UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1384

JOTAYNUN LEE, Individually, and on behalf of himself and 

the minor children of Jataynun Trayvon Fleming, Deceased, 

and as Administrator of the Estate of Jataynun Trayvon 

Fleming, Deceased,

Plaintiff - Appellant,

v.

TODD JAMES BEVINGTON,

Defendant - Appellee,

and

CITY OF RICHMOND, VIRGINIA; WESLEY E. MOORE; JOHN DOE, Nos. 

1-20, being members of the Richmond Police Department SWAT 

Team who responded to, and shot at the decedent at 304 

Beaufort Hill Drive, Richmond, VA 23225; JOHN DOE, Nos. 11-

20, being United States Marshals Service members who were 

part of the response team that shot at decedent,

Defendants.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Robert E. Payne, Senior

District Judge. (3:12-cv-00471-REP)

Argued: March 22, 2016 Decided: May 5, 2016

Before NIEMEYER and MOTZ, Circuit Judges, and Max O. COGBURN, 

Jr., United States District Judge for the Western District of 

North Carolina, sitting by designation.
2

Affirmed by unpublished opinion. Judge Cogburn wrote the 

opinion, in which Judge Niemeyer and Judge Motz joined.

ARGUED: Kenechukwu C. Okoli, LAW OFFICES OF K.C. OKOLI, P.C., 

New York, New York, for Appellant. Donald Cameron Beck, Jr., 

MORRIS & MORRIS, P.C., Richmond, Virginia, for Appellee. ON 

BRIEF: John B. Mann, JOHN B. MANN, P.C., Richmond, Virginia, for 

Appellant. Antoinette Morgan Walker, MORRIS & MORRIS, P.C.,

Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

COGBURN, District Judge:

The Estate of Jataynun Trayvon Fleming (“Appellant” when 

referring to the estate, or “Fleming” when referring to the 

decedent) appeals an order of the district court granting 

summary judgment to Detective Todd James Bevington (“Bevington” 

or “Appellee”) in this 42 U.S.C. § 1983 excessive force action. 

The district court determined that Bevington did not violate 

Fleming’s Fourth Amendment rights when he used deadly force in 

seizing Fleming, and alternatively found that Bevington was 

entitled to summary judgment on his asserted qualified immunity

defense. We affirm. 

I.

We review a district court’s grant of summary judgment de

novo. Estate of Armstrong ex rel. Armstrong v. Vill. of 

Pinehurst, 810 F.3d 892, 895 (4th Cir. 2016). Summary judgment 

shall be granted “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual 

dispute is genuine “if the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.” Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is 

material only if it might affect the outcome of the suit under 

governing law. Id. When ruling on a summary judgment motion, a 

court must view the evidence and any inferences from the 
4

evidence in the light most favorable to the nonmoving party. 

F.D.I.C. v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013). “Where 

the record taken as a whole could not lead a rational trier of 

fact to find for the nonmoving party, there is no genuine issue 

for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 587 (1986). In the end, the question posed by a 

summary judgment motion is whether the evidence “is so one-sided 

that one party must prevail as a matter of law.” Anderson, 477 

U.S. at 252. 

“Because this is a deadly force case, ‘the witness most

likely to contradict [the officers'] story—the person shot dead—

is unable to testify.’” Ingle ex rel. Estate of Ingle v. Yelton, 

439 F.3d 191, 195 (4th Cir. 2006) (quoting Scott v. Henrich, 39 

F.3d 912, 915 (9th Cir. 1994)). In such situations, “a court 

must undertake a fairly critical assessment of the forensic 

evidence, the officer's original reports or statements and the 

opinions of experts to decide whether the officer's testimony 

could reasonably be rejected at a trial,” instead of merely 

accepting a potentially self-serving version of events relayed 

by the officers. Id. (citations omitted). 

II.

A.

On July 14, 2010, officers of the Richmond Police 

Department (“RPD”) arrived at Fleming’s family home in Richmond, 
5

Virginia, to execute a warrant for Fleming’s arrest on charges 

of robbery and use of a firearm in the commission of a felony. 

Fleming was also suspected of being involved in a homicide and 

home invasion committed earlier that day. When police entered 

the residence, Fleming retreated and barricaded himself in an 

upstairs bathroom. Officers present on the scene reported that 

Fleming refused to exit the bathroom and repeatedly threatened 

to shoot the police officers. 

