UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-6256

JAMES ERICK JONES, 

 Plaintiff - Appellant, 

 v. 

MULLINS POLICE DEPARTMENT; OFFICER BAILEY, 

 Defendants - Appellees. 

Appeal from the United States District Court for the District of 

South Carolina, at Beaufort. Joseph F. Anderson, Jr., District 

Judge. (9:07-cv-00497-JFA) 

Argued: October 28, 2009 Decided: December 10, 2009 

Before WILKINSON and NIEMEYER, Circuit Judges, and Anthony J. 

TRENGA, United States District Judge for the Eastern District of 

Virginia, sitting by designation. 

Affirmed by unpublished per curiam opinion. 

ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL OF 

LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for 

Appellant. Mason Abram Summers, RICHARDSON, PLOWDEN & ROBINSON, 

PA, Columbia, South Carolina, for Appellees. ON BRIEF: Seth M. 

Jessee, Third Year Law Student, John F. Anderson, Third Year Law 

Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate 

Litigation Clinic, Charlottesville, Virginia, for Appellant. 

Douglas C. Baxter, RICHARDSON, PLOWDEN & ROBINSON, PA, Columbia, 

South Carolina, for Appellees. 
Unpublished opinions are not binding precedent in this circuit. 

2 
PER CURIAM: 

Appellant James Erick Jones (“Jones”) filed a claim under 

42 U.S.C. § 1983 against Officer Larry Bailey (“Bailey”), a 

police officer in the Mullins, South Carolina Police Department 

(the “Department”), and also against the Department itself. 

Jones alleges that Bailey used excessive force in violation of 

the Fourth Amendment in connection with his arrest on November 

1, 2006 and that the Department is also liable for that use of 

excessive force based on its hiring of Bailey. The District 

Court entered summary judgment against Jones on both of these 

claims, and Jones has appealed from that ruling. We affirm. 

I. 

As set forth in his verified complaint,1 Jones alleges that 

on November 1, 2006, at approximately 2:30 a.m.,2 Bailey 

“maliciously, recklessly and unlawfully” tailgated Jones’ 

vehicle with his police cruiser’s high beams on, thereby 

“concealing his identity” for approximately one half mile as 

 

 1

 The District Court’s record for the purposes of appellees’ 

motion for summary judgment consists of Jones’ verified 

complaint, Bailey’s affidavit, and Jones’ subsequently filed 

affidavit. 

 2 In a subsequently filed unverified “Correction in 

Evidence,” Jones states that the encounter occurred at 12:30 

a.m. 

3 
Jones drove to “a secluded area.” JA at 8. Feeling “endangered,” 

Jones “proceed[ed] to flee wrecking [his] vehicle.” Id. Bailey 

then rammed his vehicle into the rear driver’s side of Jones’ 

vehicle. Jones continues: 

Upon apprehending me (James Jones) and rendering me 

unarmed, Officer Larry Bailey then did unjustly and 

without cause pull his firearm and shot me (James 

Jones) once in the left side adominal[sic] area at 

close range. Officer Larry Bailey then did shove me 

(James Jones) into the driver[’s] side door of his 

vehicle[,] point his firearm a second time in the 

upper area of the left side of my face, firing a 

second shot. Which I (James Jones) avoid because upon 

noticing Officer Larry Bailey[’s] intentions and Gods 

Mercy I grab and pushed the weapon away and began to 

struggle with Officer Bailey in fear of my life. 

JA at 8-9. Jones also alleges that “there is probable cause to 

believe that the Mullins Police Department did knowingly employ 

Officer Bailey whom had a tarnished and unsatisfactory record.” 

Id.

In response to the verified complaint, Bailey and the 

Department filed a motion for summary judgment. In an affidavit 

filed in support of that summary judgment motion, Bailey gives 

the following account of his encounter with Jones. On November 

11, 2006,3 while on patrol, Bailey noticed a vehicle recklessly 

 

 3

 The conflict in the stated dates of Jones’ arrest 

(November 1 compared to November 11, 2006) is not addressed in 

the record, either in the District Court or this Court. 

