PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SALVATORE J. CULOSI, personally 

and as personal representative and

administrator of the estate of Dr.

Salvatore J. Culosi, deceased;

ANITA L. CULOSI, personally and as

personal representative and

administrator of the estate of Dr.

Salvatore J. Culosi,

Plaintiffs-Appellees,

v.

DEVAL BULLOCK, Officer,

individually and in his official  No. 09-1042

capacity as Fairfax County Police

Officer,

Defendant-Appellant,

and

FAIRFAX COUNTY, VIRGINIA; DAVID

M. ROHRER, Colonel, in his official

capacity as Chief of Police; JAMES

KELLAM, individually and in his

official capacity; UNITED STATES OF

AMERICA,

Defendants. 
SALVATORE J. CULOSI, personally 

and as personal representative and

administrator of the estate of Dr.

Salvatore J. Culosi, deceased;

ANITA L. CULOSI, personally and as

personal representative and

administrator of the estate of Dr.

Salvatore J. Culosi,

Plaintiffs-Appellants,

v.

FAIRFAX COUNTY, VIRGINIA; JAMES

K  No. 09-1104 ELLAM, individually and in his

official capacity; DAVID M.

ROHRER, Colonel, in his official

capacity as Chief of Police,

Defendants-Appellees,

and

UNITED STATES OF AMERICA; DEVAL

BULLOCK, Officer, individually and

in his official capacity as Fairfax

County Police Officer,

Defendants. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(1:07-cv-00266-LMB-TCB)

Argued: October 28, 2009

Decided: February 22, 2010

Before KING, SHEDD, and DAVIS, Circuit Judges.

2 CULOSI v. BULLOCK
Dismissed by published opinion. Judge Davis wrote the opinion, in which Judge King and Judge Shedd concurred. 

COUNSEL

ARGUED: David John Fudala, SUROVELL, MARKLE,

ISAACS & LEVY, Fairfax, Virginia, for Deval Bullock, Officer, individually and in his official capacity as Fairfax County

Police Officer. Michael S. Lieberman, DIMUROGINSBERG,

PC, Alexandria, Virginia, for Salvatore J. Culosi, personally

and as personal representative and administrator of the estate

of Dr. Salvatore J. Culosi, deceased, and Anita L. Culosi, personally and as personal representative and administrator of the

estate of Dr. Salvatore J. Culosi. Ann Gouldin Killalea,

COUNTY ATTORNEY’S OFFICE, Fairfax, Virginia, for

Fairfax County, Virginia, James Kellam, individually and in

his official capacity, and David M. Rohrer, Colonel, in his

official capacity as Chief of Police. ON BRIEF: Bernard J.

DiMuro, DIMUROGINSBERG, PC, Alexandria, Virginia, for

Salvatore J. Culosi, personally and as personal representative

and administrator of the estate of Dr. Salvatore J. Culosi,

deceased, and Anita L. Culosi, personally and as personal representative and administrator of the estate of Dr. Salvatore J.

Culosi. David P. Bobzien, County Attorney, COUNTY

ATTORNEY’S OFFICE, Fairfax, Virginia, for Fairfax

County, Virginia, James Kellam, individually and in his official capacity, and David M. Rohrer, Colonel, in his official

capacity as Chief of Police.

OPINION

DAVIS, Circuit Judge:

The underlying claims at issue in these appeals, asserted

pursuant to 42 U.S.C. § 1983 and state law, arise out of the

CULOSI v. BULLOCK 3
fatal shooting of an arrestee by a Fairfax County, Virginia,

police officer. Defendant Deval Bullock, the officer who fired

the fatal shot, noted an interlocutory appeal in No. 09-1042

from the district court’s denial of summary judgment on the

ground of qualified immunity. See Mitchell v. Forsyth, 472

U.S. 511, 530 (1985). Thereafter, pursuant to an order entered

under Fed. R. Civ. P. 54(b), Plaintiffs Salvatore J. and Anita

L. Culosi, individually and as personal representatives of the

estate of the decedent, filed a cross-appeal in No. 09-1104

from the district court’s earlier order granting a Fed. R. Civ.

