UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-2157

GERARDO GRANADOS AYALA,

Plaintiff – Appellant,

v.

J. W. WOLFE, II; LEXINGTON POLICE DEPARTMENT,

Defendants – Appellees.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Catherine C. Eagles, 

District Judge. (1:11-cv-00624-CCE-LPA)

Argued: September 18, 2013 Decided: November 13, 2013

Before DAVIS, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished opinion. Judge Wynn wrote the opinion, 

in which Judge Davis and Judge Diaz joined.

Eugene Ernest Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, 

North Carolina, for Appellant. Jack M. Strauch, STRAUCH 

FITZGERALD & GREEN, PC, Winston-Salem, North Carolina, for 

Appellees. 

Unpublished opinions are not binding precedent in this circuit.
2

WYNN, Circuit Judge:

In the dark of night near the scene of an armed robbery, 

Plaintiff Gerardo Granados Ayala disregarded a police officer’s 

command to place his hands on the hood of a patrol car. 

Instead, without saying a word, Ayala took one hand from the 

hood, reached into the waistband of his pants, and removed a 

gun. In response, the officer, Defendant J.W. Wolfe, II, shot 

Ayala. Under the circumstances of this case, the district court 

did not err in ruling that Wolfe’s application of deadly force 

was not excessive, and that Ayala’s Section 1983 and related 

claims must fail. Accordingly, we affirm the grant of summary 

judgment in Defendants’ favor. 

I.

In July 2010, at 1:45 a.m., Wolfe, an officer with the 

Lexington, North Carolina Police Department, responded to a 

report that three armed men had robbed a restaurant. The report 

indicated that the men fled on foot. Wolfe canvassed the area 

near the restaurant and saw Ayala walking just a few blocks 

away. Wolfe stopped his patrol car and instructed Ayala to put 

his hands on the hood of the patrol car. After Ayala complied

with the order, Wolfe frisked him. Upon feeling a gun in 

Ayala’s waistband, Wolfe backed away from Ayala, moved behind 

his patrol car, and drew his service weapon. Without saying a 
3

word to the officer, Ayala moved his right hand from the patrol 

car to his waistband and removed the gun.

In response, Wolfe shot Ayala several times. The first 

bullet hit Ayala’s right hand and knocked the gun to the ground.1 

Wolfe nevertheless continued to shoot Ayala in the torso until 

he fell. Ayala lost consciousness after hitting the ground and 

does not remember any shots after he fell. But despite being 

unconscious, Ayala “believe[s]” that Wolfe shot him in his back 

while he lay on the ground and that that bullet paralyzed him 

from the waist down. J.A. 204. 

The scene of the shooting was, in Ayala’s words, “very 

dark[.]” J.A. 77. Wolfe declared that the “very bright” flash 

from his gun after he shot “further hindered” his ability to 

see. J.A. 73. Wolfe did not know that Ayala dropped his gun 

after the first shot, but stated that he immediately stopped 

shooting once Ayala fell to the ground. Ayala testified that he 

had no idea what Wolfe could (or could not) see after the first 

shot, that he did not know whether his gun made a sound when it 

fell to the ground, and that he did not tell Wolfe—or otherwise 

 1 In reviewing the district court’s summary judgment ruling, 

“courts are required to view the facts and draw reasonable 

inferences in the light most favorable to the party opposing the 

[summary judgment] motion.” Scott v. Harris, 550 U.S. 372, 378 

(2007) (alteration in original) (internal quotation marks 

omitted). In qualified immunity cases, this requirement

“usually means adopting . . . the plaintiff’s version of the 

facts.” Id. 
4

indicate to Wolfe—that he no longer held the gun. Two witnesses

declared that they heard a series of gunshots in the middle of 

the night, a pause of four or five seconds, and then an 

additional gunshot. In Ayala’s words, the time between Wolfe’s 

shots was “really fast.” J.A. 88-89.