Nevertheless, this conflict is not a material one for the 

purposes of the District Court’s summary judgment ruling that is 

before us for review. 

4 
traveling in excess of the posted speed. After he activated his 

patrol car’s blue lights, the vehicle failed to stop, 

accelerated for a distance, and then suddenly slammed on its 

brakes, causing the vehicles to collide. Jones then exited this 

vehicle and attacked Bailey, causing both to fall to the ground. 

While on the ground, Jones grabbed Bailey from behind, placed a 

weapon to the side of his head, and told Bailey that if he 

moved, Jones would kill him. Bailey was able to unholster his 

weapon with his right hand and reach across his body to fire his 

weapon from behind and to his left side, hitting Jones in the 

stomach. At the time he fired his weapon, “[Bailey] feared for 

his life,” believing that Jones was going to kill him and “that 

his actions were reasonable under the circumstances.” JA at 23. 

In response to Bailey’s affidavit, Jones filed an affidavit 

in which he repeats much of his original account,4 without 

disputing the core facts stated in Bailey’s affidavit. 

Specifically in this regard, Jones does not dispute, as Bailey 

affirmed, that the blue lights on Bailey’s police cruiser had 

been activated during the encounter or that, during the struggle 

 

 4

 There appears to be some non-material differences in 

Jones’ description of events as between the verified complaint 

and Jones’ supplemental affidavit. In Jones’ affidavit, Jones 

attributes the damage to his car entirely to the collision that 

occurred when Bailey rammed him, while in the verified 

complaint, the “wrecking” of the car is described within the 

context of Jones’ attempt to flee from Bailey. 

5 
leading up to the shooting, Jones grabbed Bailey from behind, 

placed a gun to Bailey’s head, and threatened to kill Bailey if 

he moved. Moreover, Jones does not dispute, and his own version 

of the facts is not inconsistent with, Bailey’s description of 

how he and Jones were positioned relative to each other when 

Bailey discharged his gun. While Jones states that Bailey shot 

him after he “was rendered unarmed,” he does not claim that 

Bailey knew he had been “rendered unarmed” when Bailey shot him 

during the struggle. Jones also does not claim that Bailey knew, 

or even that he should have known, that at some point during the 

continuous struggle that ensued from the moment Jones exited his 

vehicle up until the gunshot to Jones’ abdomen, Jones no longer 

presented a threat to Bailey. 

II. 

The motion for summary judgment was initially considered by 

the Magistrate Judge who, on January 3, 2008, issued his Report 

and Recommendation, recommending that Bailey’s and the 

Department’s motion for summary judgment be granted. In his 

Report and Recommendation, the Magistrate Judge found that 

Bailey’s use of force was objectively reasonable in light of the 

circumstances at the time and that Jones’ constitutional rights 

were therefore not violated. He also found that Bailey was 

entitled to qualified immunity, that the Department could not be 

6 
liable under the theory of respondeat superior, and that Jones 

had not come forward with any evidence to otherwise establish 

liability on the part of the Department. 

Jones timely filed objections to the Report and 

Recommendation and the District Court reviewed the motion for 

summary judgment de novo pursuant to 28 U.S.C. § 636(b)(1). 

Based on that review, the District Court overruled Jones’ 

objections, adopted the recommendations set forth in the Report 

and Recommendation, and granted Bailey’s and the Department’s 

motion for summary judgment. We review a grant of summary 

judgment de novo, viewing the facts in the light most favorable 

to plaintiff, the non-prevailing party. See Holland v. 

Washington Homes, Inc., 487 F.3d 208, 213 (4th Cir. 2007). 

III. 

A.

Section 1983, by its own terms, prohibits constitutional 

violations under color of state law. In this case, Jones claims 

that his constitutional rights under the Fourth Amendment were 

violated when Bailey used excessive force. In order to survive a 

motion for summary judgment, Jones was required to present facts 

sufficient to allow a reasonable fact finder to conclude that 

Bailey used excessive force under the circumstances. Celotex 

Corp. v. Catrett, 477 U.S. 317, 325 (1986) (explaining that a 

7 
non-moving party must come forward with facts sufficient to 

establish a genuine issue of material fact for trial). In 

assessing claims of excessive force under the Fourth Amendment, 

the Court must apply a “reasonableness standard.” See Graham v. 

