Levert Smith v. Ronald Lusk, individually

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2063
LEVERT SMITH and NELSON D. RADFORD, Co-Administrators of
the Estate of JOSEPH JERMAINE PORTER,
Plaintiffs - Appellants,
and
LATOYA HACKETT; BETTY JO RADFORD,
Plaintiffs,
v.
RONALD LUSK, individually,
Defendant – Appellee,
and
THE CITY OF HUNTINGTON, WEST VIRGINIA,
Defendant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:10-cv-00781)
Argued: May 16, 2013 Decided: July 18, 2013
Before DUNCAN and KEENAN, Circuit Judges, and David C. NORTON,
United States District Judge for the District of South Carolina,
sitting by designation.

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Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Duncan and Judge Norton joined.
ARGUED: Patrick Stanley Cassidy, CASSIDY, MYERS, COGAN &
VOEGELIN, LC, Wheeling, West Virginia, for Appellants. Charles
K. Gould, JENKINS FENSTERMAKER, PLLC, Huntington, West Virginia,
for Appellee. ON BRIEF: Timothy F. Cogan, CASSIDY, MYERS, COGAN
& VOEGELIN, LC, Wheeling, West Virginia, for Appellants.
Nathanial A. Kuratomi, JENKINS FENSTERMAKER, PLLC, Huntington,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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BARBARA MILANO KEENAN, Circuit Judge:
This case is based on a shooting incident that occurred
after officers from the City of Huntington, West Virginia,
Police Department responded to a report of multiple gunshots
fired in a nightclub. Officer Ronald Lusk and other officers
entered the club where Lusk ultimately shot and killed a club
patron, Joseph J. Porter. The co-administrators of Porter’s
Estate (the plaintiffs) filed suit against Lusk and the City of
Huntington (the City) asserting claims under 42 U.S.C. § 1983
and claims of reckless conduct and simple negligence.1
In a jury trial, at the close of evidence, the district
court concluded that the plaintiffs’ simple negligence claim was
not supported by the evidence and entered judgment as a matter
of law in favor of Lusk and the City on that claim. The jury
returned a verdict in favor of Lusk on the remaining claims.
On appeal, the plaintiffs challenge the district court’s
entry of judgment as a matter of law on the simple negligence
claim. The plaintiffs also argue that the district court erred
in giving a certain jury instruction relating to the § 1983
1 In asserting that the City was liable for the officers’
negligent acts, the plaintiffs rely on West Virginia Code § 29-
12-A-4, which provides, in relevant part, that employers may be
liable for the negligent conduct of their employees performed
within the scope of their employment.

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claim. Upon our review, we affirm the district court’s
judgment.
I.
The shooting incident occurred in November 2009 in the City
of Huntington. The evidence showed that one morning around 3:00
a.m., a City police officer, who was less than one block from
Club Babylon (the club), heard gunshots coming from the
direction of the club. The officer reported the incident over
the police radio, and numerous City police officers responded to
the scene.
When Sergeant Charles Kingery arrived at the club, he and
other officers observed club patrons running in the street and
hiding behind parked vehicles. Several officers also saw shell
casings on the ground in front of the club.2
As Sergeant Kingery approached the club’s front entrance,
he observed “a flash coming from the doorway.” Within seconds,
Officer Lusk, Officer Joshua Nield, and another officer followed
Sergeant Kingery into the club in a single-file formation with
their guns drawn. As they entered, the officers saw between 30
and 40 patrons remaining in the club. The officers described
2 Police officers ultimately determined that three people
had been shot near the front entrance of the club.

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the scene as chaotic, and considered the location an “active
shooting scene.”
One of the officers testified that as he entered, he heard
someone say, “[t]hey’ve got guns and they’re going towards the
back.” Another officer observed a patron pointing in that
direction. After the officers observed two men moving quickly
toward the club’s rear exit, the officers identified themselves
as police and repeatedly ordered the two men to stop.
One of the men, Lamont Miller, eventually stopped, turned,
and placed his hands in the air. Sergeant Kingery approached
Miller to restrain him. When the other man, Porter, continued
moving toward the rear of the club despite the officers’
commands to stop, Officer Lusk pursued Porter.
Officer Lusk testified that as he approached Porter from
behind, he “grabbed” Porter’s left arm and “spun” Porter around.
At that time, the two men were standing a few feet apart. As
Porter turned toward Lusk, Lusk observed a silver gun in
Porter’s right hand being pointed at Lusk. Lusk stated that he
“pushed off,” stepped to his left, raised his weapon, and fired
one shot that struck Porter in his right arm. The bullet passed
through Porter’s arm and lodged in his spine, ultimately killing
him.
Officers Kingery, Lusk, and Nield all testified that they
observed a gun lying on the ground near the right side of

