USCA4 Appeal: 22-1428 Doc: 49 Filed: 07/12/2024 Pg: 1 of 31

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1428

SEAN RAMBERT, SR., Co-Administrator of the Estate of Sean Michael Rambert, Jr.; DANIELLE COX RAMBERT, Co-Administrator of the Estate of Sean Michael Rambert, Jr.,

Plaintiffs - Appellees,

v.

CITY OF GREENVILLE; DAVID BRANDON JOHNSON, in his individual and official capacities,

Defendants - Appellants.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Louise W. Flanagan, District Judge. (4:21-cv-00020-FL)

Argued: September 20, 2023 Decided: July 12, 2024

Before THACKER and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Reversed in part; dismissed in part and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Thacker and Senior Judge Traxler joined.

ARGUED: Gary S. Parsons, BROOKS PIERCE, Raleigh, North Carolina, for Appellants. Catharine E. Edwards, EDWARDS BEIGHTOL LLC, Raleigh, North Carolina, for Appellees. ON BRIEF: Kimberly M. Marston, Amanda S. Hawkins, BROOKS PIERCE MCLENDON HUMPHREY & LEONARD, LLP, Raleigh, North Carolina; Scott D. USCA4 Appeal: 22-1428 Doc: 49 Filed: 07/12/2024 Pg: 2 of 31

MacLatchie, HALL BOOTH SMITH, P.C., Charlotte, North Carolina, for Appellants. Kristen L. Beightol, EDWARDS BEIGHTOL LLC, Raleigh, North Carolina, for Appellees.

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QUATTLEBAUM, Circuit Judge:

“Qualified immunity shields government officials from civil damages liability

unless the official violated a statutory or constitutional right that was clearly established at

the time of the challenged conduct.” Reichle v. Howards,

(2012). And

in applying that principle to a claim that an officer’s use of deadly force violates the Fourth

Amendment, if the historical facts are sufficiently settled, we have jurisdiction to review a

district court’s denial of a motion for summary judgment based on qualified immunity. In

that situation, whether the officer’s conduct was objectively reasonable and whether it

violated clearly established law are issues of law for the court. Scott v. Harris,

, 381 n.8 (2007). This appeal involves just that sort of situation.

After Officer David Johnson used deadly force against Sean Rambert, Rambert’s

estate sued Johnson and the City of Greenville, North Carolina, which operated the police

department where Johnson worked. Under

, the estate alleged that

Johnson’s excessive force and the city’s policies and pattern of failing to train and

supervise violated Rambert’s Fourth Amendment rights. The estate also asserted state law

claims of wrongful death, negligence and assault and battery. The defendants moved for

summary judgment, arguing that Johnson was entitled to qualified immunity on the Fourth

Amendment claims, and that he and the city were entitled to judgment as a matter of law

on all other claims. The district court denied Johnson’s motion for summary judgment

based on qualified immunity, concluding that the record contained genuine disputes of

material fact as to the reasonableness of Johnson’s conduct and that a jury could resolve

factual disputes to conclude that Johnson violated Rambert’s constitutional rights by using

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excessive force based on clearly established law. The court also denied the defendants’

motion for summary judgment on the remaining claims.

The defendants appealed, challenging the district court’s ruling on qualified

immunity and also seeking summary judgment on the Ramberts’ other federal and state

claims. The Ramberts moved to dismiss the appeal, arguing that we have no jurisdiction to

review the qualified immunity issue on an interlocutory basis since the Fourth Amendment

claim involves genuine disputes about material facts. And on the merits, they argue the

district court did not err in denying summary judgment on any of their claims.

As explained below, the qualified immunity question we face does not involve

disputed issues of material fact. Based on this record, it is a question of law for the court.

So, we have jurisdiction. And exercising it, we reverse the denial of summary judgment on

the § 1983 claim against Johnson predicated on the Fourth Amendment violation, as

Johnson is entitled to qualified immunity. We hold that an officer is entitled to qualified

immunity from a claim that his use of deadly force violated the Fourth Amendment when

he fired at a suspect of a potentially violent crime who, despite repeated commands,

charged the officer at full speed and advanced to close proximity to the officer. Such

conduct was not objectively unreasonable and, even if it was, did not violate clearly

established law. But we decline to exercise jurisdiction over the pendent state law claims

and claims against the city. Accordingly, we reverse in part and dismiss in part.

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I. 1

On July 9, 2019, at around 4:00 a.m., an elderly couple reported a breaking-and-

entering in progress at their Greenville, North Carolina residence. They reported hearing

glass break and a male voice yelling in the background. The police department dispatched

two officers to the scene. Johnson was working the night shift and happened to be in the

area while on a break. Although Johnson was not dispatched, he heard the call on his radio.

To assist, he then drove to the scene and arrived first. He knew that two officers who had

been dispatched were five to seven minutes away. And from the dispatch, he knew that a

breaking-and-entering was in progress with a report of glass breaking and a yell from a

male voice.

Johnson parked his patrol vehicle out of view with his emergency equipment and

lights off so that he would not be seen by the intruder. Wearing his Greenville Police

Department short sleeve polo shirt and matching pants, he started walking up the sidewalk

at about 4:08:35 a.m. J.A. 541–42, Ex. B. Johnson then heard a loud yell of a male voice.

In response, he began running toward the sound and activated his body camera.

