UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-1987

CHARLES RAYMOND NOEL; JACOB RALPH NOEL, individually and as 

personal representative of the estate of Cheryl Lynn Noel; 

RAMONA SCHWEIGER, to the use of Matthew Noel, 

 Plaintiffs – Appellees, 

 v. 

CARLOS ARTSON, Officer, Badge No. 3836; DAVID SWEREN, 

Officer, Badge #3794; MICHAEL GIDDINGS, Officer, Badge 

#3305; MARK CRUMP, Sergeant, Badge #3389; ROBERT M. 

GIBBONS, Sergeant, Badge #3904; BALTIMORE COUNTY, MARYLAND, 

 Defendants – Appellants. 

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. William M. Nickerson, Senior District 

Judge. (1:06-cv-02069-WMN) 

Argued: September 23, 2008 Decided: October 22, 2008 

Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and 

Richard L. VOORHEES, United States District Judge for the 

Western District of North Carolina, sitting by designation. 

Dismissed by unpublished per curiam opinion. 

ARGUED: Paul M. Mayhew, BALTIMORE COUNTY OFFICE OF LAW, Towson, 

Maryland, for Appellants. Terrell N. Roberts, III, ROBERTS & 

WOOD, Riverdale, Maryland, for Appellees. ON BRIEF: John E. 

Beverungen, County Attorney, BALTIMORE COUNTY OFFICE OF LAW, 
Towson, Maryland, for Appellants. Robert G. Landolt, Columbia, 

Maryland, for Appellees. 

Unpublished opinions are not binding precedent in this circuit. 

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PER CURIAM: 

 Officer Carlos Artson and his co-defendants (“defendants”) 

appeal the district court’s denial of qualified immunity in a 

§ 1983 action against them. We agree with plaintiffs that 

defendants failed to properly raise their defense of qualified 

immunity before the district court, and therefore dismiss the 

appeal. 

I. 

 At 4:30 a.m. on January 21, 2005, defendants, members of 

the Baltimore County Police Department, executed a warrant at 

the home of Cheryl and Charles Noel. Defendants had obtained 

the warrant after finding evidence of personal drug use in trash 

cans behind the Noel home. On the morning of the raid, 

defendants opted to execute a “no-knock” entry because several 

residents had prior criminal histories and two of the residents 

owned registered handguns. 

 After breaking down the front door and detonating a flashbang grenade, seven officers entered the house. Four of the 

officers ran upstairs to the bedroom where Cheryl and Charles 

Noel were sleeping. Hearing the commotion, Cheryl Noel grabbed 

her handgun and stood up out of bed. She was standing by the 

bed with her gun pointed slightly downward at waist level when 

two of the defendants kicked open the door and entered the room. 

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Defendant Artson quickly fired two shots at Cheryl Noel, who 

slumped to the floor at the foot of the bed with her right arm 

resting on the bed, approximately eight inches from the gun. 

Artson told her to get away from the gun. At this point, 

Charles Noel states that his wife remained motionless and 

unresponsive, while Artson says that she continued to look at 

the firing officer “like she’s trying to make a choice, make a 

decision.” Artson states that Cheryl Noel moved her hand toward 

the gun, prompting him to fire a third shot into her chest. The 

coroner found that the third shot, unlike the first two, was 

immediately fatal. The police later charged three residents of 

the house with drug possession. 

 Cheryl Noel’s survivors filed a complaint against 

defendants for damages under 42 U.S.C. § 1983 and under the 

common law of Maryland. Following discovery, defendants filed a 

Motion for Summary Judgment, which the district court denied on 

September 6, 2007. Several days later, defendants wrote to the 

district court to ask whether it had considered and ruled on the 

qualified immunity issue and whether defendants could file 

supplemental briefs on the issue. The court noted that 

qualified immunity was not mentioned in the Motion for Summary 

Judgment, but that it had considered the issue sua sponte and 

concluded that “there were genuine issues of material fact as to 

whether Defendants were entitled to qualified immunity” on both 

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the “no-knock” and third shot issues. The court did not accept 

further briefing. Defendants then appealed the denial of 

qualified immunity. 

II. 

On October 9, 2007, plaintiffs filed a motion to dismiss 

defendants’ appeal on grounds that the defendants had waived 

their claim of qualified immunity. We agree with plaintiffs 

that defendants have waived their qualified immunity defense and 

that the appeal must accordingly be dismissed.

 Defendants mentioned the immunity defense briefly in their 

Answer, but the defense only surfaced in the Reply to the 

Plaintiffs’ Opposition to the Motion for Summary Judgment in 

anything like a full-blown form. Defendants explain that they 

did not discuss the defense earlier because they believed 

plaintiffs’ underlying constitutional claims lacked merit. 

 Our cases have been consistent on one thing: that to be 

preserved for appeal, the defense of qualified immunity must be 

raised in a timely fashion before the district court. E.g., 

Sales v. Grant, 224 F.3d 293, 296-97 (4th Cir. 2000) (barring 

the defendant from pursuing his qualified immunity defense when 

he only cursorily mentioned the defense in his answer to a 

§ 1983 complaint); Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 

226 (4th Cir. 1997) (barring the defendant from raising a 

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qualified immunity defense for the first time on appeal); 

Buffington v. Baltimore County, 913 F.2d 113, 120-21 (4th Cir. 

1990) (holding that a party had abandoned its qualified immunity 

defense in a § 1983 action by not raising the issue clearly in 

the motion for summary judgment). 

 The case on which defendants rely, Ridpath v. Board of 

Governors Marshall University, 447 F.3d 292 (4th Cir. 2006), is 

not to the contrary. Ridpath confirmed that “[g]enerally, 

qualified immunity must be raised in an answer or a dismissal 

motion,” but allowed for discretionary appellate review in some 

circumstances. 447 F.3d at 305 (citing Fed. R. Civ. P. 8(c)). 

In Ridpath, the court concluded that (1) the plaintiff was not 

prejudiced by the district court’s consideration of the untimely 

defense, because the court rejected the defense; (2) there was 

no sign that the plaintiff sought to respond to the claim; and 

(3) the plaintiff had fully addressed the qualified immunity 

issue before the court of appeals. Id. at 306. But Ridpath is 

clear that review of untimely claims is within the discretion of 

the appellate court. 

 Here, plaintiffs would suffer prejudice because they had no 

chance to address the issue in their opposition to summary 

judgment. It was not until their reply to plaintiffs’ 

opposition to the summary judgment motion that defendants even 

argued the immunity defense, and “[c]onsidering an argument 

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advanced for the first time in a reply brief . . . entails the 

risk of an improvident or ill-advised opinion . . . .” McBride 

v. Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1211 (D.C. Cir. 

1986). Our cases require that an affirmative defense be raised 

in a timely fashion for a reason: what happened here deprived 

plaintiffs of any chance to brief the question and receive a 

fully considered ruling. The failure to raise the defense in a 

timely fashion likewise deprived the district court of orderly 

process and this court of the full benefit of the district 

court’s reasoning. To permit appellate review in these 

circumstances would reward parties who bypass settled procedural 

requirements, and would encourage imprecise practice before the 

trial courts. Accordingly, we decline to entertain this 

interlocutory appeal and remand the action for further 

proceedings in the district court. 

 DISMISSED