Writing for a unanimous three-judge panel, Circuit Judge Berner held that genuine disputes of material fact existed on both the vehicular force used to stop Jeffery Payne and Sergeant Joshua Moser's decision to shoot him through the back window.
The case stems from a controlled drug buy in a Fairfax County shopping complex parking lot, where police had arranged for an informant to purchase drugs from Payne. When Payne became suspicious and began driving slowly away, Moser directed detectives in unmarked vehicles to use tactical vehicle intercept and precision immobilization technique maneuvers to stop him.
One detective rammed Payne's car, causing it to spin until it stopped near an embankment. Seconds later, Moser shot Payne through the back window, later saying he believed Payne was reaching for a gun. Payne was unarmed, and his right arm was immobilized in a cast and sling from recent surgery.
Turning to the ramming, Berner wrote that cases upholding such maneuvers "usually involve a high-speed pursuit with significant danger to the public." The detectives, he added, "were not engaged in a high-speed chase when they rammed Payne's car. Nor was Payne driving in a manner that threatened public safety."
"Payne was, by all accounts, driving slowly out of a shopping complex," Berner wrote. "He was driving neither quickly nor recklessly, nor was there any other apparent danger to pedestrians."
On the shooting, the court held that a genuine factual dispute existed over whether Payne made threatening movements. Payne testified that he kept his left hand on the steering wheel as the car spun and had his arm at his side when shot, never reaching toward the center console. Moser claimed he saw Payne "look toward the center console and reach with his left hand down towards the center console and begin to rise back up again."
The district court had ruled only on the shooting and did not address Payne's separate claim that the vehicle ramming constituted excessive force. U.S. District Judge Michael Stefan Nachmanoff did not reach qualified immunity after finding no constitutional violation. The Fourth Circuit remanded for the district court to take up that question.