Full opinion text
MEMORANDUM OPINION PAYNE; Senior District Judge. This matter is before the Court on Defendant Kevin Paul Hathaway’s Motion for Summary Judgment (Docket No. 84), Defendant James Earl Wilson’s Motion for Summary Judgment (Docket No. 86), and Defendant Michael Sean Mocello’s Motion for Summary Judgment (Docket No. 88). For the reasons set forth below, the motions are granted. I. On February 2, 2006, Dwayne Swann (“Swann” or “Plaintiff’) filed this action against the City of Richmond, Officer Kevin Paul Hathaway (“Hathaway”), Officer James Earl Wilson (“Wilson”), and Officer Michael Sean Mocello (“Mocello”). On July 26, 2006, Senior United States District Judge Richard L. Williams granted the defendants’ Motion to Bifurcate (Docket No. 21), and the case was segmented so that it would proceed first against the individual officers and, if they were liable, then against the City. These motions for summary judgment address only the claims against the officers, individually. Swann alleges that each of the three defendant officers violated his constitutional and common law rights. His complaint consists of the same five counts against each officer. Count I alleges common law assault; Count II alleges common law battery; Count III alleges gross negligence; Count IV alleges intentional infliction of emotional distress; and Count V alleges a claim under 42 U.S.C. § 1983 for arbitrary, excessive, and unreasonable use of force in violation of the Fourth and Fourteenth Amendments to the United States Constitution. The three officers have filed motions for summary judgment on each of the five claims, pursuant to Fed.R.Civ.P. 56. They each allege that they did not violate Swann’s constitutional or common law rights and that they are entitled to qualified immunity. Discovery is concluded, the issues are fully briefed and have been argued orally. II. The facts must be considered in the light most favorable to the Plaintiff, according him the benefit of all reasonable inferences and resolving factual disputes in his favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The record facts are thusly presented below. On the night of February 3 and early morning hours of February 4, 2004, members of the City of Richmond Police Department’s Robbery Task Force were charged with locating two violent robbery suspects — David White and Quan Tillery— who were reportedly in Hillside Court, a high-crime area in the City of Richmond. The Robbery Task Force is a plain-clothes unit charged with solving robberies and other violent crimes. All three defendants, Hathaway, Mocello, and Wilson, were members of the task force. That night, the officers drove through Hillside Court in unmarked cars. Although the officers wore plain clothes, they were also wearing black vests over their clothing that had large fluorescent lettering that said “RICHMOND POLICE” and a picture of a large police badge. The officers had no set plan other than for two teams to enter the area from different directions and drive through the neighborhood to see if the suspects could be located and arrested. One team, led by Sergeant Pence, entered Hillside Court from Har-wood Street; the other, led by Sergeant Shapiro, entered from Bruce Street. The idea was to travel in separate groups so that, if a suspect ran from one group, the other group could cut off the fleeing suspect. The weather that night was extremely cold, with snow and ice on the ground. As the officers entered Hillside Court, Sergeant Pence radioed that there were three or four individuals standing in a “cut” between two buildings. One of those individuals was later identified as Swann. Pence also broadcast that an individual was reaching toward his waistband and making a throwing motion. Hathaway heard Pence’s transmission and observed the individuals mentioned. He also observed the individual later identified as Swann making a throwing motion. Hathaway decided to exit his vehicle and approach the individuals. As he approached, the individuals dispersed, and began to walk away quickly. Swann then took off running. Hathaway gave chase on foot. Wilson joined in the chase. Mocello, still in his vehicle, observed police officers running through the apartment complex chasing Swann. He turned and followed Swann in his vehicle. The chase ended when Swann jumped into the rear passenger seat of a 1994 Nissan Altima (“Nissan”) parked on the side of Bruce Street. Another individual, Taiquan Byrd, was already in the front passenger seat of the Nissan. Officers arrived on foot and in vehicles immediately thereafter. Several officers, including the defendants, surrounded the vehicle, shouting commands like, “Police,” “Let us see your hands” and “Get out of the car.” Neither Swann nor Byrd complied with these commands. Swann notes, however, that he could not hear most of those commands because Edwards, another officer at the scene, was banging on a window of the car with a flashlight. At this point, Hathaway was standing in front of the car, near its center. Wilson also was standing in front of the car, but to Hathaway’s left, and was closer to the curb. There was a van parked behind the two of them, slightly less than a car length away. Mocello was standing at the rear of the car, toward the driver’s side. Pence’s car was parked directly alongside the Nissan, leaving a small gap between the Nissan and the van. The testimony of some officers in attendance suggests that, when Swann initially got into the car, he laid down across the rear seat, but then began to move around. See, e.g., (Wilson Dep. 71:3-13, 94:8-15, Aug. 21, 2006; Mocello Dep. 153:17-154:11, Aug. 22, 2006; Pence Dep. 191:18-192:2, October 5, 2006.) Mocello, for instance, notes that Swann “continued to move back and forth between his waist and the floor of the car, keeping his hands hidden from view.” (Mocello Dep. 153:17-154:11, 167:13-168:20.) Pence testified that he saw Swann “moving upwards and backwards” and that, if he had been standing where the other officers were, he would have drawn his weapon and aimed it at Swann because of the nature of Swann’s movements. (Pence Dep. 191:18-192:2.) Hathaway noted that he saw Swann “bent down with his hands at his waist, making movements toward the floorboard and his waist.” (Hathaway Dep. 112:20-25, Aug. 23, 2006.) Shortly after the officers arrived at the Nissan, Byrd was observed moving from the passenger seat of the Nissan to the driver’s seat. As a result of this action, Hathaway drew his weapon, aimed it at Byrd, and gave him commands to “stop,” “don’t move,” and “don’t do it.” Byrd did not comply with these commands. Instead, he put the Nissan in gear and hit the accelerator. The Nissan accelerated forward, away from the curb, and toward the street. As the car moved out from the curb, it hit Wilson, striking his left leg and knocking him to the ground, inflicting what later were determined to be minor injuries. As the Nissan accelerated, all three defendant officers began firing into the car. Hathaway fired the first shot. He fired a total of three shots. His first