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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
ROBERT CLEM,
Plaintiff-Appellee,
v.
S. CORBEAU,
Defendant-Appellant,
and No. 01-1799
COUNTY OF FAIRFAX, VIRGINIA; J.
THOMAS MANGER, individually and
as chief of Police of Fairfax
County; E. NELSON, individually and
as Police Officer of Fairfax County,
VA,
Defendants.
------------------------------------------------*
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-00-1684-A)
Argued: January 24, 2002
Decided: March 25, 2002
Before MOTZ, KING, and GREGORY, Circuit Judges.
____________________________________________________________
Affirmed in part and dismissed in part by published opinion. Judge
Motz wrote the opinion, in which Judge King and Judge Gregory
joined.
____________________________________________________________
COUNSEL
ARGUED: Cynthia Lee Tianti, Assistant County Attorney, Fairfax,
Virginia, for Appellant. Brien Anthony Roche, JOHNSON &
ROCHE, McLean, Virginia, for Appellee. ON BRIEF: David P.
Bobzien, County Attorney, Robert Lyndon Howell, Deputy County
Attorney, Fairfax, Virginia, for Appellant.
____________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
This appeal arises from a telephone call that Aster Clem made from
her Fairfax County, Virginia home to the local police department,
asking for help with her 58-year old husband, who suffers from
dementia, depression, and various physical problems. Mrs. Clem told
the police dispatcher that Mr. Clem had stopped taking the medication
prescribed for his mental illnesses and that his condition was poor: he
had been urinating on himself and the floor, dropping lit cigarettes on
the carpet, not eating for three days, and refusing to see his doctor,
move, or "do anything." Officers Shannon Corbeau and Eric Nelson
responded to the dispatch call, arriving simultaneously at the Clems'
home. Within a short time after their arrival each officer had sub-
jected Mr. Clem to pepper spray, and Officer Corbeau had shot Mr.
Clem three times, severely injuring him; neither officer suffered any
injury.
Subsequently, Mr. Clem filed this action, alleging that the individ-
ual officers had used excessive force in violation of his constitutional
rights and state tort law, and that Fairfax County and its police chief
had failed to provide the officers with adequate training and supervi-
sion. The district court granted summary judgment to the County, the
police chief, and Officer Nelson on all claims, but denied summary
judgment to Officer Corbeau on one excessive force claim and the
state law claims. We affirm in part and dismiss in part.
I.
Aside from the skeletal account set forth above, the parties sharply
disagree about virtually all relevant facts. The following summary
2
generally sets forth the facts in the light most favorable to the non-
moving party, here Mr. Clem. See Winfield v. Bass, 106 F.3d 525, 534
(4th Cir. 1997) (noting that an appellate court must consider "the
actual evidence presented viewed in the light most favorable to the
nonmoving party" when, as here, the appealing official asserts that the
district court ignored undisputed material facts dictating entitlement
to qualified immunity). However, we have also included some facts
that Clem disputes in order to provide a better understanding of the
controversy.
After the dispatcher received Mrs. Clem's call on November 9,
1998, he issued a message asking patrol officers near the Clem home
to render assistance, characterizing the call as a "mental." Officers
Corbeau and Nelson arrived at the Clems' small split-level home
simultaneously. They were met at the front door by Paulos Yacob, a
nephew who was there to assist in persuading Mr. Clem to see his
doctor. Yacob gave the officers further information about Mr. Clem's
condition and led them upstairs to the small breakfast nook where the
Clems were sitting.
It was apparent to both officers that Mr. Clem was mentally ill,
and, in Officer Corbeau's words, "out of it." (Mr. Clem has no mem-
ory of what took place during the police response; the account that
follows depends on the testimony of other witnesses and on available
physical evidence.) The officers recall that Mr. Clem's appearance
was "unkempt," and that he sat at the breakfast table smoking, with
his head down, staring blankly at the floor. At one point a cigarette
dropped from Clem's fingers onto the carpet, where he let it lie until
it was stamped out by Officer Nelson. Both officers testified that they
observed no bulges in Clem's pockets or waistline nor anything in his
open shirt indicating the presence of a weapon. In short, Clem was
neither responsive nor threatening but, in Officer Corbeau's words,
"real calm."