In August 2011, Ayala filed this lawsuit against Wolfe in 

his individual capacity and against the Lexington Police 

Department, alleging Section 1983 claims and several state law 

claims.2 After the close of discovery and upon learning that 

Defendants intended to move for summary judgment, Ayala moved to 

amend his complaint. 

The district court granted the summary judgment motion, 

determining that the evidence was insufficient to show that 

Wolfe used excessive force in shooting Ayala. In addition, the 

district court denied Ayala’s motion to amend the complaint. 

Ayala appealed.

II.

With his first argument, Ayala contends that the district 

court erred by granting summary judgment to Defendants on his 

Section 1983 claims because Wolfe used unconstitutionally 

 2 On appeal, Ayala does “not persist in his allegation that 

[the Lexington Police Department] committed a Monell [policy and 

custom] violation as alleged in Count II of his original 

Complaint.” Appellant’s Br. at 20 n.1.
5

excessive force by (1) initially shooting Ayala; (2) continuing 

to shoot Ayala after he dropped his gun; and (3) shooting Ayala

after he fell to the ground.3 We review de novo the district 

court’s grant of summary judgment, viewing all facts and drawing 

reasonable inferences in Ayala’s favor. See Henry v. Purnell, 

652 F.3d 524, 531 (4th Cir.) (en banc), cert. denied, 132 S. Ct. 

781 (2011). Summary judgment is appropriate only if “‘no 

material facts are disputed and the moving party is entitled to 

judgment as a matter of law.’” Id. (quoting Ausherman v. Bank 

of Am. Corp., 352 F.3d 896, 899 (4th Cir. 2003)).

A.

“The Fourth Amendment’s prohibition on unreasonable 

seizures includes the right to be free of ‘seizures effectuated 

by excessive force.’” Id. (quoting Schultz v. Braga, 455 F.3d 

470, 476 (4th Cir. 2006)). Courts analyze whether an officer 

has used excessive force under a standard of objective 

reasonableness. Id. The reasonableness of a particular use of 

force must be judged from the perspective of a reasonable 

 3 Ayala also argues that the district court erred by not 

addressing his allegation that Wolfe violated his Fourth 

Amendment rights by unlawfully stopping him. However, Ayala did 

not raise this claim until his rejected motion to amend. Thus, 

this claim is not properly before us.
6

officer on the scene rather than with 20/20 hindsight. Anderson 

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

“The intrusiveness of a seizure by means of deadly force is 

unmatched.” Tennessee v. Garner, 471 U.S. 1, 9 (1985). 

Therefore, a police officer may use deadly force only when he

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

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

Id. at 11. When a suspect confronts an officer with a weapon, 

we have deemed the officer’s use of deadly force reasonable. 

See Elliott v. Leavitt, 99 F.3d 640, 642-43 (4th Cir. 1996) 

(holding that police officers’ actions were objectively 

reasonable when they shot a man who pointed a handgun at them 

after they had arrested him). As we have stated, “[n]o citizen 

can fairly expect to draw a gun on police without risking tragic 

consequences.” Id. at 644.

B.

With this legal framework in mind, we turn to Ayala’s 

arguments in this case. Ayala first contends that Wolfe’s 

initial decision to shoot him constituted excessive force. In 

particular, Ayala claims that he never threatened Wolfe or 

pointed his gun at Wolfe before Wolfe shot him. But even with 

the benefit of every reasonable inference, a reasonable officer

would have had probable cause to fear serious physical harm 
7

justifying the use of deadly force under the circumstances of 

this case. 

Crucially, Wolfe instructed Ayala to place both hands on 

the hood of the patrol car. Ayala testified that he understood 

Wolfe’s command. Yet without saying a word to explain his 

actions, Ayala took his right hand off the hood to remove the 

gun in his waistband. On these facts, Wolfe acted objectively 

reasonably in concluding that Ayala posed a threat of serious 

physical harm warranting the use of deadly force at the time of 

the first shot. Cf. Elliott, 99 F.3d at 642-44 (finding 

officers’ use of deadly force against a handcuffed suspect 

sitting in a patrol car reasonable because the suspect managed 

to point a gun at them).

C.

