USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 1 of 37

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-2115

CAMERON LEWIS, individually,

Plaintiff - Appellee,

v.

KEVIN CARABALLO, individually, and in his official capacity as a Maryland State Police Officer/Trooper,

Defendant - Appellant,

and

DEPT. OF STATE POLICE/STATE OF MARYLAND,

Defendant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, Senior District Judge. (1:21-cv-01872-CCB)

Argued: September 20, 2023 Decided: April 15, 2024

Before DIAZ, Chief Judge, WYNN, Circuit Judge, and KEENAN, Senior Circuit Judge.

Affirmed by published opinion. Judge Wynn wrote the majority opinion, in which Senior Judge Keenan joined. Chief Judge Diaz wrote an opinion concurring in part and dissenting in part. USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 2 of 37

ARGUED: Phillip M. Pickus, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Pikesville, Maryland, for Appellant. Charles H. Seidell, MCDERMOTT, WILL & EMERY, LLP, Washington, D.C., for Appellee. ON BRIEF: Anthony G. Brown, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant. Stephanie A. Shipley, SHIPLEY LAW FIRM, Easton, Maryland; Paul W. Hughes, Alex C. Boota, MCDERMOTT WILL & EMERY LLP, Washington, D.C., for Appellee.

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WYNN, Circuit Judge:

While executing an arrest in 2018, Maryland State Trooper Kevin Caraballo

resorted to striking fifteen-year-old Cameron Lewis in the head with several successive

blows. Lewis sued Caraballo in his individual capacity, bringing state and federal

constitutional claims for excessive force and a state-law battery claim. Caraballo filed a

motion for summary judgment on the grounds of qualified and statutory immunity, which

the district court denied. This appeal followed.

Construing the facts in the light most favorable to Lewis, as we are required to do

at this stage of the proceedings, we agree with the district court that disputes of material

fact preclude summary judgment. A reasonable jury could find that Caraballo struck

Lewis when the teenager did not pose a threat, was not actively resistant, and was

subdued. Several consecutive closed-fist punches to the head of an arrestee in those

conditions constitute excessive force. We further hold that Lewis’s constitutional right to

be free from excessive force in the form of head strikes was clearly established at the

time of his arrest. Moreover, we hold that there is a genuine dispute of material fact as to

whether Caraballo’s actions amounted to gross negligence or malice, precluding

summary judgment in his favor on his statutory immunity defense. We therefore affirm

the district court’s order denying Caraballo’s motion for summary judgment.

I.

Because this case is before us on interlocutory appeal, we recount the facts as the

district court found them. See, e.g., Waterman v. Batton,

(4th Cir. 2005)

(“In reviewing the denial of summary judgment based on qualified immunity, we accept

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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.”); Hicks v. Ferreyra,

(4th Cir. 2020) (same). “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.” Smith

v. Ray,

(4th Cir. 2015) (internal quotation marks and citation omitted).

The plaintiff, Lewis, “is a biracial male with a documented mental health

condition” who, at the time of this incident, was fifteen years old. Lewis v. Caraballo,

, at *1 (D. Md. Sept. 29, 2022). Defendant Caraballo is a Trooper First

Class with the Maryland State Police.

During the early evening of July 28, 2018, Caraballo was on patrol when he

received a radio call to respond to a domestic incident at an apartment complex. The call

indicated the incident was “active” and “physical.” J.A. 47. 1 Caraballo was the first

officer to arrive at the complex, where he found fifteen-year-old Lewis pacing on a

sidewalk and his mother, Crystal Lewis, crying nearby on her front steps. Caraballo

approached Ms. Lewis, who told him that her son had physically assaulted her.

Carballo then approached Lewis, who clenched his fists, assumed a “fighting

stance,” and shouted, “[Y]o get the fuck away from me.” Caraballo,

,

at *1. Caraballo tried talking to Lewis, but the teenager maintained a fighting position

and continued yelling at him. There was no indication Lewis was armed.

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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Sergeant Glenn Ray of the Greensboro Police Department in Greensboro,

Maryland, then arrived wearing a body camera that captured the remainder of the

encounter with Lewis, which lasted about two minutes.

As Ray arrived, Caraballo was following Lewis, who was backing away and

telling Caraballo not to touch him. Ray joined Caraballo and asked Lewis, “[W]hat’s

going on?” Id. at *2. Lewis continued backing away, repeatedly telling the officers not to

touch him. Lewis then moved off the sidewalk, backed into the parking lot between two

parked cars, and shouted at the officers to “get the fuck away from me.” Id. The officers

continued advancing toward him.

Ray then reached out toward Lewis and, for the first time, ordered him to stop. In

response, Lewis clenched his fists below his waist, bent his knees, and shouted, “[A]in’t

nobody fucking playing with you.” Id. Ray responded, “I’m not gonna be scared by that,”

and again asked, “[W]hat’s going on?” Id. Lewis took a few steps away from the officers,

then “resum[ed] his hostile, clenched-fist stance and repeat[ed] his demand not to be

touched.” Id.

Several seconds later, Ray pointed his taser at Lewis and warned, “I’ll tase you, I

don’t care how old you are. Stop! Put your hands behind your back.” J.A. 65 (Video

Exhibit) at 2:12–2:16. Lewis responded, “[N]o,” and Ray repeated his command for

Lewis to place his hands behind his back. Caraballo,

, at *2. Lewis

asked “why,” and Ray ordered Lewis to “do it now.”

Lewis again asked “why” before

shouting, “[Y]’all don’t touch me.”

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Without verbal warning, both officers—who are visibly larger than Lewis—lunged

toward the teenager, grabbed him by the front of his shirt, and shoved him backward into

the grassy area in the parking lot.

Lewis’s claims arise from Caraballo’s actions over the next twenty-five seconds.

The video becomes obscured and is interrupted intermittently because of Ray’s proximity

to Lewis’s body. The district court found that the next clear image is of “Caraballo on the

ground, using his weight to drag Lewis down while Sergeant Ray pushes from above.

This successfully brings Lewis to his hands and knees, and Sergeant Ray is then able to

force Lewis the rest of the way to the ground, facedown.”

(citations omitted).

Caraballo then deployed three kinds of force against Lewis.

First, though the

footage becomes unclear again, Caraballo attested that he “executed three (3) elbow

strikes to the back of Mr. Lewis’ shoulder area” while Lewis was still on his hands and

knees with his face down.

Next, Caraballo executed knee strikes on Lewis, who was still down. Lewis

claimed that Caraballo “forcibly knee[d] [Lewis] in the head,” while Caraballo claimed

his knee strikes hit Lewis’s rib area. Id. at *3.

