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` PUBLISHED
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`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`
`No. 21-2223
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`AZUCENA ZAMORANO ALEMAN, individually and as Administrator of the
`Estate of RUBEN GALINDO CHAVEZ,
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`Plaintiff – Appellant,
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`v.
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`CITY OF CHARLOTTE; DAVID GUERRA, individually and officially,
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`Defendants – Appellees,
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`and
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`COURTNEY SUGGS, individually and officially,
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`Defendant.
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`Appeal from the United States District Court for the Western District of North Carolina, at
`Charlotte. Robert J. Conrad Jr., District Judge. (3:19-cv-00491-RJC-DCK)
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`Argued: December 7, 2022
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` Decided: August 16, 2023
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`Before KING and RICHARDSON, Circuit Judges, and KEENAN, Senior Circuit Judge.
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`Affirmed in part, vacated in part, and remanded by published opinion. Judge King wrote
`the majority opinion, in which Senior Judge Keenan joined. Judge Richardson wrote a
`dissenting opinion.
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`ARGUED: S. Luke Largess, TIN FULTON WALKER & OWEN, Charlotte, North
`Carolina, for Appellant. Lori R. Keeton, LAW OFFICERS OF LORI KEETON, Charlotte,
`North Carolina; Roger A. McCalman, OFFICE OF THE CITY ATTORNEY, Charlotte,
`North Carolina, for Appellees. ON BRIEF: Brian R. Hochman, Bradley W. Butler,
`BUTLER, QUINN & HOCHMAN, PLLC, Charlotte, North Carolina, for Appellant.
`Clarence E. Matherson, Jr., OFFICE OF THE CITY ATTORNEY, Charlotte, North
`Carolina, for Appellee City of Charlotte.
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`2
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`KING, Circuit Judge:
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`This civil action on appeal from the Western District of North Carolina arises from
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`the September 2017 fatal police shooting of Ruben Galindo Chavez (who used the surname
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`“Galindo”) during an encounter with officers of the Charlotte-Mecklenburg Police
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`Department. The action was initiated by plaintiff Azucena Zamorano Aleman — Galindo’s
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`girlfriend and the mother of his child — both as the administrator of Galindo’s estate and
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`in her individual capacity. The plaintiff’s five causes of action include a 42 U.S.C. § 1983
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`claim against defendant David Guerra, the police officer who fired the lethal shots, for use
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`of excessive force in violation of Galindo’s Fourth Amendment rights, plus the following
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`state law claims: a claim against Guerra for assault and battery; claims against both Guerra
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`and the City of Charlotte for wrongful death caused by negligence and for negligent
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`infliction of emotional distress; and a claim against the City alone for negligent police
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`officer training.
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`After amassing an assortment of evidence during discovery, including video footage
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`from body cameras worn by the officers present at the shooting scene, the parties filed
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`cross-motions for summary judgment. For reasons outlined in its Order of September
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`2021, the district court awarded summary judgment to the defendants on each of the
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`plaintiff’s claims. See Aleman v. City of Charlotte, No. 3:19-cv-00491 (W.D.N.C. Sept.
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`30, 2021), ECF No. 50 (the “Opinion”). The court therein determined that — because it
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`was objectively reasonable for Officer Guerra to shoot Galindo, in that Galindo posed an
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`immediate threat to Guerra and others — Guerra is entitled to qualified immunity on the
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`Fourth Amendment claim. For the same reason, the court awarded summary judgment to
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`Guerra and the City on the assault and battery, wrongful death, and negligent infliction of
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`emotional distress claims. Citing a lack of sufficient evidence, the court also awarded
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`summary judgment to the City on the negligent training claim.
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`The appeal now being pursued by the plaintiff presents several close questions on
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`the facts and applicable law, against a backdrop of tragic and dangerous circumstances. As
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`we recently acknowledged in another fatal police shooting case, “[i]t is not lost on us that
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`we issue this decision from the calm of a courthouse” and that, “[u]nlike us, [the defendant
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`officer] could not press pause or rewind before determining whether [the decedent] posed
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`an imminent threat.” See Franklin v. City of Charlotte, 64 F.4th 519, 539 (4th Cir. 2023).