P. 12(b)(6) motion to dismiss for failure to state a claim upon

which relief could be granted filed by Defendants Fairfax

County, Police Chief David M. Rohrer, and Lt. James Kellam.

For the reasons that follow, we conclude that the order of the

district court denying qualified immunity to Officer Bullock

is not immediately appealable because the district court

merely determined that genuine disputes of material fact

existed—a determination not subject to interlocutory appeal.

See Johnson v. Jones, 515 U.S. 304, 319-20 (1995). Moreover, under the circumstances, we decline to exercise jurisdiction over the Plaintiffs’ cross-appeal pursuant to the Rule

54(b) certification order entered by the district court. Accordingly, we shall dismiss both appeals in their entirety.

I.

In October 2005, the Fairfax County Police Department

("FCPD") began an investigation of Dr. Salvatore J. Culosi,

Jr. ("Dr. Culosi"), a local optometrist, for felony gambling

offenses. Detective David Baucom ("Det. Baucom") of the

FCPD Money Laundering Unit ("the MLU"), acting in an

undercover capacity, had begun to place sports bets with Dr.

Culosi at a sports bar, betting approximately $28,000 over the

course of several months. In January 2006, Det. Baucom and

other members of the MLU decided to arrest Dr. Culosi and

to execute a search warrant at Dr. Culosi’s residence for evidence of his illegal gambling activities.

4 CULOSI v. BULLOCK
The FCPD Tactical Section ("the SWAT team") customarily executed search warrants for the MLU but it was not ordinarily involved in effecting routine warrantless felony arrests,

as was planned of Dr. Culosi. In any event, Det. Baucom contacted the SWAT team supervisor, Defendant Lieutenant

James Kellam ("Lt. Kellam"), and requested assistance in the

execution of the search warrant for Dr. Culosi’s home. In the

month before the scheduled raid, Lt. Kellam’s SWAT team

conducted surveillance of Dr. Culosi’s residence and neighborhood. Lt. Kellam determined from the surveillance that

there were no indications of "red flags" signifying any special

dangers in the proposed operation. In due course, the officers

decided to execute the search warrant at Dr. Culosi’s home on

the evening of January 24, 2006. Under the plan the officers

put in place, Det. Baucom would lure Dr. Culosi from his residence to collect $1,500 that Dr. Culosi owed Det. Baucom

from bets on football games, and the SWAT team would

assist in effecting Dr. Culosi’s arrest and conduct the search

of the residence.

On the morning of January 24, 2006, members of the

SWAT team, including Officer Bullock, were involved in

supervising an early morning deer hunt, beginning at 5:00

a.m. and ending later that afternoon. Most of the members

then went home and gathered later in the evening to review

the procedures for the arrest of Dr. Culosi and the search of

his residence. Lt. Kellam assigned Sergeant Sean Scott ("Sgt.

Scott") to supervise the arrest aspect. 

Sgt. Scott decided to use a dynamic tactical method known

as a "vehicle takedown" for Dr. Culosi’s arrest. Critical to this

method is the sudden appearance of officers, at least one of

whom would point his firearm directly at the arrestee in order

to control him. Other officers would then go "hands on," i.e.,

take physical custody of the arrestee and place him in handcuffs. Specifically, the plan here called for Det. Baucom,

while wired for audio monitoring by members of the SWAT

team, to drive to Dr. Culosi’s residence, wait in his vehicle for

CULOSI v. BULLOCK 5
Dr. Culosi to leave his house and approach the vehicle, and

then give a verbal arrest signal once Dr. Culosi handed over

the $1,500 gambling payoff. When the arrest signal was

given, Sgt. Scott, accompanied by Officer Bullock, would

drive a van from around the corner. Officer Bullock would

then exit from the van’s front passenger side, announce "police, don’t move" from a gun ready position, and take Dr.

Culosi into custody.

Sgt. Scott later modified the plan whereby Officer Bullock

would merely "control" Dr. Culosi (by use of his firearm)

while officers from a second vehicle would approach to go

"hands on" with Dr. Culosi. Before the plan was executed,

during or after the pre-arrest briefing, Sgt. Scott received a

phone call requiring him to withdraw. Lt. Kellam assumed

Sgt. Scott’s role in executing Dr. Culosi’s arrest. Officer Lee

Northrop was substituted as the driver of Officer Bullock’s

vehicle. 

