Collateral-Order Limits in Qualified-Immunity Appeals and the Clearly Established Bar on Shooting a Nonthreatening, Fleeing Armed Suspect in the Back

1. Introduction

This published Fourth Circuit decision arises from the January 8, 2021 fatal shooting of Kwamena Ocran by four Gaithersburg Police Department Street Crimes Unit officers—Officer James Doyle, Officer Kyle Khuen, Sgt. Willie Delgado, and Cpl. Larbi Dakkouni. Melody Cooper, Ocran’s mother and the personal representative of his estate, sued under 42 U.S.C. § 1983, alleging (among other claims) that the Officers used excessive force in violation of the Fourth Amendment.

At summary judgment, the district court denied qualified immunity on the excessive force claim. The Officers pursued an interlocutory (collateral order) appeal, attempting to overturn both the denial of summary judgment and the denial of reconsideration.

The appeal presented two recurring, high-stakes issues in police-shooting litigation:

• Appellate jurisdiction: How far may a court of appeals go on interlocutory review of a qualified-immunity denial without impermissibly revisiting fact disputes?
• Clearly established law: Was it clearly established in January 2021 that officers cannot use deadly force against an armed suspect who is fleeing and not posing an imminent threat?

2. Summary of the Opinion

The Fourth Circuit (Judge King, joined by Judge Benjamin) held:

• Dismissed in part: The court lacked collateral order jurisdiction to consider the Officers’ arguments that the district court wrongly found “genuine disputes of material fact.” The Officers’ effort to re-litigate factual inferences (e.g., whether Ocran pointed or fired, reached for a waistband, posed an immediate threat) was largely non-reviewable on interlocutory appeal.
• Affirmed in part: Accepting the “undisputed facts” as framed by the district court and viewing them in the light most favorable to the plaintiff, the Officers were not entitled to qualified immunity. The court agreed that it was clearly established that an individual has the right not to be shot in the back while fleeing when officers merely suspect he is armed and he does not point a firearm or make a threatening movement.
• Remanded: The case returns for further proceedings, including the prospect of a jury trial.

Judge Rushing dissented, concluding that—even accepting the district court’s identified fact disputes—the Officers were entitled to qualified immunity because existing Fourth Circuit precedent permits deadly force when an armed suspect disobeys commands and makes threatening movements, and because the majority (in the dissent’s view) improperly broadened the set of “disputed facts.”

3. Analysis

3.1. Precedents Cited

A. Collateral order doctrine and the jurisdictional “fact/law” boundary

• Mitchell v. Forsyth: The foundational source of interlocutory review for qualified immunity denials “to the extent” they present legal questions. The Officers invoked Mitchell to obtain immediate appellate review.
• Johnson v. Jones: Limits interlocutory jurisdiction—courts of appeals generally cannot review a district court’s determination that the summary-judgment record presents genuine issues of fact.
• Winfield v. Bass (en banc): The Fourth Circuit’s central doctrinal tool here. Winfield draws a bright line: appellate courts may decide whether, accepting the district court’s version of facts, the law was clearly established—but may not entertain arguments that the plaintiff lacks evidence or that facts are not genuinely disputed.
• Witt v. W. Va. State Police, Troop 2 and Iko v. Shreve: Reinforce that collateral-order review is confined to “purely legal questions,” and appellate courts must police the parties’ framing to ensure they are not “reweigh[ing] the record evidence.”

How they influenced the decision: These cases compelled dismissal “in substantial part.” The panel treated many of the Officers’ appellate arguments as jurisdictionally barred attempts to contest the district court’s fact-dispute findings, rather than legal challenges to clearly established law.

B. Summary judgment standards

• Anderson v. Liberty Lobby, Inc. and Fed. R. Civ. P. 56(a): Provide the materiality and genuineness framework for assessing whether disputes must go to a jury.

C. Fourth Amendment excessive force framework

• Graham v. Connor: Supplies the “objective reasonableness” standard and the familiar factors (severity of crime, immediate threat, resistance/flight).
• Tennessee v. Garner: Establishes the constitutional limits on deadly force against fleeing suspects: deadly force is unreasonable absent probable cause that the suspect poses a threat of serious physical harm, and “it is not better that all felony suspects die than that they escape.”

