Major Maurice Anderson v. David Russell

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MAJOR MAURICE ANDERSON,
Plaintiff-Appellant,
v.
DAVID RUSSELL,
Defendant-Appellee,
and
JOHN DOE, Officer; DAVID MITCHELL, No. 00-1406 Chief of Police; PRINCE GEORGE’S
COUNTY, MARYLAND, a Municipal
Corporation; EQUITY PROPERTY
MANAGEMENT CORPORATION; IPC
INTERNATIONAL CORPORATION; DAVID
PEARSON; FIRST PROPERTY
MANAGEMENT CORPORATION,
Defendants. 

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 MAJOR MAURICE ANDERSON,
Plaintiff-Appellee,
v.
DAVID RUSSELL,
Defendant-Appellant,
and
JOHN DOE, Officer; DAVID MITCHELL, No. 00-1430 Chief of Police; PRINCE GEORGE’S
COUNTY, MARYLAND, a Municipal
Corporation; EQUITY PROPERTY
MANAGEMENT CORPORATION; IPC
INTERNATIONAL CORPORATION; DAVID
PEARSON; FIRST PROPERTY
MANAGEMENT CORPORATION,
Defendants. 
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-93-363-DKC)
Argued: January 24, 2001
Decided: March 29, 2001
Before WILKINSON, Chief Judge, and WIDENER and
WILLIAMS, Circuit Judges.
Affirmed by published opinion. Judge Williams wrote the opinion, in
which Chief Judge Wilkinson and Judge Widener joined.
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COUNSEL
ARGUED: Douglas Alan Datt, GAVETT & DATT, P.C., Rockville,
Maryland, for Appellant. Jay Heyward Creech, Upper Marlboro,
Maryland, for Appellee. ON BRIEF: Rhoda S. Barish, GAVETT &
DATT, P.C., Rockville, Maryland, for Appellant. Sean D. Wallace,
Upper Marlboro, Maryland, for Appellee.
OPINION
WILLIAMS, Circuit Judge:
Major Maurice Anderson brought suit against Officer David Russell,1
claiming violations of 42 U.S.C.A. § 1983 and various state laws aris-
ing from the alleged use of excessive force incident to Anderson’s
seizure. Following a jury verdict in favor of Anderson as to his § 1983
claim, the district court granted Russell’s motion for judgment as a
matter of law with respect to Russell’s qualified immunity defense,
but it denied his motion with respect to the jury’s finding of excessive
force. We conclude that Officer Russell acted reasonably in using
deadly force to protect himself against a perceived immediate and
deadly threat posed by Anderson. Accordingly, we affirm the entry of
judgment in favor of Russell, but on different reasoning than that of
the district court.
1Anderson also included as defendants Officer David Pearson, Prince
George’s County and its police chief, a security services company, and
a mall management company. The district court granted the request of
Prince George’s County and its police chief for bifurcated trials as to
Anderson’s municipal liability claim against them, and the parties later
agreed to dismiss the municipal liability claim. The district court granted
summary judgment on all claims for the remaining defendants, except
with respect to Officer Russell.
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I.
A.
Russell is a Prince George’s County police officer. On December
28, 1991, Russell was providing part time security services at Prince
George’s Plaza mall, along with Officer David Pearson.2
Anderson arrived at the mall at approximately 4:30 in the evening.
He had been drinking wine during the day and purchased another bot-
tle of wine at a store in the mall, which he drank while walking
around the mall.3 Anderson was wearing a black jacket, which was
open. Underneath, he wore three shirts and a sweater. Inside of the
shirts, Anderson had tucked a shoe polish container inside an eye-
glasses case on his left side by his belt. Anderson also was carrying
a portable Walkman radio in his back pocket and was listening to the
radio with earphones, which were covered by a hat.
Russell testified that at approximately 6:00 p.m., a mall patron
approached Russell and informed him that a man appeared to have a
gun under his sweater, pointing to Anderson. Russell spent the next
twenty minutes observing Anderson and saw a bulge under Ander-
son’s clothing on his left side near his waist band that Russell
believed to be consistent with a handgun, corroborating the citizen’s
report.
Russell decided to confront Anderson to attempt to discern whether
Anderson was armed and, if so, what his intentions were. When
Anderson exited the mall, Russell and Pearson followed him.4 Russell
and Pearson approached Anderson with their guns drawn and
instructed him to raise his hands and get down on his knees. While
Anderson initially complied with the order to raise his hands, he later
2The parties stipulated that Russell was acting in his capacity as a
police officer at the time of the incident.
3Anderson admitted to being intoxicated that evening.
4Russell testified that they planned their approach of Anderson to get
him away from the people in the mall and "in a position where other[s]
weren’t in danger." (J.A. at 214.)