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`Upon careful consideration of the video footage and the other evidence in the record, we
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`are satisfied to affirm the district court’s summary judgment award to the City on the
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`negligent training claim. On the other hand, we vacate the award of qualified immunity to
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`Officer Guerra on the Fourth Amendment claim, as well as the related summary judgment
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`awards to Guerra and the City on the balance of the state law claims. Rather than directing
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`the entry of judgment in favor of the plaintiff on any of those claims, we remand for further
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`proceedings as to all of them.
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`
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`I.
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`A.
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`The plaintiff initiated this action in August 2019 in a state court in Mecklenburg
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`County, North Carolina, and the defendants removed the matter in September 2019 to the
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`Western District of North Carolina. Of the plaintiff’s five causes of action, four were
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`asserted on behalf of Galindo’s estate: the Fourth Amendment and assault and battery
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`claims against Officer Guerra; the wrongful death claim against Guerra and the City of
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`Charlotte; and the negligent training claim against the City. The plaintiff alleged the
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`remaining cause of action — the negligent infliction of emotional distress claim against
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`Guerra and the City — on her own behalf.
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`The parties engaged in extensive discovery proceedings, securing not only the video
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`footage from the body cameras worn by Officer Guerra and the other police officers present
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`at the shooting scene, but also copies of relevant 911 dispatch records, depositions of
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`Guerra and his colleagues, and records of the officers’ interviews during the Charlotte-
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`Mecklenburg Police Department’s internal investigation of the shooting. In addition, the
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`parties presented expert witnesses on the reasonableness of Guerra’s actions and the
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`adequacy of the City’s police officer training.
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`By their respective summary judgment motions, Officer Guerra and the City
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`requested judgment as to all the plaintiff’s claims. The plaintiff’s cross-motion for
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`summary judgment sought only a partial judgment, on the Fourth Amendment, assault and
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`battery, and negligent infliction of emotional distress claims.
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`1.
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`As the plaintiff has highlighted in the summary judgment proceedings, the record
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`reflects that at the time of the September 2017 shooting, Galindo was a 30-year-old
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`5
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`Mexican man who worked in the Charlotte area and did not speak English.1 He had
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`recently been diagnosed with paranoia, without being deemed a danger to himself or others.
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`Galindo was facing North Carolina charges of misdemeanor assault by pointing a firearm
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`and simple assault, but he had no other known history of criminal activity.
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`a.
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`(1)
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`On September 6, 2017, at about 9:04 p.m., Galindo placed the first of two 911 calls
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`seeking assistance from the Charlotte-Mecklenburg Police Department. To accommodate
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`Galindo, that call was transferred to a Spanish-speaking dispatcher available through the
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`Department’s Spanish language phone line. During the call, which lasted approximately
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`18 minutes, Galindo said that he sought to turn himself in for impending court proceedings
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`and that he wanted police officers to pick him up at his apartment, located at 1918 Prospect
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`Drive, in Charlotte. Galindo also gave the following reason for requesting the officers:
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`“Because I have a gun in my hand.” See J.A. 243.2
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`1 Of course, pursuant to the applicable summary judgment standard, we must view
`the facts and all reasonable inferences drawn therefrom in the light most favorable to the
`nonmoving party. See Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). That
`means we must view the facts in the plaintiff’s favor when considering the summary
`judgment motions of Officer Guerra and the City, and in those defendants’ favor when
`considering the plaintiff’s cross-motion for partial summary judgment.
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`2 The English language transcripts of the two 911 calls quoted herein are unverified
`translations that the defendants provided in discovery and that the plaintiff has invoked in
`the summary judgment proceedings. See J.A. 243-48. (Citations herein to “J.A. __” refer
`to the contents of the Joint Appendix filed by the parties in this appeal.)
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`6
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`When asked by the dispatcher what he was “going to do with the gun,” Galindo
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`responded with the query, “Are you going to help me or are you not going to help me?”
