Julie Martin, individually v. Doug Dishong, individually and as a Deputy Sheriff of Georgetown, South Carolina

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JULIE MARTIN, individually and as
the personal representative of the
estate of Matthew Martin, deceased,
Plaintiff-Appellee,
v.
DOUG DISHONG, individually and as
a Deputy Sheriff of Georgetown,
South Carolina,
Defendant-Appellant,
No. 02-1173  and
A. LANE CRIBB, individually and as
Sheriff of Georgetown, South
Carolina; JAMES EDWARDS,
individually and as a Deputy Sheriff
of Georgetown, South Carolina;
GEORGETOWN COUNTY, SOUTH
CAROLINA, a political subdivision of
the State of South Carolina,
Defendants. 

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 JULIE MARTIN, individually and as
the personal representative of the
estate of Matthew Martin, deceased,
Plaintiff-Appellant,
v.
DOUG DISHONG, individually and as
a Deputy Sheriff of Georgetown,
South Carolina; A. LANE CRIBB,
individually and as Sheriff of
Georgetown, South Carolina, No. 02-1193 
Defendants-Appellees,
and
JAMES EDWARDS, individually and as
a Deputy Sheriff of Georgetown,
South Carolina; GEORGETOWN
COUNTY, SOUTH CAROLINA, a political
subdivision of the State of South
Carolina,
Defendants. 
Appeals from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge; William O. Bertlesman,
Senior District Judge, sitting by designation.
(CA-00-3148-2-23)
Argued: December 5, 2002
Decided: January 30, 2003
Before WILKINS and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: James Albert Stuckey, Jr., STUCKEY LAW OFFICES,
L.L.C., Charleston, South Carolina, for Appellant. Thomas Joseph
Rubillo, Georgetown, South Carolina, for Appellee. ON BRIEF:
Alexia Pittas-Giroux, STUCKEY LAW OFFICES, L.L.C., Charles-
ton, South Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Doug Dishong appeals an order of the district court denying his
motion for summary judgment on grounds of qualified immunity. We
affirm.1
I.
On review of the grant or denial of a motion for summary judg-
ment, we view the evidence in the light most favorable to the non-
moving party. See Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 684
(4th Cir. 2000). Furthermore, because this is an interlocutory appeal
from the denial of summary judgment and the order appealed from set
forth the relevant facts, we must accept the facts as described in that
order rather than conducting an independent review of the evidence.
See Gray-Hopkins v. Prince George’s County, 309 F.3d 224, 229-30
(4th Cir. 2002).
1Dishong’s appeal (Case No. 02-1173) was consolidated with an
appeal from the grant of summary judgment in favor of another Defen-
dant (Case No. 02-1193). We dismiss the latter appeal for lack of juris-
diction. See Baird v. Palmer, 114 F.3d 39, 42-43 (4th Cir. 1997).
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As the district court explained, this case arises from the fatal shoot-
ing of Matthew Martin in April 2000. Before the shooting, a deputy
sheriff in Georgetown County, South Carolina, observed Martin in a
place that made her suspect he was planning to dump trash illegally.
When she approached to investigate, Martin fled in his truck. A sec-
ond deputy saw Martin about fifteen minutes later and began pursuing
him. This vehicle chase culminated at an intersection where Dishong
and another deputy had set up a roadblock.
The deputies assert that when Martin reached the roadblock, he
rammed Dishong’s vehicle, backed up, collided with the vehicle
again, backed up a second time, and then drove forward toward Dis-
hong’s vehicle once more. By contrast, Martin’s wife (Plaintiff)
alleges that Martin collided with Dishong’s vehicle accidentally and
then tried to turn away from the roadblock. It is undisputed that Dis-
hong fired several shots at Martin during these events, that the other
two deputies fired at his tires, and that a shot fired by Dishong caused
Martin’s death.