The initial decision to shoot aside, Ayala argues that 

because he dropped his gun after the first shot, Wolfe used 

excessive force by continuing to fire at him. Ayala relies 

heavily on Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005), 

which held that “force justified at the beginning of an 

encounter is not justified even seconds later if the 

justification for the initial force has been eliminated.” Id.

at 481. The problem for Ayala is that “the reasonableness of an 

officer’s actions is determined based on the information 
8

possessed by the officer at the moment that force is employed.” 

Id. (citing Elliott, 99 F.3d at 643). And Ayala has proffered 

no evidence that Wolfe should have known that he had dropped his 

gun after the first shot, i.e., that the justification for using 

deadly force had been “eliminated” after the first shot. See

id. 

Ayala testified that he had no idea what Wolfe could see 

after firing the first shot but confirmed that it was “very 

dark[.]” J.A. 77. Ayala further testified that he did not know 

whether his gun made a sound when it fell to the ground, and he 

never informed Wolfe that he no longer held the gun. 

Additionally, Ayala testified that the time between the first 

shot and the “other ones” was really fast, J.A. 89, and that he 

did not fall down until after the fifth shot. J.A. 92.

Wolfe testified that he could not see whether Ayala had 

dropped his gun because of the darkness and the muzzle flash 

from his gun. Instead, he focused on the center of Ayala’s body 

when he fired his weapon, and he “never heard any sound that 

would have suggested that Mr. Ayala had dropped his gun.” J.A. 

74. 

In essence, Ayala proffered no evidence that a reasonable 

officer under the circumstances could have known that the threat 

justifying the use of deadly force—that is, Ayala’s grabbing his 

gun from his waistband in contravention of Wolfe’s order to 
9

place his hands on the hood of the patrol car—had been 

eliminated after the first shot, even assuming (as we must on 

summary judgment) that it was. Cf. Estate of Rodgers ex rel. 

Rodgers v. Smith, 188 F. App’x 175, 183 (4th Cir. 2006) 

(unpublished decision) (concluding that even though the suspect 

dropped his firearm as he fell, the police officer acted 

reasonably in continuing to shoot because nothing in the record 

reflected that the officer knew that the suspect was no longer a 

threat).

D.

Ayala also challenges the district court’s determination

that Wolfe did not use excessive force by firing the final shot. 

Ayala contends that Wolfe shot him in the back while he lay on 

the ground on his stomach and four to five seconds after the 

previous shots. Again, Ayala has failed to point to any record 

evidence to support this contention.

Ayala admits that he was unconscious after he hit the 

ground and thus could not competently testify that he was shot 

after he fell. 

Nor could Ayala’s experts testify that Wolfe fired the 

final, paralyzing shot after Ayala had fallen to the ground. 

One expert testified that he could not determine “whether 

[Ayala] was lying down, whether he was standing, or . . . what 
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position the shooter was [in]” when Wolfe fired the final shot. 

J.A. 153. The other expert testified that “[Ayala] could have 

sustained that shot that rendered him paraplegic in a standing 

position, as he was going down, or after he was on the ground. 

. . . [A]ny one of these [is] possible . . . .” J.A. 297. 

Ayala relies on two witnesses who testified that they heard 

gunshots and, after a pause of four or five seconds, an 

additional shot. But these witnesses did not see the shooting 

or provide any information beyond the pause before the last 

shot. Their testimony thus has little bearing on the question 

of whether Wolfe fired the final shot after Ayala fell to the 

ground or after Wolfe could have reasonably determined that 

Ayala was no longer a threat. 

Wolfe stated that “[a]t no time did I ever shoot at Mr. 

Ayala after he fell to the ground or otherwise use any type of 

force against Mr. Ayala after he fell to the ground.” J.A. 74. 

Ayala has failed to proffer any evidence to controvert Wolfe’s 

testimony. And the district court properly rejected Ayala’s 

unsupported speculation about what happened after he had fallen. 