bullet went through the windshield and into the driver’s side door. His second bullet was recovered from Byrd’s right calf. His third bullet was recovered in the passenger side door post of the Nissan. The first two bullets indisputably did not hit Swann. As discussed below, the parties dispute whether Hathaway’s third bullet could have hit Swann. Mocello heard gunshots and shattering glass at the same instant he saw the Nissan strike Wilson. Mocello responded by firing his gun four times. He fired the first shot at Byrd, and the three remaining shots at Swann. Two of Officer Mocello’s four bullets hit Swann and were later removed from his body. After being struck by the car, Wilson fired his weapon twice, as the car was passing him or just after it had passed him. One of those bullets was recovered from under the front passenger seat of the Nissan. The trajectory of the other bullet is unclear, though it may have traveled through a tire. In the aftermath of the shooting, Byrd crashed the Nissan into a parked tractor-trailer truck across the street. Swann was removed from the Nissan by officers McQuail, Mocello, and Shapiro. Hathaway and Wilson do not appear to have had any physical contact with Swann in the aftermath of the shooting. Although he had been shot and was obviously in pain, Swann’s arms were forced behind him and he was handcuffed. Swann eventually was taken to a local hospital and treated for five bullet wounds. One bullet went through his front shoulder; one went through his lower back; one lodged in his buttocks; one lodged in his right leg; and one went through his right leg. One of these shots caused a fracture to his right proximal fibula. While at the hospital, Swann also tested positive for opiates and cocaine. He was hospitalized for four days, suffering at least one seizure during that time. Wilson was also taken to the hospital. He was diagnosed with a bruise to his leg and given Motrin. After his hospitalization, Swann developed infections in his leg from the bullet wounds and has had multiple surgeries, including one to remove the bullets that were still in his body. Bullet fragments remain embedded in every place he was shot. He now walks with a limp and has to use a cane on occasions. Additionally, it is also alleged that his sex life with his wife has suffered, and he has difficulty engaging in normal daily activities like walking up and down stairs, lifting and moving objects, and bending and twisting. He also claims to suffer from anxiety that interferes with his daily interactions. He alleges that he has nightmares regularly and is scared to sleep. III. The standard for assessing summary judgment motions is well-established. Summary judgment is proper only when there are no genuine issues as to any material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, the Court may rely upon “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” Fed. R.Civ.P. 56(c). In reviewing a motion for summary judgment, a court must view the facts and any inferences drawn from these facts in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348; Nguyen v. CNA Corp., 44 F.3d 234, 236 (4th Cir.1995). A fact is material when proof of its existence or nonexistence would affect the outcome of the case and is in dispute “when its existence or non-existence could lead a jury to different outcomes.” Cox v. County of Prince William, 249 F.3d 295, 299 (4th Cir.2001). A party cannot, however, “create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). The nonmoving party is entitled to have his version of all that is disputed accepted, all conflicts resolved in his favor, and to have the benefit of all favorable legal theories invoked by the evidence. M & M Med. Supplies and Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir.1992). The party who bears the burden of proof on an issue at trial cannot, however, survive summary judgment without sufficient evidence to sustain his or her burden of proof on that point. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). These precepts and standards govern the resolution of the defendants’ motions. IY. Swarm’s § 1983 Claims In Count V of the Complaint, Swann alleges that each of the three defendants, “while acting under color of state law, wrongfully shot Mr. Swann and used excessive force after the shooting in a show of arbitrary, excessive, and unreasonable force, in violation of Mr. Swann’s rights under the Fourth and Fourteenth Amendments of the United States Constitution.” (Compl. ¶¶ 53, 54, 55.) All three defendants have moved for summary judgment on this claim. To state a claim under 42 U.S.C. § 1983, a plaintiff “must allege the violation of a right secured by the Constitution ... and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Of course, § 1983 “is not itself a source of substantive rights,” but instead is “a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Where, as here, the asserted claim is the excessive use of force that “arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as [a § 1983 claim] invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons ... against unreasonable ... seizures’ of the person.” See Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting U.S. CONST. amend. IV). Such claims are “analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Id. at 388, 109 S.Ct. 1865. Test of Objective Reasonableness: Determining whether the force used to seize an individual is “objectively reasonable” requires “a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). It “has long been recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. The extent to which such physical coercion or threats are reasonable depends on the circumstances in which the police-citizen encounter occurs and how and why the force was applied. The Supreme Court has explained that “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 529, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Instead, “its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. The Fourth Circuit has added that the fundamental question in these sorts of cases “is whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force.” Anderson v. Russell, 247 F.3d 125, 129 (4th Cir.2001). The Supreme Court has also made clear that the “reasonableness” of a particular use of force “must be judged from the perspective of the officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Moreover, the “reasonableness” must “embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Id. at 396-97, 109 S.Ct. 1865. The Fourth Circuit instructs that the proper focus in these cases “should be on the circumstances at the moment force was used and on the fact that officers on the beat are not often afforded the luxury of armchair reflection.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir.1996)(emphasis added). Additionally, this calculus must be made “without regard to [the police officer’s] underlying intent or motivation, which is irrelevant under the objective test.