1 The facts we describe are those the district court found to be undisputed, those that the Ramberts admitted or agreed were undisputed or those that were captured by the video and audio recordings from Johnson’s body camera. See Waterman v. Batton,

(4th Cir. 2005) (explaining that in reviewing the denial of a motion for 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”); Scott, 550 U.S. at 380–81 (holding that if opposing parties tell two different versions of the facts, and one is blatantly contradicted by the record, a court should not adopt that version of the facts in ruling on a motion for summary judgment). 5 USCA4 Appeal: 22-1428 Doc: 49 Filed: 07/12/2024 Pg: 6 of 31

At about 4:09:00, the loud yelling continued. No words were discernable, just loud

screaming. Johnson drew his weapon. At 4:09:02, he issued the first of eight commands

to “get on the ground.” Although, due to the darkness, Rambert is not yet visible on the

video, Johnson spoke into his radio to alert the dispatcher at 4:09:11 that “I’ve got one

running at me.” At 4:09:13, Rambert appears on the video running at Johnson while

continuing to yell indecipherably.

One second later, at about 4:09:14, Rambert had closed to within a short distance of

Johnson. By this time, Johnson retreated from the sidewalk into the street, which was better

lit by a streetlight. As Rambert continued to run at him and yell loudly, Johnson fired three

shots at Rambert and then another almost immediately after that. Rambert fell forward to

the ground. About the same time, Johnson tripped and fell on his back.

Three seconds later, at 4:09:18, Johnson was still on the ground. Rambert was in

front of him, only a few feet away, trying to get up and continuing to yell. Rambert rose to

his hands and knees and then to a standing position and attempted to advance towards

Johnson. Around 4:09:20, Johnson, still on the ground, fired four more shots at Rambert.

The parties dispute whether Rambert made physical contact with Johnson, and the

body camera video does not clarify this issue. But the video shows Johnson and Rambert

on the ground in the same area, with shadows from their movement very close to one

another. The audio captures sounds of their sudden body movements as well as groans,

gasps and difficult to decipher words. At about 4:09:31, as the movement and sounds

continued, Johnson managed to speak into his radio that shots had been fired. One second

later, a flash of Rambert’s face appeared above Johnson on the video with the night sky in

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the background, indicating that Johnson’s back was still on the ground and that Rambert

was above him. Three seconds later, at 4:09:35, the scuffling sounds continued.

Two seconds later, Johnson and Rambert were still on the ground only a few feet

away from each other. At 4:09:39–40, both Johnson and Rambert were trying to get to their

feet. As Rambert tried to use his elbow to rise up, Johnson fired two more shots. The last

shot knocked Rambert on his back from a sitting position.

At 4:09:42, Johnson had risen to his feet. He trained his gun on Rambert, who had

rolled over on the ground with blood around him. At 4:09:48, Johnson began backing away

from Rambert then yelled, “show me your hands.” He reloaded his weapon but did not

shoot. He also radioed for EMS. At 4:10:02, Rambert rolled over and tried again to get up,

using his hands and knees to pull himself up. Johnson yelled again at Rambert to “get on

the ground right now!” But Rambert still got up and took a few more steps toward Johnson

before falling on the ground again. Johnson did not shoot in response to this movement.

Rambert collapsed at 4:10:12 but continued to try to get up. At 4:10:25, Rambert sat up

briefly before falling backwards and continuing to roll on the ground. At that point, other

officers arrived on the scene.

Rambert later died from the gunshot wounds.

II.

The Ramberts sued Johnson and the City of Greenville, in superior court in Pitt

County, North Carolina, asserting violations of civil rights under

and

state law claims. The defendants removed the case to the United States District Court for

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the Eastern District of North Carolina. After discovery, the defendants moved for summary

judgment, arguing that under the undisputed facts, Johnson was entitled to qualified

immunity on the Ramberts’ Fourth Amendment claims, and that Johnson and the city were,

therefore, also entitled to judgment as a matter of law on all other claims.

The district court denied the defendants’ motion. It concluded, “[t]aking a

reasonable inference in plaintiffs’ favor,” a reasonable officer could have concluded that

Rambert’s mental illness was the cause of the conduct referenced by the 911 caller. J.A.

689. The court held that “[t]he facts, viewed in the light proper for this restricted procedural

posture, could allow a jury to conclude that even defendant Johnson’s initial firing on an

unarmed individual conspicuously exhibiting mental instability was a disproportionate use

of force in light of all the circumstances, despite Rambert’s agitated, running approach.”

J.A. 694. And the court also determined that the “final uses of deadly force are ones which

a reasonable juror could conclude were excessive as they occurred after an unarmed man

had been shot at least three times by an officer who had managed to separate himself from

the individual and was regaining his footing more quickly than the badly wounded suspect,

if the video footage is viewed in the light most favorable to [the Ramberts].” J.A. 697.

The district court next concluded that the law clearly established that a reasonable

officer in Johnson’s position would have known that firing the final two shots at Rambert

was unreasonable. In reaching this conclusion, the court relied primarily on Waterman v.

Batton,

(4th Cir. 2005) and Harris v. Pittman,

(4th Cir. 2019).

It explained those decisions had clearly established by the time of this incident that an

officer may not use deadly force in the seconds after a serious threat has abated. Thus, the

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district court denied Johnson’s motion for summary judgment based on qualified immunity

and similarly rejected the defendants’ arguments on the Ramberts’ remaining claims.

The defendants appealed, challenging the district court’s ruling on qualified

immunity and also seeking review of the pendent federal and state law claims. The

Ramberts moved to dismiss the appeal, arguing that we have no jurisdiction to review the

qualified immunity issue on an interlocutory basis since the district court’s decision

involved genuine disputes about material facts. And on the merits, they also argue the

district court did not err in denying summary judgment.

III.

We first address the Ramberts’ motion to dismiss. In that motion, they argue that we

lack jurisdiction over this appeal, because, as they contend, the district court based its

denial of qualified immunity at the summary judgment stage on disputed facts that must be

resolved by the jury. We disagree.