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Porter’s body. Officer Nield placed the gun in the trunk of his
police vehicle.
The plaintiffs presented evidence to support their
contention that Porter did not have a gun on his person when
Lusk shot him. Two club patrons who witnessed the shooting from
between eight and twelve feet away testified concerning their
observations. One of the witnesses testified that Porter was
holding a glass, not a gun, while the other witness stated that
Porter was not holding any object in his hands. The plaintiffs
also presented evidence showing that there was no fingerprint or
other physical evidence linking Porter to the gun recovered by
the officers.
At the close of the evidence, the district court entered
judgment as a matter of law in favor of Lusk and the City on the
simple negligence claim. The jury considered only the remaining
issues whether Lusk violated Porter’s constitutional right to be
free from the use of excessive force, and whether Lusk acted
willfully, wantonly, or recklessly in causing Porter’s death.3
3 The plaintiffs also initially asserted a claim under
§ 1983 based on the City police officers’ alleged “custom of
condoning” excessive force and on the City’s alleged failure to
properly train, hire, and supervise its employees. Before
trial, however, the district court granted the defendants’
motion for summary judgment on these claims. The plaintiffs
also had asserted that the officers were negligent in failing to
render medical aid to Porter after he was shot. However, the
defendants moved for entry of judgment as a matter of law on
(Continued)

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The jury decided both issues in favor of Lusk. The plaintiffs
timely filed this appeal.
II.
The plaintiffs argue that the district court erred in
entering judgment as a matter of law on their simple negligence
claim. They also contend that the district court erred in
denying their motion for a new trial based on an allegedly
improper jury instruction relating to the § 1983 claim. We
address these arguments in turn.
A.
We first consider the plaintiffs’ arguments relating to
their simple negligence claim. We review de novo a district
court’s ruling on a motion for judgment as a matter of law. GSM
Dealer Servs. v. Chrysler Corp., 32 F.3d 139, 142 (4th Cir.
1994). In engaging in this review, we consider the evidence in
the light most favorable to the plaintiffs, drawing all
reasonable inferences in their favor without weighing the
evidence or assessing the witnesses’ credibility. See Anderson
v. G.D.C., Inc., 281 F.3d 452, 457 (4th Cir. 2002). Judgment as
a matter of law is warranted only when the evidence has failed
that claim, which the district court granted. The plaintiffs do
not challenge either of these rulings on appeal.

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to provide a legally sufficient basis on which a jury could
reach a verdict in favor of the non-moving party. Fed. R. Civ.
P. 50(a).
At the close of the evidence, the district court determined
that the evidence was insufficient to support a claim of simple
negligence. The court stated:
Lusk testified that he intentionally shot Joe Porter,
fearing Porter was about to shoot him. Plaintiffs
presented no evidence that Lusk’s decision to shoot
was accidental, or careless, rather than intentional.
Additionally, Plaintiffs failed to present sufficient
evidence for a jury to conclude that Lusk was
negligent in his actions before or after the shooting
incident.
On appeal, the plaintiffs challenge this ruling and advance
several theories of simple negligence that they contend were
supported by the evidence. We initially address the plaintiffs’
argument that the jury could have determined that Lusk
negligently, rather than intentionally, shot Porter. The
plaintiffs assert that the jury could have determined that Lusk
accidentally or mistakenly shot Porter based on Lusk’s ambiguous
testimony. The plaintiffs rely on the portions of Lusk’s
testimony in which he agreed that his “gun went off,” and stated
that he “discharged” his weapon. The plaintiffs also argue that
because Lusk stated that he was not aiming his weapon and that
the weapon was close to his chest when he fired, a jury could

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determine that Lusk did not intentionally fire his weapon at
Porter. We disagree with the plaintiffs’ arguments.
At the outset, we observe that the district court correctly
determined that the plaintiffs could not prevail on a claim of
simple negligence based on Lusk’s intentional act. See Stone v.
Rudolph, 32 S.E.2d 742, 748 (W. Va. 1944) (intentional acts are
not encompassed by general negligence principles). After
reviewing the record, we hold that the evidence unequivocally
demonstrated that Lusk intentionally shot Porter in response to
the perceived threat that Porter posed.
The plaintiffs’ reliance on isolated words and phrases used
by Lusk mischaracterizes his testimony. Lusk described his
encounter with Porter, which lasted only seconds, and explained
the manner in which Lusk fired his weapon. Lusk stated that his
gun was “still close to [his] chest, not even really aiming,
just straight out,” and that he “pulled the trigger one time.”
Lusk later clarified that he was shooting at the “right side of
[Porter’s] body.” Although Lusk did not immediately know that
his gunshot had struck Porter, Lusk stated that he thought that
Porter might have been struck. We can find no basis in this
record to support the plaintiffs’ claim that Lusk accidentally
or mistakenly shot Porter.
Our conclusion is not altered by the plaintiffs’ reliance
on our decision in Henry v. Purnell, 652 F.3d 524 (4th Cir.