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. Deadly Force: When deadly force is used, the Supreme Court has “long recognized that the intrusion on Fourth Amendment rights is ‘unmatched.’ ” Clem v. Corbeau, 284 F.3d 543, 550 (4th Cir.2002) (quoting Tennessee, 471 U.S. at 9, 105 S.Ct. 1694). The Court has held, moreover, that deadly force is reasonable only “[w]here [an] officer has probable cause to believe that [a] suspect poses a threat of serious physical harm, either to the officer or to others.” Garner, 471 U.S. at 11, 105 S.Ct. 1694; Gray-Hopkins v. Prince George’s County, 309 F.3d 224, 231 (4th Cir.2002); see also McLenagan v. Karnes, 27 F.3d 1002, 1006-07 (4th Cir.1994). Thus, “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” Garner, 471 U.S. at 11-12, 105 S.Ct. 1694. However, as the Fourth Circuit explained in Anderson v. Russell, 247 F.3d 125, 131 (4th Cir.2001), “[t]his Circuit has consistently held than an officer does not have to wait until a gun is pointed at the officer before the officer is entitled to take action.” An officer is not required “to actually detect the presence of an object in a suspect’s hands before firing on him,” if he or she otherwise has a reasonable belief that the suspect may be armed. McLenagan, 27 F.3d at 1007. The Fourth Circuit explained that “the Fourth Amendment does not require omniscience ... Officers need not be absolutely sure ... of the nature of the threat or the suspect’s intent to cause them harm — the Constitution does not require that certitude precede the act of self protection.” Russell, 247 F.3d at 132 (quoting Elliott, 99 F.3d at 644). Moreover, it is settled that courts cannot “second-guess the split-second judgment of a trained police officer merely because that judgment turns out to be mistaken, particularly where inaction could have resulted in death or serious injury to the officer and others,” because “§ 1983 does not purport to redress injuries resulting from reasonable mistakes.” McLenagan, 27 F.3d at 1007-08. This means, for instance, that a court should not consider whether an officer “failed to utilize available cover,” or otherwise could have responded differently, because this is precisely the type of judicial second-guessing that precedent prohibits. Russell, 247 F.3d at 131. Additionally, the seriousness of the suspected criminal activity does not matter, because the focus of the court should be on “the circumstances as they existed at the moment force was used.” Id. at 132. In McLenagan v. Karnes, for example, the Fourth Circuit ruled in favor of a defendant police officer who shot an unarmed arrestee at a sobriety checkpoint. McLenagan, 27 F.3d at 1009. McLena-gan, the victim arrestee, was sitting in a temporary restraining and courtroom area near the checkpoint when another arrestee stole a gun from the magistrate’s desk, causing others in the building to flee. Id. at 1004-05. As McLenagan fled the scene behind a deputy, the deputy yelled “The man has got a gun!” several times. Id. at 1005. Karnes, an officer witnessing this scene, mistakenly believed that the deputy was referring to McLenagan, and shot him. Id. The Fourth Circuit found that, even though Karnes did not see a gun in McLenagan’s hands (which were handcuffed in front of him at the time), he also “could not confirm that McLenagan was unarmed,” and had to make a “split-second judgment” in a situation “where inaction could have resulted in death or serious injury to the officer and others.” Id. at 1007-08. As such, the Fourth Circuit found that Karnes’ actions did not contravene the Fourth Amendment. Id. at 1009. Similarly, in Russell, the Fourth Circuit found that an officer’s use of force did not violate the Fourth Amendment (and thus that the § 1983 excessive force claim should not have been submitted to a jury) where an officer shot an unarmed man in a mall parking lot. Russell, 247 F.3d at 129. In Russell, Russell, a police officer, observed Anderson walking through the mall with a bulge on the left side of his body near his belt. Id. at 127-28. The bulge turned out to be a shoe polish container inside an eyeglasses case, but appeared to Russell to be in the shape of a handgun. As a result, Russell followed Anderson when he exited the mall, approached Anderson with his gun drawn and instructed Anderson to raise his hands and get down on his knees. Id. at 128. While Anderson “initially complied with the order to raise his hands, he later lowered them without explanation in an attempt to reach into his back left pocket to turn off his Walkman radio.” Id. Believing that Anderson was reaching for a weapon, Russell shot Anderson three times, leaving him with permanent injuries. Id. In the ensuing § 1983 action, the Fourth Circuit ruled in favor of Russell, noting that “the evidence conclusively established] that Russell reasonably perceived Anderson to be armed with a gun.” Id. at 130. As a result, when Russell saw Anderson reaching toward his pocket, Russell “reasonably believed that Anderson posed a deadly threat to himself and others,” justifying Russell’s use of deadly force. Id. at 132. On the other hand, in Clem v. Corbeau, 284 F.3d 543, 552 (4th Cir.2002), the Fourth Circuit found that an officer’s use of deadly force against a mentally ill suspect was not justified under the Fourth Amendment because a reasonable officer under the same circumstances would not have believed that the suspect posed a threat of serious injury to the officer or others. In that case, the victim’s wife called the police to ask for help controlling the victim, who was suffering from a variety of physical and mental ailments. Id. at 545. The police officers who arrived on the scene noted that the victim was “out of it,” and that there were “no bulges in [his] pockets or waistline nor anything in his open shirt indicating the presence of weapons.” Id. at 546. Nevertheless, when the victim became agitated and stood up, one of the officers, Officer Corbeau, “discharged a cloud of pepper spray that struck [the victim] and ... quickly disabled him.” Id. at 547. Several minutes later, as the victim slowly approached Cor-beau, breathing with some difficulty, and making movements “consistent with his recent subjection to pepper spray,” Corbeau shot him three times. Id. at 548. The Fourth Circuit concluded that “viewed in the light most favorable to Clem, the evidence is that Corbeau shot a mentally disabled, confused older man, obviously unarmed, who was stumbling toward the bathroom in his own house with pepper spray in his eyes, unable to threaten anyone.” Id. at 552. As such, “Officer Cor-beau violated [the victim’s] Fourth Amendment right to be free from excessive police force.” Id. Bystanders and Intentionality: In Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), the Supreme Court held that “[violation of the Fourth Amendment requires an intentional acquisition of control.” Thus, the “accidental effects of otherwise lawful government conduct” do not constitute the type of governmental misuse of power against which the Fourth Amendment was designed to protect. Id. The Supreme Court summarized: It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmen-tally