“Under the collateral order doctrine, we have jurisdiction to review a district court’s

denial of qualified immunity at the summary judgment stage of the proceedings to the

extent that the court’s decision turned on an issue of law.” Danser v. Stansberry,

, 344–45 (4th Cir. 2014); see also Mitchell v. Forsyth,

(1985)

(holding that a district court’s denial of qualified immunity is an appealable “final decision”

under

“to the extent that [the decision] turns on an issue of law”). We

lack jurisdiction, however, if the decision was based on questions of evidentiary sufficiency

properly resolved at trial. Danser,

. Thus, “our first task on appeal is to

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separate the district court’s legal conclusions regarding entitlement to qualified immunity,

over which we have jurisdiction, from its determinations regarding factual disputes, over

which we do not.” Iko v. Shreve,

(4th Cir. 2008). And we must also

“examine the parties’ appellate arguments to ensure that we only consider those legal

questions formally raised on appeal.”

.

Here, it is true that the district court denied the defendants’ summary judgment

motion after concluding that the record contained genuine disputes of material fact. But a

review of the court’s order makes clear that it believed that the reasonableness of Johnson’s

conduct—in other words, whether his use of deadly force was justified—was a question of

fact to be resolved by the jury. The defendants contend that the court erred in allocating

the question of objective reasonableness to the jury. That issue—whether the court or the

jury decides the objective reasonableness of the officer’s conduct—is a question of law

over which we have jurisdiction.

Our view of the district court’s order also makes clear that the material facts about

what happened in the encounter between Johnson and Rambert—based on the facts the

district court found to be undisputed, those the Ramberts admitted were undisputed or did

not challenge, and the audio and video recordings from Johnson’s body camera—are

settled. And as we recently made clear, when the historical facts are settled, the question

of the objective reasonableness of officers’ conduct is a question of law to be decided by

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the court. 2 See Scott,

n.1; see also Armstrong v. Hutcheson,

,

514 (4th Cir. 2023). Thus, the defendants’ challenge to the district court’s denial of

qualified immunity, under this record, is also a legal issue over which we have jurisdiction.

Accordingly, we have jurisdiction over this appeal and deny the Ramberts’ motion

to dismiss.

IV.

With our jurisdiction established, we turn to Johnson’s challenge to the district

court’s denial of his motion for summary judgment as to the Ramberts’ constitutional

claims based on qualified immunity.

A.

The Ramberts claim Johnson violated Rambert’s Fourth Amendment rights by using

excessive force during the July 2019 incident. The Fourth Amendment protects against

unreasonable seizures, including the right to be free from seizures made with excessive

force. Henry v. Purnell,

(4th Cir. 2011). Police officers are

“constitutionally permitted to use only that force which is reasonable under the

circumstances.” Hupp v. Cook,

(4th Cir. 2019). “A police officer may

2 In fairness to the district court, there are cases from our Circuit which could be read to indicate that juries rather than judges should determine the reasonableness of Johnson’s conduct. But even if we have not been consistently clear about the responsibilities of judges and juries on the issue of objective reasonableness for purposes of qualified immunity in Fourth Amendment cases, the Supreme Court has. In Scott, it held the question of reasonableness of the officer’s action, in other words, whether the actions have risen to the level of deadly force, is a “pure question of law.”

n.8.

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use deadly force when the officer has sound reason to believe that a suspect poses a threat

of serious physical harm to the officer or others.” Elliott v. Leavitt,

(4th

Cir. 1996) (citing Tennessee v. Garner,

(1985)). But deadly force in the

absence of such a threat is unreasonable.

Whether the force use was reasonable “requires careful attention to the facts and

circumstances of each particular case, including the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of the officers or others, and whether

he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor,

(1989). The “reasonableness” of a particular use of force must be judged

from the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.”

The “calculus of reasonableness must embody allowance 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.”

at 396–97. The “objective standard adequately protects an officer

who acts in good faith.” Kingsley v. Hendrickson,

(2015).

B.

In response to the Ramberts’ Fourth Amendment claim, Johnson contends he is

protected under the doctrine of qualified immunity. “Qualified immunity shields

government officials from civil damages liability unless the official violated a statutory or

constitutional right that was clearly established at the time of the challenged conduct.”

Reichle,

. “Qualified immunity balances two important interests—the need

to hold public officials accountable when they exercise power irresponsibly and the need

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to shield officials from harassment, distraction, and liability when they perform their duties

reasonably.” Pearson v. Callahan,

(2009). The protection applies

regardless of whether the government official’s error is a mistake of law, a mistake of fact

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

It gives “government officials

breathing room to make reasonable but mistaken judgments, and protects all but the plainly

incompetent or those who knowingly violate the law.” Stanton v. Sims,

(2013)

(internal quotes and citation omitted). While qualified immunity doctrine is a defense to

liability, it is also intended to free officials from litigation concerns and disruptive

discovery. Ashcroft v. Iqbal,

(2009). That is why a court decision

denying a claim of qualified immunity is within a narrow class of orders appealable even

without a final judgment.

.

But an officer is not entitled to “qualified immunity if he or she deprived an

individual of a constitutional right and that right was clearly established at the time of the

violation.” Hupp,

. A government official’s conduct violates clearly

established law when, at the time of the challenged conduct, the contours of a right are

sufficiently clear such that “every ‘reasonable official would have understood that what he

is doing violates that right.’” Ashcroft v. al-Kidd,

, 741 (2011) (quoting

Anderson v. Creighton,

(1987)).

