UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HILDA MCCARN, individually and as

Administratrix of the Estate of

Terry McCarn, deceased; JACK

MCCARN,

Plaintiffs-Appellants,

v.

KEN BEACH, Chief of Gaston County

Police Department; TOMMY FULLER;

JEFF ISENHOUR, individually and in

their official capacity as members

of the Gaston County Police

Emergency Response Team; GASTON

COUNTY, NORTH CAROLINA, a North

Carolina municipality; DOUGLAS

No. 95-2312

IVEY,

Defendants-Appellees,

and

TALMADGE MCINNIS, individually and

in his official capacity as a member

of the Gaston County Police

Emergency Response Team; BOB

HARRIS, individually and in his

official capacity as a member of the

Gaston County Police Emergency

Response Team; ARCHIE

HUFFSTETLER, Captain of the Gaston

County Police Department,

Defendants.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

H. Brent McKnight, Magistrate Judge.

(CA-94-49-3-McK)
Argued: April 4, 1996

Decided: July 15, 1996

Before NIEMEYER, HAMILTON, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Fred William DeVore, III, DEVORE & ACTON, P.A.,

Charlotte, North Carolina, for Appellants. Frank Bayard Aycock, III,

Charlotte, North Carolina, for Appellees. ON BRIEF: Troy J. Stafford, DEVORE & ACTON, P.A., Charlotte, North Carolina, for

Appellants.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Plaintiffs Hilda and Jack McCarn appeal from a magistrate judge's

decision in this section 1983 case stemming from the shooting death

of their son, Terry McCarn.1 Defendants (and appellees) are Gaston

County, North Carolina; Ken Beach, who was sued in his official

capacity as Chief of the Gaston County Police Department; and three

police officers, Tommy Fuller, Jeff Isenhour and Douglas Ivey, each

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1 The district judge referred the case to the magistrate judge under 28

U.S.C. § 636(c)(1) for all proceedings, including entry of final judgment.

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of whom was sued individually and in his official capacity. Plaintiffs

argue that the magistrate judge erred by granting summary judgment

in favor of defendants on the basis of qualified immunity and an

absence of municipal liability. Finding no error, we affirm.

I.

This lawsuit stems from the events of July 10, 1993, when Terry

McCarn was shot and killed by two police officers. Terry was fortyfive at the time of his death. At the age of three he was involved in

a tricycle accident that caused a disabling brain injury. As a result,

Terry was epileptic and prone to seizures. He had an IQ of around

sixty-two. Terry lived with his elderly parents in a cinderblock house

that had only one door. Terry's brother, Mike, lived in a house

approximately 150 yards from his parents' home.

On July 10, 1993, a hot Saturday, Terry and Jack were at Mike's

house. Terry became upset at Mike and his father for doing some

plumbing repairs without him. Terry, who was carrying a doublebarrelled shotgun, demanded that his father walk with him to their

house.

At 11:28 a.m., after Terry and his father left, Mike called 911. The

following conversation took place:

Dispatcher: Gaston County 911. . . . Do you have an emergency?

Mike: Uh. Yes ma'am. Uh. This is Mike McCarn. My

brother is up there, he's got epilepsy. He's got a shotgun

after my dad.

D: Okay. Where is this at?

M: On Rhyne Road up in Stanley, coming out of Stanley.

. . .

D: What's your brother's name?

M: Terry McCarn.

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D: They out in the yard?

M: Yeah. He's got a gun out there. I don't know what he's

going to do. I tried to stop him. I don't know what he's

going to do. I need somebody to hurry quickly.

During the walk to his parents' house, Terry fired the shotgun into

the top of a tree and told his father, "that should teach you a lesson."

The father later said that at no time did he feel threatened by Terry.

When they arrived at home, Jack sat on the porch swing while Terry

joined his mother inside the house.

A Gaston County police officer, J.D. Costner, answering the dispatch, arrived at the McCarn house ten to twenty minutes after Terry

had gone inside. Jack asked Officer Costner to leave. Rather than

leaving, the officer refused to let Jack return to the house and called

(over a public address system) for Terry's mother, Hilda, to come outside, but she did not respond. While Hilda was in the house, neither

she nor Terry responded to the efforts by the officers to communicate

with them by telephone or public address.

Hilda was still in the house when Assistant Chief Tommy Fuller

arrived at 12:50 p.m. The situation was reported to him as a "hostage"

situation. He was also told that Terry had fired a gun "at or over his

dad." Fuller had known Terry for years and knew he had epilepsy.

During a similar incident in 1986, Fuller talked Terry into coming out

of a house unarmed when he had been informed that Terry was

armed.