The officers began talking with Mrs. Clem and Yacob, and after a
few minutes were able to attract Mr. Clem's attention. At first Mr.
Clem seemed open to persuasion and agreed to go see his doctor.
Judging that the situation was under control, Officer Nelson radioed
the dispatcher "to say no other units are needed." As Mr. Clem kept
talking, however, he apparently began to change his mind. He may
3
also have become confused - the officers remember him making
incoherent or nonresponsive statements. He complained that his chest
was hurting, and that the doctors would not be able to help him.
Shortly, Mr. Clem became agitated.
Officer Corbeau maintains that Clem patted his pocket and threat-
ened Corbeau, saying "I got something right here that can kill you."
But no one else present in the small breakfast nook - Mrs. Clem,
Yacob, and Officer Nelson - recalls hearing this statement. Mrs.
Clem has testified that her husband neither made any threat nor said
he had anything in his pocket. Officer Nelson asserts that Clem did
"reach[ ] for his pocket, feeling it," but that "[t]here was nothing
there." Indeed, Officer Nelson further testified that "[t]hroughout the
period of time that [he] w[as] in the Clem home" he was "satisfied
that Robert Clem did not have a weapon." As the conversation contin-
ued, Mr. Clem went "red in the face" and stood up, raising his empty
hands. According to Corbeau, Clem again verbally threatened him;
but the other witnesses testify that they heard no threat. Mrs. Clem
remembers, instead, that Officer Corbeau had provoked her husband
by "standing right in front of him and . . . yelling at him," insisting
that he go to his doctor.
At this point, Officer Corbeau discharged a cloud of pepper spray
that struck Mr. Clem and, both officers agree, quickly disabled him.
According to Corbeau, Clem "backed up rather quickly" and "grabbed
his eyeballs." Nelson testified that Clem was "disabled" and "dismay-
[ed]," "feeling the effects" of the pepper spray; Clem made a "moan-
ing sound or groaning," and "motion[ed] about his eyes, grabbing his
face." Mr. Clem, Officer Nelson testified, was "not being aggressive
to anyone."
Officer Nelson then went to assist Mrs. Clem and Yacob, who had
also been struck by some of the pepper spray. He led the two of them
out of the breakfast area, and through the living room and down a
hallway to the bathroom, where they could wash off the pepper spray.
Nelson then descended a flight of stairs, leaving his partner alone on
the second floor with Mr. Clem, and poked his head outside to spit
the taste of pepper spray into the street. He called for medical assis-
tance and a supervisor, but did not warn of any danger or ask for any
backup.
4
When Officer Nelson finished the call, about two minutes after the
spraying, he walked back up the stairs and found Mr. Clem in the liv-
ing room. Before long, Clem began to recover from the pepper spray
and began cursing at and walking toward Nelson; the officers agree
that Clem's hands were open and out in front of his body. The officers
have described Mr. Clem's movements variously as "grabbing,"
"flailing," and "waving his arms around." Nelson backed a few feet
away from Clem, and, when Clem continued walking, Nelson hit him
in the face with a sustained stream of pepper spray lasting several sec-
onds.
According to Corbeau, who was watching from a few feet away,
Clem turned away from Nelson immediately. And, both officers
agree, Clem made either "no contact" at all or just "brushed" Nelson's
arm. Nelson contends that the pepper spray had no effect on Clem,
but offers no other explanation as to why Clem stopped moving
toward him; indeed, Nelson testified that although he did not punch,
push, or otherwise physically force Clem, nevertheless Clem did turn
away. As soon as he turned, Clem went around a table in the middle
of the room, toward the hallway that led to the bathroom. Mrs. Clem,
who was still in the bathroom, heard her husband breathing with great
difficulty, as though the pepper spray had constricted his nose and
throat.