After the elbow and knee strikes came Caraballo’s head strikes. The district court

found that Caraballo moved over Lewis, “adopt[ed] a boxer-like stance,” and struck

Lewis’s head area “approximately five times” as Lewis screamed in pain. Id. The video

shows Caraballo punching downward at Lewis with alternating swings and hitting the

area around the back of Lewis’s head or left shoulder, but it does not show precisely

where the blows landed. The court cited Caraballo’s attestation that he “executed five (5)

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closed fist strikes,” “striking Mr. Lewis 4 total times in the head area.” Id.

As Caraballo struck Lewis’s head, Ray tased Lewis. Though not visible, the sound

of the taser discharging can be heard in the body-camera video. The district court found

that the video “appears to show” that the taser’s clicking noise, indicating discharge,

began after the “first one to two head strikes.” Id. Caraballo later claimed he was unaware

Ray was simultaneously tasing Lewis.

After Ray tased Lewis, Lewis became fully compliant, and Caraballo relented. The

officers ordered Lewis to place his hands behind his back and handcuffed him. At this

point, a third officer is visible in the video, assisting Caraballo and Ray. As Lewis

repeatedly pled with the officers to let him get up, Caraballo pulled Lewis up, saying,

“[Y]eah, get the fuck up motherfucker.” J.A. 65 (Video Exhibit) at 3:33–3:40. Caraballo

later stated in a Declaration that he broke his prescription glasses during the altercation,

and Ray’s incident report stated that those glasses cost about $600. After the officers

pulled Lewis up and took him to the police car, Caraballo remarked that his glasses were

“fucking shattered.” Id. at 5:20–5:27.

The district court found that throughout this interaction, Lewis could be heard

“yelling in pain and protest” and could “be seen struggling with the officers.” Caraballo,

, at *3. While Caraballo characterized these reactions as Lewis

“resisting” arrest, the court found that, viewing these actions in the light most favorable

to Lewis, they may “merely have been a natural response to the physical nature of the

arrest.” Id. at *3, *6.

The court also determined that, at the time Caraballo began striking Lewis’s head,

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the video was “inconclusive” as to the position of Lewis’s hands, the degree to which he

may have been handcuffed, and whether the third officer had already arrived. Id. at *3.

Finally, the court found that when Caraballo began striking Lewis’s head, “[Lewis] was at

least partially subdued.” Id. at *6.

On July 27, 2021, Lewis sued Caraballo in his individual capacity for excessive

force in violation of the Fourth and Fourteenth Amendments and the corresponding

Articles 24 and 26 of the Maryland Declaration of Rights, and for battery under state tort

law. 2 See French v. Hines,

(Md. Ct. Spec. App. 2008) (noting that

where “an officer uses excessive force, . . . [the] officer’s nonprivileged use of force

constitutes battery” (emphasis omitted) (quoting Sonja Larsen & Thomas Muskus, 6A

C.J.S. Assault § 35 (2008 Supp.))).

Caraballo moved for summary judgment, arguing that he was entitled to qualified

and state statutory immunity because his use of force was reasonable. The district court

denied Caraballo’s motion. Caraballo,

, at *7–8. It found that the

evidence, viewed in the light most favorable to Lewis and drawing all reasonable

inferences in his favor, created a genuine dispute of fact as to whether Caraballo used

excessive force, thus precluding summary judgment on the basis of qualified immunity.

2 Lewis also brought claims against Caraballo, individually and in his capacity as a Maryland State Police Officer, and against the Maryland Department of State Police, for denying him access to the courts in violation of the United States and Maryland Constitutions; civil conspiracy in violation of the Maryland Constitution; and intentional infliction of emotional distress under state tort law. Caraballo,

, at *1. The district court dismissed the claims against the Maryland State Police and Caraballo in his official capacity, and the remaining claims against Caraballo in his individual capacity. Id. at *5, *8. Those claims are not at issue in this appeal.

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Id. at *7. Likewise, the court found that a genuine dispute of fact remained as to whether

Caraballo acted with gross negligence, precluding statutory immunity for Lewis’s state

battery claim. Id.

Caraballo timely filed this interlocutory appeal.

II.

Ordinarily, we lack jurisdiction to review the denial of a motion for summary

judgment, because such denial does not constitute a final order. Williams v. Strickland,

(4th Cir. 2019); see

. However, under the collateral

order doctrine, we may conduct a limited interlocutory review of a district court’s denial

of summary judgment based on qualified or statutory immunity.

F.3d at

767–68; R.A. v. Johnson,

, 541 (4th Cir. 2022). In an interlocutory appeal,

our review of the denial of summary judgment is limited to questions of law. Williams,

; see also Pfaller v. Amonette,

(4th Cir. 2022).

3 Pursuant to the Maryland Tort Claims Act, Caraballo invoked statutory immunity from Lewis’s Maryland Declaration of Rights and state battery claims. See Md. Code, State Gov’t § 12-105; Md. Code, Cts. & Jud. Proc. § 5-522(b). We may review a district court’s order denying statutory immunity under the collateral order doctrine only if the state law provides “immunity from suit rather than a mere defense to liability.” Argonaut Great Cent. Ins. Co. v. Audrain Cnty. Joint Commc’ns,

(8th Cir. 2015) (quoting Mitchell v. Forsyth,

(1985)); see also R.A. v. Johnson,

, 541 (4th Cir. 2022) (same). In Maryland, the Tort Claims Act provides state employees with true immunity from suit. See, e.g., Walker v. Maryland,

, at *8 (D. Md. Aug. 30, 2017) (holding that under the Tort Claims Act, state personnel are “immune from suit”); Usiak v. Brown,

, at *6 (D. Md. Aug. 23, 2011) (“[I]t is clear that the Defendants are immune from suit under the . . . Maryland Tort Claims Act.”). Therefore, district court orders denying statutory immunity under Maryland state law are appealable in federal court to the same extent as those denying federal qualified immunity.

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We review de novo a district court’s denial of summary judgment. Betton v. Belue,

(4th Cir. 2019). Summary judgment is appropriate when there are no

material facts in dispute, and the movant is entitled to judgment as a matter of law. Id.;

see Fed. R. Civ. P. 56(a). We construe the evidence in the light most favorable to Lewis,

the non-moving party. Belue,

; see also Wilson v. Prince George’s Cnty.,

(4th Cir. 2018).

Because in this procedural posture we only decide issues of law, we do not weigh

the evidence, credit the movant’s evidence, make credibility determinations, or decide

whether the evidence is sufficient to permit a particular finding of fact. See Prince

George’s Cnty., 893 F.3d at 218–19; see also Hensley ex rel. North Carolina v. Price,

(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.”); Iko

v. Shreve,

(4th Cir. 2008) (“[W]e possess no jurisdiction over a claim

that a plaintiff has not presented enough evidence to prove that the plaintiff’s version of

the facts actually occurred, but we have jurisdiction over a claim that there was no

violation of clearly established law accepting the facts as the district court viewed them.”