How they influenced the decision: Garner anchored the “bright line” principle the majority treated as clearly established in the relevant sense: deadly force is unjustified against a fleeing suspect who is not posing an imminent threat, even if suspected of a felony.

D. Clearly established law and qualified immunity methodology

• Pearson v. Callahan: Affirms the two-prong qualified immunity test and permits courts to decide prongs in either order.
• Mays v. Sprinkle, Ashcroft v. al-Kidd, City of Tahlequah v. Bond: Emphasize that the right must be defined with sufficient specificity such that a reasonable officer would understand the conduct was unlawful.
• Betton v. Beleu: Frames the Fourth Circuit’s “fair warning” inquiry—whether Supreme Court or Fourth Circuit authority gave sufficient notice.
• Wilson v. Prince George's Cnty., Dean ex rel. Harkness v. McKinney, Williamson v. Stirling, Booker v. S.C. Dep't of Corr.: Support the proposition that clearly established law can emerge from “core constitutional principles” even without a factually identical case.

E. Fourth Circuit deadly-force precedent involving weapons and “threatening movements”

• Henry v. Purnell (en banc): The district court and majority invoked Henry for the proposition that shooting a fleeing suspect without probable cause to believe he poses a significant threat violates the Fourth Amendment.
• Knibbs v. Momphard: The majority used Knibbs for a synthesized principle: “possession of . . . a weapon only justifies the use of deadly force if that person makes some sort of furtive or other threatening movement with the weapon.”
• Hensley ex rel. North Carolina v. Price, Cooper v. Sheehan, Anderson v. Russell, Sigman v. Town of Chapel Hill, Elliott v. Leavitt, McLenagan v. Karnes, Slattery v. Rizzo: Cited (via Knibbs) to show a consistent Fourth Circuit pattern: the key trigger for deadly force is an objectively threatening act with the weapon (or movements that reasonably signal imminent use), not mere possession.

How they influenced the decision: The majority treated this line of authority as defeating the Officers’ attempt to distinguish Henry on the ground that Ocran was armed. In the majority’s view, Fourth Circuit doctrine had long rejected the idea that “armed” equals “dangerous” absent threatening conduct.

F. “Invited error” caution

• United States v. Jackson: The majority suggested the Officers arguably invited error by telling the district court there was “no need” to reach the second prong, though the panel proceeded to address it de novo.

3.2. Legal Reasoning

A. Step 1: Identify what is appealable now (jurisdiction first)

The court treated the interlocutory posture as determinative. Under Mitchell v. Forsyth, review exists only for legal questions. Under Johnson v. Jones and Winfield v. Bass, the court lacks jurisdiction to revisit whether the summary-judgment record supports the district court’s fact-dispute determinations.

Accordingly, the panel dismissed the appeal “in substantial part,” refusing to entertain arguments that the district court wrongly found disputes over such items as whether Ocran pointed or fired, whether he reached toward a waistband, whether he was shot in the back while fleeing, and whether he posed an immediate threat.

B. Step 2: Decide the purely legal qualified-immunity question on the district court’s facts

Having narrowed the appeal to legal questions, the court assessed whether (accepting the nonmovant-favorable version of the “undisputed” facts) the right was clearly established in January 2021.

• Rejecting the Officers’ definition of the right: The Officers framed the right as permitting them to respond to “furtive movements” by an armed fleeing person. The majority found that framing depended on contested facts (whether Ocran made such movements), and thus could not drive a legal reversal on interlocutory review.
• Clearly established rule applied: The majority treated Tennessee v. Garner and Henry v. Purnell as making it clearly established that deadly force against a fleeing suspect is unconstitutional absent probable cause that the suspect poses a significant threat of death or serious physical injury.
• Effect of “armed” status: The majority held that mere possession of a firearm does not erase the Garner/Henry principle. Citing Knibbs v. Momphard, the court emphasized Fourth Circuit precedent requiring a threatening movement or comparable conduct to justify deadly force; “armed” without “threatening” is insufficient on the majority’s view.