desired termination of an individual’s freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied. Id. at 596-97, 109 S.Ct. 1378. The Fourth Circuit has interpreted the decision in Brower to mean that bystanders who are inadvertently shot by police officers trying to apprehend a fleeing criminal suspect are not “seized” such that they would have a claim under the Fourth Amendment. Milstead v. Kibler, 243 F.3d 157, 163 (4th Cir.2001); Rucker v. Harford County, Md., 946 F.2d 278, 281 (4th Cir.1991). Instead, such bystanders may have substantive due process claims, but even then, the test for relief is exceedingly stringent, and unlikely to be met in most cases. Id. at 281. What that means in this case is that Swann must have been shot by a defendant to maintain a viable § 1983 claim against that defendant, and even then, that defendant must have intentionally shot Swann. If, for instance, any of the officers were aiming for Byrd but accidentally hit Swann instead, Swann would not have a viable excessive force claim against that officer. Additionally, in assessing a plaintiffs § 1983 claims, a court should not consider the fact that a person other than the plaintiff was shot by the police. Howerton v. Fletcher, 213 F.3d 171, 173 (4th Cir.2000). As the Fourth Circuit noted in Howerton v. Fletcher, “the question is not whether the officer acted reasonably vis-a-vis the world at large. Rather, the question is whether the officer acted reasonably as against the plaintiff.” Id. The inquiry “is not dependent at all on whether the officer did or did not subject third parties to risk, or even on whether he employed unreasonable force against them.” Id. Thus, individuals not shot by police officers do not have viable § 1983 excessive force claims, even if their compatriots in close proximity are shot, by police gunfire. Schultz v. Braga, 455 F.3d 470, 479-83 (4th Cir.2006). Here, therefore, the fact that Byrd was shot by some of the defendant officers is irrelevant to Swann’s case. Motor Vehicles: In Waterman v. Batton, 393 F.3d 471, 477-80 (4th Cir.2004), the Fourth Circuit addressed the implications that the presence of a motor vehicle could have in a § 1983 case. There, officers shot at a moving motor vehicle, driven by Waterman, the plaintiff, after a high-speed chase. At the onset of the shooting, four officers were standing in front of the vehicle, some as close as 16 feet away, others about 72 feet away. Although “none of the officers were directly in front of Waterman’s vehicle, they stood only a few feet to the passenger side of the vehicle’s projected path.” Id. at 474-75. Subsequently, Perceiving the lurching of the vehicle and Waterman’s acceleration as the beginning of an attempt to run them over, Appellants began firing their weapons as soon as Waterman accelerated. As the officers shot at him, Waterman’s vehicle reached a top speed of approximately 15 miles per hour. Waterman’s vehicle then passed all of the officers, avoiding them by several feet and temporarily stopping behind another vehicle blocking its path. As Appellants scrambled toward Waterman, they continued to fire their weapons at him from the passenger side of the vehicle and from behind, ceasing their firing as he passed through the toll plaza. Id. at 475. The court separated its analysis of the shooting into two parts: (1) the shots fired as the car was moving towards the officers, and (2) the shots fired after the vehicle had passed the officers, concluding that the first set of shots did not constitute excessive force, but that the second set of shots gave rise to an excessive force claim. Id. at 477. As to the first set of shots, the Court of Appeals noted that there were a series of conflicting factors that the officers could have considered before shooting, including the fact that Waterman “was not stopping despite seeing the officers approaching ahead of him with their weapons drawn,” and the fact “that other than his flight, no information indicated that Waterman had committed any serious crime prior to reportedly assaulting Officer Watkowski with his vehicle.” Id. at 478. Nevertheless, the court observed that “the critical reality here is that the officers did not have even a moment to pause and ponder these many conflicting factors.” Id. Instead, “[a] t the instant that Waterman’s vehicle lurched forward, the vehicle could have reached Officers Batton and Heisey in about one second even without accelerating further, and in even less time if it had continued to accelerate.” Id. Accordingly, “if the officers paused for even an instant, they risked losing their last chance to defend themselves.” Id. Under those circumstances, the Fourth Circuit concluded: Thus, although Appellants could have held their fire and taken the chance that Waterman’s acceleration in traffic was not for the purpose of committing another assault against an officer, “[t]he Constitution simply does not require police to gamble with their lives in the face of a serious threat of harm.” Id. at 479 (quoting Elliott, 99 F.3d at 643). The court also noted that “the closeness of the officers to the projected path of Waterman’s vehicle” was “crucial” to its conclusion that deadly force was justified. Id. at 479. However, the court reasoned differently as to the second set of shots: those discharged after Waterman’s car had passed the officers. The analysis respecting those shots began with the observation that “force justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated.” Id. at 481. Applying this principle, the Court of Appeals held that: [T]he record, viewed in the light most favorable to the Estate, shows that once Waterman’s vehicle passed the officers, the threat to their safety was eliminated and thus could not justify the subsequent shots. A factfinder could reasonably conclude that as the officers pursued Waterman’s vehicle, they knew or should have known that Waterman had passed them without veering in their direction. Under these circumstances, a reasonable factfinder could determine that any belief that the officers continued at that point to face an imminent threat of serious physical harm would be unreasonable. Id. at 482. A: Swann’s § 1983 Claim Against Hathaway Hathaway contends that he is entitled to summary judgment on Swann’s § 1983 excessive force claim because he did not shoot Swann, and thus, did not seize Swann. For that reasons, says Hathaway, he did not violate Swann’s Fourth Amendment rights. Additionally, Hathaway argues that, even if he did shoot Swann, there still is not a viable § 1983 claim against him because Swann was not the intended object of Hathaway’s shots, and was thus an “innocent bystander,” as to whom Hathaway cannot be liable for the reasons set out in Section II above. In the alternative, Hathaway argues that, if the Court finds that Swann can proceed under the Fourth Amendment claim, Hathaway is entitled to summary judgment because his actions were objectively reasonable. Citing Waterman, Hathaway correctly contends that police officers are entitled to use lethal force where the weapon they face is a motor vehicle. Waterman, 393 F.3d at 480. Here, Hathaway asserts that he believed that he was about to be run down by the Nissan, and thus he reasonably responded with lethal force to protect his life. Swann disputes all of Hathaway’s arguments. He maintains that Hathaway seized him when Hathaway fired at the Nissan. Additionally, Swann argues that “[njumerous factual issues exist about whether Hathaway acted reasonably when he fired or whether he had probable (or indeed any) cause to shoot at the car after the car had passed him and did not pose an immediate threat to anyone.” (Pl.’s Mem. of Law in Opp. To Hathaway’s Mot. Summ. J. 16.) In light of these arguments, the viability of Swann’s § 1983 claim against Hathaway turns on two issues: (1) whether Hathaway seized Swann, and, if so, (2) whether Hathaway’s actions were reasonable. 