(quoting Winfield v. Bass,

, 530 (4th Cir. 1997) (en banc))).

Instead, we answer only one “narrow legal question: if we take the facts as the

district court gives them to us, and we view those facts in the light most favorable to the

plaintiff, is the defendant still entitled to qualified [or statutory] immunity?” Williams,

(footnote omitted) (citing Iko,

); see also Thomas v.

Durastanti,

(10th Cir. 2010) (“[E]ven if the district court concludes

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that controverted issues of fact remain, an appellate court may consider the legal question

of whether the defendant’s conduct, taken as alleged by the plaintiff, violates clearly

established law.” (citing Behrens v. Pelletier,

, 312–13 (1996))).

Caraballo attempts to circumvent this jurisdictional limitation by invoking the one

narrow exception pursuant to the Supreme Court’s decision in Scott v. Harris—we may

reject the district court’s factual findings to the extent they are “blatantly contradicted by

the record.” Scott v. Harris,

(2007). This standard “is a very difficult

one to satisfy.” Crowson v. Washington Cnty. Utah,

(10th Cir. 2020)

(cleaned up). It is met only when “[the plaintiff’s] version of events is so utterly

discredited by the record” that it constitutes “visible fiction,” such that “no reasonable

jury could . . . believe[] [it].” Scott, 550 U.S. at 380–81 (emphasis added).

In Scott, for example, an officer’s dashcam video depicted the plaintiff “run[ning]

multiple red lights” and “swerv[ing] around more than a dozen other cars.” Id. at 379.

That was directly at odds with the plaintiff’s assertions that he posed “little, if any, actual

threat . . . [to] other motorists” and that “the roads were mostly empty.” Id. at 378

(cleaned up). Because “[t]he videotape quite clearly contradict[ed]” the plaintiff’s claims,

the Supreme Court reversed the district court’s determination that there was a genuine

issue of fact as to whether the force used against the plaintiff was reasonable. Id. at 378,

386.

This Court, however, has emphasized that Scott’s holding is cabined to situations

where documentary evidence “‘blatantly contradict[s]’ a plaintiff’s account.” Witt v. W.V.

State Police,

(4th Cir. 2011) (emphasis added) (quoting Scott,

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at 380). Thus, where a video only “offers some support for [an] officer’s version of

events,” we do not allow the officer to “rehash[] the factual dispute below.”

at 276–77

(quoting Iko,

). “Scott is the exception, not the rule,” and we have clarified

that it does not apply even where documentary evidence renders the plaintiff’s story

“unlikely,” so long as it is not “utterly discredited.” Harris v. Pittman,

, 275–

76 (4th Cir. 2019) (citing United States v. Hughes,

, 319–20 (6th Cir. 2010)).

Here, the body camera video falls far below that high bar. The footage captures

Caraballo’s attacks. To the extent it fails to completely corroborate Lewis’s story, that

failure is largely attributable to the video being “obscured” just before and during

Caraballo’s use of force. Caraballo,

, at *2. The district court found

that because of the “intermittent[]” “[]obstruct[ions]” and “interrupt[ions],” the video was

“inconclusive as to the position of [Lewis’s] hands, the degree to which he may have

been handcuffed, and the involvement of a third officer.”

at *2–3.

We have previously declined to disturb a district court’s fact-finding when a video

is unclear. For example, in Witt v. West Virginia State Police, the “soundless video” with

“unreliable quality” made it “difficult to decipher . . . the true sequence of events” in the

encounter between the plaintiff and the defendant police officers. Witt,

.

Because the events surrounding the use of force were unclear, we declined to apply

Scott’s narrow exception to our review of the district court’s fact-finding on an

interlocutory appeal from a denial of qualified immunity.

(first citing York v. City of

Las Cruces,

, 1210–11 (10th Cir. 2008); and then citing Hughes,

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at 319–20); see York, 523 F.3d at 1210–11 (holding Scott inapplicable where

documentary evidence recorded “only part of the incident”). We do the same here.

Caraballo also argues that Lewis did not provide any of his own evidence and that

the party opposing summary judgment “may not rest upon mere allegations . . . of his

pleading, but must set forth specific facts showing that there is a genuine issue for trial.”

Opening Br. at 15–16 (quoting Anderson v. Liberty Lobby, Inc.,

(1986)). But the video evidence, though inconclusive, is sufficient to move Lewis’s

allegations beyond mere “[u]nsupported speculation.” Felty v. Graves-Humphrey’s Co.,

(4th Cir. 1987).

Accordingly, our review is limited to analyzing whether, in light of the facts as the

district court found them, the district court erred in denying Caraballo’s invocation of

qualified and statutory immunity.

III.

The defense of qualified immunity shields public officials from civil liability

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

time of the challenged conduct.” Carroll v. Carman,

, 16 (2014). In

determining whether qualified immunity applies, we consider whether (1) the official

violated a statutory or constitutional right, and (2) that right was “clearly established” at

the time of the challenged conduct. Ashcroft v. al-Kidd,

, 735 (2011). We

may address these prongs in either order, and if the officer succeeds at either prong, he is

entitled to qualified immunity. See Sheppard v. Visitors of Va. State Univ.,

,

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238 (4th Cir. 2021). But here, we conclude that the district court correctly found that

Caraballo was not so entitled.

A.

We begin with the first prong of the qualified-immunity analysis and consider

whether, viewing the facts in the light most favorable to Lewis, Caraballo breached

Lewis’s rights. The Fourth Amendment 4 protects citizens from “unreasonable seizures,”

U.S. Const. amend. IV, which includes “prohibit[ing] police officers from using force

that is ‘excessive’ or not ‘reasonable’” while making an arrest, Meyers v. Baltimore,

(4th Cir. 2013) (quoting Graham v. Connor,

(1989)).

We carefully “balanc[e] . . . the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing governmental interests at stake.”

Graham,

(internal quotation marks omitted).

Viewing the evidence in the light most favorable to Lewis, the district court found

that a reasonable jury could conclude that Caraballo’s force was “disproportionate

because he continued punching Lewis in the head after Lewis was subdued or while

Lewis was not resisting arrest.” Caraballo,

, at *6.

4 Lewis asserted a

claim for excessive force against Caraballo in violation of the Fourth and Fourteenth Amendments and a corresponding claim under Articles 24 and 26 of the Maryland Declaration of Rights. We analyze Articles 24 and 26 under the same standard as the Fourteenth and Fourth Amendments, respectively. See Dent v. Montgomery Cnty. Police Dep’t,

(D. Md. 2010); Caraballo,

, at *5 (“Claims brought under Articles 24 and 26 . . . are interpreted as coextensive with their federal analogs, the Fourth and Fourteenth Amendments.” (citation omitted)).

