UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2018

VALINDA STREATER, individually and as guardian ad litem for 

minor other J.G.,

Plaintiff – Appellee,

v.

MATTHEW WILSON, in his Individual and Official Capacity as 

an Officer of the Charlotte Mecklenburg Police Department,

Defendant – Appellant,

and

CITY OF CHARLOTTE,

Defendant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Max O. Cogburn, Jr., 

District Judge. (3:11-cv-00548-MOC-DSC)

Argued: March 20, 2014 Decided: April 7, 2014

Before DUNCAN, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished opinion. Judge Duncan wrote the 

opinion, in which Judge Agee and Judge Wynn joined.

ARGUED: Mark H. Newbold, Daniel Edward Peterson, OFFICE OF THE 

CITY ATTORNEY, Charlotte, North Carolina, for Appellant. Fred 

William DeVore, IV, DEVORE, ACTON & STAFFORD, P.A., Charlotte, 
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North Carolina, for Appellee. ON BRIEF: R. Harcourt Fulton, 

OFFICE OF THE CITY ATTORNEY, Charlotte, North Carolina, for 

Appellant. Fred W. DeVore, III, Derek P. Adler, DEVORE, ACTON & 

STAFFORD, P.A., Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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DUNCAN, Circuit Judge:

Valinda Streater filed suit against Officer Matthew Wilson, 

a Mecklenburg County Police Officer, on behalf of her minor son, 

J.G., alleging that Officer Wilson violated J.G.’s Fourth 

Amendment rights by employing lethal force to effectuate a 

seizure. Officer Wilson filed this interlocutory appeal arguing 

that the district court erred by denying his motion for judgment 

as a matter of law on the ground of qualified immunity. For the 

reasons set forth below, we affirm.

I.

The facts, set out in the light most favorable to Streater 

as the non-moving party, follow. See Anderson v. G.D.C., Inc., 

281 F.3d 452, 457 (4th Cir. 2002).

On the evening of October 16, 2010, Officers Matthew Wilson 

and Andrew Helms responded to a reported stabbing at Brandie 

Glen Road in Charlotte, North Carolina. The officers identified 

the victim, Valinda Streater, standing outside a friend’s home. 

Streater, who had been stabbed in the arm and abdomen by her 

boyfriend, testified that she told the officers her assailant 

had already fled by car. Officer Helms transmitted this 

information and Streater’s description of the assailant as a 

male weighing approximately 240 pounds by hand-held radio to all 

officers in the North Division, which includes Officer Wilson.
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Meanwhile, Officer Wilson spotted two people at a distance 

of about fifty feet, one of whom was Streater’s son, J.G., 

weighing between 115 and 120 pounds, walking quickly toward the 

scene. J.G. was carrying a kitchen knife that he picked up at 

home after learning that his mother had been stabbed. Standing 

between J.G. and the other officer and civilians, Officer Wilson 

saw what appeared to be a knife and unholstered his gun. He 

ordered J.G. to drop his knife three times. J.G. failed to 

immediately comply and continued to approach.

J.G. stopped 31.9 feet away from Officer Wilson and dropped 

the knife to his left. Thus when Officer Wilson again told him 

to disarm, J.G. responded, “Didn’t you just see me drop the 

knife?” Joint Appendix, J.A. 143. Streater, who was standing 

several feet away, started shouting, “That’s my son, please 

don’t shoot.” J.A. 119. Although Officer Helms heard her, 

Officer Wilson testified that he continued to believe J.G. to be 

a suspect in the stabbing who was armed, dangerous, and noncompliant.

Based on his assessment, Officer Wilson fired a total of 

four shots hitting J.G. twice. After the first two rounds, 

Officer Wilson testified that he paused for two or three seconds 

to reassess the situation before firing the third and fourth 

shots, which he intended to be fatal.
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II.