At this moment Officer Corbeau, still watching Mr. Clem and Offi-
cer Nelson, stood near the head of the hallway with his 26-inch, metal
baton fully extended in his left hand. Corbeau maintains that he told
Clem to "get back" and that Clem only snarled and threatened him.
Mrs. Clem, just a few feet from Corbeau, recalls no such warning
from Corbeau, or threat from Mr. Clem - only that her husband was
making a noise that sounded like "hah, hah, hah" as a result of his
breathing difficulty. Officer Corbeau then backed about four feet
down the 15-foot hallway until he was even with the (open) bathroom
door. Although Corbeau now asserts that Clem rapidly "charged"
him, both officers originally told police investigators that Mr. Clem
was "not running," but rather "stomping" forward in a "very odd"
manner like a "robot," with his hands open and waving in front of
him, movements consistent with his recent subjection to pepper spray.1
____________________________________________________________
1 All of the witnesses have given several accounts of these events, some
to police investigators and others during litigation, and on a number of
5
Mrs. Clem and Yacob, who were still in the bathroom, saw Cor-
beau come into view in the hall through the bathroom doorway. They
next saw Officer Corbeau unholster his duty weapon, place the
weapon in his right hand, and, without telling Mr. Clem that he must
stop or be shot, fire down the hallway three times in quick succession
directly at Mr. Clem. One bullet went through Mr. Clem's leg; two
more lodged in his intestines.
Officer Nelson, who was less than five feet behind Mr. Clem when
the shots were fired, testified that he was "shocked" and "surprised"
by the shooting. It is undisputed that Officer Nelson's immediate
reaction was to call out: "No!" Nelson had been following Clem,
more or less keeping pace but a few steps behind him. Nelson had not
unholstered his own weapon, and apparently did not expect his part-
ner to do so, either; his pursuit took him directly into Corbeau's line
of fire, and Nelson was fortunate not to be hit by an errant round. Nei-
ther he nor Officer Corbeau was injured in any way, and no weapons
were found on or around Mr. Clem.
On September 1, 2000, Mr. Clem filed suit in state court, alleging
that Officers Corbeau and Nelson had used unconstitutionally exces-
sive force when they subjected him to pepper spray and that Corbeau
had also done so when he shot Clem three times. In addition, Clem
alleged that Fairfax County and its police chief should be held liable
for failure to provide adequate training and supervision. Finally, he
brought state law claims for gross negligence, assault, and battery.
After the defendants removed the case to federal court, Clem
moved for partial summary judgment with respect to his claims
against Officer Corbeau, and the defendants moved for summary
judgment on all claims. The district court granted summary judgment
to the County, the police chief, and Officer Nelson on all claims. The
____________________________________________________________
points contradict themselves. A conflict between an investigator's notes
and a sworn statement does not present the situation discussed in Rohr-
bough v. Wyeth Labs, Inc., 916 F.2d 970, 976 (4th Cir. 1990) (ruling that
district court was "justified" when it disregarded a sworn statement con-
flicting with an earlier sworn statement), but a fact finder could certainly
consider such a conflict in assessing a witness's credibility.
6
court granted Officer Corbeau summary judgment on the claim that
his use of pepper spray constituted excessive force, but denied sum-
mary judgment to both Mr. Clem and Officer Corbeau on the exces-
sive force claim that arose from the shooting. Only Officer Corbeau
appeals. We now consider his contention that he is entitled to quali-
fied immunity with respect to Clem's excessive force shooting claim,
but dismiss his interlocutory appeal of denial of summary judgment
on Clem's state law claims.2
II.
The Supreme Court recently clarified that in excessive force cases,
as in all other cases, entitlement to qualified immunity must be ana-
lyzed in two steps, which are to be "considered in proper sequence."
See Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 2155 (2001). As
a "threshold question," a court must ask whether, "[t]aken in the light
most favorable to the party asserting the injury, . . . the facts alleged
show [that] the officer's conduct violated a constitutional right." Id.
at 2156. If the answer is "no" then the analysis ends; the plaintiff can-
not prevail. Id.
____________________________________________________________
2 The order denying Corbeau's motion for summary judgment on the
excessive force claim is immediately appealable because it involves
rejection of a qualified immunity defense, which would be "effectively
lost" if the case were "erroneously permitted to go to trial," and so is a
final decision under the collateral order doctrine. See Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). On interlocutory appeal, however, our juris-
diction is limited to legal issues, e.g., "whether uncontroverted conduct
represented the use of excessive force," Elliott v. Leavitt, 99 F.3d 640,
644 (4th Cir. 1996), or "whether the federal right allegedly infringed was
`clearly established.'" Behrens v. Pelletier, 516 U.S. 299, 313 (1996)
(citation omitted). Assuming that we have pendent appellate jurisdiction
of the order denying summary judgment on the state law claims, but see
Swint v. Chambers County Comm'n, 514 U.S. 35 (1995), the decision to
exercise such jurisdiction is purely discretionary. DiMeglio v. Hines, 45
F.3d 790, 808 (4th Cir. 1995). "[T]aking into consideration the factors of
judicial economy, injudicious intermeddling, and justice in the disposi-
tion," id. (internal quotation marks and citation omitted), we decline to
exercise that jurisdiction here, and so dismiss Corbeau's appeal from the
order denying him summary judgment on Clem's state law claims.
7
If the answer is "yes," then "the next, sequential step is to ask
whether the right was clearly established" at the time of the events at
issue. Id. This determination must be made "in light of the specific
context of the case, not as a broad general proposition." Id. If the right
was not "clearly established" in the "specific context of the case" -
that is, if it was not "clear to a reasonable officer" that the conduct
in which he allegedly engaged "was unlawful in the situation he con-
fronted" - then the law affords immunity from suit. Id. Accordingly,
the answer to both Saucier questions must be in the affirmative in
order for a plaintiff to defeat a defendant police officer's motion for
summary judgment on qualified immunity grounds.
A.
We turn, then, to the initial question: whether,"[t]aken in the light
most favorable to the party asserting the injury," i.e. Clem, "the facts
alleged show that" Officer Corbeau's "conduct violated a constitu-
tional right." Saucier, 121 S. Ct. at 2156. Clem maintains that the
facts outlined above, considered in the light most favorable to him,
demonstrate that Officer Corbeau violated his Fourth Amendment
right to be free from the use of excessive force by police officers in
effecting an arrest or other seizure.
Indisputably, the Fourth Amendment prohibition on unreasonable
seizures bars police officers from using excessive force against a free
citizen, like Clem. See Graham v. Connor, 490 U.S. 386, 395 (1989).
Whether an officer has used excessive force is judged by a standard
of objective reasonableness. Id. at 396-97. We do not inquire into an
officer's motives, intentions, or tendencies, and instead determine
"whether a reasonable officer in the same circumstances would have
concluded that a threat existed justifying the particular use of force."
Elliott, 99 F.3d at 642 (citing Graham, 490 U.S. at 396-97).
Because this test requires us to determine the reasonableness of an
officer's actions, it is "not capable of precise definition or mechanical
application," Bell v. Wolfish, 441 U.S. 520, 559 (1979), but rather "re-
quires careful attention to the facts and circumstances of each particu-
lar case." Graham, 490 U.S. at 396. Recognizing that "police officers
are often forced to make split-second judgments - in circumstances
that are tense, uncertain, and rapidly evolving" - we take care to
8
consider the facts from the perspective of a reasonable officer on the
scene, and avoid judging the officer's conduct with the "20/20 vision
of hindsight." Id. at 396, 397. We must determine "whether the total-
ity of the circumstances justifie[s]" the use of deadly force given all
the circumstances of the case before us. Tennessee v. Garner, 471
U.S. 1, 8-9 (1985), quoted with approval in Graham, 490 U.S. at 396;
see also Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994) (stating
that courts must avoid making "[a]rtificial divisions in the sequence
of events," and should instead view the evidence "in full context, with
an eye toward the proportionality of the force in light of all the cir-
cumstances").