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A court determines whether an officer’s force was excessive based on a standard

of “objective reasonableness.” Graham,

. “The question is whether a

reasonable officer in the same circumstances would have concluded that a threat existed

justifying the particular use of force.” Elliott v. Leavitt,

(4th Cir. 1996)

(citing Graham, 490 U.S. at 396–97).

In Graham, the Supreme Court specified three factors for assessing the

reasonableness of force: (1) the severity of the crime at issue, (2) whether the suspect

posed an immediate threat to the safety of the officers or others, and (3) whether the

suspect was actively resisting arrest or attempting to flee. Graham,

. We

agree with the majority of other circuits that have considered the question that, “[a]mong

these considerations, the most important is the second factor—whether the suspect posed

an immediate threat to others.” Rice v. Morehouse,

(9th Cir. 2021)

(citation and internal quotation marks omitted); see Pauly v. White,

(10th Cir. 2017) (holding the second factor “is undoubtedly the most important” (internal

quotation marks omitted)); Malbrough v. Stelly,

, 803 (5th Cir. 2020)

(same). But see Glasscox v. Argo,

(11th Cir. 2018) (indicating that

“the most important factor” is whether the suspect “was actively resisting or attempting

to evade arrest”).

Additionally, the three Graham factors are not “exclusive,” and we may identify

other “objective circumstances potentially relevant to a determination of excessive

force.” E.W. ex. rel. T.W. v. Dolgos,

(4th Cir. 2018) (quoting Kingsley

v. Hendrickson,

(2015)). We keep an “eye toward the proportionality

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of the force in light of all the circumstances.” Yates v. Terry,

(4th Cir.

2016) (quoting Smith,

).

We begin our analysis by assessing the “amount of force” used against Lewis.

Graham,

. We do so because the “factors articulated in Graham . . . are

not to be considered in a vacuum but only in relation to the amount of force used to effect

a particular seizure.” Davis v. City of Las Vegas,

(9th Cir. 2007)

(quotation omitted); see also Rogoz v. City of Hartford,

(2d Cir. 2015)

(holding that the amount of force must be considered in light of the particular

circumstances when it was used). Viewing the facts in the light most favorable to Lewis,

Caraballo’s use of force was significant. A jury could find that Caraballo exerted a high

magnitude of force onto Lewis’s head when he adopted “a boxer-like stance” and

punched the teenager in the head “with powerful alternating swings.” Caraballo,

, at *3.

And we think it is common sense that the head is a particularly fragile part of the

human body. It lacks a layer of muscle or fatty tissue that can absorb the impact of a

blow, unlike body parts like the shoulder or thigh. Because the head contains the brain, it

is commonly understood that head injuries can pose a substantial risk of serious and

lasting physical harm. Courts have accordingly recognized the unique danger of strikes to

the head. See, e.g., Davenport v. Causey,

, 553–54 (6th Cir. 2008) (fist blows

to the head could cause serious injury or death); Sallenger v. Oakes,

(7th Cir. 2007) (same); cf. United States v. Mitchell,

(4th Cir. 2023)

(noting in the sentencing context that “as little as one punch to the head . . . may cause a

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substantial risk of serious bodily injury within the meaning of the [Sentencing]

Guidelines.”). We have even held, albeit in an unpublished opinion, that several closed-

fist strikes to the head could constitute deadly force. See Thomas v. Holly,

(4th Cir. 2013) (orally argued but unpublished, per curiam decision). These

decisions inform our conclusion that the closed-fist strikes at the very least constituted

significant force.

With that understanding, we turn to the Graham factors to assess whether such

force was reasonable. We agree with the district court that although the first Graham

factor weighs in Caraballo’s favor, the second and third factors weigh strongly in Lewis’s

favor.

The first factor, the severity of the crime, “slightly” favors Caraballo. Morris v.

Noe,

(10th Cir. 2012). When Caraballo responded to the scene, he

was aware that Lewis’s mother had contacted police to accuse Lewis of domestic

violence, and when Caraballo arrived, she told him “her son had physically assaulted

her.” Caraballo,

, at *1. However, there is no evidence that Lewis’s

mother was visibly injured or that any weapons were present.

at *1–3, *6. Those facts

pointed toward an accusation of misdemeanor assault in the second degree. Id. at *6; see

Md. Code, Crim. Law § 3-203(a). “[B]ecause assault is an offense that can be considered

violent if committed by any person, . . . this factor weighs against [Lewis,]” but “[t]his

finding is tempered” because the offense is a misdemeanor. Dolgos,

;

accord Morris,

(holding that an officer’s “amount of force used should

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[be] reduced accordingly” in cases of misdemeanor assault (alteration in original)

(quoting Fogarty v. Gallegos,

(10th Cir. 2008))).

The second and most important factor weighs strongly in Lewis’s favor, because a

reasonable jury could find that he posed no “immediate threat” to anyone’s safety.

Graham,

(emphasis added). To begin with, “Lewis was unarmed.”

Caraballo,

, at *6. And Lewis did not attempt to attack the officers.

To the contrary, the video indicated that Lewis was retreating from the officers and that

he never voluntarily touched them.

The only purported “threat” Lewis posed to the officers, then, was his “somewhat

erratic conduct, his failure to comply with a small number of lawful commands, and two

to three instances in which he clenched his fists” while the officers were far from Lewis’s

reach. Id.; see Rice,

(holding that while erratic behavior could lead an

officer to be wary, it does not give rise to an immediate threat). Further, after the officers

deployed force and before Caraballo began striking Lewis’s head, Lewis was under the

weight of the two larger, trained officers and was “at least partially subdued.” Caraballo,

, at *6; see Solomon v. Auburn Hills Police Dep’t,

(6th Cir. 2004) (explaining courts may consider the “size and stature of the parties

involved.”); Rowland v. Perry,

(4th Cir. 1994) (noting officer was larger

and trained). On these facts, we agree with the district court that Lewis posed no

immediate danger to the officers.

Caraballo argues that the district court ignored the “danger [posed by Lewis] to

[his] family.” Opening Br. at 21. But no evidence suggests any “immediate” threat to

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Lewis’s family, as Graham requires. Graham,

. While Lewis’s mother

was present when Caraballo arrived, the video does not show her close to Lewis when the

officers initiated force against him. Rather, the video appears to show the teenager

walking away from his mother’s apartment well before the officers lunged at him. And

when the officers initiated force, at least two officers were on top of Lewis and could

have protected Ms. Lewis from the unarmed teenager even if she was nearby.

Furthermore, again, Lewis was “partially subdued” before Caraballo began striking his

head. Caraballo,

, at *6. A jury could thus find that Lewis posed no

reasonable threat that could have justified Caraballo’s escalation of force.