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`See J.A. 243. Pressed about his intentions, Galindo said that the dispatcher should “tell me
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`if [the officers] are coming or not so that I can put my firearm there in the front or
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`whatever,” suggesting that he intended to surrender the firearm. Id. at 244.
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`Meanwhile, Galindo repeatedly failed to provide information expressly requested
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`by the dispatcher, including whether he was suicidal or homicidal. Some of Galindo’s
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`remarks to the dispatcher evidenced his paranoia. For example, Galindo first claimed his
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`name was “El Dios Estrella” (which translates to “the Star God”), before giving the name
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`“Ruben Galindo.” See J.A. 244-45. He complained of police officers and other people
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`“following me,” and he said that “I can’t take it any longer.” Id. at 245. Galindo also
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`admitting to drinking alcohol that day but denied using drugs.
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`Throughout the first 911 call, Galindo asked whether he was going to receive any
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`help, prompting the dispatcher to periodically assure him that police officers were on the
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`way. At one point, having heard a woman’s voice in the background, the dispatcher asked
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`Galindo how many people were in his apartment. Galindo did not provide that information.
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`Rather, he answered: “Look, I only need [the officers] to come for me[.] It’s only for me
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`[and] I will be outside of the apartment.” See J.A. 245. Galindo elaborated, “I only need
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`the police to come for me, for them to take me.” Id. He also requested that a responding
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`officer be “someone that speaks Spanish.” Id.
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`Near the end of the first 911 call, the dispatcher elicited from Galindo that he was
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`still inside the apartment but would go outside once the police officers were there. When
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`specifically asked if he was “thinking of harming the officers” or “anyone in [his] house,”
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`Galindo responded, “No.” See J.A. 246. He again expressed that “I want to turn myself
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`in” and that “I prefer for [the officers] to lock me up.” Id. The dispatcher’s last statement
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`to Galindo during the call was that “the officers are in route, they are on their way and they
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`will be there as soon as possible, thank you.” Id. Galindo responded before the call was
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`disconnected, “Are they coming or not because [I] can’t take it anymore.” Id.
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`(2)
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`A few minutes later, Galindo placed his second 911 call, which lasted for nearly 12
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`minutes and remained connected until after the fatal shooting. During that call, Galindo
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`and the Spanish-speaking dispatcher mainly discussed Galindo’s firearm. At the outset,
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`Galindo said that the firearm was “[i]n my bag” and that “if you want I will take it out.”
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`See J.A. 247. The dispatcher then repeatedly instructed Galindo to leave the firearm in a
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`safe place and not to have it when the police officers arrived to meet him outside his
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`apartment. Specifically, the dispatcher advised: “leave it in a safe place and when you see
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`the officers, show your hands, I don’t want you to have the [firearm]”; “[n]o please, no, no
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`please [do not have the firearm with you]”; “please leave it” “for your safety and of
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`everyone’s”; “I need you to assure me that you will leave the gun please”; and “I need you
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`to please put that gun somewhere please.” Id. at 247-48.
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`Even as the dispatcher gave those instructions, Galindo continually indicated that
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`he planned to have his firearm with him when he met the police officers. He also suggested,
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`as he had during the first 911 call, that he intended to surrender the firearm. That is,
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`Galindo asked the dispatcher, “How do you want me to show a firearm?” See J.A. 248.
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`Soon thereafter, he stated that “as long as [the officers] don’t shoot me I will throw them
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`the gun.” Id. While reportedly “giggling” during the second 911 call, Galindo asserted
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`that the firearm “doesn’t have bullets.” Id. at 247. He then said approximately 11 more
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`times that “I don’t have bullets.” Id. at 247-48. Galindo’s last words to the dispatcher
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`before the shooting were, “Look I know that you are nervous, and all of that, I know, well
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`me too,” followed by, “Can you help me or not?” Id. at 248.
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`b.
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`At about 9:10 p.m., approximately six minutes into Galindo’s first 911 call, a request
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`had gone out for officers of the Charlotte-Mecklenburg Police Department to respond to a
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`Spanish-speaking caller who “adv[ised] he’s armed with a gun and wants officers to come
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`help him.” See J.A. 108. That request was promptly entered into the Department’s
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`computer system as an “event.” The computer system identifies and records the officers
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`who respond to such an event and allows the dispatcher to provide updates as relevant
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`information becomes available. The responding officers receive the updated event
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`information in real time on laptops in their patrol vehicles.