In sum, Ayala has pointed to no evidence that Wolfe used 

excessive force at the time of the first shot, upon firing 

additional shots, or at the time of the last shot. The district 

court therefore properly granted summary judgment to the

Defendants on Ayala’s Section 1983 claims.
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III.

Ayala also asserted several state law claims against Wolfe, 

including battery, negligence, gross negligence and intentional 

infliction of emotional distress. In North Carolina, a public 

officer is entitled to immunity “unless it is alleged and proved 

that his act, or failure to act, was corrupt or malicious, or 

that he acted outside of and beyond the scope of his duties.”

Showalter v. N.C. Dep’t of Crime Control & Pub. Safety, 183 N.C. 

App. 132, 136, 643 S.E.2d 649, 652 (2007); see also Turner v. 

City of Greenville, 197 N.C. App. 562, 566, 677 S.E.2d 480, 483 

(2009) (stating that the public immunity doctrine protects a 

public official from individual liability for negligence as long 

as the official “lawfully exercises the judgment and discretion 

with which he is invested by virtue of his office, keeps within 

the scope of his official authority, and acts without malice or 

corruption” (quoting Bailey v. State, 330 N.C. 227, 245, 412 

S.E.2d 295, 306 (1991))). 

Ayala contends that the district court erred by granting

Defendants’ motion for summary judgment on his state law claims 

arising from Wolfe’s actions. Here, Ayala has not overcome 

Wolfe’s public officer immunity under North Carolina state law. 

As explained above, the record evidence necessarily leads to the 

conclusion that Wolfe’s actions were objectively reasonable

under the circumstances. Thus, Ayala has not shown that Wolfe 
12

acted corruptly, maliciously, or outside the scope of his 

duties. 

IV.

With his last argument on appeal, Ayala contends that the 

district court abused its discretion by denying his motion to 

amend his complaint. While we review such a decision only for 

abuse of discretion, “‘leave to amend a pleading should be 

denied only when the amendment would be prejudicial to the 

opposing party, there has been bad faith on the part of the 

moving party, or the amendment would be futile.’” Balas v. 

Huntington Ingalls Indus., Inc., 711 F.3d 401, 409 (4th Cir. 

2013) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 242 

(4th Cir. 1999)).

Ayala initially sought to amend his complaint to add: (1) a 

claim that the initial stop violated the Fourth Amendment and 

constituted false imprisonment, and (2) state law claims against 

the Lexington Police Department in its official capacity 

alleging waiver of sovereign immunity based on an insurance 

policy. Ayala later sought to add the City of Lexington as an 

additional defendant. The district court did not abuse its 

discretion in barring Ayala from belatedly asserting new claims

and adding a new party. Much time had passed, discovery had

concluded, and granting Ayala’s late motion would prejudice 
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Defendants. See Mayfield v. Nat’l Ass’n for Stock Car Auto 

Racing, Inc., 674 F.3d 369, 379-80 (4th Cir. 2012) (affirming 

the district court’s denial of the appellants’ motion to amend 

the complaint to add new allegations and causes of action after 

a significant amount of discovery had been conducted because of 

the resulting prejudice to the appellees). Further, the 

district court did not abuse its discretion in determining that 

the proposed state law claims against the Lexington Police 

Department would be futile, given the lack of evidence 

supporting Ayala’s excessive force claim. 

V.

In sum, the district court properly concluded that Wolfe 

did not use excessive force when he shot Ayala. We reiterate 

our admonition that “[n]o citizen can fairly expect to draw a 

gun on police without risking tragic consequences.” Elliott, 99 

F.3d at 644. Yet, this case surely begs the questions of why 

the officer did not remove Ayala’s gun when he discovered it 

during his frisk or communicate to Ayala after discovering the 

gun. Perhaps those simple steps could have obviated the 

(objectively reasonably perceived) need to fire even one shot at 

Ayala. However, this case turns not on what could have been, 

but on the objective reasonableness of the force applied under 

the circumstances as they played out. And under the facts of 
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this case, Wolfe’s use of deadly force was objectively 

reasonable. Accordingly, the district court’s decision is

AFFIRMED.