The third factor, whether the suspect attempted to flee or actively resisted arrest,

likewise supports Lewis. Graham,

. Lewis made no attempt to flee, and

while the court found that Lewis “struggled” in response to the officers’ initiation of

force, it found that “his resistance may merely have been a natural response to the

physical nature of the arrest.” Caraballo,

, at *6. This Court has

distinguished between active resistance and a suspect “defending [themselves] against a

sudden all-out physical assault from an officer,” and held that an officer cannot use a

plaintiff’s “slight resistance to the attack to justify his escalation of the conflict.” Smith,

. Caraballo’s assault on Lewis’s head, after elbow- and knee-striking him,

constituted an escalation of force. Viewing the evidence in the light most favorable to

Lewis, his response was a natural physical reaction to the officers’ assault—a fearful

reaction made all the more natural by his young age. And such a “frightened,”

“instict[ive]” response did not justify Caraballo’s escalation. Rowland,

.

19 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 20 of 37

Caraballo argues that even if Lewis’s actions were a “natural response,” a

reasonable officer could only make split-second judgments based on Lewis’s objective

actions, and those demonstrated resistance. Opening Br. at 21. But we must view all

disputed facts not blatantly contradicted by the evidence in Lewis’s favor, and there is no

blatant evidence of active resistance here. Scott, 550 U.S. at 380–81. Assuming arguendo

that Lewis’s actions constituted a display of some resistance, Caraballo’s force was

nevertheless unreasonable because it was not “commensurate with the suspect’s level of

contemporaneous, active resistance.” Joseph ex. rel. Est. of Joseph v. Bartlett,

(5th Cir. 2020). A reasonable officer would not think that beating a non-

dangerous suspect’s head, after elbow- and knee-striking the suspect, was proportionate

to the minimal resistance Lewis gave. 5

In sum, turning “an eye toward the proportionality of the force in light of all

the[se] circumstances,” Smith,

(emphasis added) (quoting Waterman,

), an officer striking the head of a non-dangerous, non-actively resistant,

partially subdued adolescent would not be objectively reasonable. Even if the Graham

5 Ray began tasing Lewis after Caraballo’s “first one or two head strikes.” Caraballo,

, at *3. Caraballo claimed he did not know Ray was simultaneously tasing Lewis and the district court made no findings on that claim. Id. at *3, *6. But we note, and the lower court found, that the sound of the taser discharging is audible in the video. Id. at *3. Because we view the evidence in the light most favorable to Lewis, and draw all reasonable inferences in his favor, we assume that Caraballo could hear the taser. A jury could consider the fact that Caraballo could hear the taser, and accordingly find that Caraballo’s remaining head strikes after the tasing began constituted excessive force. However, because we hold that a reasonable jury could find that Caraballo’s initiation of the head strikes—which began before the tasing did—constituted excessive force, we do not factor the tasing into our analysis.

20 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 21 of 37

factors would have justified a limited degree of force, the strikes to Lewis’s head were

not a proportional response. Because a reasonable jury could find that Caraballo struck

Lewis while the adolescent was non-dangerous, non-actively resistant, and partially

subdued, there is a material question of fact as to whether Caraballo applied excessive

force by striking Lewis several times in the head.

B.

We now turn to the second prong of the qualified-immunity analysis, “whether the

[constitutional or statutory] violation was of a ‘clearly established’ right.” Valladares v.

Cordero,

(4th Cir. 2009) (quoting Ridpath v. Bd. of Governors

Marshall Univ.,

, 306 (4th Cir. 2006)). A right is clearly established if, at the

time of the alleged offense, “[t]he contours of the right [allegedly violated were]

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton,

(1987). We apply an

objective standard and analyze this prong from the perspective of a reasonable officer.

See Dean ex rel. Harkness v. McKinney,

(4th Cir. 2020).

To determine that a right is “[c]learly established,” we need not conclude that “the

very action in question has previously been held unlawful,” but we must instead conclude

that the unlawfulness of the official’s conduct was apparent from preexisting law. Owens

ex rel. Owens v. Lott,

(4th Cir. 2004) (quoting Wilson v. Layne,

(1999)). We hence “consider not only already specifically adjudicated

rights but also those manifestly included within more general applications of the core

constitutional principles invoked.” Booker v. S.C. Dep’t of Corr.,

(4th

21 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 22 of 37

Cir. 2017) (internal quotation marks omitted) (quoting Wall v. Wade,

, 502–

03 (4th Cir. 2014)). “As the qualified immunity defense has evolved, it provides ample

protection to all but the plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs,

(1986).

To determine if a constitutional right is clearly established, we look to “controlling

authority” or to a “robust ‘consensus of cases of persuasive authority.’” Ashcroft, 563

U.S. at 742 (quoting Wilson,

); accord Owens,

. With

these guiding principles in mind, we turn to the asserted right in this appeal.

The question before us is whether a non-dangerous, non-actively resistant, “at

least partially subdued,” arrestee’s right to be free from excessive force in the form of

head strikes was clearly established by 2018. Caraballo,

, at *6. The

district court concluded that it was clearly established that “assaulting a subdued arrestee

after officers have mitigated the immediate threat to themselves is objectively

unreasonable.” Id. at *7. We agree.

At least two cases in this Circuit, Kane v. Hargis and Valladares v. Cordero,

provided notice that Caraballo’s use of force was unreasonable. See Kane v. Hargis,

(4th Cir. 1993) (per curiam); Valladares,

(2009). As we

recognized in Estate of Jones v. City of Martinsburg, our 1993 decision in Kane warned

officers that it is unreasonable to escalate force against a non-dangerous suspect that is

secured or under control, even if that control is brief. Est. of Jones v. City of Martinsburg,

, 668–69 (4th Cir. 2020). Estate of Jones recognized that, by 2013, “it was

already clearly established that suspects can be secured without handcuffs when they are

22 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 23 of 37

pinned to the ground, and that such suspects cannot be subjected to further force.” Id. at

668 (emphasis added). That is because, we explained, “[a]s early as 1993, this Court held

[in Kane] 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” Id. (citing Kane,

).

Caraballo argues that Lewis was not fully “pinned” to the ground like the suspect

in Kane. We find that distinction insignificant. The law can place officers on notice “even

in novel factual circumstances,” so long as the law provides “fair warning” that the

officer’s conduct was unconstitutional. Booker,

(quoting Hope v. Pelzer,

(2002)). Here, the video moves too quickly to distinguish Lewis’s

position at the precise moment Caraballo began striking his head, but the district court

found that Lewis was either on his hands and knees with his face down, or he was

completely “[on] the ground, facedown,” when Caraballo began striking his head.