After that initial interaction, the RPD officers dispatched 

a SWAT team to the residence; Bevington was a member of that 

SWAT team. The commander of the SWAT team, Lieutenant Mauricio 

Tovar (“Tovar”), communicated to the SWAT officers, including 

Bevington, the threats that Fleming had made to the RPD 

officers. Tovar also showed the SWAT officers Fleming’s “wanted 

poster,” which described Fleming as “armed and dangerous” and 

advised that he “[would] not go quietly.” J.A. 357. The poster 

also included Tovar’s handwritten notes describing 

communications he had received from RPD officers investigating 

the homicide. Those notes indicated that Fleming was possibly 

armed with a handgun and had made statements that he “will 

shoot” and was “not going down without a fight.” J.A. 354. When 

Fleming’s father, Jotaynun Lee (“Lee”), arrived at the residence 

and spoke with officers on the scene, he told the officers that 

Fleming did not have a gun. 
6

After Tovar briefed Bevington and the other SWAT team 

members on the foregoing information, the SWAT team members 

staged themselves in a spare bedroom across the hall from the 

master bedroom, which connected with the bathroom where Fleming 

remained barricaded. Police negotiators deployed a “throw phone” 

into the bathroom, which allowed for audio communication between 

Fleming and negotiation officers, as well as video surveillance 

of the scene in the bathroom. The negotiation team informed 

Tovar that based on the video surveillance relayed through the 

throw phone, Fleming appeared to have a gun tucked into his 

waistband. Tovar communicated this fact to Bevington and other 

SWAT team members in the staging area. The negotiation team, 

using the throw phone, attempted to convince Fleming to 

peacefully surrender for several hours. In addition, throughout 

the course of the negotiations, Bevington repeatedly instructed 

Fleming on how to surrender, telling him to come out of the 

bathroom with his hands up. 

While barricaded, Fleming communicated with police 

negotiators and members of the SWAT team, telling them he wanted 

to speak to his father and that he wanted a cigarette. At one 

point during the standoff, negotiators informed the SWAT team 

members that Fleming had asked what the SWAT officers would do 

if he “came out with his junk.” J.A. 355, 365. SWAT officers, 

including Bevington, heard Fleming repeat this question from the 
7

bathroom, yelling at the SWAT team, “What are you-all going to 

do when I come out with my junk? What are you going to do when I 

come out with my shit? You-all better get ready to kill me,” and 

“you-all are going to have to shoot it out with me.” J.A. 365, 

751-52, 795. Officers interpreted “junk” to be a slang word for 

“gun” or “weapon.” 

After several hours, Fleming stopped responding to 

communications from the negotiators and began breathing heavily. 

Based on communications with the negotiators, Tovar determined 

that Fleming was preparing to exit the bathroom in a violent 

manner. Tovar then decided to fire tear gas into the master 

bathroom from outside the house in order to force Fleming to 

exit and surrender. In preparation for the tear gas deployment, 

Bevington and the other SWAT team members put on gas masks. 

At the time the gas was deployed, Officer Wesley Moore 

(“Moore”) was the first officer in the single-file SWAT line, 

kneeling and holding a ballistic shield. Bevington was stationed 

as the second officer in the team, standing directly behind 

Moore and providing “cover to a lethal threat.” J.A. 368. Moore 

was positioned in the doorway of the spare bedroom; Bevington 

was leaning over the top of Moore, holding a rifle. The SWAT 

team members in line behind Moore and Bevington were also 

carrying rifles and service pistols; one carried a Taser to 
8

deploy if necessary. The last two officers in line were part of 

the “arrest team” responsible for handcuffing Fleming. 

Soon after the tear gas canisters were launched into the 

bathroom where Fleming was barricaded, Fleming exited the master 

bathroom,1 moved into the master bedroom, and advanced toward the 

officers, who were waiting approximately 13 feet away in the 

threshold of the door to the spare bedroom across the hall. 

Moore and Bevington both testified that when Fleming exited 

the master bathroom, his hands were outstretched toward the SWAT 

team. They both testified that Fleming was holding a black 

cylindrical object wrapped in some sort of cloth, and that they 

perceived this object as a gun. What Moore and Bevington thought 

was a gun was later determined to be a woman’s high-heeled shoe 

wrapped in a t-shirt. As Fleming came toward the officers, Moore 

fired a single shot at him. Moore later testified that he shot 

because he feared for his life and thought that Fleming was 

going to shoot him or another member of the SWAT team. 