1. Did Hathaway Seize Swann? Hathaway maintains that he did not shoot at or hit Swann. If this is true — if, in fact, Hathaway did not shoot Swann— Swann does not have a viable § 1983 claim against Hathaway because Hathaway would not have “seized” Swann within the meaning of the Fourth Amendment. Howerton, 213 F.3d at 173. The record supports Hathaway’s position because there is no evidence in the record from which a jury reasonable could conclude, by a preponderance of the evidence, that Hathaway shot Swann. The ballistics evidence of record shows that Hathaway shot at the Nissan three times. It is undisputed that two of those bullets did not hit Swann. (See, e.g., Hamby Dep. 55:9-21, 139:9-140:2, Oct. 16, 2006.) The path and ultimate resting place of the third bullet remains unclear. This third bullet is the only one that could have hit Swann, and there is no evidence from which a reasonable jury could find, by a preponderance of the evidence, that the third bullet hit Swann. Swann’s own expert, Dr. James E. Hamby, concedes that he could not “determine where [it] went or what it hit.”' (Hamby ¶ 16, Nov. 14, 2006.) Swann argues that, even though his expert cannot testify to “any degree of scientific certainty” about the path of Hathaway’s third bullet, it is a fact question for the jury whether that bullet his Swann. Hathaway, however, observes that Swann can only speculate about the third bullet and whether it hit him. Such speculation, he continues, does not amount to a genuine dispute of material fact. The Court agrees. As explained above, a party cannot “create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale, 769 F.2d at 214. Instead, the party who bears the burden of proof on an issue at trial can survive summary judgment only if he has sufficient evidence from which a reasonable jury could for hi, by a preponderance of the evidence, on that point. Celotex, 477 U.S. at 327, 106 S.Ct. 2548. That is not the case here. Swann can only speculate that Hathaway’s third bullet hit him. There is no evidence in the record that supports this line of speculation. A jury, therefore, faced with such a dearth of evidence, could not reasonably conclude that Hathaway shot Swann, as it appears equally likely that Hathaway did not shoot him. Swann attempts to salvage the § 1983 excessive force claim against Hathaway by disputing the law in this area and pointing out what he asserts to be a factual incongruity in the record. First, Swann contends, contrary to Fourth Circuit precedent, that when an officer shoots into a moving car, he seizes everyone inside the car. Under this argument, Hathaway seized Swann merely by shooting into the Nissan. Swann supports this proposition by misconstruing Schultz v. Braga. In that case, police shot into a truck and hit the passenger, but not the driver. Schultz, 455 F.3d at 474. The Fourth Circuit concluded that the driver did not have a viable excessive force claim because she was not “seized” within the meaning of the Fourth Amendment. Id. at 479 (“The district court ruled that Harkum could not prevail on her claim of excessive force because she was not ‘seized’ by Agent Braga within the meaning of the Fourth Amendment in the first instance. We agree.”). Thus, the controlling precedent in the Fourth Circuit supports the conclusion that only the individuals who are struck by the bullets are seized. Id. Second, and in a similar vein, Swann contends that the Supreme Court’s recent decision in Brendlin v. California “confirms that the shots fired by the officers in this case effected a seizure of Plaintiff, even if the bullets did not strike or otherwise physically injure Plaintiff.” (PL’s Notice of Supplemental Authority in Opp’n to Mot. Summ. J. 1.) A close reading of Brendlin, however, proves otherwise. See Brendlin v. California, 551 U.S. -, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). In Brendlin, the Supreme Court held that, when a police officer makes a traffic stop, both the driver and the passenger are seized within the meaning of the Fourth Amendment. Id. The Court made a point of noting, however, that “[a] police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure as far as the Fourth Amendment is concerned.” Id. (emphasis added). In the case of a routine traffic stop, for instance, the submission occurs when the police officer “halts the driver, diverting both [the passenger and the driver] from the stream of traffic to the side of the road.” The driver and the passenger submit to the police, in effect, when the driver leaves his route and pulls over to the side of the road. In other cases, submission is not so clear or may not occur at all, and, on that point, the Court noted that: But what may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away. Id. (emphasis added). In this case, application of those precepts establishes that there was no seizure of Swann by Hathaway. In that respect, it is beyond dispute that neither Byrd nor Swann submitted to the police officers present on the scene. To the contrary, they evinced a lack of submission at several key points. To begin, the officers did not pull the Nissan over to the side of the road. They surrounded it only after Swann, whom they had been chasing through the neighborhood, jumped into its backseat. Swann did not enter the Nissan as a way of submitting to the officers. It is clear from the subsequent actions of both Byrd and Swann that Swann entered the vehicle in an attempt to get away from the officers. Indeed, within a matter of seconds after Swann entered the Nissan, Byrd moved into the driver’s seat of the Nissan, put the car into gear, and accelerated, in an attempt to escape the officers. Additionally, at no point during the foot pursuit of Swann, or the moments before the Nissan accelerated, did Swann or Byrd comply with any instructions from the defendant officers. The police officers on the scene shouted a number of commands at them, including “stop,” “show us your hands,” and “don’t move,” none of which Swann or Byrd obeyed. In short, therefore, there were absolutely no actions on the part of either Swann or Byrd indicating that they were submitting to police authority. Instead, they actively tried to