In reviewing a district court’s denial of qualified immunity, we conduct a two-

pronged analysis. First, we analyze whether the plaintiff has established that “a

constitutional violation occurred.” Melgar ex rel. Melgar v. Greene,

(4th

Cir. 2010). The plaintiff bears the burden of proof on this question. See Stanton v. Elliott,

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(4th Cir. 2022). Second, we consider whether the right at issue was

“clearly established” at the time of the events in question.

The officer bears the burden

on this second prong.

C.

While courts have discretion to begin with either prong of the qualified immunity

analysis, Pearson v. Callahan,

(2009), we start by examining whether

Johnson’s conduct was objectively reasonable. Recall that this issue, if the historical facts

are sufficiently settled, is a question of law. Armstrong, 80 F.4th at 514.

At the summary judgment stage, “courts must view the evidence in the light most

favorable to the nonmoving party. . . .” Variety Stores, Inc. v. Wal-Mart Stores, Inc.,

(4th Cir. 2018) (internal quotes and citation omitted). Our consideration

of the qualified immunity question does not “override the ordinary rules applicable to

summary judgment proceedings.” Willingham v. Crooke,

(4th Cir.

2005); see also Hensley ex rel. North Carolina v. Price,

, 579–80 (4th Cir.

2017) (“In this procedural posture, we may not credit defendant’s evidence, weigh the

evidence, or resolve factual disputes in the defendants’ favor.”). Even so, there is a twist in

cases like this one where the record contains a videotape of the events in question. In that

situation, we cannot accept the plaintiff’s version of the facts when they are contradicted

by a videotape. In that situation, we “view[] the facts in the light depicted by the videotape.”

Scott,

.

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1.

Here, the undisputed facts as cataloged by the district court, as well as the audio and

video from Johnson’s body camera provide historical facts that bear on the objective

reasonableness of Johnson’s conduct in at least eight ways. First, Johnson was alone in the

dark, responding to a reported in-progress breaking-and-entering after the homeowner

reported hearing glass break and a male voice. So, a reasonable officer approaching the

scene would have known that a potentially dangerous crime was in process with imminent

threat to the people in the home. Such an officer would also know that a glass break during

a breaking-and-entering could result from the use of some sort of weapon to gain entry.

Second, as he approached the home, Johnson heard a male voice yelling. Remember

that he also knew from the dispatch report that the residents who reported the breaking-

and-entering had also mentioned hearing a man yelling. A reasonable officer may not have

known if the yelling was from the suspect, a victim or someone else but could have viewed

the yelling as additional evidence of danger.

Third, after seeing Rambert running towards him continuing to yell, Johnson

ordered Rambert to get on the ground. Although Johnson repeated this command eight

times, Rambert never complied. Instead, he kept running directly at Johnson while yelling.

A reasonable officer could have viewed this noncompliant and charging potential suspect

as an imminent threat.

Fourth, Johnson retreated from the sidewalk into the street. But as Johnson backed

away, Rambert continued to charge. Johnson did not shoot until Rambert ignored his eight

commands to get on the ground and had moved close to Johnson. A reasonable officer

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could have believed that a man running at him from the site of a suspected breaking-and-

entering who ignored commands to get on the ground and had closed to within a few feet

posed an imminent threat to the officer.

Fifth, after the initial shots, Johnson tripped and fell backwards. Johnson was on the

ground with Rambert in close proximity. Despite falling to the ground after Johnson’s

initial shots, Rambert rose to a standing position and moved toward Johnson, who remained

on the ground. At that point, a reasonable officer could have believed the threat posed by

Rambert had not passed. To the contrary, a reasonable officer could have thought that his

shots either missed Rambert or did not abate the threat he posed.

Sixth, after Johnson’s initial shots, Rambert continued to move toward Johnson.

While Johnson claims Rambert grabbed his leg, the video does not confirm or refute

physical contact. But it shows that Rambert was very close to Johnson, at one point over

him, with Johnson still on the ground. And the audio contains sounds of body movements

and groans and gasps. Again, based on Rambert’s continued advancement, a reasonable

officer could have believed that the threat Rambert posed had not subsided.

Seventh, before Johnson’s final shots, the video reveals that Johnson achieved some

separation from Rambert. But they remained within a few feet of each other and on the

ground. Both tried to get up. Johnson rose up from his back but had not managed to get to

his feet. Rambert tried to use his elbow to rise up. At this point, a reasonable officer could

have thought that Rambert continued to pose a threat. And only about 25 seconds elapsed

from Johnson’s first shot until the last. During that time, Johnson was either on the ground

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or trying to get up, and Rambert was also on the ground in close proximity either moving

towards Johnson or trying to raise up.

Eighth, once Johnson managed to get on his feet, he backed away from Rambert.

Even then, Rambert continued to try to get up and move toward him. Yet Johnson did not

fire his weapon again.

With those historical facts and their impact on what a reasonable officer in

Johnson’s shoes would have done, we return to the Graham factors. “[T]he severity of the

crime at issue” was high. Graham,

. Johnson encountered Rambert in

responding to a 911 call about a breaking-and-entering with a glass break, which, to a

reasonable officer could suggest the possible use of a weapon. And Rambert’s highly

aggressive pursuit of Johnson, both before and after Rambert was shot, placed Johnson in

imminent danger.

Also, for the reasons already stated, Rambert “pose[d] an immediate

threat to the safety of the officer[].”

Last, Rambert was “actively resisting arrest or

attempting to evade arrest.”

He ignored eight commands to get on the ground and

charged at the lone officer on the scene instead.

