Julie Martin, individually v. Doug Dishong, individually and as a Deputy Sheriff of Georgetown County, SC

UNPUBLISHED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
County, SC,
Defendant-Appellant, No. 03-2062 
and
A. LANE CRIBB, individually and as
Sheriff of Georgetown County, SC;
JAMES EDWARDS, individually and as
a Deputy Sheriff of Georgetown
County, SC; GEORGETOWN COUNTY, a
political subdivision of the State of
South Carolina,
Defendants. 
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge;
William O. Bertelsman, Senior District Judge.
(CA-00-3148-2-23)
Argued: May 4, 2004
Decided: July 9, 2004
Before WILKINS, Chief Judge, MOTZ, Circuit Judge,
and C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.

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Reversed and remanded with instructions by unpublished per curiam
opinion.
COUNSEL
ARGUED: Alexia Pittas-Giroux, STUCKEY LAW OFFICES, LLC,
Charleston, South Carolina, for Appellant. Thomas Joseph Rubillo,
Georgetown, South Carolina, for Appellee. ON BRIEF: Robin Lilley
Jackson, STUCKEY LAW OFFICES, LLC, Charleston, South Caro-
lina, for Appellant. William Stuart Duncan, DUNCAN, CROSBY &
MARING, Georgetown, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.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 the ground of qualified immunity.
We reverse and remand with instructions to grant summary judgment
in favor of Dishong.
I.
A. The Prior Appeal
This case has been before this court once before, also on interlocu-
tory appeal from an order denying summary judgment. See Martin v.
Dishong (Dishong I), 57 Fed. Appx. 153 (4th Cir. 2003) (per curiam).
As we explained in the prior appeal, this case concerns the shooting
death of Matthew Martin by Dishong, a deputy sheriff in Georgetown
County, South Carolina. See id. at 154.
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In Dishong I, we explained the relevant facts as follows:
Before the shooting, a deputy sheriff [other than Dishong]
. . . 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 second deputy saw
Martin about fifteen minutes later and began pursuing him.
This vehicle chase culminated at an intersection where Dis-
hong and another deputy had set up a roadblock.
The deputies assert that when Martin reached the road-
block, he rammed Dishong’s vehicle, backed up, collided
with the vehicle again, backed up a second time, and then
drove forward toward Dishong’s vehicle once more. By
contrast, Martin’s wife (Plaintiff) alleges that Martin col-
lided with Dishong’s vehicle accidentally and then tried to
turn away from the roadblock. It is undisputed that Dishong
fired several shots at Martin during these events . . . 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 oncoming truck. By contrast, 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.
Id. at 154-55.
In response to her husband’s death, Plaintiff filed this action pursu-
ant to 42 U.S.C.A. § 1983 (West 2003), alleging that Dishong vio-
lated Martin’s Fourth Amendment rights by employing deadly force
without justification. After discovery, Dishong moved for summary
judgment, contending that he was entitled to qualified immunity. Dis-
hong maintained that at the time of the shooting, Martin was trying
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to kill him by ramming his vehicle and that he was therefore entitled
to use deadly force in self-defense.
The district court denied Dishong’s motion. Noting that the parties
had presented conflicting evidence concerning Martin’s actions prior
to the shooting, the court reasoned that a jury could find that
(i) Martin did not act with intent to harm Dishong and (ii) no reason-
able officer could have concluded otherwise. In light of these possible
findings, the court ruled that the evidence in the record created a gen-
uine issue of material fact on the question of whether Dishong could
reasonably have concluded that Martin posed a threat to his life or
safety.
In Dishong I, we affirmed this ruling. See Dishong I, 57 Fed. Appx.
at 155-56. Citing Tennessee v. Garner, 471 U.S. 1 (1985), we
explained that the Supreme Court has "approve[d] 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 I, 57 Fed. Appx. at 155.
We concluded that conflicts in the evidence precluded the entry of
summary judgment based on the first Garner category (self-protection
by the officer).