C. The dissent’s competing method

Judge Rushing agreed on the jurisdictional limits but disagreed on application. The dissent would:

• Define the clearly established inquiry more narrowly and with greater factual specificity (invoking the Supreme Court’s repeated warnings—quoted in dissent—against high-level generality).
• Accept that Ocran, while fleeing, retrieved the gun from his waistband and disobeyed commands, which the dissent considered a “threatening movement” under Fourth Circuit precedent as summarized in Knibbs v. Momphard.
• Conclude that the district court identified only two disputed facts (pointing and firing), and that the majority impermissibly added further disputes about “furtive movement” to deny immunity.

The split thus turns on how to (i) parse the district court’s fact findings for interlocutory purposes, and (ii) characterize “pulling out” a firearm while fleeing under the Fourth Circuit’s deadly-force precedents.

3.3. Impact

A. On interlocutory qualified-immunity appeals in the Fourth Circuit

• Stronger enforcement of Winfield’s boundary: The decision underscores that defendants cannot obtain interlocutory review merely by labeling factual disagreements as legal error. Appeals that functionally challenge “genuine dispute” determinations will be dismissed in part for lack of jurisdiction.
• Incentive for precise district-court framing: District judges may be encouraged to articulate with specificity which facts are disputed versus assumed for immunity analysis, anticipating appellate jurisdictional policing.

B. On deadly force against armed, fleeing suspects

• “Armed” is not automatically “dangerous”: The opinion reinforces (and arguably extends in emphasis) that officers need an objectively reasonable basis to perceive an imminent threat—typically signaled by threatening movements—before using deadly force, even when the suspect is armed.
• Back-shooting while fleeing as a clearly established violation (on plaintiff-favorable facts): The court’s articulation—“the right not to be shot in the back while fleeing officers when the officers suspected that the individual was armed but the individual never pointed a firearm”—is likely to be cited by plaintiffs resisting qualified immunity in similar fact patterns.

C. Litigation strategy consequences

• Appellants must separate law from fact: Defense briefs must explicitly accept the district court’s fact view and argue only the legal consequences, or risk dismissal for lack of jurisdiction.
• “Clearly established” prong must be properly supported: The panel criticized the Officers for failing to identify authority showing the right was not clearly established, reinforcing that defendants bear the burden on prong two (as the district court stated and the panel accepted).

4. Complex Concepts Simplified

• Qualified immunity: A protection for government officials that bars damages liability unless (1) they violated the Constitution and (2) the law was “clearly established” at the time—meaning a reasonable officer had fair notice the conduct was unlawful.
• Collateral order doctrine: A narrow exception to the final-judgment rule allowing immediate appeal of certain decisions (including some qualified-immunity denials), but only for legal issues—not disputes about what actually happened.
• “Genuine dispute of material fact” (summary judgment): If evidence could allow a reasonable jury to decide a key fact either way, the judge cannot resolve it on summary judgment; it must go to trial.
• Fourth Amendment “objective reasonableness” (Graham v. Connor): The question is not what officers intended, but whether their use of force was objectively reasonable in the moment, considering factors like threat level and flight.
• “Clearly established” law: Not necessarily a case with identical facts, but precedent that makes unlawfulness sufficiently clear. The majority leaned on broad core principles (Garner/Henry plus Fourth Circuit weapon-movement cases); the dissent insisted on a higher level of specificity and closer factual match.

5. Conclusion

The Fourth Circuit’s decision in Melody Cooper v. Officer James Doyle delivers two consequential holdings. First, it tightly constrains interlocutory qualified-immunity appeals: under Winfield v. Bass and Johnson v. Jones, appellants cannot use the collateral order doctrine to re-argue whether the record contains factual disputes. Second, on the plaintiff-favorable view of the undisputed facts, the court reaffirmed that Tennessee v. Garner and Henry v. Purnell—as reinforced by the Fourth Circuit’s weapon-and-movement cases summarized in Knibbs v. Momphard—clearly establish that officers may not use deadly force against a fleeing suspect who is not posing an imminent threat, even if the suspect is armed.

The dissent highlights an enduring fault line in qualified-immunity doctrine: how specifically courts must define the “right at issue” and how strictly appellate courts must adhere to the district court’s delineation of disputed facts. That debate will shape how this precedent is invoked in future police-shooting cases—both in trial courts and in interlocutory appeals.