avoid the police at virtually every part of the encounter. Hence, the decision in Brendlin does not alter the existing law respecting seizure on facts such as those present here. Third, Swann argues that, because Wilson and Hathaway each shot once through the front windshield of the Nissan and it is impossible to determine which of them shot the bullet that hit his shoulder, both Hathaway and Wilson are liable for shooting him under the doctrine of alternative liability. He observes that The Second Restatement of Torts states that, “[wjhere the conduct of two or more actors is tor-tious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.” Restatement (Second) of Torts § 433B (1965). While alternative liability is clearly a tort-based principle, both the Fifth and the Tenth Circuits have suggested that alternative liability may apply in certain § 1983 cases. See Northington v. Marin, 102 F.3d 1564, 1568 n. 1 (10th Cir.1996)(“Marin does not argue that § 433B can never be applied in a § 1983 action, and we conclude the burden-shifting principle of § 433B can apply in a § 1983 action when the facts support it.”); Grandstaff v. City of Borger, 767 F.2d 161, 168 (5th Cir.1985)(“The firestorm that killed James Grandstaff was in all respects a joint operation: the same recklessness, the same circumstances, and the same object. Each participant was as much at fault as the others; and all are liable for the foreseeable consequences.”). The Fourth Circuit, however, has not addressed this issue. The Court, however, need not consider the applicability of alternative liability here because the record does not establish that bullet that hit Swann’s shoulder came through the front windshield of the car. In fact, Swann himself testified that the bullet that hit him in the shoulder came from behind him, rather than from in front of him: Q. What places on your body do you remember bullets hitting you? A. Like, um, right here. (Indicating.) Q. Meaning your left shoulder? A. Left shoulder, right. Q. Did it hit you in the back or in the front? A. Yeah. It came from the back of me. Everything came from the back of me. (Swann Dep. 60:21-61:4, Aug. 3, 2006.) Clearly, Hathaway’s shots came from the front of the car, not from behind. Thus, the doctrine of alternative liability could not be the. predicate for a claim against Hathaway even if it were the rule in this circuit. 2. If Hathaway Seized Swann, Did Hathaway Act Objectively Reasonably? Even if the record did raise a triable issue respecting whether Hathaway shot Swann (and thus seized him), Swann still would have to prove, by a preponderance of the evidence, that Hathaway acted unreasonably in shooting. Hathaway maintains that all of his actions were reasonable. Swann again disputes the law in this area and the implications of the facts in this case. First, Swann contends that Hathaway’s decision to fire at the Nissan was unreasonable because he did not attempt to find cover before shooting. He claims that, before shooting, Hathaway ran “straight past readily-available cover, including a parked van that remained only feet behind him and a large tree that was near the car .... ” and that he had enough time to take cover between seeing Byrd move into the driver’s seat and the Nissan’s acceleration. Swann contends that in similar circumstances, says Swann, courts, including the Fourth Circuit, have held that an officer’s failure to take advantage of reasonable alternatives that would have eliminated the need to employ deadly force created issues of fact that required resolution by jury. Swann’s reading of these decisions on which he relies does not support that argument. The first Fourth Circuit decision which Swann cites to support his proposition that Hathaway had an obligation to seek cover is Drewitt v. Pratt, 999 F.2d 774, 776 (4th Cir.1993), wherein an off-duty police officer attempting to arrest a driver for reckless driving was hit by the driver’s vehicle. In the course of the collision, the officer managed to fire two shots, both of which struck the driver. Id. The Fourth Circuit held that the officer was entitled to qualified immunity. Id. at 780. The court noted, however, that “[c]ontrary to the district court’s conclusion” it believed “that [the officer’s] exact location in connection to [the plaintiffs] vehicle at the time it sped forward [was] relevant” to the issue of whether the officer had probable cause to believe that the plaintiff was posing a threat of death or serious bodily harm to him. Id. Swann takes that comment to mean that “an officer’s failure to take advantage of reasonable alternatives that would have eliminated the need to employ deadly force” creates a jury issue. That argument misapprehends the facts in Drewitt and the significance of the statement because Drewitt mentioned nothing about reasonable alternatives or available cover. See id. at 774-80. Instead, the Court of Appeals merely stated that the position of an officer is relevant is assessing whether that officer had a reasonable belief that he was facing death or serious bodily harm. Id. at 780. That, of course, is both logically correct and legally accurate. However, the decision in Drewitt is simply an affirmation of existing Fourth Circuit precedent respecting § 1983 excessive force claims that an officer may use lethal force only if he has a reasonable belief that he is facing death or serious bodily harm. Clearly, the position of the officer is pertinent to that issue. But, contrary to Swann’s assertion, Drewitt did not establish a new standard requiring officers to take cover before shooting. The other two decisions which Swann cites are similarly misconstrued. In Acosta v. City and County of San Francisco, 83 F.3d 1143, 1144-47 (9th Cir.1996), a plainclothes police officer chased two men whom he believed had just robbed a woman. After the suspects jumped into a car, the officer fired two shots into the car, one of which killed the driver. The case was submitted to a jury which found that the officer had used excessive force and violated the constitutional rights of the plaintiffs. Id. at 1144-45. During the trial, however, the jury was faced with conflicting evidence about whether the car was moving in the direction of the officer before the first shot, how fast the car was moving, and the officer’s location at the time of the shots. Id. at 1146. On appeal, the Ninth Circuit concluded: On the basis of the evidence presented at trial, the jury could have reasonably concluded that a reasonable officer, who had positioned himself facing the driver so that he was standing closer to the side than the dead-center of the car, would have recognized that he could avoid being injured when the car moved slowly, by simply stepping to the side. In short, a juror could have reasonably reached the conclusion at which the jury appears to have arrived: that the car did move prior to [the officer’s] shooting [the plaintiff] but that it was moving or rolling sufficiently slowly that a reasonable officer in [the officer’s] position would not have perceived himself to be in