The three-judge panel on Monday revived a lawsuit brought by Jeffery Payne against a Fairfax County Police Department sergeant who shot him in the arm, finding that because there is a genuine dispute about what occurred before and during the shooting, the case should move forward.
"We are mindful that police officers are sometimes forced to make split second decisions that can mean the difference between life or death for themselves and their fellow officers," U.S. Circuit Judge Nicole Berner wrote in the opinion. "Such considerations cannot, however, excuse the use of excessive force in violation of the Fourth Amendment."
Police in Fairfax County learned from a confidential informant that Payne was allegedly selling drugs, and a sting operation was set up in the parking lot of a shopping center. Payne arrived in the parking lot, quickly became suspicious of the setup, and attempted to leave before the sale could take place, the opinion said.
Officers attempted to stop Payne from leaving, using two different maneuvers designed to take his car off the road, according to the ruling. Payne claimed in the lawsuit that the unmarked police cars rammed his vehicle and caused it to drive into an embankment, the opinion said.
Payne said he was unsure why his car had been rammed, and because the cars were unmarked, he believed it was an attempted robbery, he said. Seconds after the car crash, a Fairfax police sergeant, Joshua Moser, fired his gun into the car directly at Payne, the opinion said.
Payne was unarmed at the time of the shooting, but police believed that he might have a firearm in his truck. Immediately following the shooting, officers ordered that he throw the nonexistent gun out the window and put his hands up, the opinion said.
Payne said that in addition to not having a gun, he was recovering from a surgery and his arm had been in a sling, meaning he could not put his hands up when police ordered him to do so. He said that during the interaction with police, he believed he was going to die, and tilted his head back waiting for officers to shoot him, the opinion said.
Officers finally removed Payne from the vehicle and began performing first aid to treat the gunshot wound. The wound eventually became infected and required additional surgery, the opinion said.
Payne filed a lawsuit against Moser in state court alleging the officer used excessive force in violation of both the federal and Virginia constitutions and was negligent. Initially filed in February 2024, it was removed to federal court a month later, the opinion said.
Moser sought summary judgment on each of Payne's claims, telling a federal judge that because the shooting was justified, the lawsuit should be tossed. A federal judge sided with the officer, and in November 2024 tossed Payne's lawsuit, finding that no constitutional violation had occurred, according to federal court records.
The Fourth Circuit on Monday said that because there are still genuine questions of fact, the district court was incorrect to grant summary judgment. The appeals panel pointed to issues like whether police had their sirens and lights on during the attempted arrest, and whether Moser's actions were objectively reasonable.
The panel found that under Supreme Court precedent, Fourth Amendment claims can arise from the moment police attempted to ram his car off the road. The panel, citing the high court's 2007 decision in Scott v. Harris
, said that as soon as police sent the car into a tailspin, Payne could begin alleging constitutional violations.The panel found that because constitutional claims do exist, the federal district court must now determine whether the officer should be granted qualified immunity. The court would need to find that Moser's actions did not violate "clearly established" rights which a reasonable person should have known.
Payne was charged following the August 2022 incident and pled guilty to possession of a controlled substance with intent to distribute, according to a brief filed by prosecutors.
An attorney representing Payne and an attorney representing Moser did not respond to requests for comment.
Judges J. Harvie Wilkinson III, Roger Gregory and Nicole Berner sat on the panel for the Fourth Circuit.
Payne is represented by Andrew O. Clarke of the District Legal Group PLLC.
Moser is represented by Kimberly Pace Baucom, Elizabeth Doyle Teare and Jamie Marie Greenzweig of the Fairfax County Attorney's Office.
The case is Payne v. Moser, case number 24-2237, in the U.S. Court of Appeals for the Fourth Circuit.
--Editing by Linda Voorhis.
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