly
Taft; ONTE TAFT, minor; KIMBERLY
TAFT, minor; HARRY TEEL, SR., as
guardian ad litem for minor
children, Harry Teel, Jr., and
Shamesa Teel; HARRY TEEL, JR.,
minor; SHAMESA TEEL, minor,
Plaintiffs-Appellants,

v.

TERRY VINES, Deputy Sheriff of Pitt
County, in his position as Deputy
Sheriff and in his individual
                                        No. 94-2293
capacity; TROY BOYD, in his official
and individual capacity as a law
enforcement officer in and for the
City of Greenville; TIM PEADEN, in
his official and individual capacity
as a law enforcement officer in and
for the City of Greenville; JOHNNY
CRAFT, in his official and individual
capacity as a law enforcement
officer in and for the City of
Greenville; BENNY DOBBS, in his
official and individual capacity as a
law enforcement officer in and for
the City of Greenville,
Defendants-Appellees,
and

BILLY L. VANDERFORD, Sheriff of
Pitt County in his capacity as
Sheriff and in his individual
capacity; CITY OF GREENVILLE;
NANCY JENKINS, Mayor, in her
official and individual capacity;
CHARLES HINMAN, Chief of Police,
City of Greenville, in his official
capacity; KEVIN M. SMELTZER, Police
Officer of the City of Greenville, in
his official and individual capacity,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
James C. Fox, Chief District Judge.
(CA-93-109-4-F)

Argued: April 2, 1996

Decided: May 14, 1996

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,
HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges, sitting en banc.

_________________________________________________________________

Affirmed by published per curiam opinion. Judge Michael wrote an
opinion concurring in part and dissenting in part. Judge Murnaghan
wrote a dissenting opinion, in which Judge Ervin joined.

_________________________________________________________________

COUNSEL

ARGUED: Robert Lee White, WHITE & SHEARIN-WHITE,
Greenville, North Carolina, for Appellants. Kenneth Ray Wooten,

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WARD & SMITH, P.A., New Bern, North Carolina, for Appellees.
ON BRIEF: John R. Green, Jr., WARD & SMITH, P.A., New Bern,
North Carolina, for Appellees.

_________________________________________________________________

OPINION

PER CURIAM:

On July 30, 1993, the Appellants, Jeanette Teel Taft, Onte Taft,
Kimberly Taft, Harry Teel, Jr., and Shamesa Teel, filed suit pursuant
to 42 U.S.C. § 1983 against the Appellees, various Pitt County and
City of Greenville law enforcement officers. The Appellants alleged,
inter alia, that the police officers had violated the Fourth Amendment
of the United States Constitution by (1) stopping the Appellants' car
without reasonable suspicion and (2) using excessive force in execut-
ing the search attendant to that stop. The district court granted sum-
mary judgment to the police officers on both of these and all other
claims.

On appeal, a panel of this court unanimously affirmed the district
court with respect to the first issue, finding that the "stop and frisk"
was supported by "reasonable suspicion." Taft v. Vines, 70 F.3d 304,
310 (4th Cir. 1995). Therefore, the officers were entitled to qualified
immunity as to "the actual decision to stop Appellant Taft's car and
to frisk the occupants." Id. at 311 (emphasis in original). However, a
divided panel concluded that the officers' "entitlement to qualified
immunity as to the Appellants' excessive force claims was incorrectly
granted by the district court at the summary judgment stage" and so
reversed the "district court's grant of summary judgment on this issue,
and remand[ed] the case for trial on the § 1983 excessive force
claims." Id. at 312. A divided panel also concluded that the district
court erred in denying Appellants' "motion for continuance of the
summary judgment hearing in order to allow for time to conduct dis-
covery on the issue of qualified immunity." Id. at 316.

We granted the officers' petition for rehearing and suggestion for
rehearing en banc and vacated the panel opinion. With regard to the
first issue, we now adopt the unanimous panel opinion. See part II A
of the panel opinion, 70 F.3d at 310-12.