In doing so, we must carefully balance "the nature and quality of
the intrusion on an individual's Fourth Amendment interests against
the countervailing governmental interests at stake." Graham, 490 U.S.
at 396 (internal quotation marks and citation omitted). When deadly
force is at issue, the Supreme Court has long recognized that the
intrusion on Fourth Amendment rights is "unmatched." Garner, 471
U.S. at 9 ("The intrusiveness of a seizure by means of deadly force
is unmatched."). Such force is therefore justified only where a reason-
able officer would have "sound reason to believe that a suspect poses
a threat of serious physical harm to the officer or others." Elliot, 99
F.3d at 642 (citation omitted); see also Garner, 471 U.S. at 11 (stating
that the Constitution does not permit "the use of deadly force" against
a person who "poses no immediate threat to the officer and no threat
to others").
Officer Corbeau contends that the undisputed facts establish that a
reasonable police officer in his position would have had sound reason
to believe that Clem was armed or otherwise sufficiently dangerous
to justify the use of deadly force. Review of the record evidence sum-
marized above, however, renders this contention untenable. Unques-
tionably, Clem has proffered evidence, which, if credited, would lead
to the conclusion that a reasonable police officer could not have
believed him to be in possession of a weapon, or otherwise to pose
a threat of serious harm to anyone at the time of the shooting. To be
sure, Officer Corbeau has proffered contrary evidence. But the
Supreme Court has expressly directed that in determining whether a
plaintiff has stated the violation of the constitutional right to be free
from excessive police force, the facts are to be"[t]aken in the light
9
most favorable to the party asserting the injury," Saucier, 121 S. Ct.
at 2156, and here that party is Clem.
Although Corbeau claims to accept Saucier as the governing stan-
dard, much of his appellate argument is based on ignoring it. For
example, Corbeau points only to two disputed assertions in maintain-
ing that a reasonable officer could have believed that Clem was armed.3
First, he relies on his testimony that Clem patted his pocket in the
breakfast nook and claimed to have something that could "kill you."
But Mrs. Clem, who was also in the breakfast nook at the time, denies
hearing any such threat, or indeed, any reference to anything in her
husband's pocket. Officer Nelson, for his part, testifies that Mr. Clem
did not make any threat to kill Corbeau or anyone else, and that,
although Clem patted his pocket, "[t]here was nothing there." Second,
Corbeau asserts that while he was en route to the Clem home he
received a radio message informing him that Clem had threatened his
wife with a knife five weeks earlier. But Corbeau himself concedes
that any such report was erroneous (Clem never threatened his wife
and, in fact she had persuaded him to get in the car to go to the hospi-
tal before police arrived) and that Nelson, who had answered the ear-
lier call, "may have" informed Corbeau of the truth before the officers
ever entered the Clem house on November 9, 1998. Thus, the only
evidence that Corbeau cites in support of his contention that he rea-
sonably perceived Clem to be armed on that date is disputed.
Moreover, whatever Corbeau thought he heard Clem say and what-
ever he understood about the earlier incident, there is considerable
evidence that a reasonable officer in Corbeau's position could not
have perceived that Clem was, in fact, armed on November 9. For
example, Nelson - and Corbeau himself - have testified that on that
____________________________________________________________
3 We also note that Officer Corbeau's litigating position is at odds with
the statements he made to police investigators in the months immediately
after the shooting. In the course of two separate interviews, Corbeau was
asked why he had shot Clem and did not say he had done so because
Clem was, or could have been, armed. Later, Corbeau reviewed a tran-
script of the second of these interviews and, with his signature, attested
to the truthfulness and accuracy of the answers therein. Corbeau made
his first contention to the contrary more than a year and a half later, after
this litigation began.