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lowered them, without explanation to the officers, in an attempt to
reach into his back left pocket to turn off his Walkman radio. Believ-
ing Anderson was reaching for the reported weapon, Russell shot
Anderson three times. Anderson sustained permanent injuries to his
left arm, left thigh, left tibia, and left fibula as a result of the shooting.
A later search of Anderson’s person and his belongings revealed the
presence of the radio and that he was unarmed.
B.
Anderson filed this case in the Circuit Court for Prince George’s
County. After removal of the case to the United States District Court
for the District of Maryland, the case was tried before a jury.
Russell moved at the close of Anderson’s case and again at the
conclusion of the presentation of all evidence for judgment as a mat-
ter of law as to all claims.5 The district court reserved ruling upon the
motion and submitted the claims to the jury for consideration.
With respect to the § 1983 excessive force claim, the district court
submitted to the jury the questions of whether Russell had used exces-
sive force against Anderson and, if so, whether Russell was entitled
to qualified immunity. The jury found in favor of Anderson on both
questions.6
After return of the jury verdict, Russell renewed his motion for
judgment as a matter of law as to the § 1983 claim pursuant to Federal
Rule of Civil Procedure 50(b), or in the alternative for a new trial pur-
suant to Federal Rule of Civil Procedure 59. Russell argued that the
district court erred by submitting the questions of excessive force and
qualified immunity to the jury because both questions should have
been resolved as matters of law. The district court granted Russell’s
Rule 50(b) motion as to the qualified immunity issue, but it denied the
motion as to the excessive force issue. With respect to the excessive
5The submitted claims were the § 1983 excessive force claim, assault
and battery, false imprisonment, and the availability of punitive damages.
6The jury also found that Russell was not liable for false imprisonment
and determined that punitive damages should not be awarded. It was
unable to reach a unanimous verdict on the assault and battery claim.
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force issue, the district court stated, "the evidence is much, much too
conflicting on whether, in fact, the circumstances presented as a mat-
ter of law made the use of force constitutional." (J.A. at 577.) With
respect to the qualified immunity issue, however, the district court
held that because Russell’s use of force complied with his training,
he was entitled to qualified immunity as a matter of law.
Anderson appeals the district court’s qualified immunity ruling,
while Russell appeals the district court’s excessive force ruling. We
hold that, as a matter of law, Russell’s use of force did not violate the
Fourth Amendment and, therefore, that the § 1983 excessive force
claim should not have been submitted to the jury. Accordingly, we
affirm the entry of judgment as a matter of law in favor of Russell on
Anderson’s excessive force claim.7
II.
A.
We review de novo the grant or denial of a motion for judgment
as a matter of law. See Malone v. Microdyne Corp., 26 F.3d 471, 475
(4th Cir. 1994). In considering a motion for judgment as a matter of
law contrary to the jury’s findings, we construe the evidence in the
light most favorable to the party against whom the motion was made
and ask whether "there is substantial evidence in the record to support
the jury’s findings." Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433
(4th Cir. 1985).
Claims that law enforcement officers used excessive force when
making an arrest "should be analyzed under the Fourth Amendment
and its ‘reasonableness’ standard." Graham v. Connor, 490 U.S. 386,
395 (1989). The standard of review is an objective one. Id. at 397.
7Because we resolve this appeal on the ground that Russell’s use of
deadly force did not violate the Fourth Amendment, we need not resolve
the issue of whether, and to what extent, the reasonableness inquiry with
respect to excessive force and qualified immunity merges. See Saucier
v. Katz, 121 S. Ct. 480 (2000) (granting certiorari on, inter alia, the issue
of whether the reasonableness inquiry merges when analyzing qualified
immunity in an excessive force claim).
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The question is whether a reasonable officer in the same circum-
stances would have concluded that a threat existed justifying the par-
ticular use of force. Id. A police officer may use deadly force when
the officer has "probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or others." Ten-
nessee v. Garner, 471 U.S. 1, 11 (1985). Moreover, "the ‘reasonable-
ness’ of a particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight." Graham, 490 U.S. at 396. A reviewing court must
make "allowance for the fact that police officers are often forced to
make split-second judgments — in circumstances that are tense,
uncertain, and rapidly evolving." Id. at 397. "The court’s focus should
be on the circumstances at the moment force was used and on the fact
that officers on the beat are not often afforded the luxury of armchair
reflection." Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (cita-
tions omitted).
B.
Anderson argues that it was proper for the jury to resolve the issue
of excessive force because reasonable minds could differ as to
whether Russell had probable cause to believe that Anderson posed
a serious threat to Russell. See Tennessee v. Garner, 471 U.S. 1, 11
(1985). Given the uncontroverted evidence as to what Russell per-
ceived immediately before firing, we do not believe that there is a
legally sufficient evidentiary basis for a rational jury to find for
Anderson on the issue of excessive force. Accordingly, we hold that
Russell was entitled to judgment as a matter of law on the excessive
force claim.