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`Information about the “Galindo event” was updated throughout his first 911 call,
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`with the dispatcher relaying the following to the responding officers:
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`•
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`•
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`•
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`•
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`•
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`“Refuses to give . . . further information”;
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`“Unk[nown] what he wants to do with the gun”;
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`“Unk[nown] if the comp[lainant] is homicidal or suicidal”;
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`“Adv[ises] he wants to turn himself in, unk[nown] reason, unk[nown]
`warrant”;
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`“Comp[lainant] is not cooperating”;
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`•
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`•
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`•
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`•
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`“See El Dios Estrella (Rub[e]n Galindo)”;3
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`“Comp[lainant] has been drinking, neg [denies] drugs”;
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`“Unk[nown] how many times the res[idence] is occupied. Heard a
`female in the b[ackground]”; and
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`“***Use Caution. Comp[lainant] sounds delusional.***”
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`See J.A. 108-09.
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`The Galindo event information was not updated during his second 911 call. In radio
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`communications, however, the responding officers were informed that Galindo had told
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`the dispatcher that his “gun has no bullets.” See J.A. 241. The officers were also advised
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`that Galindo had “said that he would put down the gun when [the officers] arrived.” Id. at
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`313.
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`c.
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`Officer Guerra and three of his colleagues — Officers Ryan Tran-Thompson,
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`Courtney Suggs, and David Batson — responded to the Galindo event. As explained in
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`their depositions in this civil action, none of the four responding officers was fluent in
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`Spanish. The officers initially met in a parking lot near their police station to review the
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`information they had about Galindo, to discuss concerns that he could be intending an
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`ambush, and to make a plan for safely approaching him. During the meeting, Officer
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`Batson searched law enforcement databases for Galindo’s name and found that a “Ruben
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`Galindo” had been charged in April 2017 with assault by pointing a firearm. Additionally,
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`3 The Galindo event information thus reported the two names that he gave the
`dispatcher — “El Dios Estrella” and “Ruben Galindo” — without explaining that “El Dios
`Estrella” translates to “the Star God.” See J.A. 113.
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`10
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`Officer Tran-Thompson asked his colleagues how to say “hands up” in Spanish and got the
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`reply “manos arriba.” See J.A. 628.
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`Consistent with the request made by Galindo during his first 911 call, a Spanish-
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`speaking officer was summoned from a neighboring division to assist the responding
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`officers. At about 9:21 p.m., the Spanish-speaking officer announced that he was en route.
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`By then, however, the responding officers had received the event update that included
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`“[h]eard a female in the b[ackground].” See J.A. 109. That update, which came at about
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`9:18 p.m., alerted the responding officers that there was a woman or girl in the apartment
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`with Galindo and caused them to fear that the situation could escalate to domestic violence.
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`Consequently, the responding officers decided to proceed to Galindo’s apartment without
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`waiting for the Spanish-speaking officer.
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`Based on his police experience with Spanish speakers, Officer Guerra expected
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`Galindo to understand simple English phrases such as “are you okay” and “what can I do
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`for you.” See J.A. 303. Guerra also thought he could speak enough Spanish to convey the
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`message, “Hey, I don’t speak Spanish, but someone who speaks Spanish is coming soon.”
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`Id. As for the dispatcher’s warning that Galindo “sounds delusional,” see id. at 109, Guerra
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`“wasn’t sure if it was a clinical diagnosis that [Galindo] was delusional or if it was
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`figurative or what.” Id. at 295. Guerra thought “to assess the situation accurately,” he
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`“would have to do it best in person” and “try to establish an open line of communication
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`[with Galindo] and basically feel him out.” Id. at 296.
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`11
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`d.
