UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-6452

MICHAEL ANDREW SMITH, 

Plaintiff - Appellee, 

v. 

RICHARD T. KENDALL,

Defendant - Appellant, 

and

SANFORD POLICE DEPARTMENT, 

Defendant. 

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. N. Carlton 

Tilley, Jr., Senior District Judge. (1:05-cv-00495-NCT-PTS) 

Submitted: December 29, 2009 Decided: March 8, 2010

Before GREGORY, SHEDD, and AGEE, Circuit Judges. 

Affirmed in part; dismissed in part by unpublished per curiam 

opinion. 

Rachel E. Daly, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, WinstonSalem, North Carolina, for Appellant. Romallus O. Murphy, 

Greensboro, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Richard T. Kendall, a police officer with the Sanford 

Police Department in North Carolina (“SPD”), appeals the 

district court’s order denying his motion for summary judgment 

in Michael Andrew Smith’s civil action alleging a Fourth 

Amendment excessive force claim under 42 U.S.C. § 1983 (2006). 

We affirm in part and dismiss in part. 

I.

On the evening of January 1, 2003, Kendall, on duty 

with the SPD, observed a sport utility vehicle (“SUV”) with its 

rear taillights out. Kendall followed in his patrol car and 

activated its blue lights in an effort to stop the SUV, but 

Smith, the driver, responded by accelerating the SUV. Kendall 

pursued Smith along a gravel road at a high rate of speed, at 

times, activating the patrol car’s siren. Smith ran through two 

stop signs before the vehicles reached an unpaved area, around a 

local foundry that contained sand, mud, and railroad tracks. A 

light was present but did not illuminate the area, and it was 

drizzling and the sand was muddy. Smith’s SUV came to a stop, 

and Kendall parked the patrol car nearby and approached the SUV 

on foot. After approaching the SUV, Kendall fired multiple 

gunshots into its windshield. The fact of the shooting is 
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undisputed, but the parties’ accounts of the circumstances 

leading up to it differ greatly. 

Kendall stated in an affidavit that after he 

approached the front of the SUV, Smith “revved” its engine, and 

the SUV “lunged” toward Kendall. Kendall shouted at Smith to 

stop, but the SUV continued to “wildly bounce,” moving forward 

toward Kendall upon gaining traction and then moving backward 

upon losing traction. Kendall lost his footing, and his leg 

became stuck against a pile of muddy sand. Smith continued to 

rev the SUV’s engine. Fearful that the SUV would run over him, 

Kendall pulled out his firearm, aimed at Smith’s right arm in an 

attempt to knock it off the steering wheel, and fired the gun 

once through the SUV’s windshield. Smith, however, continued to 

rev the SUV’s engine, and when the SUV came within a few feet of 

Kendall, the officer fired six more times through the 

windshield. Smith continued to rev the SUV’s engine, and it was 

not until after Kendall’s eighth shot that Smith finally took 

his hands off the steering wheel. 

By contrast, Smith stated in an affidavit that after 

Kendall approached the SUV, he ordered Smith to turn off its 

engine and put his hands up. When Smith heard this command, he 

complied. While the SUV’s engine was off and Smith’s hands 

raised, Kendall fired his gun several times through the SUV’s 

windshield. 
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Smith was later taken to a hospital, and the operating 

physician discovered two bullet wounds in Smith’s right arm. 

According to the physician’s deposition testimony, the bullet 

entry wounds Smith received were not like those he would have 

received had he had his arms extended above his shoulders during 

the shooting. Ruts of several feet in length were present in 

the mud around the foundry, and there was mud splatter on the 

SUV. 

Kendall moved for summary judgment on the ground of 

qualified immunity. The district court denied Kendall’s motion 

on the qualified immunity defense, concluding that there existed 

a genuine dispute as to whether the shooting constituted 

excessive force under the Fourth Amendment and whether a 

reasonable officer in Kendall’s position would have known that 

his actions were unlawful. Kendall noted this interlocutory 

appeal. 

II.

A government official such as Kendall is not entitled 

to qualified immunity from liability for civil damages if a 

reasonable officer in his position would have known that his 

shooting of Smith would violate Smith’s constitutional right to 

be free from an excessive application of force. See Anderson v. 

Creighton, 483 U.S. 635, 638-39 (1987). Kendall requests that 
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the district court’s qualified immunity determination be 

reversed on the current record.

This court may exercise jurisdiction only over final 

orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and 

collateral orders, 28 U.S.C. § 1292 (2006); Fed. R. Civ. P. 