To be sure, Rambert had the right under the Fourth Amendment to be free from

excessive force. But an officer’s use of deadly force in response to an obvious, serious and

immediate threat to his safety is not excessive. See Elliott,

(“The Fourth

Amendment does not require police officers to wait until a suspect shoots to confirm that

a serious threat of harm exists.”). Even construing the evidence in the light most favorable

to the Ramberts, Rambert posed an obvious, serious and immediate threat to Johnson. At

the time of each of Johnson’s shots, a reasonable officer would have viewed that threat as

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continuing. As a result, the force Johnson used was not excessive, and his conduct was not

objectively unreasonable.

2.

Resisting this conclusion, the Ramberts argue that Johnson’s conduct was

unreasonable when the facts are viewed in the light most favorable to them. They argue

that the record shows that Rambert was unarmed and experiencing a mental health episode.

As a result, they insist that Johnson should have holstered his gun and used pepper spray

to subdue Rambert. It is true that Rambert was not brandishing a weapon and, in fact, did

not even possess one. But Johnson did not know whether Rambert was or was not armed

when Rambert charged at him, at which point Johnson had mere seconds to judge the risk

and determine how to respond to Rambert’s aggressive and non-compliant approach. In

these circumstances, Rambert’s lack of a weapon did not make Johnson’s use of force

unreasonable. See McLenagan v. Karnes,

(4th Cir. 1994) (“[W]e do

not think it wise to require a police officer, in all instances, to actually detect the presence

of an object in a suspect’s hands before firing on him.”). Also, there was a known weapon

at the scene, Johnson’s gun. For all Johnson knew, Rambert could have been rapidly and

aggressively approaching Johnson to try to take it.

Nor did any mental health episode Rambert might have been experiencing make

Johnson’s use of force unreasonable. First, we question whether the record supports the

Ramberts’ argument that Johnson knew Rambert was experiencing the effects of a mental

illness. No one—not the homeowner, police dispatcher, Rambert or anyone else—told or

insinuated to Johnson that Rambert was in the midst of a mental health episode. But even

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if Rambert were in mental distress, he was a potential breaking-and-entering suspect who

charged at Johnson at full speed while yelling and ignoring Johnson’s commands to get on

the ground, ultimately reaching a proximity where he might have been able to grapple with

Johnson and seize his gun. And Rambert continued to advance aggressively even after

being shot by Johnson. Whether or not he was experiencing the effects of mental illness,

Rambert posed an imminent threat to Johnson. And with respect, the Ramberts’ argument

that Johnson should have holstered his gun and used pepper spray in response to Rambert’s

conduct defies the reality of the situation. “Th[e] suggestion that the officer[] might have

responded differently is exactly the type of judicial second look that the case law prohibits.”

Elliott,

.

The Ramberts also argue that Johnson cannot justify his use of force because the

videotape does not clarify whether Rambert ever made physical contact with Johnson. That

characterization of the videotape is fair. But whether Rambert made physical contact with

Johnson is not material considering the other undisputed evidence. Even if Rambert did

not touch Johnson, he charged at him while yelling and ignoring Johnson’s commands to

get on the ground. And after falling to the ground following his initial shots, Johnson was

either lying on his back or trying to get up when he fired the remaining shots. Also, even

after the first and second rounds of shots, Rambert continued to advance towards Johnson.

Indeed, Rambert was close to Johnson and at one point above Johnson while Johnson was

lying on his back. So, the undisputed evidence shows that Rambert remained a threat

whether or not he physically touched Johnson.

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Last, the Ramberts argue that by the time Johnson fired the final two shots, Rambert

no longer posed a threat. According to the Ramberts, at that time, Johnson had separated

from Rambert and had wounded him with the prior shots. But the videotape makes clear

that, although both were trying, neither Johnson nor Rambert had been able to get to their

feet. Throughout the encounter, Rambert ignored Johnson’s commands and continued to

move towards him even after being shot. A reasonable officer could have perceived that

Rambert remained a threat.

Finally, the last shots were fired only about 25 seconds after the first. There was no

break during that sequence. During those seconds, Johnson was either on the ground or

trying to get up, and Rambert was, at most, feet away and trying to move towards him.

Johnson was forced to make split-second decisions in the midst of Rambert’s pursuit.

To repeat, when the historical facts are sufficiently settled, as they are here, the

officer’s reasonableness is a question of law for the court. And addressing that question,

the Ramberts have failed to show a Fourth Amendment violation. Thus, under prong one

of our analysis, Johnson is entitled to qualified immunity.

D.

Also, even if the Ramberts had established that Johnson violated Rambert’s Fourth

Amendment rights—which he did not—Johnson would still be entitled to qualified

immunity under the second prong of our analysis. Under that prong, an officer is entitled

to qualified immunity if, at the time of the challenged conduct, the law did not clearly

establish that the officer’s conduct was unconstitutional. See District of Columbia v. Wesby,

, 62–63 (2018).

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Qualified “immunity protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” White v. Pauly,

(2017) (per curiam) (quoting

Mullenix v. Luna,

, 12 (2015) (per curiam)). To carry out this purpose, the way

in which an alleged right is described matters. To assess whether a right is clearly

established, we must not define the right at too high a level of generality.

.

“Otherwise, plaintiffs would be able to convert the rule of qualified immunity into a rule

of virtually unqualified liability simply by alleging violation of extremely abstract rights.”

(cleaned up). The Supreme Court has stressed the need to “identify a case” or a “body

of relevant case law” where “an officer acting under similar circumstances . . . was held to

have violated the [Constitution].” Wesby,

(cleaned up); see also Pauly,

(“[T]he clearly established law must be ‘particularized’ to the facts of the

case.”). 3

1.