Caraballo,

, at *2. Either way, we know Lewis was down under the

weight of two visibly larger officers—as opposed to the one larger officer in Kane—

when Caraballo deployed his head beatings. Moreover, the suspect in Kane had been

actively resisting arrest and attempting to flee. Kane, 987 F.2d at 1007–08. By contrast,

viewing the facts in the light most favorable to Lewis, his defensive maneuvers did not

constitute active resistance and he did not attempt to flee. Thus, a more significant use of

force was justified in Kane than here.

Similarly, in Valladares v. Cordero, we concluded a police officer used excessive

force when he slammed an unarmed fifteen-year-old’s head into a car. Valladares, 552

23 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 24 of 37

F.3d at 390. The teenage suspect had fallen to the ground, and because the officer “picked

[him] up off the ground,” and thus briefly had him “under full control,” and “then

forcefully shoved his face into his mother’s car,” this Court found that the officer used

excessive force. Id. (emphasis added). As in Valladares, viewing the evidence in Lewis’s

favor, Lewis was under the officers’ control, even if briefly, because he was partially

subdued while kneeling on the ground under the officers’ weight, before Caraballo began

striking his head.

The attempts by Caraballo and our partially dissenting colleague to distinguish

Valladares are unavailing. Caraballo argues that the teenager in Valladares was

unambiguously handcuffed before the officer shoved his head into the car, and hence the

teenager was more secure than Lewis. But again, it was clearly established before the

events of this case that “suspects can be secured without handcuffs when they are pinned

to the ground,” even during incidents that move quickly. Estate of Jones, 961 F.3d at 668.

Our colleague also distinguishes Valladares by arguing that, unlike Lewis, the teenager

there “surrendered” before the officer slammed his head into the car. Dissenting Op. at

33–34. But the Valladares Court only concluded that the teenager “surrendered” because

when the officer picked him up off the ground, he did not resist being lifted. Valladares,

. Thus, the Valladares Court explained, the teenager’s lack of resistance

“signifie[d] a point of surrender.”

Again, viewing the facts in the light most favorable

to Lewis, he also did not actively resist the officers’ use of force against him.

And, as with Kane, the facts that distinguish Valladares from the present case

demonstrate that the force Caraballo employed was arguably more excessive than in

24 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 25 of 37

Valladares. In Valladares, the fifteen-year-old had pushed the officer before the officer’s

use of force,

at 386–87, whereas here, Lewis was backing away from the officers and

never attacked them. Additionally, as was the case with Kane, only one officer was

pinning the plaintiff in Valladares, while at least two officers subdued Lewis here.

Finally, the officer in Valladares slammed the teenager’s head once, but Caraballo struck

Lewis’s head five times. We think Valladares and Kane made plain enough, before 2018,

the excessive nature of the force used here. Both Valladares and Kane found excessive

force when officers continued to assault non-dangerous, controlled suspects. That is

precisely the case here. Viewing the evidence in the light most favorable to Lewis,

Caraballo struck Lewis, a non-dangerous suspect, with his elbows, kneed him, and then

swung his fists into the teenager’s head after he was already partially subdued and

kneeling under the weight of the two larger officers. Our cases thus constituted “fair

warning” that Caraballo’s use of force was excessive. Booker,

.

Caraballo offers two cases to show that this right was not clearly established in

2018, but both are unpersuasive. First, in Rivas-Villegas v. Cortesluna, the Supreme Court

found that an officer did not use excessive force in violation of clearly established law

when the officer kneed a man who was kneeling on the floor, because that man was

armed and the officer only kneed him briefly while handcuffing him. Rivas-Villegas v.

Cortesluna,

, 6–7 (2021) (per curiam). But the facts of that case are a far cry

from those here. In Rivas-Villegas, the drunk suspect attempted to attack his girlfriend

with a chainsaw, and when police arrived, he appeared to reach for a knife with which he

was armed.

at 3–4. Once the suspect surrendered, the officer placed a knee on his back

25 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 26 of 37

while handcuffing him.

. Notably, in finding that the officer’s use of his knee did

not violate clearly established law, 6 the Supreme Court distinguished Rivas-Villegas from

the police conduct in LaLonde v. County of Riverside, which also involved an officer

kneeing a suspect in the back.

at 6–7 (citing LaLonde v. Cnty. of Riverside,

(9th Cir. 2000)). The Court stressed that, unlike in Rivas-Villegas, the suspect in

LaLonde was unarmed, had not threatened police, and suffered a more severe use of force

than a brief knee to the back.

at 6–7. So, the Court concluded, LaLonde did not put the

officer on notice that his conduct was unconstitutional.

at 7–8. By contrast, as

discussed above, in this case, circuit precedent did put Caraballo on notice.

The second case Caraballo cites, Pegg v. Hernberger, is irrelevant. In Pegg, this

Court held that an officer did not use excessive force when he only “performed a simple

maneuver”—which did not involve kneeing, striking, or kicking the arrestee—to

handcuff the suspect. Pegg v. Hernberger,

(4th Cir. 2017). That

factual scenario has no bearing on this case, where Caraballo struck Lewis’s head several

times after kneeing and elbowing him.

In sum, we hold the right of a suspect who was at the very least partially subdued

and posed no immediate threat to be free from excessive force in the form of strikes to his

head was clearly established at the time of the events of this case in 2018. We hence

affirm the district court’s denial of summary judgment to Caraballo based on Lewis’s

excessive-force claim under the Fourth and Fourteenth Amendments.

6 The Court did not address whether there was a constitutional violation.

26 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 27 of 37

IV.

Lastly, Caraballo argues that he is immune from Lewis’s state-law claims under

the Maryland Tort Claims Act. That Act immunizes state personnel from suit for tortious

conduct committed within the scope of their duties if committed “without malice or gross

negligence.” Md. Code, State Gov’t § 12-105; see Md. Code, Cts. & Jud. Proc. § 5-

522(b). 7 An officer’s actions are grossly negligent when they “intentional[ly] fail[] to

perform a manifest duty in reckless disregard of the consequences as affecting the life or

property of another, and [their actions] impl[y] a thoughtless disregard of the

consequences without the exertion of any effort to avoid them.” Dolgos,

(quoting Cooper v. Rodriguez,

, 845–46 (Md. 2015)); accord Barbre v.

Pope,

(Md. 2007) (collecting cases). Malice is defined as “conduct

‘characterized by evil or wrongful motive, intent to injure, knowing and deliberate

wrongdoing, ill-will or fraud.’” Pope,

(quoting Lee v. Cline,

(Md. 2004)). Malice can be “inferred from acts and circumstantial evidence as it

is seldom admitted and need not be proven by direct evidence.” Dolgos,

(cleaned up). As with qualified immunity, our jurisdiction to review denials of summary

judgment based on statutory immunity is limited to “legal questions” and we must accept

the facts as the district court gave them to us in the light most favorable to Lewis. Post v.