At approximately 9:00 p.m., Det. Baucom called Dr. Culosi

and arranged to meet outside of Dr. Culosi’s residence, a

townhouse condominium. Half an hour later, Dr. Culosi left

his house in stockinged feet and met Det. Baucom, who was

sitting in his car outside the garage. Dr. Culosi approached the

car on the passenger side through his garage and began a conversation about the upcoming Superbowl, while handing Det.

Baucom $1,500. The parties dispute whether Dr. Culosi was

holding a cell phone in his hand during the encounter,

although his cell phone was recovered close to his body after

the shooting. Det. Baucom soon gave the verbal arrest signal.

At the signal, Officer Northrop rapidly approached Det.

Baucom’s vehicle and pulled up immediately behind it. At

that time, Dr. Culosi was still standing next to the passengerside door of Det. Baucom’s vehicle. When Officer Northrop’s

vehicle came to rest, Officer Bullock exited from the front

passenger door using his left hand to open the door while

simultaneously unholstering his weapon with his right hand

6 CULOSI v. BULLOCK
and announcing "police." Officer Bullock intended to assume

a two-handed-grip, i.e., a "gun ready" position. As he executed this maneuver, his weapon discharged a single round,

striking Dr. Culosi in the heart. Dr. Culosi received emergency treatment at the scene but died of his wound at the hospital shortly after the incident. 

Officer Bullock has insisted consistently that the discharge

of his weapon was "accidental," although he has varied somewhat his explanations as to the precise character and happening of the "accident." In any event, it is undisputed that the

firearm discharged as a direct result of Officer Bullock

squeezing the trigger of his .45 caliber semi-automatic pistol;

the weapon did not fire as a result of a malfunction. 

II.

Plaintiffs filed this action on March 20, 2007. By their

amended complaint, they sought damages in eight counts as

follows: Count 1, 42 U.S.C. § 1983 claim against Fairfax

County and Chief Rohrer, based on an alleged custom or policy regarding the use of excessive force;1

 Count 2, 42 U.S.C.

§ 1983 Fourth Amendment excessive force claim against

Officer Bullock; Count 3, 42 U.S.C. § 1983 Fourth Amendment excessive force claim against Lt. Kellam; Count 4, 42

U.S.C. § 1983 due process claim, i.e., denial of access to

courts, against Fairfax County and Chief Rohrer;2 Count 5,

1The Plaintiffs generally theorized that Fairfax County and Police Chief

Rohrer are liable under § 1983 for maintaining a custom or policy of

excessive force. They further alleged that Rohrer and the County are

responsible for the FCPD’s use of the SWAT team for executing search

warrants, employing advanced tactical methods, and for the practice of

drawing weapons and pointing them at individuals. See Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 690-91 (1978). 

2

 Apparently, the access-to-courts claim theorized that the police department purposefully conducted its investigation of the shooting in such a

manner as to deny to the Plaintiffs accurate, probative evidence of how Dr.

Culosi was killed. 

CULOSI v. BULLOCK 7
state law claim against Bullock (assault); Count 6, state law

claim against Bullock (battery); Count 7, state law claim

against Bullock (gross negligence); and Count 8, state law

claim against Lt. Kellam (gross negligence).

By order entered on October 19, 2007, as modified by an

order entered on August 14, 2008, the district court dismissed

with prejudice counts 1, 3, and 8, of the amended complaint,

and without prejudice count 4, and thereby dismissed all

claims against all defendants except Officer Bullock, who

fired the fatal shot. After the completion of discovery, Officer

Bullock moved for summary judgment, invoking qualified

immunity as to the § 1983 excessive force claim, and contending that he was entitled to judgment as a matter of law on

the remaining state law claims. After holding a hearing, the

district court entered an order on December 5, 2008, reciting

that "for the reasons stated in open court," Officer Bullock’s

motion for summary judgment was denied.

Thereafter, the Plaintiffs moved the district court to certify

the earlier dismissal of the claims against defendants other

than Officer Bullock as a final appealable judgment pursuant

to Fed. R. Civ. P. 54(b). Defendants did not oppose that

motion and the court entered a certification order on January

2, 2009. Officer Bullock and the Plaintiffs filed timely notices

of appeal on January 5, 2009, and January 16, 2009, respectively.