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2011). In that case, we held that an officer who accidentally
employed his firearm instead of his taser was not shielded by
qualified immunity from the plaintiff’s § 1983 excessive force
claim. Id. at 534. We explained that the plaintiff could put
forth evidence that a reasonable officer would have realized
that he was holding a firearm, and that it was unlawful to use
that firearm to shoot an individual who was not posing a threat.
Id. Because this discussion in Henry related to the plaintiffs’
§ 1983 excessive force claim, that analysis has no bearing on
the different issue of simple negligence presented here.4
We therefore hold that the district court did not err in
determining that the evidence of simple negligence was
insufficient to permit a jury verdict in favor of the plaintiffs
based on Lusk’s act of shooting Porter.5 Thus, we turn to
4 We also observe that in Henry, we determined that the
district court erred in granting summary judgment on the gross
negligence claim, because a jury could conclude that Purnell was
grossly negligent “in failing to make even a minimal effort to
verify that he had drawn his Taser.” 652 F.3d at 536. However,
that holding likewise has no impact on whether the evidence
presented to the jury in the present case was sufficient to form
the basis of a simple negligence claim. Furthermore, the jury
in the present case was instructed on the plaintiffs’ claim of
gross misconduct and found in favor of Lusk on that claim.
5 To the extent that the plaintiffs advance other arguments
relating to their theory that Lusk negligently shot Porter, we
decline to consider those arguments, which were raised for the
first time on appeal. See Helton v. AT&T, Inc., 709 F.3d 343,
360 (4th Cir. 2013).

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consider the plaintiffs’ arguments that Lusk and the other
officers engaged in negligent conduct before and after the
shooting occurred.
The plaintiffs contend that Lusk acted negligently before
the shooting by failing to use “due care in assessing” whether
Porter presented a threat, and by “rush[ing] to judgment.” With
regard to the officers’ conduct after the shooting, the
plaintiffs contend that the officers acted negligently by
allegedly fabricating evidence that a gun was found near
Porter’s body and by failing to properly secure the gun. We
disagree with the plaintiffs’ arguments.
A plaintiff asserting a claim of negligence bears the
burden of establishing a prima facie case. See Jack v. Fritts,
457 S.E.2d 431, 434-35 (W. Va. 1995) (citing Parsley v. Gen.
Motors Acceptance Corp., 280 S.E.2d 703 (W. Va. 1981)). To
prove a prima facie case of negligence, a plaintiff must
establish that the defendant owed the plaintiff a duty, breached
that duty by acting or failing to act and, as a result, caused
injury to the plaintiff. Bland v. State, 737 S.E.2d 291, 302
(W. Va. 2012). While there is a general duty of reasonable
conduct that all individuals owe to others, to support a “valid
cause of action” for negligence, a plaintiff must demonstrate
the particular duty owed by a defendant and the breach of that

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duty in the context of the given circumstances. Robertson v.
LeMaster, 301 S.E.2d 563, 567-68 (W. Va. 1983).
Here, the plaintiffs failed to present evidence
establishing that the officers owed any duty to the club’s
patrons or breached any such duty based on the officers’ conduct
before the shooting. In fact, the only discussion of the
applicable standard of care presented by the plaintiffs related
to the duty of care owed by an officer in employing deadly force
against a suspect. That evidence, however, did not address in
any manner a standard of care or duty owed by the officers in
their conduct preceding the shooting.
It is difficult to discern from the plaintiffs’ argument
the precise conduct on which they rely in asserting that the
officers acted negligently in the moments before Lusk shot
Porter. The plaintiffs’ bare contention that Lusk was mistaken
in his perception that Porter held a gun does not establish a
claim of negligence. Instead, the plaintiffs were required to
demonstrate the duty that the officers owed to Porter in
assessing whether Porter was a threat, and the manner in which
Lusk’s assessment of the situation, made in a matter of seconds,
breached that duty. See id.
In contrast to the plaintiffs’ lack of evidence regarding
the applicable standard of care, Lusk and the City presented
extensive testimony on this issue. Thomas Streed, who offered