The Ramberts claim that, at the time of the encounter here, the law clearly

established that Rambert had a constitutional right to be free from deadly force once the

danger he posed had passed. This description, however, is too general. In fact, it is the type

of outcome-determinative generality the Supreme Court has made clear is improper,

particularly in excessive force cases. See City of Escondido v. Emmons,

, 503

3 To be sure, some misconduct is so flagrant that the plaintiff need not point to a case precisely on point to demonstrate that an officer was on notice that their conduct violated the law. See, e.g., Hope v. Pelzer,

(2002); Taylor v. Riojas,

(2020). But this case certainly does not present such a situation.

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(2019) (per curiam) (“This Court has repeatedly told courts… not to define clearly

established law at a high level of generality.” (quoting Kisela v. Hughes,

(2018) (per curiam))). To be clearly established, there must be case law finding that

conduct similar to Johnson’s was unconstitutional. As the defendants point out, at the time

of the encounter between Rambert and Johnson, no case nor body of law clearly established

that conduct similar to that of Johnson was unreasonable.

In fact, our precedent, if anything, supports the opposite. In Sigman v. Town of

Chapel Hill,

(4th Cir. 1998), we affirmed the district court in finding that a

police officer who fatally shot an individual during a standoff was entitled to qualified

immunity based on his actions during the encounter. There, officers responded to a 911

call in connection with a domestic dispute between a woman and her boyfriend, Sigman.

The officers knew that Sigman had a knife, was drunk and was enraged. During the

standoff, Sigman continued to walk toward one of the officers holding the knife in a

threatening manner. When Sigman was about 10 to 15 feet away and continuing to

approach him, the officer shot him twice. We explained that “[w]here an officer is faced

with a split-second decision in the context of a volatile atmosphere about how to restrain a

suspect who is dangerous, who has been recently—and potentially still is—armed, and who

is coming towards the officer despite officers’ commands to halt, we conclude that the

officer’s decision to fire is not unreasonable.”

. Rambert’s conduct was

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comparable to that of Sigman. Like the officer in Sigman, Johnson is entitled to qualified

immunity. 4

The Ramberts disagree. They rely mainly on four cases to argue that, at the time of

this incident, the law clearly established that Johnson’s conduct violated the Fourth

Amendment. They first point to Clem v. Corbeau,

(4th Cir. 2002), where we

affirmed the denial of qualified immunity on an excessive force claim in a case in which

officers shot a 58-year-old man suffering from dementia, depression and various physical

problems. The officers responded to a phone call to the police department by the man’s

wife, who was seeking help for the man because he was acting out of character. We said

that, on the facts presented there, the law in November 1998 provided clear guidance that

a citizen perceived to be unarmed and not dangerous, who was not suspected of any crime

nor fleeing a crime scene, had a right to be free from the use of deadly force absent a belief

by the officer that he posed a threat of serious physical harm.

at 553–54. But Clem is

4 Johnson also points to a few out-of-circuit cases for the proposition that a rapidly approaching person can constitute a sufficient threat to justify an officer’s use of deadly force. See Carswell v. Borough of Homestead,

(3d Cir. 2004) (“A reasonable officer would not be expected to take the risk of being assaulted by a fleeing man who was so close that he could grapple with him and seize the gun.”); Wenzel v. City of Bourbon,

(8th Cir. 2018) (“Given his knowledge of that reputation and the scant three seconds that he had to observe Wenzel’s unabated approach towards him, it was reasonable for Storm to believe that Wenzel posed an immediate threat of serious physical harm to him, notwithstanding the fact that Storm could see that Wenzel’s hands were empty and the later-discovered fact that Wenzel was unarmed.”); Guerra v. Bellino,

(5th Cir. 2017) (“The eyewitness video shows Guerra charging toward Bellino immediately before the shooting. We may determine in hindsight that Guerra posed no threat, but such a determination is of no consequence to the analysis. Guerra’s cooperation prior to the point at which he charged Bellino is immaterial.”) (internal citation omitted). 23 USCA4 Appeal: 22-1428 Doc: 49 Filed: 07/12/2024 Pg: 24 of 31

nowhere close to this case. Johnson was not responding to a mental health call, and he

knew nothing about the breaking-and-entering suspect he was to encounter, aside from

knowledge of the glass break and a witness recounting of a male voice. Although he may

not have perceived Rambert to be armed, he perceived him to be dangerous, a threat of

serious physical harm and a breaking-and-entering suspect. Clem would not put Johnson

on notice that he was violating Rambert’s clearly established Fourth Amendment rights at

the time of the events in question.

The Ramberts also rely on Estate of Armstrong v. Village of Pinehurst,

(4th Cir. 2016). That case stands for the proposition that police tactics to be employed

against an unarmed, emotionally distraught individual who is creating a disturbance or

resisting arrest are ordinarily different from those tactics to be used to subdue an armed

and dangerous criminal who has recently committed a serious offense.

. There,

the police responded to assist with a hospital discharge of a man suffering from bipolar

disorder and paranoid schizophrenia and ultimately used a taser to gain the man’s

compliance. We concluded that, going forward, where “during the course of seizing an out-

numbered mentally ill individual who is a danger only to himself, police officers choose to

deploy a taser in the face of stationary and non-violent resistance to being handcuffed,

those officers use unreasonably excessive force.”

.

But unlike the individual in the Estate of Armstrong, Rambert was not “minimally

threatening,”

, and he was not engaging in “stationary and non-violent resistance,”

. He was persistently aggressive toward Johnson, and he was a suspect in a

breaking-and-entering. Also, while perhaps Rambert was experiencing a mental health

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episode, a reasonable officer in Johnson’s position would not have known this. And even

if Johnson had known or reasonably suspected a mental health episode, his force was not

excessive in light of Rambert’s aggressive and violent actions. No precedent from our

Court or the Supreme Court requires an officer to refrain from deadly force when faced

with a suspect’s aggressive and violent actions because of the possibility that the suspect

may be suffering from mental health issues. So, Estate of Armstrong does not clearly

establish that Johnson’s conduct violated Rambert’s constitutional rights.