Connor, 490 U.S. 386, 395 (1989). This standard of review is an 

objective one, and the question is whether an objectively 

reasonable officer under the same circumstances would have 

concluded that a threat existed to justify the particular use of 

force. Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001). 

To determine the reasonableness of a particular use of force, it 

is important for a court to assess the situation “from the 

perspective of a reasonable officer on the scene, rather than 

with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396-

397. A police officer may use lethal force if the police officer 

has “probable cause to believe that the suspect poses a threat 

of serious physical harm, either to the officer or others.” 

Tennessee v. Garner, 471 U.S. 1, 11 (1985). 

In this case, Bailey shot Jones during what both men 

describe as a life and death struggle, during which Jones placed 

his own gun to Bailey’s head and threatened to kill him. Whether 

Bailey acted reasonably must be assessed under these 

circumstances. See Elliot v. Leavitt, 99 F.3d 640, 642 (4th Cir. 

1996) (“The court’s focus should be on the circumstances at the 

moment force was used and on the fact that officers on the beat 

8 
are not often afforded the luxury of armchair reflection.”). 

Jones contends that he was “rendered unarmed” before Bailey shot 

him, but there is no contention that Bailey knew that Jones was 

disarmed and no longer constituted a threat when Bailey shot 

Jones. Indeed, within the context of the struggle that followed 

Jones’ exit from his vehicle with a gun, late at night, in a 

secluded area, the facts, as described by Jones himself, 

demonstrate that Bailey had a reasonable fear that Jones was 

armed and dangerous at the time he shot Jones. Even if Jones’ 

description of the struggle were accepted as true, no reasonable 

jury could find that Bailey was not under a reasonable 

apprehension of serious physical harm at the hands of Jones when 

he shot Jones. See Garner, 471 U.S. at 11. 

Jones urges us to place the struggle and the shooting 

within the context of what Jones claims was Bailey’s initial use 

of excessive force in running Jones’ car off the road. Again, 

even accepting as true Jones’ account of the events leading up 

to the shooting, it remains uncontested that upon seeing Jones 

drive by, Bailey activated his police cruiser’s blue lights to 

signal Jones to pull over, and Jones not only failed to stop, 

but also attempted to flee. Jones’ own description of the 

encounter places Bailey’s police cruiser next to Jones’ vehicle 

before the two vehicles collided. By the time the collision 

between the two vehicles occurred and Jones exited his vehicle, 

9 
it would have been obvious to any reasonable observer in Jones’ 

situation that the other vehicle was a police cruiser and that 

Bailey was a uniformed police officer. For that reason, Bailey 

would have reasonably thought that his status as a police 

officer was known to Jones and that Jones’ conduct could not be 

explained by anything other than an intention to harm him. In 

any event, whether or not Jones was under some misapprehension 

as to Bailey’s identity, the fact remains that Bailey needed to 

respond instantaneously to Jones’ imminent threats to kill him. 

Viewed from the point of view of the objectively reasonable 

officer as required by Graham, Bailey was confronted by a man 

who emerged from his car with a firearm threatening to use it 

after attempting to flee a police cruiser with its blue lights 

flashing. The District Court correctly concluded that there were 

no genuine issues of material fact and Bailey was entitled to 

judgment as a matter of law on Jones’ Fourth Amendment claim 

under Section 1983. 

B. 

 The District Court was also correct in concluding that 

Bailey was entitled to qualified immunity from any Fourth 

Amendment violation. When government officers are performing a 

discretionary function, they are entitled to a defense of 

qualified immunity unless their conduct clearly violates an 

established constitutional right that the officer reasonably 

10 
would have known to exist. Harlow v. Fitzgerald, 457 U.S. 800 

(1983)(granting qualified immunity in the Section 1983 context). 

Whether or not a police officer is entitled to qualified 

immunity is a question of law for the court, and when there are 

no relevant disputed material facts, a court should rule on the 

qualified immunity issue at the summary judgment stage. 