7 Maryland State Troopers are “State personnel,” and therefore the immunity could apply to them if they meet the other statutory requirements. Md. Code, State Gov’t § 12- 101.

27 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 28 of 37

City of Munroe Falls,

, 73 (6th Cir. 2021); accord Reeves v. Meddings,

No. 21-2391,

, at *4 (4th Cir. Nov. 21, 2022) (unpublished).

Unlike the use-of-force analysis, the question of whether an officer acted with

gross negligence or malice is “subjective,” and thus is “generally a question for the jury.”

Henry v. Purnell,

(4th Cir. 2011) (cleaned up). Caraballo nonetheless

contests the district court’s finding of material disputes of fact as to whether he acted with

malice or gross negligence. But taking the facts as the district court found them, as we

must in this procedural posture, we agree with the district court that there is a genuine

dispute of fact as to whether Caraballo acted with gross negligence or malice. The district

court found disputes of fact regarding the position of Lewis’s hands, the degree to which

he was handcuffed, the involvement of a third officer, and whether Lewis resisted.

Caraballo,

, at *3. It is also unclear whether Caraballo knew Lewis

was being tased.

These facts are material to a jury’s evaluation of Caraballo’s gross negligence or

malice, and a jury crediting Lewis’s account could find on these facts that Caraballo acted

with gross negligence, or a “disregard of the consequences,” by inflicting unnecessary

pain and aggression on the subdued, non-dangerous adolescent in a manner that posed a

danger to Lewis’s long-term health. Dolgos,

; see Taylor v. Harford Cnty.

Dep’t of Soc. Servs.,

(Md. 2004) (gross negligence is “akin to

reckless conduct”). A reasonable jury could alternatively find that Caraballo acted with

malice or “ill-will,” Dolgos,

, based on such evidence as that Lewis had

failed to comply with the officers before their infliction of force, that Caraballo was

28 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 29 of 37

angered when he lost his prescription glasses during the struggle, and that Caraballo

called Lewis a “motherfucker” after beating his head. J.A. 65 (Video Exhibit) at 3:33–

3:40; see Okwa v. Harper,

(Md. 2000) (holding that the fact that

“peace officers beat a citizen about his head and neck while they twisted his thumbs[]

could support an inference [of] malicious intention . . . which would strip” immunity

under Maryland statutory law because “it would not be unreasonable for a fact finder to

infer that [the officers] were motivated by an extreme and overzealous desire to punish

[the suspect] for failing to obey immediately their instructions”); Sherrill v. Cunningham,

No. JKB-18-476,

, at *8 (D. Md. July 23, 2018) (finding that jury

could infer ill-will from officer’s escalation of violence by throwing plaintiff on the

ground and throwing her belongings, when plaintiff alleged she was compliant and non-

threatening); cf. Lopp v. Anderson,

(N.C. Ct. App. 2016) (applying

analogous North Carolina definition of malice and finding that “unnecessarily rough

treatment” alleged by the plaintiff against defendant officer is sufficient to overcome

summary judgment because the officer acted with malice (citing Thompson v. Town of

Dallas,

, 905–06 (N.C. Ct. App. 2001))).

Simply put, given the totality of the facts and the unique dangers of a head strike, a

juror could find that Caraballo’s five head strikes constituted an “intent to injure,” or at

least the reckless disregard of such a risk. Pope,

(quoting Cline,

). We reiterate that we may only determine matters of law in this procedural

posture, and thus may not address the questions of malice or gross negligence unless the

29 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 30 of 37

facts clearly show that no reasonable juror could find that Caraballo’s actions amounted

to either. That is not the case here.

Thus, the district court did not err in denying summary judgment on Lewis’s state-

law claims.

V.

Based on the foregoing, we conclude Caraballo is not entitled to qualified or

statutory immunity from Lewis’s claims. We therefore affirm the district court’s denial of

Caraballo’s motion for summary judgment.

AFFIRMED

30 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 31 of 37

DIAZ, Chief Judge, concurring in part and dissenting in part:

The qualified immunity doctrine protects an officer who violates the law, so long

as he wasn’t on notice that his conduct was unlawful. Taking the facts in the light most

favorable to Cameron Lewis, as we do at this stage of the litigation, Officer Kevin

Caraballo may have used excessive force when he punched Lewis (a teenage boy) five

times in the head. But because I disagree with the majority that Lewis’s rights were

clearly established, I dissent in part.

I.

Qualified immunity is a two-prong inquiry, and Lewis must establish both to

succeed on his excessive force claim. Harris v. Pittman,

(4th Cir.

2019) (cleaned up). First, he must show that Caraballo violated one of his constitutional

rights, and second, he must show that the “right at issue was clearly established at the

time of the officer’s conduct,”

(cleaned up), “such that a reasonable person would

have known that his conduct was unconstitutional,” Smith v. Ray,

(4th

Cir. 2015) (cleaned up).

I agree with the majority that (taking the facts as the district court found them)

Caraballo may have violated Lewis’s constitutional right to be free from excessive force.

Lewis was 15 years old and unarmed during the altercation with the officers. And the

district court found that “he posed little threat to the broader public.” Lewis v. Caraballo,

No. CCB-21-1872,

, at *6 (D. Md. Sept. 29, 2022). Punching Lewis in

the head five times—while another officer tased him—could have caused him serious

31 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 32 of 37

injury. Even if Caraballo could use some force to subdue Lewis, the force used may have

been disproportionate. See Smith,

(cleaned up).

But I diverge on the clearly established prong. When we define the clearly

established right, we must take care to do so with the “appropriate level of specificity.”

Estate of Jones by Jones v. City of Martinsburg,

, 667 (4th Cir. 2020). We

must then examine “cases of controlling authority in [this] jurisdiction—that is, decisions

of the Supreme Court, this court of appeals, and the highest court of the state in which the

case arose,” to determine whether a reasonable officer would be on notice that his actions

violate the law. Booker v. S.C. Dep’t of Corr.,

(4th Cir. 2017) (cleaned

up). We may also “look to a consensus of cases of persuasive authority from other

jurisdictions, if such [a consensus] exists.”

(cleaned up). If the plaintiff can’t

identify any controlling authority, or any such consensus, the right isn’t clearly

established. Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst,

,

908–09 (4th Cir. 2016).

Of course, the facts of such cases need not be identical. Officers “can still be on

notice that their conduct violates established law even in novel factual circumstances.”

Hope v. Pelzer,

(2002). But even so, the law must be “sufficiently

clear that every reasonable official would have understood that what he is doing violates

that right.” Ashcroft v. al-Kidd,

, 741 (2011) (cleaned up); see also

Maciariello v. Sumner,

, 298 (4th Cir. 2002) (“Officials are not liable for bad

guesses in gray areas; they are liable for transgressing bright lines.” (cleaned up)).