Streater filed suit in Mecklenburg County Superior Court 

against Officer Wilson in his individual capacity under 42 

U.S.C. § 1983 alleging that he violated J.G.’s Fourth Amendment 

rights by employing deadly force to effectuate a seizure.1 The 

case proceeded to trial. At the conclusion of Streater’s 

evidence, Officer Wilson filed a motion for judgment as a matter 

of law on the ground of qualified immunity.2

 The district court 

denied his motion but the jury failed to reach a verdict. After 

the district court declared a mistrial, Officer Wilson filed a 

renewed motion for judgment as a matter of law. He again argued 

that he is entitled to qualified immunity because he employed 

reasonable force under the totality of the circumstances.

Taking the facts in the light most favorable to Streater, 

the district court held that Officer Wilson was not entitled to 

qualified immunity. It concluded that J.G.’s Fourth Amendment 

right to be free from the use of deadly force when standing 

 1 Streater also filed various tort claims under state law 

against Officer Wilson and state and federal claims against the 

City of Charlotte that are not before us on appeal.

2 Streater argues on appeal that Officer Wilson’s delay in 

asserting qualified immunity resulted in an abandonment of this 

defense. Because we hold that Officer Wilson is not entitled to 

qualified immunity here, we need not resolve any issues of 

waiver. McAfee v. Boczar, 738 F.3d 81, 87 (4th Cir. 2013).
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still and over thirty feet away from Officer Wilson was clearly 

established, and that no jury could find that the use of force 

was reasonable in these circumstances. This appeal followed.

III.

A.

We review a denial of a motion for judgment as a matter of 

law de novo. Anderson v. G.D.C., Inc., 281 F.3d at 457. “We 

must view the evidence in the light most favorable to . . . the 

nonmovant, and draw all reasonable inferences in her favor.” 

Id. “Judgment as a matter of law is proper only if ‘there can 

be but one reasonable conclusion as to the verdict.’” Id.

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 

(1986)).

In an interlocutory appeal of a denial of qualified 

immunity, we have jurisdiction “‘to the extent that [an appeal] 

turns on an issue of law,’” but we cannot “re-weigh the evidence 

in the record to determine whether material factual disputes 

preclude summary disposition.” Iko v. Shreve, 535 F.3d 225, 234 

(4th Cir. 2008) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 

(1985)(emphasis omitted)).

We confine our review therefore to the question of whether, 

taking the facts in the light most favorable to Streater, 
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Officer Wilson is entitled to qualified immunity as a matter of 

law.

B.

On appeal, Officer Wilson contends that he is entitled to 

qualified immunity because his shooting of J.G. did not violate 

the minor’s Fourth Amendment rights, and, in the alternative, 

that J.G.’s right to be free from such force was not clearly 

established. We disagree.

Qualified immunity shields government officials in their 

individual capacities from civil liability “unless the § 1983 

claim satisfies a two-prong test: (1) the allegations, if true, 

substantiate a violation of a federal statutory or 

constitutional right and (2) the right was ‘clearly established’ 

such that a reasonable person would have known his acts or 

omissions violated that right.” Brockington v. Boykins, 637 

F.3d 503, 506 (4th Cir. 2011) (internal citations omitted). 

“The burden of proof and persuasion with respect to a defense of 

qualified immunity rests on the official asserting that 

defense.” Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 

(4th Cir. 2013). We consider each prong in turn.

1.

“Whether an officer has used excessive force is judged by a 

standard of objective reasonableness.” Clem v. Corbeau, 284 

F.3d 543, 550 (4th Cir. 2002). The relevant question is 
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“whether a reasonable officer in the same circumstances would 

have concluded that a threat existed justifying the particular 

use of force.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 

1996).

It is undisputed here that Officer Wilson used a lethal 

weapon with intent to kill. The “intrusiveness of a seizure by 

means of deadly force is unmatched,” and a police officer may 

only employ such force where he “has probable cause to believe 

that the suspect poses a threat of serious physical harm, either 

to the officer or to others.” Tennessee v. Garner, 471 U.S. 1, 

9, 11 (1985). If an individual “poses no immediate threat to 

the officer and no threat to others, the harm resulting from 

failing to apprehend him does not justify the use of deadly 

force to do so.” Id. at 11. And, while the qualified immunity 

doctrine accounts for mistakes police officers might make in the 

line of duty, “the mistakes must be those of reasonable men, 

acting on facts leading sensibly to their conclusions of 

probability.” Mazuz v. Maryland, 442 F.3d 217, 225 (4th Cir. 