danger of serious bodily harm. Id. at 1146-47. Acosta cannot reasonably be read to stand for the proposition that officers have an affirmative obligation to attempt to find safety before using deadly force. Instead, it stands for the unremarkable proposition that officers cannot use deadly force if they are not faced with death or serious injury. Swann also cites Estate of Starks v. Enyart, 5 F.3d 230, 232 (7th Cir.1993), a Seventh Circuit case, wherein officers chased a suspected car thief into a parking lot. When the suspect attempted to drive off, the officers shot and killed him. The officers claimed that they shot because the car was heading toward one of them. However, the record showed that officer had been behind a utility pole during much of the incident and had stepped out from behind it only after the suspect already had started driving the car at a high rate of speed, thereby placing himself in the path of the moving vehicle. See id. On that record, the Court of Appeals affirmed the district court’s refusal to grant the officers qualified immunity. Id. at 235. The Seventh Circuit observed: The key dispute for the factfinder will be whether [the officer] stepped in front of [the plaintiffs] rapidly moving cab, leaving [the plaintiff] no time to brake. If he did, then [the officer] would have unreasonably created the encounter that ostensibly permitted the use of deadly force to protect him, because the decedent would have been unable to react in order to avoid presenting a deadly threat to [the officer]. On the other hand, if [the officer] was in the path of the car before the car started forward or if the factfinder concludes that [the plaintiff] could have braked but chose not to, then the three defendants reasonably responded to [the plaintiffs] acceleration to [the officer]. Id. at 234. Thus, again, Plaintiffs proposition is not supported by the decision on which he relies. Under existing precedent, Hathaway was not required to take advantage of “reasonable alternatives” before employing deadly force if, in fact, the vehicle that Swann was in was moving toward him in a way that threatened him with imminent death or bodily harm, a set of facts that is clearly established by this record. The evidence here shows that the events following Swann’s entry into the Nissan all “happened simultaneously” or at least “happened very quickly.” Indeed, Hathaway noted during his deposition: Q. How long after he started the car did he put it in gear? A. It was all simultaneous. Q. What happened to the car when he put it in gear? A. He mashed on the gas. Was driving a 3,000-pound bullet right at me. (Hathaway Dep. 115:11-12.) He also noted: Q. When you fired for the first time, how far away from you was the car? A. It was right there. It was right in front of me. I don’t know how that weapon wasn’t — didn’t kill me. I don’t. I’ll never know. I don’t know how that vehicle didn’t hit me. Q. It had already started moving, right? A. Yes. Q. And you had already seen Officer Wilson get hit before you fired, right? A. It all happens — I don’t know how many times I have to say this or how to explain it. It happened so quickly. Everything happened so fast. We go detail by detail by detail over the incident, but it all happened simultaneously, it all happened very quickly. {Id. 118:4-119:1.) Thus, Hathaway had neither an affirmative obligation to seek cover nor even enough time to contemplate seeking cover. There is no evidence in the record that would allow a jury finding that Hathaway’s actions were unreasonable by virtue of his failure to seek available cover before shooting. Second, Swann contends that the physical evidence indicates that Hathaway was standing further away from the Nissan than he claims. He argues that, even though Hathaway and Wilson claim that they were standing within touching distance of the Nissan, photographic evidence of the scene “clearly demonstrate[s], if Hathaway and Wilson were truly in that space, then they would have been standing next to a very large tree — a tree that neither of them ever mentioned and which would have prevented Wilson from falling to the ground after he was hit.” Swann continues that “[i] n order for Wilson to have been in front of the car and be able to fall to the ground, or even step to the curb, the Altima would have to have been parked more than ten feet away from van ... With that much space available to them, Hathaway and Wilson had no need to fire.... ” (Pl.’s Br. Opp. Hathaway’s Mot. Summ. J. 19.) Swann has not pointed to any evidence in the record that would indicate that Hathaway was standing further away from the Nissan than he claimed. Swann merely speculates that due to the presence of the tree, Hathaway must have been standing much further away. Speculation on a key point cannot suffice to overcome a motion for summary judgment. Swann must be able to point to evidence in the actual record that supports his argument. That evidence does not exist in this case. In fact, in his deposition, Swann’s own expert, Charles Key Sr., appears to have conceded that Hathaway was standing close to the Nissan: Q. But you don’t contest, though, the distance Hathaway was from the front of the Nissan because you don’t have really have any basis to? [sic] A. No, I’m not contesting that. Q. Okay. A. I’m not — no, what I’m saying is where they were in relation to the van, not where he was in relation to the Nissan. I have to accept the two to four feet. That’s what he’s , testified to consistently. (Key Dep. at 126:25-127:9, Oct. 25, 2006.) Thus, there is no evidence that Hathaway was standing far enough away from the vehicle so that it did not pose an imminent danger to him when it started moving. Instead, the evidence suggests that Hathaway was standing a mere two to four feet away when the vehicle began moving. Third, Swann contends that Hathaway fired at the car after it had passed him, and that those shots were unreasonable because Hathaway was no longer being threatened by the vehicle. Swann observes: Here, Hathaway fired three shots, the second and third of which were fired after the car had passed him. Hathaway’s second shot struck Byrd in the right calf. Hathaway most likely fired this shot through the front, passenger-side window — a shot that could only have been fired after the car passed him ... At a minimum, genuine issues of material fact exist as to whether it was reasonable for Hathaway to employ deadly force at the time he fired the shot into Byrd’s leg. Hathaway, however, fired again, eliminating any question: his third shot hit the rear side of the post between the car’s front and rear passenger-side doors. That shot must have been fired from the rear of the vehicle after most — if not all — of the car was past Hathaway. (Pi’s Mem. Opp. to Def. Hathaway’s Mot. Summ. J. at 21 (citations omitted).) This theory does not pass muster on the record. According to Swann’s own expert, Dr. James E. Hamby, however, the only one of Hathaway’s three bullets that could have hit Swann was shot from the front of the car, through the windshield. (See