10
day they spent several minutes close to Clem in the small breakfast
nook and saw nothing to even suggest that Clem was armed - no
bulges in his pockets or waistline, nor anything in his open shirt. And
during the crucial moments immediately before the shooting, again
both Nelson and Corbeau have testified that Clem's hands were obvi-
ously empty, and that Clem never reached into his pockets or cloth-
ing. Indeed, notwithstanding Corbeau's litigating position, Officer
Nelson has testified that "throughout" the encounter in the Clem home
on November 9 he was "satisfied that Robert Clem did not have a
weapon."4
Alternatively, Corbeau contends that even if a reasonable officer
could not have believed that Clem was armed, such an officer never-
theless could have believed that Clem posed an immediate threat of
bodily harm. This contention suffers from the same flawed approach
as his initial argument. Corbeau again purports to rely on uncontro-
verted facts, when, in reality, the relevant facts are hotly disputed.
Thus, Corbeau contends in his appellate brief that it is "undisputed"
____________________________________________________________
4 The facts here, therefore, viewed in the best light for Clem, present
a very different case than one in which "the evidence conclusively estab-
lished" that the officers on the scene "perceived" the person shot "to be
armed." See, e.g., Anderson v. Russell, 247 F.3d 125, 130 (4th Cir. 2001).
For this reason, Corbeau's reliance on Sigman v. Town of Chapel Hill,
161 F.3d 782 (4th Cir. 1998), is misplaced. As we recently explained,
Sigman "addressed a situation in which officers had uncontroverted evi-
dence of a suspect's dangerousness and knew that the suspect was armed
and was behaving violently within a residence." Rogers v. Pendleton,
249 F.3d 279, 292 (4th Cir. 2001) (emphasis added). In that context, the
Sigman court "held that the statements of persons who claimed to have
observed, from a cheering mob on the other side of the street, that the
suspect was unarmed did not create a triable issue of material fact where
the officers closest to the encounter unanimously . . . perceived the sus-
pect to be armed." Id. (emphasis added and citation omitted). Here there
is no "uncontroverted evidence" that Clem was armed or "unanimously
perceived to be armed" by officers on the scene; indeed, Corbeau's pres-
ent account is disputed not only by Clem's wife and nephew, who were
close at hand and not across the street, but also by Corbeau's fellow offi-
cer, Nelson, and even by some statements made by Corbeau himself.
And, unlike in Sigman, no weapon was found on or near Mr. Clem after
the shooting.
11
that "multiple" uses of pepper spray did "not deter[ ]" Clem, and that,
after being sprayed, the "much larger" Clem rapidly "charg[ed]" Cor-
beau, leaving Corbeau no choice but to shoot.
But actually each of these points is disputed. As for the effective-
ness of the pepper spray, Corbeau himself told police investigators
that after the first dose, Clem "grabbed his eyeballs" and "backed up";
Officer Nelson agreed that Clem was "disabled" and "feeling the
effects" of pepper spray, "moaning," "grabbing his face" and "not
being aggressive." The officers' accounts of Mr. Clem's movements
in the living room, after the second spraying, suggest that Clem was
affected again. Certainly, neither officer has offered any other expla-
nation of why Clem turned away from Nelson, without making con-
tact, "as soon as he got maced." With regard to Clem's size
advantage, although Clem was larger than Corbeau (6'0" and 220
pounds versus 5'10" and 175 pounds), there is a dispute as to whether
Clem could have appeared threatening to a reasonable officer in the
position of Corbeau. Clem was 58 years old, assertedly blinded and
gagging from pepper spray, and known to the officers to be mentally
ill and a heavy smoker who had refused to move or eat for days; Cor-
beau, in sharp contrast, was a 28-year old, recently discharged Marine
with a 26-inch metal baton in hand and Clem in front of him. Finally,
as to Clem's rapid "charging" of Corbeau, police investigators who
questioned the officers after the incident testified that both Corbeau
and Nelson initially characterized Clem as "not running" but as
"step[ping]" in an awkward manner.