Bevington testified that as Fleming came out of the 

bathroom and moved toward the officers, Moore shifted upwards a 

 1 Appellant argues that a dispute of material fact exists as 

to how much time elapsed between the tear gas being thrown into 

the bathroom and Fleming running out of the bathroom. Moore 

stated at his deposition that only seconds elapsed; Sergeant 

Charles Hayes (another SWAT member) estimated that it took 

between three and seven minutes. Though disputed, this fact is 

not material to resolution of the excessive force question 

before us.
9

few inches, knocking Bevington’s gun slightly. Bevington 

believed that the shot fired by Moore had come from Fleming. 

Bevington testified that after the first shot was fired, Fleming 

was still coming toward the officers with his hands straight out 

in front of him, holding what appeared to be a weapon. Bevington 

then fired several shots at Fleming.2 Bevington testified that 

after he fired the first round of shots, Fleming fell to the 

ground but was still pointing his “weapon” at the officers and 

attempting to get back up as the officers approached. Moore also 

testified that after Fleming fell to the ground, he was still 

holding what appeared to be a weapon and was pointing it toward 

the officers. Bevington continued to fire until Fleming rolled 

over and Bevington could no longer see Fleming’s hands.

Bevington stated that the time between the first and second 

round of shots he fired was “less than seconds.” J.A. 382. Moore 

and Bevington fired a total of nine rounds at Fleming, who was 

struck multiple times in his hands, arms, torso, and chest. 

 2 Appellant argues that a genuine dispute of material fact 

exists as to Bevington’s locations when Fleming exited the 

bathroom and when he was shot seconds later. The district court 

properly concluded that though a factual dispute existed as to 

Bevington’s precise location at those times, resolution of those 

disputed facts was immaterial to the excessive force analysis. 

See Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 539-40 

(E.D. Va. 2015) (“Whether Bevington was removed from Fleming by 

thirteen feet or ten feet or five feet makes no difference to 

the circumstances confronting the SWAT unit and Bevington as 

Fleming exited the bathroom and advanced toward the unit.”). 
10

When the shooting ceased, the two arresting officers 

handcuffed Fleming, removed him from the scene, and placed him 

in a waiting ambulance.3 After being transported to a hospital, 

Fleming was pronounced dead within 30 minutes. Upon inspecting 

the scene after the shooting, officers did not find a gun. 

Photographs of the scene reveal a woman's high-heeled shoe and a 

blood-stained, light-colored t-shirt on the floor of the master 

bedroom.

Appellant argues that a genuine issue of material fact 

exists as to Fleming’s location and positioning at the time he 

was shot. Appellant notes that during his interview three days 

after the shooting, Bevington told investigators he shot Fleming 

with a second round while Fleming was still on the ground and 

trying to get up, describing it as: “he’s kind of laying toward 

us and he has this item in his hand still...what I believe was a 

gun and he tries to get up again.” J.A. 553. Years later, at his 

deposition, he testified that he shot Fleming again while he was 

 3 Appellant argues that a disputed issue of material fact 

exists as to who handcuffed Fleming after he was shot based on 

statements made by Lieutenant Stephen McQuail after the shooting 

and a declaration that he later signed in April 2013. See J.A. 

1255; 1253 (explaining that multiple officers assisted in 

placing handcuffs on Fleming). In addition to finding no genuine 

factual dispute between the officer’s statements, the issue of 

who handcuffed Fleming after the shooting is irrelevant to the 

inquiry before us.
11

on the ground, trying to get up, but still pointing what 

Bevington thought to be a weapon at the officers. 

Moore testified that after he fired his shot, Fleming fell 

to the ground within a matter of seconds, and as Moore moved 

toward him, Fleming “was on his back kind of sitting up a little 

bit, and he had at least one hand pointed up, [and] I could see 

the weapon in his hand at that time.” J.A. 786. When questioned 

as to whether he heard gunfire other than his own before Fleming 

fell to the ground, Moore testified, “when he was coming towards 

me, I fired the one round. That’s all I heard. As we moved up, 

that’s when I heard more gunshots. At that point...[h]e was kind 

of up, probably kind of leaning up...[h]e was laying down sideways 

with his weapon pointed up.” J.A. 789. Moore reiterated that 

though Fleming was on the ground, he was still pointing what he 

believed to be a weapon at the SWAT team. At that point, Moore 

heard the shots that Bevington fired at Fleming. 