2006) (quoting Brinegar v. United States, 338 U.S. 160, 176 

(1949)). We cannot agree with Officer Wilson that his decision 

to employ lethal force to seize J.G. was a reasonable mistake.

Taking the facts and reasonable inferences in the light 

most favorable to Streater, we conclude that no reasonable 

officer would have believed J.G. presented a threat of 
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immediate, serious injury justifying the application of deadly 

force. Significantly, we may separately consider non-continuous 

uses of force during a single incident to determine if all were 

constitutionally reasonable. See Waterman v. Batton, 393 F.3d 

471, 481 (4th Cir. 2005). Even if we were to conclude, 

therefore, that Officer Wilson could have reasonably perceived 

J.G. to be a threat prior to firing his first two shots, we 

cannot find that his third and fourth shots were justifiable as 

a matter of law.

Officer Wilson himself admits that he had time to pause 

after the first two shots for a brief period to reassess the 

situation and decide whether further force was necessary under 

the totality of the circumstances. Contrary to his contention 

on appeal, therefore, we are not confronted here with the 

“split-second judgments of a police officer to use deadly force 

in a context of rapidly evolving circumstances, when inaction 

could threaten the safety of the officers or others.” Milstead 

v. Kibler, 243 F.3d 157, 165 (4th Cir. 2001). Nor do we risk 

judging an officer’s conduct “with the 20/20 vision of 

hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citing 

Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). At the point when 

Officer Wilson chose to fire a third and then a fourth shot, he 

knew or should have known that J.G. was over 30 feet away, 

standing still, unarmed, complying with his orders, and making 
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no attempt to escape. His mistaken belief that J.G. posed an 

immediate threat of serious physical injury to himself or to 

Officer Helms and civilians, who were even further away, was 

objectively unreasonable. We hold therefore that Officer 

Wilson’s resort to deadly force violated J.G.’s Fourth Amendment 

rights. We must now determine whether J.G.’s right to be free 

from excessive force under these facts was clearly established 

at the time of the shooting.

2.

Whether a right was clearly established such that a 

reasonable officer would have known that his actions were 

unlawful must be analyzed “in light of the specific context of 

the case, not as a broad general proposition.” Clem, 284 F.3d 

at 549 (internal quotations and citations omitted). When making 

this determination, we typically ask “whether a closely 

analogous situation ha[s] been litigated and decided before the 

events at issue, making the application of law to fact clear.” 

Id. at 553. Further, in the rare case where the official’s 

“conduct is so patently violative of the constitutional right 

that reasonable officials would know without guidance from the 

courts that the action was unconstitutional, closely analogous 

pre-existing case law is not required to show that the law is 

clearly established.” Id. at 553 (quoting Mendoza v. Block, 27 
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F.3d 1357, 1361 (9th Cir. 1994)). We have no troubling holding 

that both standards are met here.

In Garner, the Supreme Court held under analogous 

circumstances that it was clearly established that “[a] police 

officer may not seize an unarmed nondangerous suspect by 

shooting him dead.” 471 U.S. at 11. Similarly, by the time 

Officer Wilson reassessed the objective facts on the evening of 

October 16, 2010, and decided to take what he called a “kill 

shot,” J.G. had disarmed, was neither approaching nor 

threatening the officers or civilians, and based on the police 

broadcast and Streater’s protests, was not a suspect in the 

domestic assault. Moreover, even accepting Officer Wilson’s 

argument that these facts are not directly analogous to Garner, 

J.G.’s right to be free from the use of lethal force to 

effectuate a seizure under the totality of the circumstances was 

“manifestly included within more general applications of the 

core [Fourth Amendment] principle[s].” Pritchett v. Alford, 973 

F.2d 307, 314 (4th Cir. 1992). We hold therefore that Officer 

Wilson violated J.G.’s clearly established Fourth Amendment 

rights.
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IV.

Because we hold that Officer Wilson is not entitled to 

qualified immunity as a matter of law, the district court’s 

denial of his renewed motion for judgment as a matter of law is 

AFFIRMED.