Writing for a unanimous panel that included Circuit Judges J. Harvie Wilkinson III and Roger L. Gregory, Circuit Judge Berner vacated a ruling by U.S. District Judge Michael S. Nachmanoff of the Eastern District of Virginia, who had granted summary judgment to Moser on Jeffery Payne's claims under 42 U.S.C. § 1983 and Virginia gross negligence law.
The incident grew out of an informant's tip that Payne was dealing drugs. Fairfax County detectives arranged a controlled buy in a shopping-complex parking lot. Payne arrived, but, in his words, something "didn't feel right," and his "gut" told him to leave. As Payne drove slowly toward the exit, Moser radioed other detectives in unmarked vehicles to "effect [Payne's] arrest."
One detective maneuvered a Ford F-150 in front of Payne in a tactical vehicle intercept, forcing him onto a service road. A second detective then rammed Payne's car from behind in a precision immobilization technique, sending it into a spin. Seconds after the car stopped, Moser fired through the back window and hit Payne in the left arm. Payne's right arm was immobilized in a cast and sling from a recent surgery. He had no gun.
The panel identified multiple disputed facts, including when the detectives activated lights and sirens, how many times they rammed Payne's car, whether Moser gave verbal warnings, and whether Payne reached toward the center console. Moser said 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." Payne testified his left hand remained at his side.
On the vehicle maneuvers, the court applied the Graham v. Connor factors and concluded the force was not objectively reasonable on the facts taken most favorably to Payne. The panel distinguished cases like Scott v. Harris, noting Payne was "driving neither quickly nor recklessly, nor was there any other apparent danger to pedestrians." The detectives used unmarked vehicles at night and, on Payne's account, did not activate lights or sirens before the ramming.
On the shooting, the panel accepted that Moser reasonably believed Payne was armed based on the informant's repeated statements. But Berner wrote that "simply being armed is not grounds for law enforcement to employ deadly force, unless that person makes some sort of furtive or other threatening movement with the weapon," quoting Cooper v. Doyle. Because the competing accounts of Payne's movements were not a "minor discrepanc[y]" and no video footage resolved them, the panel held credibility questions belonged to a jury.
Payne testified that when the car came to rest, he was blinded by lights and then heard breaking glass. He told the detectives he did not have a gun and could not raise his hands. He "closed [his] eyes and kind of tilted [his] head to the left and [ ] wait[ed] for [the detectives] to shoot," according to the opinion.
The district court had not reached qualified immunity, and the panel remanded for it to consider the defense in the first instance. The opinion also revived Payne's state law gross negligence claim, which the district court had dismissed after finding the use of force reasonable.
"It is not lost on us that we issue this decision from the calm of a courthouse," Berner wrote, quoting the court's 2023 decision in Aleman v. City of Charlotte. "Such considerations cannot, however, excuse the use of excessive force in violation of the Fourth Amendment."
Payne was represented by Andrew O. Clarke of District Legal Group PLLC. Moser was represented by Kimberly Pace Baucom and Elizabeth D. Teare of the Fairfax County Attorney's Office.