Decl. of James Hamby at ¶ 16.) Thus, Hathaway’s other two bullets, even if they were fired once the car had passed him, are not relevant to Swann’s § 1983 claim against Hathaway because they did not strike Swann. For the foregoing reasons, Hathaway’s Motion for Summary Judgment on Swann’s § 1983 excessive force claim will be granted. There is no evidence in the record from which a reasonable jury could conclude that Hathaway shot Swann. The Court must find, therefore, that Swann cannot prove that Hathaway seized Swann and, by extension, that Hathaway did not apply excessive force against Swann. Even if a reasonable jury could find that Hathaway shot Swann, however, Swann still would not have a viable § 1983 excessive force claim against Hathaway because Hathaway’s actions in shooting at the Nissan were reasonable. Hathaway shot to protect himself from a vehicle that was being driven towards him and another officer, an objectively reasonable action under Fourth Circuit precedent. B: Swann’s § 1983 Claim Against Mocello Mocello fired four shots at the Nissan. He fired one shot at Byrd and hit him. He fired three shots at Swann and hit him at least twice. Mocello contends that he is entitled to summary judgment on Swann’s § 1983 excessive force claim because the facts show that Mocello’s conduct at the time he fired his weapon was objectively reasonable: In that moment, Detective Mocello heard gunshots and saw glass shattering from the rear windshield of the car. Detective Mocello had also seen Swann run from the police and make repeated furtive movements inside the car between his waist and the floorboard of the car. Detective Mocello knew that Swann had refused to comply with repeated commands from the officers on the scene and knew that Sergeant Pence had observed Swann reaching into his waistband or pocket and had radioed to the Task Force members to use caution. In short, Detective Mocello responded to a perceived threat of imminent harm under circumstances which were “tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. (Mocello Mot. Summ. J. 19.) Mocello also observes that “Swann’s own expert shows that Detective Moceflo’s perception that shots were coming from the car was not only reasonable, but accurate,” noting that “Dr. Hamby confirmed that at least one round exited the rear windshield of the car, corroborating Detective Mocello’s testimony that he saw shattering glass coming out from the rear windshield of the car.” Id. The testimony of other, non-party, officers at the scene also supports the reasonableness of Mocello’s perception of danger from Swann. Detective Edwards, for instance, testified that he did not know whether the shots fired were “coming from the vehicle or other places.” (Edwards Dep. 96:3-4, Sept. 21, 2006.) He also noted that he felt threatened by Swann, stating, “I didn’t have my gun out and I didn’t have good cover and to me I just felt there was a threat there that could hurt me so I decided to back up from where the vehicle was.” (Id. 38:1-4). Similarly, Detective Davenport testified during his deposition: A. As soon as I heard the first gunshot, I drew my gun. I didn’t know who was shooting or where the shooting was coming from. My focus, even more intently, went inside that car to see if I was taking fire from the car. I didn’t see — all I saw was this figure and the car moving away. I didn’t see who was shooting, which direction they were shooting. My concern was, was that car shooting. Q. You didn’t see any shots from the car? A. I did not. Q. Why did you assume that shots were coming from the car? A. The shots were in close proximity to the car. We had just chased somebody. Edwards was getting ready to break out a window. They were telling people to get out of the car. And, then, when I heard gunshots, I assumed that they came from the car. (Davenport Dep. 64:11-65:8, Sept. 8, 2006.) Mocello’s perception that Swann was placing him in danger of death or serious bodily injure, therefore, appears objectively reasonable. Mocello was dealing with a suspect who had wholly failed to comply with any police commands and who had been making movements between his waist and the floor of the car. When faced with shots exiting the rear windshield of the Nissan, therefore, it was objectively reasonable for Mocello to believe that he was being fired at by Swann. Other officers on the scene interpreted the events in the same way. Mocello’s position is based on four Fourth Circuit decisions, each of which addressed how to evaluate the nature and extent of perceived threats facing police officers. In Greenidge v. Ruffin, 927 F.2d 789, 790 (4th Cir.1991), the plaintiff alleged that the deadly force used by a police officer in a prostitution arrest was unreasonable and thus in violation of his constitutional rights. The police officer, however, was faced with two people who had failed to comply with her order to place their hands in view. Id. The officer also observed one of the individuals “reach for a long cylindrical object from behind the seat” of the car, which the officer believed to be a shotgun. Id. The officer fired her weapon as a result, permanently injuring one of the individuals in the car. Id. The object turned out to be a wooden nightstick. Id. The Fourth Circuit affirmed the judgment of the district court, upholding the verdict for the defendant on all counts, and noting that, although the case was “unfortunate,” the officer made a split-second judgment to shoot after seeing the plaintiff reach for an object that looked like a deadly weapon. Id. at 793. Similarly, in Slattery v. Rizzo, 939 F.2d 213, 215 (4th Cir.1991), a passenger in a vehicle that had been stopped for traffic infractions ignored an officer’s repeated orders to place his hands in view, and then closed his hand around an object that the officer thought was a weapon but which turned out to be a beer bottle. The officer fired at the passenger, hitting him in the face, The Fourth Circuit held that “[w]e believe that under the undisputed facts of this case, a reasonable officer could have had probable cause to believe that the appellee posed a deadly threat and therefore would be authorized to use deadly force.” Id. at 216-17. In McLenagan v. Karnes, a police officer shot an unarmed arrestee at a sobriety checkpoint. McLenagan, 27 F.3d at 1009. After being alerted that an arrestee had gotten hold of a gun, the officer shot the wrong arrestee as he ran out of the building behind an apparently fleeing deputy. Id. at 1005. The Fourth Circuit held that, even though the officer did not see a gun in the arrestee’s hands (which were handcuffed in front of him at the time), he also “could not confirm that [the arrestee] was unarmed,” and had to make a “split-second judgment” in a situation “where inaction could have resulted in death or serious injury to the officer and others.” Id. at 1007-08. Consequently, the Fourth Circuit concluded that the officer had not used excessive force. Lastly, Mocello cites Russell to support his claim that he was justified in shooting at Swann. In Russell,