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With regard to the second issue, the excessive force claims, we
now adopt the dissenting opinion. See 70 F.3d at 317-21 (Motz, J.,
dissenting). Thus, for the reasons set forth in the dissenting opinion,
we affirm the district court's grant of summary judgment on the
excessive force claims. We reiterate that we sympathize with the
Appellants; the search undoubtedly was a frightening experience.
Although the officers maintain that the search was conducted in
accordance with appropriate police procedures, we need not and do
not reach this question. The issue presented by the excessive force
claims is not whether the officers violated police procedures, or even
whether they, in fact, violated the Fourth Amendment. Rather, the
question is whether, confronted with the facts of this case, reasonable
police officers should have known that clearly established constitu-
tional law prohibited the methods used in the search. We cannot so
hold. Accordingly, the officers were entitled to summary judgment on
the basis of qualified immunity on the excessive force claims.

In view of these holdings, the motion for continuance in order to
conduct discovery is necessarily moot.

The order of the district court granting summary judgment to the
officers is in all respects

AFFIRMED.

MICHAEL, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority opinion except as it relates to the exces-
sive force claim of fifteen-year-old Onte Taft. As for that claim, I
believe there are genuine issues of material fact precluding summary
judgment on the police officers' defense of qualified immunity.

In his affidavit Officer Vines concedes that he knew Onte Taft was
not Wooten immediately after Onte exited his mother's vehicle. Also,
the police officers admit that Onte was placed on his knees in the
front of a patrol car's headlights while he was searched and hand-
cuffed. While such conduct likely (and understandably) scared Onte,
if this was all that was done, then I would agree that the police offi-
cers would be entitled to summary judgment. But this was not all that
was done.

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In her affidavit Jeanette Taft (Onte's mother) makes clear that an
officer held a shotgun within six to seven inches of Onte's head while
he was searched and handcuffed. At no time did Onte make any
threatening movements or gestures, and a second police vehicle sepa-
rated and protected the officers searching Onte from his mother's
vehicle (the automobile in which Wooten might still be hiding). Offi-
cer Vines does not deny these facts.

Moreover, though the police officers' affidavits share a uniformity
in style and substance, there is an important difference. While most
of the officers claim they never "point[ed a] gun directly at anybody's
head or press[ed] it against anyone's person," Officer Vines' affidavit
states that he "never placed [his] weapon against or near the head of
any child or any other occupant of the vehicle." Officer Vines does
not therefore deny that he pointed his shotgun at someone's head (i.e.,
he does not deny pointing his shotgun at the head of fifteen-year-old
Onte while Onte was on his knees facing the headlights of the patrol
car). In addition, Officer Vines admits that he had a shell chambered
in his shotgun during this time.

I believe that this evidence raises genuine issues of material fact on
whether the police officers' conduct as it related to Onte Taft was
excessive and whether a reasonable police officer should have known
that clearly established law prohibited such conduct. See Baker v.
Monroe Township, 50 F.3d 1186, 1192-94 (3d Cir. 1995) (reversing
grant of summary judgment in favor of supervising police officer
when warrant did not authorize search and detention of plaintiffs and
evidence presented factual issue of whether supervising officer actu-
ally knew and acquiesced to other officers handcuffing, detaining, and
pointing guns directly at plaintiffs); McDonald v. Haskins, 966 F.2d
292, 295 (7th Cir. 1992) (defendant police officer not entitled to qual-
ified immunity when officer held gun to minor child's head and
threatened to pull the trigger).

I would therefore reverse the grant of summary judgment as it
relates to Onte Taft's claim of excessive force. I respectfully dissent
to that extent.