The parties offered conflicting evidence concerning the relative
positions of Dishong and Martin at the moment when Dishong fired
the fatal shot. Evidence presented by the defense placed Dishong next
to his vehicle and in the path of Martin’s on-coming truck. By con-
trast, Plaintiff offered evidence indicating that Dishong was safely
inside his vehicle as Martin came toward it. Another scenario sup-
ported by Plaintiff’s evidence placed Dishong behind his vehicle
while Martin was attempting to drive away from the intersection.
Plaintiff sued Dishong under 42 U.S.C.A. § 1983 (West Supp.
2002), alleging that he employed deadly force without justification.2
On summary judgment, the district court ruled that Dishong was not
entitled to qualified immunity because constitutional limitations on
the use of force were clearly established at the time of the shooting
and a reasonable jury could find that Dishong breached those limits
2Plaintiff’s complaint named three other Defendants in addition to Dis-
hong. Two were voluntarily dismissed from the suit; the third, Sheriff A.
Lane Cribb, prevailed on his motion for summary judgment. Plaintiff
appealed from the judgment in favor of Cribb, but that appeal has been
dismissed. See supra note 1.
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by shooting at Martin without any reasonable fear that he was in dan-
ger. Dishong noted an immediate appeal from this order. See Mitchell
v. Forsyth, 472 U.S. 511, 530 (1985).
II.
The use of deadly force against a fleeing suspect constitutes a sei-
zure under the Fourth Amendment. See Tennessee v. Garner, 471
U.S. 1, 7 (1985); see also Graham v. Connor, 490 U.S. 386, 395
(1989) (holding that the Fourth Amendment governs all claims alleg-
ing excessive force by law officers attempting to effect an arrest). The
use of deadly force is permissible only when "it is necessary to pre-
vent the [suspect’s] escape and the officer has probable cause to
believe that the suspect poses a significant threat of death or serious
physical injury to the officer or others." Garner, 471 U.S. at 3.
Expounding on this rule, the Supreme Court said, "[I]f the suspect
threatens the officer with a weapon or there is probable cause to
believe that he has committed a crime involving the infliction or
threatened infliction of serious physical harm, deadly force may be
used if necessary to prevent escape . . . ." Id. at 11.
Garner thus approves the use of deadly force by a police officer
against a fleeing suspect if the suspect (1) poses a threat to the officer,
(2) poses a threat to others, or (3) has committed a serious violent
crime. Dishong claims that the third condition is met here because
Martin’s attempt to ram Dishong with his truck amounted to a poten-
tially lethal assault; thus, Dishong was justified in using deadly force
to prevent Martin’s escape even if Martin was driving away from the
roadblock when the fatal shot was fired. During summary judgment
proceedings, however, Dishong emphasized the first Garner condi-
tion, claiming that deadly force was warranted because he was in
imminent peril at the moment he fired the fatal shot. This was the
only component of Garner discussed by the district court, and it is
consequently the only aspect of Garner we will address.3
3We do not decide whether Dishong is entitled to summary judgment
on the basis advanced here—that he was preventing the escape of a dan-
gerous criminal—or on the ground that Martin’s flight would have posed
a danger to others.
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With our focus narrowed in this manner, we uphold the decision
of the district court. As that court detailed in its order, the evidence
in the summary judgment record would support different conclusions,
depending on which evidence was believed by the trier of fact. One
possible conclusion—that Dishong was standing outside his vehicle
and Martin was driving directly toward him at the moment the fatal
shot was fired—would support Dishong’s assertion that he used
deadly force to protect himself. But this assertion fails under other
scenarios supported by other evidence, in which Dishong was safely
inside or behind his vehicle. The district court correctly concluded
that this dispute of fact precludes the entry of summary judgment
based on the assertion that Dishong reasonably feared for his own
safety when he fired the shot that killed Martin. See Fed. R. Civ. P.
56(c) (stating that summary judgment is appropriate if "there is no
genuine issue as to any material fact").
III.
For the reasons stated above, we affirm the decision of the district
court denying Dishong’s motion for summary judgment.
AFFIRMED
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