III.

We examine first the interlocutory appeal brought by Officer Bullock. On appeal, the parties agree (and the district

court clearly recognized) that the viability of the Plaintiffs’

Fourth Amendment excessive force claim generally, and

application of the qualified immunity defense to Officer Bullock, specifically, turns on this question: was the shooting

death of Dr. Culosi the result, on the one hand, of an intentional act by Officer Bullock, or, on the other hand, was it the

8 CULOSI v. BULLOCK
result of a tragic and deeply regrettable, unintentional, accidental, discharge of Officer Bullock’s firearm? 

Of course, this framing of the issue is quite correct. A

Fourth Amendment seizure occurs "only when there is a governmental termination of freedom of movement through

means intentionally applied." Brower v. County of Inyo, 489

U.S. 593, 597 (1989)(emphasis in original). The Supreme

Court has held that shooting a fleeing suspect is a Fourth

Amendment seizure. Tennessee v. Garner, 471 U.S. 1, 7

(1985). A claim of excessive force is analyzed under the

Fourth Amendment standard of objective reasonableness.

Graham v. Connor, 490 U.S. 386, 395 (1989); Scott v. Harris,

550 U.S. 372, 381 (2007). A police officer may use deadly

force "when the officer has sound reason to believe that a suspect poses a threat of serious physical harm to the officer or

others." Elliot v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996).

Reasonableness is determined by the information possessed

by the officer at the moment the force is employed. Waterman

v. Batton, 393 F.3d 471, 477 (4th Cir. 2005). A mistaken use

of deadly force, however, is not necessarily a constitutional

violation under the Fourth Amendment: "a mistaken understanding of facts that is reasonable in the circumstances can

render a seizure reasonable under the Fourth Amendment."

Milstead v. Kibler, 243 F.3d 157, 165 (4th Cir. 2001); see also

Maryland v. Garrison, 480 U.S. 79, 87 (1987) ("[T]he Court

has recognized the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult

process of making arrests and executing search warrants.");

Henry v. Purnell, 501 F.3d 374, 382 (4th Cir. 2007) (recognizing that shooting the decedent with a handgun when thinking it was a taser gun could be a reasonable mistake). 

Before us, Officer Bullock vigorously contends that the district court erred in denying his motion for summary judgment

because, as a matter of law, the death of Dr. Culosi was accidental, and therefore, the circumstances surrounding his death

cannot support a Fourth Amendment excessive force claim at

CULOSI v. BULLOCK 9
all. Furthermore, he contends, that conclusion entitles him to

qualified immunity.3

Whether we agree or disagree with the district court’s

assessment of the record evidence on that issue, however, is

of no moment in the context of this interlocutory appeal. This

conclusion is required because the Supreme Court and this

court have made clear "that a defendant, entitled to invoke a

qualified immunity defense, may not appeal a district court’s

summary judgment order insofar as that order determines

whether or not the pretrial record sets forth a ‘genuine’ issue

of fact for trial." Johnson, 515 U.S. at 319-20. "In other

words, we possess no jurisdiction over a claim that a plaintiff

has not presented enough evidence to prove that the plaintiff’s

version of the facts actually occurred, but we have jurisdiction

over a claim that there was no violation of clearly established

law accepting the facts as the district court viewed them."

Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997) (en banc).

In denying Officer Bullock’s motion for summary judgment, the district court plainly, even if only implicitly, acted

on the basis that there existed in this case genuine disputes of

material fact and that the resolution of such disputes at trial

was necessary before the legal issue of Officer Bullock’s entitlement to qualified immunity could be determined. Although

the court did not memorialize its ruling in a memorandum

opinion, its comments "in open court" leave little doubt as to

3The inquiry into qualified immunity starts with a threshold question:

taken in the light most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a constitutional right?

Saucier v. Katz, 544 U.S. 194, 201 (2001). If the court finds there is no

violation of a constitutional right, the inquiry ends there and the officer is

entitled to summary judgment. If a potential violation is shown, the next

step is to ask whether the right was clearly established. Id. Qualified

immunity is abrogated only when the right that the officer is alleged to

have violated was a "clearly established" right at the time of the violation.