In sum, viewed in the light most favorable to Clem, the evidence
is that Corbeau shot a mentally disabled, confused older man, obvi-
ously unarmed, who was stumbling toward the bathroom in his own
house with pepper spray in his eyes, unable to threaten anyone. Of
course, Clem ultimately may not be able to prove these facts, but, if
he can, it would require no improper second-guessing, or the applica-
tion of "20-20 . . . hindsight," to conclude that Officer Corbeau vio-
lated Mr. Clem's Fourth Amendment right to be free from excessive
police force. Graham, 490 U.S. at 396.
B.
Having determined that Clem has alleged a violation of a constitu-
tional right, we must now proceed to the second sequential step of the
12
Saucier analysis - determination of whether Officer Corbeau is
nonetheless entitled to qualified immunity from suit.
Again, the standard is one of objective reasonableness: "whether a
reasonable officer could have believed [the conduct at issue] to be
lawful, in light of clearly established law and the information the
. . . officers possessed." Anderson v. Creighton, 483 U.S. 635, 641
(1987). In other words, we must ascertain whether in using excessive
force the officer made a "reasonable mistake[ ] as to the legality of
[his] actions." Saucier, 121 S. Ct. at 2159. We may assume that Cor-
beau subjectively believed that the force he used was not excessive;
that, however, is not the question. The question is "whether it would
be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted." Id. at 2153. Applied in this manner, the test
"operates . . . to ensure that before they are subjected to suit, officers
are on notice their conduct is unlawful." Id. at 2158 (internal quota-
tion omitted).
To carry out this analysis, we must consult relevant case law to
determine whether a closely analogous situation had been litigated
and decided before the events at issue, making the application of law
to fact clear. See Wilson v. Layne, 526 U.S. 603, 617 (2000). In doing
so, however, we must also keep in mind the Supreme Court's warning
that this is not a mechanical exercise, and that the test is not whether
"the very action in question has previously been held unlawful," but
rather, whether pre-existing law makes the unlawfulness of an act
"apparent." Anderson, 483 U.S. at 640.
Accordingly, a constitutional right is clearly established for quali-
fied immunity purposes not only when it has been "specifically adju-
dicated" but also when it is "manifestly included within more general
applications of the core constitutional principle invoked." Buonocore
v. Harris, 65 F.3d 347, 357 (4th Cir. 1995) (quoting Pritchett v.
Alford, 973 F.2d 307, 314 (4th Cir. 1992)). Thus, "when `the defen-
dants' conduct is so patently violative of the constitutional right that
reasonable officials would know without guidance from the courts'
that the action was unconstitutional, closely analogous pre-existing
case law is not required to show that the law is clearly established."
Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994) (quoting Cast-
eel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993)). To hold otherwise
13
would allow an officer who understood the unlawfulness of his
actions to escape liability simply because the instant case could be
distinguished on some immaterial fact, or worse, because the illegal-
ity of the action was so clear that it had seldom before been litigated.
See, e.g., K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir.
1990).
In the case at hand, Clem has profferred evidence that Officer Cor-
beau shot and severely injured him, even though a reasonable police
officer in Corbeau's position would have perceived Clem to be
unarmed, blinded, and stumbling, in no condition to pose any threat
to the officer. On this set of facts, the law in 1998 provided clear
guidance to a police officer that he was not free to use deadly force.
Certainly, it was well established, as the district court found, that
Clem had a right "to be free from the use of deadly force absent a
belief by the officer that [he] pose[d] a threat of serious physical
harm." Clem v. County of Fairfax, 150 F. Supp. 2d 888, 893 (E.D. Va.