To the extent that this testimony constitutes a factual 

discrepancy, we do not find it material to resolution of the 

matter at hand. Both Moore and Bevington testified that Fleming 

was attempting to get up, and either still had the “weapon” in 

his hand, or was actively pointing it at the officers, after 

Bevington fired the first volley of shots. As the district court 

properly found:
12

The second volley was fired a split-second after the 

first one, and, of course, Bevington, when he fired 

that volley, was informed by all the previously 

recounted facts just as he was when he fired the first 

volley. In addition, Bevington, as did Moore, saw 

that, although Fleming was down and wounded, he also 

was trying to get up and, in the process, he was still 

pointing at the police officers what was reasonably 

thought to be a gun. And, Bevington knew that the man 

pointing what he reasonably thought was a gun had 

threatened to kill the police officers. He then made a 

split-second reaction to fire the second volley at a 

man who was a threat to him and other officers and who 

was still resisting arrest. On the record here, 

whether Fleming was on the floor, or not, is not 

material to the determination whether...Bevington acted 

reasonably to the presented risk when firing the 

second volley.

Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 540 (E.D. Va. 

2015). 

As to the other alleged genuine issues of material fact 

raised by Appellant, addressed supra, we find that they are not 

truly disputed factual discrepancies, not material to resolution 

of the question before us, or merely facts that Appellant 

attempts to discredit in favor of his speculative version of 

events. As this court has previously noted,

In cases where officers are hurriedly called to the 

scene of a disturbance, the reasonableness of their 

response must be gauged against the reasonableness of 

their perceptions, not against what may later be found 

to have actually taken place. It will nearly always be 

the case that witnesses to a crime differ over what 

occurred. That inevitable confusion, however, need not 

signify a difference of triable fact. What matters is 

whether the officers acted reasonably upon the reports 

available to them and whether they undertook an 

objectively reasonable investigation with respect to 
13

that information in light of the exigent circumstances 

they faced. 

Gooden v. Howard Cty., Md., 954 F.2d 960, 965 (4th Cir. 1992). 

We find that none of the factual disputes raised by Appellant

are triable issues that would ultimately affect the outcome of 

this case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). 

Appellant also contends that two inferences should have 

been drawn in his favor at the summary judgment stage. First, 

based on the fact that Fleming emerged from a bathroom full of 

tear gas, Appellant asks the court to infer that Fleming’s eyes 

were stinging and closed in response to the gas, and thus, that 

he must not have been able to see where he was going. Second, 

Appellant contends that the court should have inferred from the 

testimony of the officers, some of whom did not report to the 

investigators immediately after the shooting that they saw a 

shoe or cloth near Fleming, that the shoe and cloth were planted 

by one or more officers after the shooting but before the police 

crime scene unit took photographs of the scene. We find such 

inferences to be unsupported by the record and based wholly on 

speculation. While the court is cognizant of the fact that there 

is no testimony in this case from the one person who could have 

potentially contradicted the testimony of the officers—the 

decedent—there is simply no evidence in the record that would 
14

allow us to make such inferences. Appellant’s assertions 

essentially amount to a request for the court to doubt the 

testimony in this case and rely instead on unfounded conjecture. 

This we will not do. See Local Union 7107 v. Clinchfield Coal 

Co., 124 F.3d 639, 640 (4th Cir. 1997) (“Fanciful inferences and 

bald speculations of the sort no rational trier of fact would 

draw or engage in at trial need not be drawn or engaged in at 

summary judgment.”). 

B.

Lee, in his capacity as the Administrator of Fleming’s 

Estate, brought this § 1983 action in the Eastern District of 

Virginia, alleging that Bevington’s actions constituted an 

unlawful seizure of Fleming's person under the Fourth Amendment.4

The district court granted Bevington’s Motion for Summary 

 4 Appellant’s Amended Complaint asserted three counts 

against Bevington and other officers. In addition to the Fourth 

Amendment excessive force claim asserted in Count I, Count II 

alleged that Bevington violated Lee's and Fleming's children’s 

substantive due process rights by depriving them of their 

liberty interest “in the companionship, care, custody, and 

management” of Fleming. Count III alleged that Bevington caused 

Fleming “to suffer great pain, suffering and anguish” during the 

July 14, 2010 standoff and subsequent shooting. On March 27, 

2013, the district court dismissed, pursuant to Fed. R. Civ. P. 

12(b)(6), Counts II and III of the Amended Complaint, as well as 

Count I to the extent that it alleged claims on behalf of Lee 

individually and Fleming's minor children. Appellant’s argument 

on appeal challenges only the district court’s disposition of 

Count I on summary judgment, thus making the excessive force 

claim and related qualified immunity question the only issues 

before us on appeal. 
15

Judgment on March 18, 2015, finding that Bevington was entitled 

to summary judgment on the merits of Appellant’s excessive force 

claim and, accordingly, entitled to summary judgment on the 

basis of qualified immunity. This appeal followed. 