In addition, we declined to consider alternative arguments invoking
the other two Garner categories. In support of these arguments, Dis-
hong alleged that Martin committed at least two violent felonies by
deliberately colliding with Dishong’s vehicle, and that Dishong was
therefore permitted to use deadly force to effect the arrest of a danger-
ous criminal and to prevent Martin from harming others in the com-
munity. Because the district court had not addressed these issues, we
did not decide whether summary judgment on these grounds would
be appropriate. See id. at 155 & n.3.
B. Proceedings on Remand
On remand, Dishong asked the district court to address the argu-
ments it had not earlier considered (concerning Garner categories 2
and 3). The court once again denied summary judgment.
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Regarding the second Garner category (use of deadly force to pre-
vent harm to others), Dishong argued that Martin had already driven
at high speeds to avoid arrest and that he was likely to do so again
if he escaped from the corral of police vehicles; in light of this risk,
Dishong contended, he was justified in using deadly force to prevent
Martin from fleeing the scene in a manner that posed a threat to oth-
ers. The district court rejected this basis for summary judgment, rely-
ing on evidence that Dishong fired the fatal shot as Martin’s truck
rolled slowly away from the roadblock.
The court also rejected Dishong’s claim that he was justified in
using deadly force to prevent a felon from escaping (the third Garner
category). Dishong argued that Martin’s attempts to ram Dishong’s
vehicle amounted to felonious assaults. The court ruled that summary
judgment on this basis would be inappropriate because Dishong’s
argument rested on the premise that Martin’s collisions with Dis-
hong’s vehicle were intentional, and the court had already found that
there was conflicting evidence on the question of whether Dishong
reasonably determined that Martin collided with Dishong’s vehicle
intentionally.
II.
On appeal, Dishong renews his claim that he is entitled to summary
judgment on the question of qualified immunity. The doctrine of qual-
ified immunity shields government officials from liability for conduct
that "does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Wilson v.
Layne, 526 U.S. 603, 609 (1999) (internal quotation marks omitted).
In determining whether a law enforcement officer is entitled to quali-
fied immunity with respect to a claim that the officer used excessive
force, we must evaluate the officer’s actions "from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight." Graham v. Connor, 490 U.S. 386, 396 (1989). Thus, an
officer is entitled to qualified immunity if a reasonable officer under
the same circumstances would have determined that the force used
was necessary. See Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir.
2003). Applying this standard, we conclude that a reasonable officer
in Dishong’s circumstances at the time of the fatal shooting could val-
idly have inferred that Martin posed a continuing danger to others.
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We therefore hold that the district court erred in denying summary
judgment.
Under the second prong of Garner, the use of deadly force was
permissible if Martin posed a danger to others. Certainly, Martin’s
high-speed flight through a residential neighborhood posed such a
danger. And once he had freed himself from the corral of police vehi-
cles, which apparently occurred shortly before the fatal shot was fired,
Martin could have resumed his risky flight.
Plaintiff contends that Martin did not intend to flee. In support, she
relies on evidence that, once Martin left the corral, his truck moved
at "walking speed" before rolling to a stop. J.A. 254 (internal quota-
tion marks omitted). Based on this evidence, Plaintiff asks us to infer
that Martin only intended to pull over to the side of the road. We do
not find this inference plausible, however, in light of Martin’s earlier
conduct. In any event, Dishong could reasonably have reached the
opposite inference—namely, that Martin was attempting to accelerate
away from the scene. Moreover, while Martin or his truck may have
been so disabled that he could not have escaped regardless of his
intentions, there is no evidence that Dishong was aware of such a con-
dition. Accordingly, Dishong was entitled to qualified immunity on
the question of whether he properly used force to prevent Martin’s
escape.*
III.
For the foregoing reasons, we reverse the decision of the district
court and remand with instructions to grant summary judgment in
favor of Dishong.
REVERSED AND REMANDED WITH INSTRUCTIONS
*In light of our holding, we need not consider whether Dishong’s con-
duct was reasonable under the third Garner category, which permits the
use of deadly force to prevent the escape of a fleeing felon.
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