Id. at 202. The Supreme Court has recently freed us to consider these

issues in any sequence. Pearson v. Callahan, 129 S.Ct. 808, 818 (2009).

10 CULOSI v. BULLOCK
its reasoning: "It’s a very close case . . . Credibility of the witnesses is clearly an issue that runs through this, and quite

frankly, this case will to a significant degree rely upon the

credibility of Officer Bullock." J.A. 195.4 Thus, it is clear that

the district court found that whether the death of Dr. Culosi

was the result of intentional force willfully applied by Officer

Bullock, or an accident, was a factual issue for the jury at trial.5

4The record shows that Officer Bullock gave numerous formal accounts

of the incident, including: (1) a statement on the night of the shooting, (2)

a statement within days thereafter, (3) statements during internal affairs

interviews and disciplinary proceedings conducted by the police department, as well as (4) by deposition in this case. Understandably, perhaps,

not all of his accounts are entirely consistent with each other, nor entirely

consistent with accounts given by several witnesses who were present at

the time of the shooting. 

5To be sure, the district court expressed deep skepticism as to whether

any one or more of the Plaintiffs’ myriad "theories" would be found persuasive by a jury. J.A. 185-86 ("I don’t see how this case can go forward

on this record."). Seemingly, the two theories most pressed on appeal by

the Plaintiffs are that Bullock acted intentionally "because he overreacted

to observing a cell phone in Culosi’s hand, or . . . due to fatigue and anxiety [in consequence of his participation in the early-morning deer hunt],

Bullock unreasonably reacted to some subjective belief that Culosi was

about to run into his house." See Reply Br. at 4. 

In any event, as the district court ultimately (if only impliedly) concluded, the Plaintiffs have generated genuine disputes of material, historical fact in reliance on: (1) eyewitness accounts from officers who were

present at the time of and immediately after the shooting who arguably

contradict Officer Bullock on some points; (2) expert opinion evidence,

including reenactment evidence, which Officer Bullock never sought to

have formally excluded from consideration by the district court; (3) forensic evidence gathered from and derived from the scene of the shooting

(including the presence of the Dr. Culosi’s cell phone); and (4) a series of

internal inconsistencies in Officer Bullock’s own accounts, of which there

are more than four, as to how the shooting occurred. Whether or not we

would agree with the district court’s evaluation of the record evidence

relied on by the Plaintiffs, we have no hesitation in concluding that this

array of evidence is what undergirds the district court’s implied conclusion

that there existed genuine disputes of material fact that bear on and support the Plaintiffs’ alternative explanations of whether the shooting was

accidental or intentional. And, as the district court stated, "this case will

to a significant degree rely upon the credibility of Officer Bullock." J.A.

195. 

CULOSI v. BULLOCK 11
In his appellate briefs Officer Bullock does not cite or discuss Johnson or Winfield or their progeny, see, e.g., Iko v.

Shreve, 535 F.3d 225 (4th Cir. 2008); nevertheless, he earnestly disclaims reliance on any alleged insufficiency of the

Plaintiffs’ evidentiary showing that the discharge of his

weapon was other than accidental. See Reply Br. at 3. We

find, however, his argument that the shooting was accidental

as a matter of law is precisely that: an argument based on

insufficient record evidence to prove the contrary, and thus

one not open to consideration to us on interlocutory appeal.

Id. 

As mentioned above, Officer Bullock agrees, in effect, that

if a fact finder found by a preponderance of the evidence that

he intentionally and willfully shot Dr. Culosi, a constitutional

violation would be established. See Garner, 471 U.S. at 8.

Thus, unless the district court was satisfied that a genuine dispute of material fact on that issue was presented, it would

have granted Officer Bullock’s motion for summary judgment. In other words, it is only because the district court,

drawing inferences in favor of the Plaintiffs, discerned that

Plaintiffs had accumulated sufficient proof of an intentional

shooting, i.e., "the illegality of the seizure," see Figg v.