2001) (citing Garner, 471 U.S. at 11; Elliott, 99 F.3d at 642-43; Foote
v. Dunagan, 33 F.3d 445 (4th Cir. 1994); McLenagan v. Karnes, 27
F.3d 1002, 1007 (4th Cir. 1994); Slattery v. Rizzo, 939 F.2d 213, 216
(4th Cir. 1991)).5 Speaking with somewhat more specificity, the
Supreme Court had expressly stated thirteen years before that "deadly
force" may not be used by a "police officer . . . [to] seize an unarmed
____________________________________________________________
5 Although the district court properly relied on Garner and our prece-
dents to reach the above holding, the court later incorrectly observed that
"police officers cannot use deadly force against a mentally ill person who
is neither armed nor reasonably perceived to be armed, and who has
committed no crime, merely because of a fear that the person might take
the officer's weapon." Clem, 150 F. Supp. 2d at 895. Actually, the law
is clear that a reasonable officer is sometimes authorized to use deadly
force against an unarmed, mentally ill person, i.e., when the officer has
a "sound reason to believe" that such a person "poses a serious threat to
[his] safety or the safety of others." Elliott, 99 F.3d at 644. The district
court also erroneously suggested that Corbeau's subjective "actual belief
at the time of the shooting" had some relevance in determining his enti-
tlement to qualified immunity. See Clem, 150 F. Supp. at 895. In fact, an
officer's entitlement to qualified immunity depends not on his subjective
beliefs but rather on "the objective (albeit fact-specific) question whether
a reasonable officer could have believed [the relevant conduct] to be law-
ful." Anderson, 483 U.S. at 641 (emphasis added).
14
nondangerous suspect." Garner, 471 U.S. at 11. In this case, of
course, there can be little doubt that Clem has offered evidence that
he was "nondangerous" and that firing three shots at close range was
an application of force that could have killed him. Therefore, on the
basis of Garner alone, (which the Supreme Court decided in 1985),
we would have to conclude that the constitutional right at issue in this
case was "clearly established" in November 1998.
We also note, however, that no post-Garner case even suggests to
the contrary, and that several courts applied Garner years before 1998
to deny qualified immunity when officers used deadly force to arrest
assertedly unarmed and non-threatening persons inside their homes.
See McKinney ex rel. McKinney v. DeKalb County, 997 F.2d 1440,
1443 (11th Cir. 1993); Samples ex rel. Samples v. City of Atlanta, 846
F.2d 1328 (11th Cir. 1988); see also Cooper v. Merrill, 736 F. Supp.
552, 559-61 (D. Del. 1990). The lack of more cases with similar facts
is due to the clarity, rather than the ambiguity, of the Garner rule.
Indeed, in this circuit, we have found only one case in which an offi-
cer sought qualified immunity on facts like those alleged by Clem,
and there we concluded that the officer's appeal of the denial of quali-
fied immunity was so lacking in novelty as not to merit publication.
See Haddaway v. Ellerbusch, 996 F.2d 1211, 1993 WL 238997 (4th
Cir. June 30, 1993) (affirming denial of immunity to an officer who,
when responding to 911 call, allegedly shot a large woman with his-
tory of violent behavior, who was "angry," holding a pair of scissors,
and standing a few feet from the officer). As the Seventh Circuit has
observed in an analogous situation, the absence of many similar cases
"demonstrates nothing more than widespread compliance with well-
recognized constitutional principles." Eberhardt v. O'Malley, 17 F.3d
1023, 1028 (7th Cir. 1994).
Well before 1998 it was clearly established that a police officer
could not lawfully shoot a citizen perceived to be unarmed and non-
dangerous, neither suspected of any crime nor fleeing a crime scene.
The decision to use deadly force in these circumstances simply does
not lie near the "hazy border between excessive and acceptable force,"
and any mistaken belief to the contrary would not have been reason-
able. Saucier, 121 S. Ct. at 2158 (citation and internal quotation
marks omitted). Accordingly, Officer Corbeau is not entitled to quali-
fied immunity, as a matter of law, on the present record.
15
III.
For the foregoing reasons, we affirm the district court's denial of
summary judgment on the excessive force claim, and dismiss the
appeal from the portion of the district court's order denying summary
judgment on the state law claims.
AFFIRMED IN PART AND DISMISSED IN PART
16