Captain Douglas Ivey, who arrived at 1:21 p.m., was told "there

was a hostage situation at the McCarn residence." He was told "Terry

McCarn had taken his dad at gunpoint, had already fired a shotgun a

couple of times, and that Terry McCarn's mother was still in the

house with him and the gun." Similarly, Officer Jeff Isenhour, who

arrived at 1:13 p.m., was led to believe there was a hostage situation.

Hilda finally came out of the house at around 2:00 p.m. By this

time, twenty-eight officers had arrived at the scene and surrounded

the house. The parties dispute what Hilda told the officers upon

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emerging from the house. But according to Hilda she never referred

to herself as a hostage. "I never told any officer that Terry would not

let me come outside the house. The windows and storm windows

were closed in the house. I never heard a request for me to come outside." Defendants say that Hilda said Terry was sitting on the living

room floor, holding the shotgun in his lap. In any event, Hilda was

not permitted to reenter her house.

Meanwhile, unsuccessful attempts were made to contact Terry by

telephone and over public address speakers. At some point thereafter,

Assistant Chief Fuller walked from the yard to the porch railing and

called to Terry in an unsuccessful attempt to establish communication.

At about 3:15 p.m. the police arranged for the electricity to the

house to be disconnected. According to Officer Ivey, the officers did

this because they were concerned for Terry's health and safety. Since

it was 106 degrees outside and the house was unshaded, they felt that

turning off the power (in case Terry had a fan on) would drive him

from the house. This effort failed, and the officers became concerned

that Terry might be suffering from heat exhaustion. The officers then

warned Terry that they were going to introduce pepper gas into the

house. They reasoned that the pepper gas would force Terry out of the

house and at the same time force him to abandon his weapon. They

also reasoned that if he did not exit the house, they would know that

he had been disabled by the heat.

Around 4:00 p.m. two officers broke a window in the rear of the

house and began to introduce the pepper gas. In response, Terry fired

a shotgun once through the broken window, and the officers retreated.

After a second deployment of gas, Terry emerged from the house carrying a shotgun. He yelled at the police and told them to leave or

"somebody was going to get shot." Terry walked down the steps and

out into the yard towards the end of the porch. As he turned the corner

of the house, he saw Officer Harris and began leveling his shotgun at

him at a range of just a few feet. Three weapons fired, those of Officer Harris, Officer Isenhour, and Terry. Terry was fatally shot.

Terry's parents, Hilda and Jack, filed suit under 42 U.S.C. § 1983.

In a lengthy opinion, a magistrate judge granted summary judgment

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in favor of Gaston County and each defendant in his official capacity

because the evidence did not demonstrate an official policy or practice that deprived plaintiffs of any constitutional rights. The magistrate judge granted summary judgment in favor of the officers in their

individual capacities on the basis of qualified immunity. This appeal

followed.

II.

Plaintiffs first argue that Officers Fuller, Isenhour and Ivey used

excessive force in violation of Terry's Fourth Amendment protection

against "unreasonable seizures." See Graham v. Connor, 490 U.S.

386, 394 (1989). At bottom, plaintiffs argue that the escalation of the

use of force was unnecessary.2 We agree with the magistrate judge

that the officers were entitled to qualified immunity on the excessive

force claim.

The qualified immunity test and the test on the merits of an excessive force claim "both rely on an objective appraisal of the reasonableness of the force employed." Rowland v. Perry, 41 F.3d 167, 173

(4th Cir. 1994). We must ask "whether a reasonable officer could

have believed that the use of force alleged was objectively reasonable

in light of the circumstances." Id. The reasonableness inquiry is

guided by at least three factors: (1) the severity of the suspected crime

at issue, (2) whether the suspect posed an immediate threat to the

safety of the officers and others, and (3) whether the suspect actively

attempted to evade arrest by flight. Id.; Graham, 490 U.S. at 396.

"[T]he immunity inquiry must be filtered through the lens of the officer's perceptions at the time of the incident in question." Rowland, 41

F.3d at 173.

In this case, the information available to the officers reasonably

could have led them to believe that Terry had assaulted his father and

perhaps his brother, kidnapped his father at gunpoint, and held his

mother hostage at gunpoint in the house. They knew that Terry had

epilepsy and could act unpredictably. They reasonably could have

believed that allowing Terry to remain in the house posed a danger

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2 Plaintiffs do not challenge the reasonableness of the actual shooting

of Terry.

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to Terry and that leaving the scene altogether would allow Terry to

pose a threat to others. In light of these circumstances, a reasonable

officer could have believed that the escalation of force was objectively reasonable. See id. Thus, the officers are entitled to qualified

immunity on the excessive force claim.

III.