Schroeder, 312 F.3d 625, 642 (4th Cir. 2002), that the court

denied his motion.6 Accordingly, we lack jurisdiction to consider Officer Bullock’s interlocutory appeal. See Iko, 535 F.3d

at 237 ("Because the district court denied, by virtue of conflicting factual inferences, summary judgment on the claim

that the application of pressure to Iko constituted excessive

force, there is no legal issue on appeal on which we could

6This is not a case in which the legal effect of a collection of undisputed

facts points to divergent outcomes, one constitutional and the other not.

Rather, this is a case, as the district court recognized, in which the version

of facts ultimately accepted by the fact finder will dictate the outcome of

the constitutional inquiry. Of course, our conclusion, compelled by Johnson, that we lack jurisdiction to review the sufficiency of the evidence in

this interlocutory appeal will have no bearing on any post-trial review of

the sufficiency of the evidence should the need to do so arise. 

12 CULOSI v. BULLOCK
base jurisdiction. Therefore, this aspect of the officers’ appeal

must be dismissed.").7

IV.

We now turn to the cross-appeal. The Plaintiffs’ crossappeal from the district court’s dismissal of all claims against

all defendants other than Officer Bullock was authorized by

the district court, at their request, pursuant to Fed. R. Civ. P.

54(b). Under that rule, a district court "may direct the entry

of a final judgment as to one or more but fewer than all of the

claims or parties only upon an express determination that

there is no just reason for delay and upon an express direction

for the entry of judgment." Fed. R. Civ. P. 54(b). 

We have recognized that "[w]e can only reverse a district

court’s Rule 54(b) certification if we determine that the district court has abused its discretion." Fox v. Baltimore Police

Dep’t, 201 F.3d 526, 531 (4th Cir. 2000). Although we normally "defer to the district court’s initial determination that a

judgment is final and no just reason exists for delay[,] [w]e

must necessarily accord the district court less deference . . .

when . . . the court offers no rationale for its decision to certify." Id. (citing Braswell Shipyards, Inc. v. Beazer East, Inc.,

2 F.3d 1331, 1336 (4th Cir. 1993)(recognizing that "numerous

courts have held that where the district court’s Rule 54(b) certification is devoid of findings or reasoning in support thereof,

the deference normally accorded such a certification is nullified")). Here, the district court failed to specify any reasons

for certifying the appeal as requested by the Plaintiffs, and we

can discern scant reason for us to accept jurisdiction. Most

likely, however, the court acted on the possibility that we

might reverse the denial of qualified immunity to Officer Bul7Our dismissal of Plaintiffs’ cross-appeal, see infra Part IV, makes it

unnecessary for us to address Officer Bullock’s contention that we should

exercise pendent appellate jurisdiction over the district court’s denial of

his motion for summary judgment as to the state law claims. 

CULOSI v. BULLOCK 13
lock, and that certification under Rule 54(b) might then make

good sense, insofar as the Plaintiffs would be free to seek plenary review of all claims in the case upon one appeal. Such

reasoning, however, would constitute an abuse of discretion

because it rests on a misapprehension of the law — the mistaken notion that we would possess jurisdiction over Officer

Bullock’s interlocutory appeal. Our dismissal of Officer Bullock’s interlocutory appeal plainly undercuts this basis for the

Rule 54(b) certification. 

Moreover, as to the Defendants other than Officer Bullock,

who are the Appellees in the cross-appeal, the orders of the

district court left open the possibility that the Plaintiffs might

reinstate their denial-of-access-to-the-courts claim, count 4 of

the amended complaint. Thus, although the district court’s

orders nominally dismissed count 4 of the amended complaint, because the dismissal was without prejudice, the Plaintiffs have the unfettered right to refile their § 1983 due

process claim. Describing that claim as "premature," it

appears that the district court has never definitively considered the legal sufficiency of the claim at all. It would be

anomalous, to say the least, for us to review such a dismissal

pursuant to Fed. R. Civ. P. 54(b).8

V.

For the foregoing reasons, the appeals in this case are 

DISMISSED.

8

Indeed, the Plaintiffs-Cross Appellants make no argument as to the

access-to-courts claim in their opening brief on appeal. This is unsurprising inasmuch as they persuaded the district court to modify the dismissal

of that claim to a dismissal without prejudice. 

14 CULOSI v. BULLOCK