Neither does Wilson v. Prince George’s County,

(4th Cir. 2018).

There, Wilson was shot several times during an encounter with a police officer who was

investigating an emergency call that Wilson had burglarized his former girlfriend’s

dwelling and assaulted her. We concluded that it was not clearly established in October

2012 that “shooting an individual was an unconstitutional use of excessive force when: (1)

the officer had probable cause to believe that the person had committed certain

misdemeanors, one of which involved the use of force against another person; (2) the

individual was standing about 20 feet from the officer holding a knife and using it to hurt

himself, but was not threatening anyone or making any sudden movements; and (3) the

individual had ignored the officer’s repeated commands to drop the knife.”

. In

so concluding, we considered cases, such as Clem and Sigman, where officers encountered

individuals who were suicidal or experiencing mental illness, but we did not find those

cases dispositive in terms of providing notice of clearly established law to the officer in

Wilson. Even so, we held that “as of the date this opinion issues, law enforcement officers

are now on notice that such conduct constitutes excessive force in violation of the Fourth

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Amendment.”

. But this case would not place a reasonable officer in Johnson’s

position on notice that his conduct violates the Fourth Amendment. Rambert ran suddenly

and directly toward Johnson. His movements and yelling were threatening. And he kept

advancing toward Johnson prior to and after being shot. Wilson does not support the

Ramberts’ clearly established argument.

Last, the Ramberts rely on a recent unpublished but argued opinion, Bygum v. City

of Montgomery, No. 21-2130,

(4th Cir. Feb. 24, 2023). There, an officer

tried to apprehend a suspect, Bygum, for committing several non-violent misdemeanors,

such as shouting obscenities, attempting to break into a patrol car, trying to evade arrest

and obstructing justice. He shot Bygum after a foot pursuit. The officer did not know if

Bygum had a weapon but, when he opened fire, Bygum was empty-handed, stationary and

50 feet away. Bygum had also acted erratically and had failed to comply with commands.

At one point, Bygum allegedly acted as if he was going to lunge at the officer but was

otherwise evasive. We affirmed the district court’s denial of the officer’s motion for

summary judgment on qualified immunity, holding that Clem and Wilson provided the

officer with fair warning that shooting a stationary, empty-handed suspect attempting to

evade arrest was unconstitutional under the circumstances. But like the other cases Rambert

presents, Bygum does not help his argument. To repeat, Rambert was a suspect of a

dangerous crime and actively charged at Johnson, continuing to advance toward him and

ignore his commands during the entire episode. Bygum did not put Johnson on clear notice

that his conduct violated Rambert’s rights.

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2.

The Ramberts also argue that the law even more clearly established that Johnson’s

last two shots violated Rambert’s constitutional rights. About 16 seconds elapsed between

Johnson’s eighth shot and the final two shots. And the Ramberts point out that, by that

time, the videotape shows that Johnson managed to put some distance between himself and

Rambert. The Ramberts insist, at the time of that limited separation, any threat Rambert

may have posed had ceased.

In support of that argument, the Ramberts rely on Harris v. Pittman,

(4th Cir. 2019); Brockington v. Boykins,

(4th Cir. 2011); and

Waterman v. Batton,

(4th Cir. 2005). And to be sure, those cases hold

that “even where deadly force initially is justified by a significant threat of death or serious

physical injury, a police officer may not continue to employ deadly force when the

circumstances change so as to eliminate the threat.” Harris,

. But these

cases do not change the analysis here.

Take Waterman. It involved officers’ pursuit of Waterman, who refused to pull

over his vehicle after an officer attempted to stop him for speeding. Certain officers

positioned themselves at a toll plaza in the direction Waterman was driving. With

Waterman’s vehicle lurching and accelerating toward them, the officers shot at Waterman

as he drove past them at the toll plaza. They continued shooting at him after his vehicle

passed them. We held that while the initial shooting might have been justified by the threat

of physical harm that Waterman posed while accelerating toward the officers, that threat

no longer existed after his vehicle had passed the officers. But here, the video shows that

27 USCA4 Appeal: 22-1428 Doc: 49 Filed: 07/12/2024 Pg: 28 of 31

before the last shots, the danger had not dissipated. In the seconds before Johnson’s last

two shots, Rambert continued to try to get up. The video shows them in close proximity

during this time and, at one point, Johnson is on the ground with Rambert over him. Also,

the audio captures the sound of sudden body movements on the ground and groans and

gasps from both Rambert and Johnson. And even though Johnson eventually managed to

separate from Rambert, they were still within a few feet of each other as Rambert attempted

to get up, as he had been doing during the entire episode.

Next, in Brockington, Brockington and an officer encountered each other in close

range on the back steps of a residence. The officer fired his handgun twice at Brockington,

causing him to fall down the stairs. While Brockington lay on his back on the ground,

unable to defend himself, the officer stood over him. The officer then fired at least six more

shots at close range, permanently paralyzing Brockington. Brockington conceded that the

officer’s initial shots were reasonable but argued that shooting him multiple times after he

was already immobilized constituted excessive force. We agreed. We held that “[t]here is

no indication that deadly force was necessary or reasonable once Brockington was initially

shot, thrown to the ground by the force of the bullets, and wounded.” Brockington,

. And we explained, between the initial shots and the last shots, “there was a

clear break in the sequence of events.”

Brockington is very different from our case.