III.

A.

“Qualified immunity protects officers who commit 

constitutional violations but who, in light of clearly 

established law, could reasonably believe that their actions 

were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 

2011) (en banc). “Officials will receive immunity 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) (citation and internal quotation marks 

omitted). The court may address these questions in either order, 

but Appellant’s case will survive summary judgment “only if we 

answer both questions in the affirmative.” Estate of Armstrong 

ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 898 (4th 

Cir. 2016) (citing Pearson v. Callahan, 555 U.S. 223, 232 

(2009)). Here, considering the facts in the light most favorable 

to Appellant, Bevington’s conduct did not violate Fleming’s 
16

constitutional rights and our inquiry thus ceases after 

resolving the first prong.

B.

Appellant alleges that Bevington violated Fleming’s Fourth 

Amendment right to be free from unreasonable seizures—a right 

that extends to seizures accomplished by excessive force. See

Graham v. Connor, 490 U.S. 386, 394 (U.S. 1989). “A claim that a 

police officer employed excessive force is analyzed under the 

Fourth Amendment under an ‘objective reasonableness’ standard.” 

Smith v. Ray, 781 F.3d 95, 100-01 (4th Cir. 2015) (quoting 

Henry, 652 F.3d at 531). Excessive force does not arise if an 

officer’s actions “are ‘objectively reasonable’ in light of the 

facts and circumstances confronting [him], without regard to 

[his] underlying intent or motivation.” Id. (quoting Graham, 490 

U.S. at 397). “The test of reasonableness under the Fourth 

Amendment is not capable of precise definition or mechanical 

application...[but] requires a careful balancing of the nature and 

quality of the intrusion on the individual's Fourth Amendment 

interests against the countervailing governmental interests at 

stake.” Armstrong, 810 F.3d at 899 (internal citations and 

quotation marks omitted). Three factors guide us in this 

balancing: 1) the severity of the crime at issue; 2) the extent 

to which the suspect poses an immediate threat to the safety of 

the officers or others; and 3) whether the suspect is actively 
17

resisting arrest or attempting to evade arrest by flight. 

Graham, 490 U.S. at 396. “Ultimately, the question to be decided 

is ‘whether the totality of the circumstances justifie[s] a 

particular sort of ... seizure.’” Smith, 781 F.3d at 101 

(quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)). This 

court has previously noted that, as opposed to considering an 

officer’s actions piecemeal in a “segmented sequence of events,” 

“[t]he better way to assess the objective reasonableness of 

force is to view it in full context, with an eye toward the 

proportionality of the force in light of all the circumstances.” 

Id. at 101-02 (quoting Rowland v. Perry, 41 F.3d 167, 173 (4th 

Cir. 1994)). In addition, our determination of reasonableness 

must account “for the fact that police officers are often forced 

to make split-second judgments—in circumstances that are tense, 

uncertain, and rapidly evolving—about the amount of force that 

is necessary in a particular situation.” Graham, 490 U.S. at 

396-97. As the district court noted, 

No citizen can fairly expect to draw a gun on police 

without risking tragic consequences. And no court can 

expect any human being to remain passive in the face 

of an active threat on his or her life...the Fourth 

Amendment does not require omniscience. Before 

employing deadly force, police must have sound reason 

to believe that the suspect poses a serious threat to 

their safety or the safety of others. Officers need 

not be absolutely sure, however, of the nature of the 

threat or the suspect's intent to cause them harm—the 

Constitution does not require that certitude precede 

the act of self protection.
18

Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 542 (E.D. Va. 

2015) (quoting Elliott v. Leavitt, 99 F.3d 640, 644 (4th Cir. 

1996)).

Upon de novo review, we find that the totality of the 

circumstances here justifies the seizure that took place. As to 

the first Graham factor, the crime at issue was severe. Officers 

were attempting to arrest Fleming for his alleged involvement in 

a robbery accomplished by use of a firearm. The officers were 

also aware that Fleming was a suspect in a homicide committed 

earlier that day. The fact that Fleming was accused of 

committing such violent crimes weighs against Appellant. 