Willingham v. Crooke, 412 F.3d 553 (4th Cir. 2005) (“Ordinarily, 

the question of qualified immunity should be decided at the 

summary judgment stage.”). 

 In this case, as we have discussed above, Bailey did not 

violate Jones’ Fourth Amendment rights at all, much less violate 

a clearly established right that Jones had under the 

circumstances. No reasonable law enforcement officer would think 

that in the situation that Bailey found himself, he would not be 

entitled to protect himself from Jones’ threats of deadly force. 

IV. 

The District Court also dismissed Jones’ claim against the 

Department. The Court must therefore determine whether the 

Department was entitled to judgment in its favor based on the 

absence of any genuine issues of material fact. 

The Court notes initially that there can be no municipal 

liability in the absence of an underlying constitutional 

violation. Since the Court has found that Jones did not suffer 

11 
any constitutional violation, there is no basis for imposing 

liability on the Department. Nevertheless, the Court will review 

the District Court’s decision, which appears to have been issued 

on alternative grounds. 

 Section 1983 does not limit its reach to individual state 

actors who violate plaintiffs’ constitutional rights; it also 

allows claims against municipalities. In Monell v. Dept. of 

Social Servs., 436 U.S. 658 (1978), the Supreme Court 

established that a municipality could only be held liable if it 

put into effect a policy or custom that caused a deprivation of 

federal rights. Id. at 690-691. Here, Jones bases his Section 

1983 claim against the Department solely on its hiring of 

Bailey. While a Section 1983 violation can be based on even a 

single hiring decision, Board of County Commissioners of Bryan 

County (Bryan) v. Brown, 520 U.S. 397 (1967), Jones’ claim is 

viable only if the Department was “deliberately indifferent” 

towards how its hiring decision could lead to a deprivation of 

federal rights. Id. at 407. The standard is a high one. As the 

Supreme Court observed in Bryan: 

Only where adequate scrutiny of an applicant’s 

background would lead a reasonable policymaker to 

conclude that the plainly obvious consequence of the 

decision to hire the applicant would be the 

deprivation of a third party’s federally protected 

right can the official’s failure to adequately 

scrutinize the applicant’s background constitute 

‘deliberate indifference.’ 

12 
Id. at 411. 

In the District Court, Jones did not assert liability 

against the Department based on a claim of “deliberate 

indifference.” Rather, he based his claim against the Department 

only on the theory of respondeat superior. A municipality, 

however, is not liable for constitutional deprivations under 

Section 1983 based on the doctrine of respondeat superior. 

Monell, 436 U.S. at 691 (1978)(“[A] municipality cannot be held 

liable solely because it employs a tortfeasor . . . a 

municipality cannot be held liable under Section 1983 on a 

respondeat superior theory.”) (emphasis in original). For these 

reasons, the District Court’s dismissal of Jones’ claim against 

the Department must be affirmed.5 

 

 5

 On appeal, Jones does assert that the Department may be 

liable under the “deliberate indifference” standard articulated 

in Bryan. Jones did not raise this argument in the District 

Court, and he therefore forfeited it. See Beaudett v. City of 

Hampton, 775 F.2d 1274, 1278 (1985) (explaining that pro se

litigants still need to raise arguments at the trial level in 

order to preserve those issues for appeal). Nevertheless, all 

that Jones alleges in connection with his claim against the 

Department is that Bailey had been reprimanded in the past while 

working for a different police department. That allegation is 

clearly insufficient to support a claim under either Monell, 436 

U.S. at 691, or Bryan, 520 U.S. at 411. 

13 
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V. 

The District Court correctly concluded that there were no 

genuine issues of material fact and that Bailey and the 

Department were entitled to judgment in their favor as a matter 

of law on Jones’ Section 1983 claim that he suffered a 

constitutional deprivation of his Fourth Amendment rights based 

on the alleged use of excessive force and the Department’s 

hiring of Bailey. For these reasons, we affirm the judgment of 

the District Court. 

AFFIRMED