MURNAGHAN, Circuit Judge, dissenting:

On the evening of February 9, 1993, the plaintiffs--a mother, her
minor children, and the children's minor cousins--and a friend had

                     5
attended a basketball game and were returning home. First they took
the young friend home, in an area not far removed from where a mur-
der suspect wanted by the police was believed to be located. The
plaintiffs had no connection whatsoever with the suspect. While the
plaintiffs were driving toward their own homes, the police--believing
that the plaintiffs had just exited the mobile home park in which the
suspect resided--concluded that the murder suspect might be con-
cealed in the plaintiffs' car. The officers stopped the car and required
each of the plaintiffs to exit the vehicle. Up to that point, I believe the
officers were qualifiedly immune.

What happened thereafter, however, is a disputed factual matter
which should not have been resolved against the plaintiffs on the offi-
cers' motion for summary judgment. "[O]n summary judgment, `the
non-moving party is entitled to have his evidence as forecast
assumed, his version of that in dispute accepted, and the benefit of all
favorable inferences.'" Henson v. Liggett Group, Inc., 61 F.3d 270,
275 (4th Cir. 1995) (quoting Conkwright v. Westinghouse Elec. Corp.,
933 F.2d 231, 233 (4th Cir. 1991)). In their verified complaint,* the
plaintiffs alleged that excessive force had been used against them in
several respects. They alleged that, even though they each complied
without protest when ordered to climb out of the car, the officers'
guns were frighteningly cocked and clicked and aimed at them. They
alleged that two of them were handcuffed and made to sit in police
vehicles and that one of them was made to kneel in front of one of
the police vehicles, facing the headlights. And they alleged that they
were subjected to intensive physical searching--the female plaintiffs
alleged that the officers had "fondl[ed] and mishandl[ed]" their
breasts, groins, and buttocks, and the male plaintiffs alleged that their
groins had been grabbed with such force that they suffered "great pain
and physical harm."

No weapons were discovered to be in the plaintiffs' possession and
the suspicion that the suspect was in the plaintiffs' vehicle turned out
to be entirely unfounded.
_________________________________________________________________
*We have held that "a verified complaint is the equivalent of an
opposing affidavit for summary judgment purposes, when the allegations
contained therein are based on personal knowledge." Williams v. Griffin,
952 F.2d 820, 823 (4th Cir. 1991).

                     6
The officers contested many of the plaintiffs' allegations, contend-
ing, for example, that they lowered their weapons as each child exited
the car, that they did not cock and click their weapons in an intimidat-
ing manner, and that they conducted no more than routine pat-down
searches. Because genuine issues of material fact existed with respect
to the nature of the officers' conduct, and because the proper outcome
of the case turned on whose description of the officers' conduct was
to be believed, summary judgment on qualified immunity grounds
was inappropriate. See, e.g., Rainey v. Conerly, 973 F.2d 321, 324
(4th Cir. 1992) (holding that the district court properly denied the
defendant's immunity-based motion for summary judgment because
"a determination of what actually happened is absolutely necessary to
decide whether [the defendant] could reasonably have believed that
his actions were lawful"). Taking the plaintiffs' allegations as true, I
cannot accept the majority's finding that a reasonable officer would
not have known "that clearly established constitutional law prohibited
the methods used in the search." See ante at 4. I would therefore
reverse the district court's finding on summary judgment that the offi-
cers were entitled to qualified immunity. Indeed, by sustaining the
district court's ruling, the majority seems to me to come perilously
close to granting police officers absolute immunity.

Decent police behavior was owed to the plaintiffs; a weakly based
suspicion that a murder suspect was located in the plaintiffs' car falls
far short of justifying the officers' actions. Though police officers
surely are needed to protect us from criminals, I believe the majority
unwisely and unnecessarily moves us toward a point at which we will
need protection from police officers themselves.

Accordingly, I would have permitted the case to go to trial. Once
at trial, the officers might very well have successfully defended their
actions and demonstrated entitlement to qualified immunity. But at
the summary judgment stage, with material facts in dispute, an award
of qualified immunity was not appropriate.

I therefore must dissent. Judge Ervin joins in this dissenting opin-
ion.

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