32 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 33 of 37

Lewis’s challenge fails at the second prong: he hasn’t specified a clearly

established right. The majority defines the right at issue as “a non-dangerous, non-

actively resistant, ‘at least partially subdued,’ arrestee’s right to be free from excessive

force in the form of head strikes.” Maj. Op. at 22 (quoting Caraballo,

, at *6). While I agree that a subdued arrestee has a clearly established right to

be free from excessive force, that’s not this case.

To start, I question the premise that an arrestee may be merely “partially subdued.”

Either a suspect is subdued, or he’s not. Otherwise, how is an officer to determine

whether force is or isn’t authorized?

But most importantly, the cases the majority cites concern subdued arrestees, so I

can’t agree that they put Caraballo on notice that his use of force was excessive. Take

Kane v. Hargis,

(4th Cir. 1993). There, we held that it was unreasonable

for a police officer to use force against an arrestee half his size after he pinned her to the

ground.

. But unlike here, nothing in Kane suggests that the arrestee

continued to struggle or was only “partially” subdued. So I disagree that Kane would put

Caraballo on notice that he couldn’t use force against Lewis.

Likewise, in Valladares v. Cordero, we held that it was unreasonable for a police

officer to slam a 15-year-old arrestee’s head into a car after the arrestee “surrendered.”

(4th Cir. 2009). But there, taking the facts in the light most favorable

to the arrestee, we found that the arrestee was under the officer’s “full control” when the

officer broke his jaw.

Indeed, the officer was even able to pick the arrestee off the

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ground, and “neither party testifie[d] that [the arrestee] resisted being lifted up.”

That

moment then “signifie[d] a point of surrender.”

By contrast here, Lewis was not under Caraballo’s “full control” when Caraballo

struck him in the head. As the majority explains, Lewis was only “partially subdued

while kneeling on the ground under the officers’ weight.” Maj. Op. at 24 (emphasis

added). So unlike in Valladares, there was no clear “point of surrender.”

.

Caraballo thus wasn’t on notice that using force to subdue Lewis would violate his

constitutional rights.

I agree that it was 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.” Estate of Jones, 961 F.3d at 668–69. But here, Lewis wasn’t “secured.”

Perhaps Caraballo’s use of force was less reasonable than the officer’s in

Valladares, since unlike in that case, Lewis never attacked Caraballo. See Maj. Op. at

24–25; cf. Valladares,

. But those circumstances go to whether

Caraballo’s use of force was reasonable, rather than whether Lewis’s proffered right was

clearly established.

Neither Lewis nor the majority have identified a published case involving the use

of force against a “partially subdued” arrestee, nor pointed to any other “consensus of

cases of persuasive authority.” See Booker,

(cleaned up). So even if

Caraballo’s use of force was unreasonable, I can’t agree that it violated Lewis’s clearly

established right.

34 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 35 of 37

II.

Lewis also argues that it was clearly established that Caraballo couldn’t employ

“repeated punches to the head with great strength” to arrest Lewis. Appellee’s Br. at 44.

The majority doesn’t reach this argument, since it holds that Caraballo violated Lewis’s

other proposed clearly established right. In my view, this argument also fails.

Lewis’s alternative right suffers the same infirmity as his first proposed right: he

can’t identify an analogous controlling case or a consensus of persuasive authority. He

offers Thomas v. Holly, where we wrote that the officers’ head strikes could have

amounted to deadly force and were thus unreasonable. See

(4th

Cir. 2013) (per curiam). But Thomas is unpublished, so it wouldn’t put a reasonable

officer on notice that the use of head strikes to subdue a resisting arrestee is excessive.

See Booker, 855 F.3d at 542–43 (“[B]ecause . . . unpublished opinions ‘are not even

regarded as binding precedent in our circuit,’ . . . they ‘cannot be considered in deciding

whether particular conduct violated clearly established law for purposes of adjudging

entitlement to qualified immunity.’”) (quoting Hogan v. Carter,

(4th

Cir. 1996) (en banc))).

Lewis claims that even if there’s no binding Fourth Circuit precedent, a

“consensus of cases of persuasive authority” from other circuits clearly establishes the

right. See

(cleaned up). But most of the cases he cites involved more than just hand

strikes, or are otherwise inapposite. See Gambrel v. Knox County,

(6th

Cir. 2022) (officer struck suspect with flashlight or “similar blunt object”); Zion v. County

35 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 36 of 37

of Orange,

(9th Cir. 2017) (officer stomped on suspect’s head after

shooting him); Davis v. City of Las Vegas,

(9th Cir. 2007) (officer

punched handcuffed suspect in the face, while he lay face down on the ground, after

throwing him head-first into a wall multiple times); Davenport v. Causey,

,

552–53 (6th Cir. 2008) (officer’s use of deadly force against suspect was justified

because suspect had hit officer in the head, and suspect’s “closed-fisted blows may

constitute deadly force” (cleaned up)).

Lewis’s strongest case is Sallenger v. Oakes, where the Seventh Circuit found that

a closed-fist blow to the plaintiff’s head could be deadly force and was thus unreasonable.

(7th Cir. 2007). Even so, one case isn’t a “consensus” and couldn’t put

Caraballo on notice that his use of force was unreasonable. So this proposed right fails

too.

III.

Though I disagree with the majority on the clearly established prong of the

qualified immunity inquiry, I concur that, taking the facts in the light most favorable to

Lewis, Caraballo wouldn’t be entitled to Maryland statutory immunity under the

Maryland Tort Claims Act. See

(b). Whether

an officer is entitled to such immunity is typically a question for the jury. Henry v.

Purnell,

(4th Cir. 2011) (en banc) (citing Taylor v. Harford Cnty. Dep’t

of Soc. Servs.,

(Md. 2004)).

36 USCA4 Appeal: 22-2115 Doc: 43 Filed: 04/15/2024 Pg: 37 of 37

Here, a jury could find that Caraballo subjected Lewis to excessive force under the

Maryland Declaration of Rights. See Randall v. Peaco,

(Md. Ct. Spec.

App. 2007) (holding that the standard for analyzing excessive force claims under

Maryland state law is the same for analyzing Fourth Amendment claims (cleaned up)).

And because there remain disputes of material fact about whether Caraballo acted with

either gross negligence or malice, I would affirm the district court’s denial of summary

judgment on Lewis’s state-law claims.

IV.

Officer Caraballo’s use of force may have been unreasonable. But at the time of

the incident, it wasn’t clearly established that Caraballo couldn’t use head strikes to

subdue Lewis. And if Lewis was only partially subdued—i.e., not fully subdued—no

case would have put Caraballo on notice that the force he did use was excessive.

I respectfully dissent on the qualified immunity issue.

37