Prior to Johnson firing his last shots, Rambert was not lying on his back defenseless like

Brockington. In fact, Rambert was trying to get up as he had done previously in trying to

advance towards Johnson. Also, while the officer stood over Brockington “execution

style,”

Johnson was on the ground, still in a vulnerable position. Finally, the 16 or so

28 USCA4 Appeal: 22-1428 Doc: 49 Filed: 07/12/2024 Pg: 29 of 31

seconds between the shots was not a clear break in the sequence. While the videotape does

not clarify exactly what took place during those few seconds, it does make clear that

Johnson and Rambert were both on the ground in very close proximity. And the audio

makes clear that they were moving around on the ground and groaning and gasping. The

encounter remained intense and dynamic.

Last, in Harris, after a violent, hand-to-hand struggle for control of the officer’s

gun, Harris initially wrested the gun away from the officer. Harris, 927 F.3d at 268–69. He

attempted to fire at the officer, but the gun did not go off. After that, the officer regained

control of the gun. He shot Harris. Id. at 269. According to Harris, the shot hit him in the

chest, lifted him off the ground and caused him to fall to the ground bleeding and badly

wounded. Id. at 270. Harris alleged that the officer then stood over him while he lay

defenseless on the ground and fired the final shots. Id. We held that, based on Harris’

description of the evidence, “at least once he regained his footing and stood over Harris

with his gun,” the officer would have realized that Harris was “badly wounded and

subdued.” Id. at 275. Like Waterman and Brockington, Harris would not have put Johnson

on notice that his conduct violated Rambert’s clearly established Fourth Amendment

rights. At the time of the final shots, Johnson had not regained his footing. He was not

standing over Rambert. And Rambert was not lying badly wounded and subdued. To the

contrary, Rambert continued to try to rise up to advance towards Johnson. In sum, the case

law as of July 9, 2019, did not put the constitutional question beyond debate.

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3.

Finally, the Ramberts argue that even if none of the cases they cite independently

clearly establishes that Johnson violated Rambert’s Fourth Amendment rights, collectively

they do. But that is not how the clearly established prong of qualified immunity works.

Qualified immunity protects “all but the plainly incompetent or those who knowingly

violate the law.” Mullenix, 577 U.S. at 12 (quoting Malley v. Briggs,

(1986)). To show that an officer is “plainly incompetent” or “knowingly violate[s] the law,”

there must be precedent that establishes that conduct factually similar to that officer’s

conduct is unconstitutional.

Police officers “are entitled to qualified immunity unless

existing precedent ‘squarely governs’ the specific facts at issue.” Kisela,

(emphasis added) (quoting Mullenix, 577 U.S. at 12). The “clearly established” analysis

requires consideration of specific and similar circumstances. White,

(“The

panel majority misunderstood the ‘clearly established’ analysis: It failed to identify a case

where an officer acting under similar circumstances as Officer White was held to have

violated the Fourth Amendment.”). The Ramberts’ arguments seek to mix and match

principles of dissimilar cases to form nonexistent authority. This approach flies in the face

of established Supreme Court precedent.

V.

To conclude, the defendants’ arguments on appeal involve the legal issues of the

objective reasonableness of Johnson’s conduct and his entitlement to qualified immunity.

Since we have jurisdiction over those issues, we deny the Ramberts’ motion to dismiss this

appeal. And as to the merits of the appeal, Johnson is entitled to qualified immunity on the

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Ramberts’ excessive force claim. Thus, we reverse the district court’s order denying

summary judgment as to this claim. Last, we dismiss the appeal as to the portion of the

district court order denying summary judgment on the related state and federal claims and

as to the claims against the City of Greenville. 5 We remand for proceedings consistent with

this opinion.

REVERSED IN PART; DISMISSED IN PART AND REMANDED

5 Johnson and the City of Greenville moved for summary judgment on all of the Ramberts’ claims against them on the grounds that there was no genuine issue of material fact as to “Defendants’ qualified immunity defense and Defendants are therefore entitled to judgment as a matter of law.” J.A. 156. The defendants below argued that “Plaintiffs cannot establish that there was a violation of any clearly established constitutional right. . . . Plaintiffs’ other claims against Officer Johnson and the City also, therefore, fail.” J.A. 475. Similarly, the district court denied the motion for summary judgment on the related state and federal claims based on its finding that Johnson was not entitled to qualified immunity. Both defendants appealed the district court’s order predicated on qualified immunity and sought review of the district court’s denial of summary judgment on the related state and federal claims. “But interlocutory review of a denial of qualified immunity does not automatically confer jurisdiction over other issues in a case.” Livingston v. Kehagias,

, 686 n.5 (4th Cir. 2020). Pendent appellate jurisdiction is only proper when an issue is inextricably intertwined with the decision to deny qualified immunity and consideration of those issues is necessary for meaningful review of the qualified immunity question. See Bellotte v. Edwards,

(4th Cir. 2011). In this case, while it may turn out that our decision today determines the outcome of some or all of the related state and federal claims, the record does not establish that the issues are inextricably intertwined or have to be resolved for us to meaningfully review qualified immunity. We therefore decline to exercise pendent appellate jurisdiction to review the related state law and federal claims and dismiss that aspect of the appeal for lack of jurisdiction. See Evans v. Chalmers,

, 658–59 (4th Cir. 2012); see also Owens v. Baltimore City State’s Att’ys Off.,

(4th Cir. 2014) (“Unlike public officials, municipalities do not enjoy qualified immunity. Accordingly, claims against municipalities are measured against current law, without regard to whether municipalities’ obligations were clearly established at the time of the alleged violations.” (internal citation omitted)). 31