During a no-knock entry with a battering ram by plain-clothes officers for marijuana, plaintiff heard a commotion from the back of his house, reached for a gun, and was shot at 29 times, hit 9 times, and paralyzed. The officer who shot him claimed that plaintiff fired first, but it turned out his gun was never fired. That officer then changed his story. Plaintiff survives summary judgment and gets a trial for excessive force because the law was clearly established at the time. Merely holding a firearm pointed down at one’s side is not a threat. Betton v. Belue, 2019 U.S. App. LEXIS 33034 (4th Cir. Nov. 5, 2019):
In the afternoon of April 16, 2015, a team of plain-clothed law enforcement officers armed with “assault style rifles” used a battering ram to enter Julian Ray Betton’s dwelling to execute a warrant authorizing a search for marijuana and other illegal substances. The officers did not identify themselves as “police” or otherwise announce their presence before employing the battering ram. From the rear of his home, Betton heard a commotion but did not hear any verbal commands. Responding to the tumult, Betton pulled a gun from his waistband and held it down at his hip.
Three officers, including Myrtle Beach, South Carolina police officer David Belue, fired a total of 29 shots at Betton, striking him nine times. Betton suffered permanent paralysis resulting from his gunshot wounds. While Officer Belue originally maintained that Betton had been the first person on the scene to fire a weapon, a later investigation revealed that Betton never discharged his .45 caliber pistol. Thereafter, Officer Belue revised his account of the events, stating that Betton had pointed his weapon at the officers.
Betton filed suit under 42 U.S.C. § 1983 against Officer Belue, alleging unlawful entry and the use of excessive force in violation of the Fourth Amendment. Officer Belue moved for summary judgment on the ground of qualified immunity, and the district court denied his motion. Officer Belue appeals only the court’s denial of qualified immunity with respect to the excessive force claim.
Construing the facts in the light most favorable to Betton, as we are required to do at this stage of the proceedings, we agree with the district court that disputes of material fact preclude an award of summary judgment. A jury reasonably could find under the facts presented that Betton did not pose a threat to the officers justifying the use of deadly force. Additionally, based on our decision in Cooper v. Sheehan, 735 F.3d 153 (4th Cir. 2013), we further hold that Betton’s Fourth Amendment right to be free from the use of excessive force was clearly established at the time the incident occurred. We therefore affirm the district court’s order and remand the case for further proceedings.