As to the second Graham factor, the uncontroverted 

testimony indicates that the officers reasonably believed that 

Fleming posed an immediate threat to their safety. In addition 

to being aware of the fact that Fleming was wanted for violent 

crimes, the officers had been briefed on information from RPD 

indicating that Fleming was likely armed. They also received 

reports from the negotiation team that video surveillance 

revealed what appeared to be a weapon tucked into Fleming’s 

waistband. Moreover, Fleming made overt threats to the SWAT team 

officers on the scene implying that he was armed. Once he 

emerged from the bathroom holding what appeared to be a weapon 

pointed at the officers, there existed a reasonable perception 

that Fleming posed an immediate risk to their safety. While it 
19

was later determined that Fleming was not armed, he 

intentionally created the perception that he was. Fleming 

continued to point the apparent weapon at the officers even 

after Moore and Bevington fired their initial shots. These 

undisputed facts indicate that Bevington could reasonably have 

determined that Fleming posed a threat to his safety, as well as 

that of his fellow officers, over the course of the rapidly

evolving and uncertain scenario that unraveled once Fleming came 

out of the bathroom.

The third factor—whether Fleming was actively resisting 

arrest—is also not favorable to Appellant. Fleming had been 

actively resisting arrest for several hours at the time he was 

shot. He chose to emerge from the bathroom creating the 

impression that he was capable of, and intent on, shooting the 

arresting officers instead of complying with their commands to 

peacefully surrender. 

In sum, the totality of circumstances here is that Fleming 

was actively resisting arrest for violent felony charges, 

threatened and taunted the police with suggestions that they 

should be prepared to kill him, made statements directly to the 

officers implying that he was armed, and came out of the 

bathroom after a multiple-hour standoff with his hands 

outstretched toward the officers, pointing what appeared to be a 

weapon at them. The district court properly concluded that 
20

considering the factual circumstances as a whole, “[n]o jury 

instructed on the applicable law could conclude that Bevington 

acted unreasonably in firing either the first or second volley” 

of shots. Lee, 100 F. Supp. 3d at 541. While the loss of life 

that occurred in the course of Fleming’s attempted arrest is 

undeniably heartrending, the totality of circumstances here 

clearly justifies the actions by law enforcement that took 

place. 

IV.

We have also considered Appellant’s arguments about experts 

and find them to be either waived or abandoned. The “Statement 

of Issues” section of Appellant’s brief raises as an issue for 

consideration on appeal whether the district court properly 

precluded the expert testimony of Dr. Kenneth Okafor. Appellant 

also stated in the “Summary of Argument” section of his brief 

that the district court improperly excluded such testimony. 

However, Appellant never addresses the issue further in his 

opening or reply brief, and made no mention of this issue at 

oral argument. An appellate brief “must contain appellant's 

contentions and the reasons for them, with citations to the 

authorities and parts of the record on which the appellant 

relies....” Fed. R. App. P. 28(a)(8). To that effect, the failure

to raise or discuss an issue in an appellate brief renders that 

issue abandoned. See Mayfield v. Nat'l Ass'n for Stock Car Auto 
21

Racing, Inc., 674 F.3d 369, 376-77 (4th Cir. 2012). Because

Appellant has failed to substantively argue the issue to the 

court, cite legal authority, or point out any particular part of 

the record relevant to his assertion regarding Dr. Okafor’s 

testimony, we deem this issue abandoned. 

In addition, though Appellant did not articulate in the 

“Statement of Issues” section of his brief any appellate issue 

related to Appellee’s expert Matthew Nordel, he asserted in his 

“Summary of Argument” section that the district court erred by 

making a credibility determination as to this expert. We first 

note that the district court nowhere cited any testimony or 

opinion from Mr. Nordel in the decision now before us on appeal, 

and Appellant has failed to articulate where in the record the 

district court made any finding or reference related to him. It

is thus unclear that the district court made a credibility 

determination as to this expert as Appellant claims. It is also 

unclear how any such determination could have affected the 

district court’s decision on summary judgment. Moreover, 

Appellant has failed to cite any legal authority in support of 

his position on this issue. Thus, we need not consider this 

argument because it fails to comply with Fed. R. App. P.

28(a)(8). Even if the issue were properly before us, however, to 

the extent Appellant challenges Mr. Nordel’s expert opinions as 

to the trajectories of bullets fired at Fleming, any facts 
22

related to the distance and angle from which the bullets were 

fired would have no material impact on our analysis of the 

alleged constitutional violation at hand in light of the rest of 

the uncontroverted evidence discussed herein, even if such facts 

had been accepted by the district court.

V.

Because Bevington’s actions did not constitute an unlawful 

seizure in violation of Fleming’s Fourth Amendment rights, we

affirm the district court’s decision granting Bevington’s 

summary judgment motion. 

AFFIRMED