54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-

47 (1949). Although the Supreme Court has recognized that an 

order rejecting a claim of qualified immunity is an appealable 

order at the summary judgment stage, Mitchell v. Forsyth, 472 

U.S. 511, 530 (1985), it has more recently explained that 

immediate appealability of an order declining to accept a 

defense based on qualified immunity is appropriate only if the 

denial rests on a purely legal determination that the facts do 

not establish a violation of a clearly established right, 

Johnson v. Jones, 515 U.S. 304, 319-20 (1995). Thus, “if the 

appeal seeks to argue the insufficiency of the evidence to raise 

a genuine issue of material fact, this court does not possess 

jurisdiction under [28 U.S.C.] § 1291 to consider the claim.” 

Valladares v. Cordero, 552 F.3d 384, 388 (4th Cir. 2009); see

Winfield v. Bass, 106 F.3d 525, 529-30 (4th Cir. 1997) 

(en banc). This court must accept the facts as set forth by the 

district court in assessing the summary judgment ruling. Bailey 

v. Kennedy, 349 F.3d 731, 738 (4th Cir. 2003).
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Relying on the parties’ conflicting accounts of the 

events that immediately preceded the shooting, the district 

court concluded that there existed in the record evidence from 

which a reasonable trier of fact could conclude that Smith was 

not posing an imminent threat to Kendall at the time Kendall 

fired his weapon. While Kendall claims that the record shows 

that his use of force was reasonable because he faced an 

imminent threat of being run over by Smith’s SUV, we lack 

jurisdiction to consider this claim, as it argues the 

“insufficiency of the evidence to raise a genuine issue of 

material fact.” Winfield, 106 F.3d at 529. We therefore 

dismiss this portion of the appeal. 

III. 

Kendall also asserts that even granting that he 

violated Smith’s rights under the Fourth Amendment, he is still 

entitled to qualified immunity because a reasonable officer in 

his position could have believed that the use of force employed 

here was reasonable. This is so, Kendall contends, because, at 

the time of the shooting in January 2003, the illegality of his 

use of force in this case was not clearly established because 

the law of this Circuit was unsettled. While we possess 

jurisdiction to consider this claim, see id. at 530, we 

nonetheless conclude it fails. 
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To determine whether the district court erred in 

rejecting a claim of qualified immunity, this court asks whether 

a violation of a right secured by the Fourth Amendment occurred 

and, if so, whether the right was so clearly established at the 

time of the violation that a reasonable officer in Kendall’s 

position could not have believed he was acting legally. See

Gray-Hopkins v. Prince George’s County, 309 F.3d 224, 231 

(4th Cir. 2002). At the time of the shooting in January 2003, 

the law was clearly established that claims of excessive force 

during arrest are governed by the Fourth Amendment and are 

analyzed under an “objective reasonableness” standard. 

Graham v. Connor, 490 U.S. 386, 388, 395-96 (1989). Application 

of this standard requires a “careful balancing of the nature and 

quality of the intrusion on the individual’s Fourth Amendment 

interests against the countervailing government interests at 

stake.” Id. at 396 (internal quotation marks omitted). The 

analysis also requires “careful attention to the facts and 

circumstances of each particular case, including . . . whether 

the suspect poses an immediate threat to the safety of the 

officers or others, and whether he is actively resisting arrest 

or attempting to evade arrest by flight.” Id. Because police 

officers may have to make split-second decisions in 

circumstances that are “tense, uncertain, and rapidly evolving,” 

facts are to be “evaluated from the perspective of a reasonable 
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officer on the scene, and the use of hindsight must be avoided.” 

Gray-Hopkins, 309 F.3d at 231. An officer may use deadly force 

when he has good reason to believe that the suspect presents a 

threat of serious physical harm to himself or others. 

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

Graham, a court must focus on the moment when deadly force was 

used. Greenidge v. Ruffin, 927 F.2d 789, 791-92 (4th Cir.

1991). Actions prior to that moment are not relevant in 

evaluating whether the force used was reasonable. Elliott v. 

Leavitt, 99 F.3d 640, 643 (4th Cir. 1996). 

Based on Smith’s version of the events giving rise to 

this litigation, Smith was in the SUV with the engine turned off

at the time Kendall started shooting at him. He was not 

resisting arrest or endangering the safety of Kendall or others. 

If this version of events is accepted, a trier of fact could 

easily conclude that a Fourth Amendment violation occurred and 

that a reasonable officer in Kendall’s position could not have 

believed that he was acting lawfully in employing deadly force. 

IV. 

For the above reasons, we affirm the district court’s 

determination that the right in question was clearly established 

and dismiss the remainder of the appeal for lack of 
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jurisdiction.*

AFFIRMED IN PART;

 We dispense with oral argument because the facts 

and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional 

process. 

DISMISSED IN PART

 * By this disposition, we indicate no view as to which of 

the competing versions of events is more likely or which should 

be accepted by the factfinder.