Plaintiffs next argue that Officers Fuller, Isenhour and Ivey violated Terry's Fourth Amendment right to be free from a warrantless

arrest in his home absent exigent circumstances. We believe the officers are entitled to qualified immunity on this claim as well.

Qualified immunity shields police officers from civil liability

unless their actions "violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiffs are correct

that absent exigent circumstances, the police may not enter a person's

home to effect a warrantless arrest. Payton v. New York, 445 U.S.

573, 590 (1980). However, in this case, even assuming the police

entered Terry's home to effect a warrantless arrest, see United States

v. Maez, 872 F.2d 1444, 1451 (10th Cir. 1989), cert. denied, 489 U.S.

1104 (1991); United States v. Al-Azzawy, 784 F.2d 890, 893 & n.1

(9th Cir. 1985), cert. denied, 476 U.S. 1144 (1986); United States v.

Morgan, 743 F.2d 1158, 1166 (6th Cir. 1984), cert. denied, 471 U.S.

1061 (1985); 3 Wayne R. LaFave, Search and Seizure § 6.1(e), at 262

(3d ed. 1996), we cannot say that it was clearly established in July

1993 that the circumstances confronting the officers were not exigent.

Factors relevant to the issue of exigency include: (1) the degree of

urgency involved and the amount of time necessary to obtain a warrant, (2) the possibility of danger to police guarding the site, (3) the

gravity of the offense involved, and (4) whether the suspect is reasonably believed to be armed. See United States v. Reed, 935 F.2d 641,

642 (4th Cir.), cert. denied, 502 U.S. 960 (1991); United States v.

Cucci, 892 F. Supp. 775, 786 (W.D. Va. 1995). Here, the police knew

Terry was armed with a shotgun. They were aware of his epilepsy and

his tendency towards unpredictable, angry outbursts. As previously

explained, they knew he had already fired the gun, and they believed

he had done so to threaten his father. They also believed that Terry

had held his mother hostage. We have found no cases indicating that

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it was clearly established in July 1993 that these facts would not

amount to exigent circumstances.

Plaintiffs insist, however, that United States v. Morgan, 743 F.2d

1158 (6th Cir. 1984), cert. denied, 471 U.S. 1061 (1985), is just such

a case. Morgan held that there was no exigency sufficient in that case

to justify the officers' warrantless entry into the suspect's home in

order to arrest him. However, we believe Morgan is distinguishable.

There, the record revealed that there was "no[ ] immediate threat or

security risk to the officers . . . ." Id. at 1163. The court continued,

[T]he evidence shows that the occupants of the[Morgan]

house were peaceful until startled by the [police]. Moreover,

Morgan's prior contact with police officials had been

friendly and cooperative. There was no substantiated evidence that Morgan was dangerous or that a grave offense or

crime of violence had occurred or was even threatened.

Id. (internal quotation marks omitted). Because the circumstances in

Morgan were sufficiently different from those presented here, we

believe Morgan did not render the "unlawfulness . . . [if any, of the

officers' actions here] apparent." See Anderson v. Creighton, 483 U.S.

635, 640 (1987). Therefore, we hold that the officers are entitled to

qualified immunity on the warrantless arrest claim.

IV.

Finally, we believe summary judgment was properly granted in

favor of Gaston County, Ken Beach in his official capacity as Gaston

County Chief of Police, and Officers Fuller, Isenhour and Ivey in

their official capacities. "[C]laims against[ ] officers in their official

capacities are claims against the entities for which the officers were

acting." Giancola v. State of West Virginia Dep't of Public Safety,

830 F.2d 547, 550 (4th Cir. 1987); see Kentucky v. Graham, 473 U.S.

159, 165-66(1985). In this case, Chief Beach and Officers Fuller,

Isenhour and Ivey were acting on behalf of Gaston County. However,

local governments such as Gaston County cannot be liable under

§ 1983 by virtue of respondeat superior . Monell v. New York City

Dep't of Social Serv., 436 U.S. 658, 694 (1978). Rather, local governments are liable under § 1983 only when local government officials

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themselves, through acts establishing a policy or custom, cause the

constitutional violation. Id. In this case, plaintiffs acknowledged that

they "cannot show, at this stage of the litigation [i.e., after discovery]

how defendants have handled other hostage situations and whether

the handling of those situations are pursuant to a policy or whether

such acts constitute a custom." Appellants' Brief at 24. Nor did plaintiffs offer evidence of inadequate police training. Therefore, we

affirm the grant of summary judgment to Gaston County, Chief Beach

in his official capacity, and Officers Fuller, Isenhour and Ivey in their

official capacities.

V.

The judgment of the district court is affirmed.

AFFIRMED

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