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expert testimony on the subject of police procedures, stated
that police officers are trained to pursue and detain an
individual who appears to be fleeing an area in which shots have
been fired. Streed opined that the officers’ entry into the
club in a “column” formation, and other actions by the officers
both before and after the shooting, were appropriate responses
under the circumstances. Notably, the plaintiffs did not
challenge Streed’s testimony and did not cross-examine him. We
therefore conclude that the plaintiffs failed to present a prima
facie case of negligence based on the officers’ conduct before
Porter was shot.
With regard to the officers’ actions after the shooting,
the plaintiffs do not point to any particular conduct by the
officers that bore a causal relationship to Porter’s death, the
only injury asserted by the plaintiffs. Any potentially
improper conduct by the officers with respect to their securing
the gun or to handling the evidence cannot form a basis for
negligence in this case when there is no related injury alleged.
See Neely v. Belk, Inc., 668 S.E.2d 189, 197 (W. Va. 2008) (a
plaintiff must show that defendant’s action or failure to act
caused injury to the plaintiff).
For these reasons, we conclude that the district court
correctly determined that the evidence was insufficient for a
jury to find that Lusk negligently shot Porter, or that the

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officers’ conduct before or after the shooting incident was
negligent. We therefore hold that the district court did not
err in granting judgment as a matter of law on the plaintiffs’
simple negligence claim.
B.
We next consider the plaintiffs’ argument that the district
court erred in denying their motion for a new trial based on an
erroneous jury instruction relating to the § 1983 claim. We
review for an abuse of discretion the district court’s decision
to deny a motion for a new trial. Nichols v. Ashland Hosp.
Corp., 251 F.3d 496, 500 (4th Cir. 2001); see Fed. R. Civ. P.
59(a). In considering whether a district court properly
instructed the jury, we conduct a de novo review. United States
v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012).
The plaintiffs’ argument focuses on the district court’s
jury instruction concerning the § 1983 excessive force claim.
That instruction provided:
An actor’s use of deadly force is objectively
reasonable if he has probable cause to believe that a
person poses an imminent danger of harm to himself or
others, even if the officer is mistaken in the belief
that the person is armed or otherwise mistaken as to
the nature of the danger. Even if Officer Lusk was
mistaken as to whether Joseph Porter posed an imminent
risk, an officer’s mistaken belief about the attendant
circumstances does not make the use of deadly force
unreasonable per se or automatic. If Officer Lusk
reasonably believed that Joseph Porter presented an
immediate threat of serious physical harm, Officer

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Lusk could reasonably use deadly force to protect
himself or others.
The plaintiffs assert: (1) that this instruction contained
an incorrect statement of law; and (2) that if the evidence was
insufficient to support a claim for negligence, the evidence
likewise was insufficient to support this instruction, because
it permitted the jury to consider whether Lusk mistakenly
thought that Porter held a gun at the time Lusk shot him. We
disagree with the plaintiffs’ arguments.
Contrary to the plaintiffs’ contention, the challenged jury
instruction provides a correct statement of law in the context
of a § 1983 excessive force claim. We have explained that a
“mistaken use of deadly force” is not necessarily a
constitutional violation when such force is based on a “mistaken
understanding of facts” that is reasonable under the
circumstances. Culosi v. Bullock, 596 F.3d 195, 201 (4th Cir.
2010) (quoting Milstead v. Kibler, 243 F.3d 157, 165 (4th Cir.
2001)).
There was a sufficient evidentiary basis for the challenged
instruction based on the differing accounts from eyewitnesses
regarding whether Porter held a gun in his hand when Lusk shot
him. The jury was entitled to make credibility determinations
and to resolve this conflicting evidence in their assessment

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whether Lusk violated Porter’s constitutional right to be free
from excessive force.
Permitting the jury to consider whether Lusk was mistaken
regarding this perceived threat, in the context of the § 1983
claim, does not conflict with the district court’s decision that
the evidence failed to support the separate claim for simple
negligence. The two theories of recovery were distinct and
required proof of different elements. We therefore conclude
that the district court did not err in giving the challenged
jury instruction, and did not abuse its discretion in denying
the plaintiffs’ post-trial motion for relief on this basis.
III.
In sum, we hold that the district court did not err in
entering judgment as a matter of law for the defendants with
respect to the simple negligence claim, because the plaintiffs
failed to establish an evidentiary basis for such a claim. We
also hold that the district court did not err in instructing the
jury on the § 1983 claim, and that the challenged jury
instruction was properly given based on the evidence presented
at trial. Thus, the district court did not abuse its discretion
in denying the plaintiffs’ motion for a new trial. Accordingly,
we affirm the district court’s judgment.
AFFIRMED

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