We first note that the evidence conclusively establishes that Russell
reasonably perceived Anderson to be armed with a gun. Russell testi-
fied that he believed Anderson to be armed based upon a citizen’s
report that was later corroborated by Russell’s own observation of a
bulge near Anderson’s waistband.8 No evidence was introduced that
refuted Russell’s testimony regarding the citizen’s report or his per-
8Unlike in Florida v. J.L., 529 U.S. 266 (2000), which involved an
anonymous telephone tip, the citizen who notified Russell that Anderson
appeared armed approached Russell in person.
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ception of the bulge.9 Moreover, Anderson concedes that he was car-
rying an eyeglass case stuffed with shoe polish in the same area in
which Russell testified to observing a bulge. Once Russell perceived
a bulge consistent with the shape of a gun, he was justified in believ-
ing that Anderson was armed and dangerous. Pennsylvania v. Mimms,
434 U.S. 106, 112 (1977) ("The bulge in the jacket permitted the offi-
cer to conclude that Mimms was armed and thus posed a serious and
present danger to the safety of the officer."). Thus, there is no doubt
that Russell reasonably believed Anderson to be armed at the time he
approached Anderson.10
Upon approaching Anderson, the officers ordered Anderson to put
his hands over his head. Russell and Pearson testified, and Anderson
concedes, that immediately before Russell fired, Anderson was lower-
ing his hands in the direction of the bulge in disregard of the officers’
order. Nevertheless, Anderson argues that a triable issue of fact exists
regarding the precise positioning of Anderson’s hands and the speed
at which he was lowering his hands at the time he was shot.
Larry Williams, who was a witness to the incident, testified that,
although Anderson was lowering his hands, he was lowering them
slowly, and Anderson’s hands "were still around head level when he
was shot." (J.A. at 152.) At the time of the incident, Williams was
between twenty to thirty feet away from Anderson, whereas the offi-
cers were ten feet away. Moreover, Williams was watching the inci-
dent from inside the mall and, at the time Anderson was shot,
Williams’s view of Anderson’s hands was obstructed by a partition
in the door frame through which he was viewing the incident.
9To attempt to create a factual dispute, Anderson points to Pearson’s
testimony, in which Pearson states that he did not personally perceive a
bulge under Anderson’s clothing. Obviously, what Pearson perceived in
no way contradicts or otherwise affects the issue of whether Russell per-
ceived a bulge.
10We do not address the propriety or the manner of the initial seizure
of Anderson because in the proceedings below, Anderson challenged
only the use of force during the seizure and did not present a Fourth
Amendment challenge to the seizure itself.
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To evaluate excessive force, we view the facts from the perspective
of the officer. See Graham v. Connor, 490 U.S. 386, 396-97 (1989).
In a rapidly evolving scenario such as this one, a witness’s account
of the event will rarely, if ever, coincide perfectly with the officers’
perceptions because the witness is typically viewing the event from
a different angle than that of the officer. For that reason, minor dis-
crepancies in testimony do not create a material issue of fact in an
excessive force claim, particularly when, as here, the witness views
the event from a worse vantage point than that of the officers. See Sig-
man v. Town of Chapel Hill, 161 F.3d 782, 788 (4th Cir. 1998)
("Their observations cannot effectively impact the credibility of Offi-
cer Riddle’s testimony (or that of all five other officers on the scene)
as to his perceptions of what he saw from an entirely different — and
closer — vantage point."). Thus, the discrepancies between the offi-
cers’ testimony and Williams’s testimony about the positioning and
speed at which Anderson was lowering his hands do not raise an issue
of triable fact.
The evidence establishes that immediately before Russell fired,
Anderson was reaching toward what Russell believed to be a gun.
Any reasonable officer in Russell’s position would have imminently
feared for his safety and the safety of others. This Circuit has consis-
tently held that an officer does not have to wait until a gun is pointed
at the officer before the officer is entitled to take action. See McLena-
gan v. Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994) (holding that offi-
cer was entitled to use deadly force when the officer had reason to
believe the suspect was armed, although the officer could not confirm
that the suspect was armed); Slattery v. Rizzo, 939 F.2d 213, 215-16
(4th Cir. 1991) (holding that deadly force was appropriate when the
suspect failed to comply with the officer’s order to raise his hands and
the officer reasonably believed the suspect to be coming at him with
a weapon, although the "weapon" turned out to be a beer bottle); cf.
Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991) (affirming the
entry of judgment in favor of Officer Ruffin although Ruffin was
unable to confirm the nature of the weapon, which turned out to be
a wooden nightstick, before using deadly force). We have further held
that an officer is not required to see an object in the suspect’s hand
before using deadly force. McLenagan, 27 F.3d at 1007 ("[W]e do not
think it wise to require a police officer, in all instances, to actually
detect the presence of an object in a suspect’s hands before firing on
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him."); Sigman, 161 F.3d at 788 ("Notwithstanding the possibility of
a dispute about whether a knife was actually in Sigman’s hand at the
moment of the shooting, Officer Riddle, and the other officers pres-
ent, acted on the perception that Sigman had a knife in his hand.").
Accordingly, because Russell had sound reason to believe that Ander-
son was armed, Russell acted reasonably by firing on Anderson as a
protective measure before directly observing a deadly weapon.
Anderson next argues that a material factual dispute exists as to the
reasonableness of Russell’s conduct because Russell failed to utilize
available cover behind protective pillars rather than firing upon
Anderson. As we stated in Elliott, the "suggestion that the officers
might have responded differently is exactly the type of judicial second
look that the case law prohibits." Elliott v. Leavitt, 99 F.3d 640, 643
(4th Cir. 1996). Accordingly, we decline to adopt 20/20 hindsight to
second guess Russell’s decision to shoot rather than take cover, given
that Russell reasonably believed his life to be in imminent danger.
Finally, Anderson argues that Russell’s decision to shoot was
unreasonable given the minor nature of the suspected criminal activity
at issue. See Graham, 490 U.S. at 393 (establishing that the severity
of the crime at issue is one factor to evaluate when analyzing whether
an officer’s conduct was reasonable in an excessive force claim).
Anderson argues that at the time Russell approached Anderson, Rus-
sell suspected Anderson only of a possible violation of Maryland’s
concealed weapons law, which is a misdemeanor violation. See Md.
Ann. Code Art. 27, § 36B (1991). Initially, we note that Anderson
misunderstands the nature of Russell’s suspicion at the time Russell
approached Anderson. Russell approached Anderson not simply to
determine whether Anderson was violating Maryland’s concealed
weapons law; rather Russell sought to determine whether Anderson
intended to use the concealed weapon in a way that would put him-
self, the mall patrons, or other citizens in jeopardy. Thus, Russell’s
approach was motivated not only by his concern that Anderson was
violating Maryland’s concealed weapons law, but also by his concern
of the possibility of very serious impending criminal activity.
Assuming, however, that the suspected criminal activity at issue
was relatively minor, that factor would prove irrelevant to our exces-
sive force analysis because our focus is on the circumstances as they
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existed at the moment force was used. See Elliott, 99 F.3d at 642;
Greenidge, 927 F.2d at 791-92 ("In light of . . . the Supreme Court’s
focus on the very moment when the officer makes the ‘split-second
judgments,’ . . . events which occurred before Officer Ruffin opened
the car door and identified herself to the passengers are not probative
of the reasonableness of Ruffin’s decision to fire the shot.") (emphasis
added) (citing Graham, 490 U.S. 386). At the precise moment that
Russell used deadly force, he reasonably believed that Anderson
posed a deadly threat to himself and others, making the nature of the
suspected criminal activity at issue at the time Russell approached
Anderson irrelevant.
Russell ultimately was mistaken as to the nature and extent of the
threat posed by Anderson, which resulted in a tragic consequence to
Anderson. Nevertheless, as we stated in Elliott, "the Fourth Amend-
ment does not require omniscience. . . . Officers need not be abso-
lutely sure . . . of the nature of the threat or the suspect’s intent to
cause them harm — the Constitution does not require that certitude
precede the act of self protection." Elliott, 99 F.3d at 644; see also
Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991) ("Also irrele-
vant is the fact that Crawford was actually unarmed. Anderson did not
and could not have known this. The sad truth is that Crawford’s
actions alone could cause a reasonable officer to fear imminent and
serious physical harm."). Anderson’s actions unwittingly caused Rus-
sell to reasonably fear imminent and serious physical harm. Accord-
ingly, we do not believe there is sufficient evidence to support the
jury’s finding with respect to excessive force. Therefore, Russell is
entitled to the entry of judgment as a matter of law as to Anderson’s
excessive force claim.
III.
Russell’s split-second decision to use deadly force against Ander-
son was reasonable in light of Russell’s well-founded, though mis-
taken, belief that Anderson was reaching for a handgun. Thus,
Russell’s use of force does not constitute a Fourth Amendment viola-
tion. Of course, it is extremely unfortunate that Anderson was seri-
ously injured; however, "§ 1983 does not purport to redress injuries
resulting from reasonable mistakes." McLenagan v. Karnes, 27 F.3d
1002, 1008 (4th Cir. 1994). Because substantial evidence does not
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support the jury’s finding of excessive force, we affirm the district
court’s entry of judgment as a matter of law in favor of Russell.
AFFIRMED
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