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`Between 9:28 and 9:29 p.m., after dark, the four responding officers arrived at the
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`large apartment complex where Galindo resided and parked several buildings away from
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`Galindo’s Building 1918. His residence was in an apartment located at an end of the
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`building and abutted by a small, wooded area. The patio entrance to Galindo’s apartment
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`faced a wall of Building 1920 containing the patio entrances to the apartments located
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`therein. A bright streetlight illuminated the walkway right outside of Galindo’s apartment,
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`affording a clear view of where Galindo would stand when he exited through his screen
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`patio door. No other person was present in the outside area between the apartment
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`buildings.
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`The four responding officers approached Galindo’s apartment at approximately
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`9:30 p.m. Officer Guerra took a position alongside the closest corner of Building 1920,
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`approximately 10 yards from Galindo’s patio entrance. Meanwhile, Officer Tran-
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`Thompson took a position several yards farther away, in the wooded area behind and to the
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`left of Guerra. Both Tran-Thompson and Guerra were armed with rifles. For their part,
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`Officers Batson and Suggs carried handguns and took positions on the opposite corner of
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`Building 1920, approximately 20 yards from Galindo’s patio entrance. Each of the
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`responding officers had a position that provided cover.
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`Each officer also wore a body camera, with the video footage from Officer Tran-
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`Thompson’s camera being the footage that most fully shows the scene as it unfolded.
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`Because of the stance of his body during the encounter, Officer Guerra’s camera was
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`largely blocked by the corner of Building 1920, with just a partial view of Galindo.
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`Moreover, the footage from Officer Batson’s and Officer Suggs’s cameras shows
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`Galindo’s left arm only. But Tran-Thompson’s camera was unobstructed and filmed both
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`Guerra and Galindo throughout the encounter, including the moments when the fatal shots
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`were fired.
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`e.
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`As the plaintiff has described it, the video footage from the responding officers’
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`body cameras reveals that, upon taking his position alongside the corner of Building 1920,
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`Officer Guerra called out “Ruben” to a man standing behind the screen patio door of
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`Galindo’s apartment. That man — Ruben Galindo — responded in the affirmative and
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`opened the door, prompting Guerra to call out, in Spanish, “Ruben, policia, manos, manos”
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`(which translates to “Ruben, police, hands, hands”). Guerra moved out from his cover to
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`engage with Galindo, such that Galindo could view Guerra’s entire body.
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`Immediately after opening the screen patio door, Galindo stood in the doorway,
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`facing Officer Guerra. Galindo’s left arm was down at his side, and his right arm was
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`similarly at his side but just behind the door frame. Guerra pointed his rifle at Galindo’s
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`lower body and quickly said “manos” two more times. Concomitantly, Guerra raised his
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`right arm off the barrel of his rifle, demonstrating to Galindo to raise his hand.
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`In response to Officer Guerra’s Spanish commands of “manos,” Galindo raised his
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`left hand — in which he was holding a pistol — to about waist level. According to the
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`plaintiff, it is unclear from the video footage whether the pistol had already been in
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`Galindo’s left hand or whether Galindo grasped the pistol just before raising the hand, but
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`the video footage suggests that the pistol had already been in Galindo’s left hand. After
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`raising the hand to about waist level, Galindo paused, which the plaintiff asserts was a
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`demonstration of Galindo’s uncertainty as to whether he should throw the pistol or continue
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`holding it in his raised hand.
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`The sight of the pistol caused Officer Guerra to yell, now in English, “put it down,
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`drop the gun, put it down.” Galindo reacted to those English commands by quickly raising
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`his left arm above his shoulder and extending his left hand — still holding the pistol —
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`past the end of the opened screen patio door. Galindo’s left arm was then extended about
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`45 degrees from the center of his body and pointing toward the wall of Building 1920,
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`leaving it about 45 degrees away from Guerra.
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`When Galindo raised his left arm, he also began to raise his right arm. From there,
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`the four responding officers shouted over each other, still in English, to “drop the gun” and
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`“put it down.” As they shouted, Galindo swiftly raised his right arm and extended it out
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`like his left, above shoulder height and about 45 degrees from the center of his body.
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`The plaintiff does not contend that any of the video footage from the responding
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`officers’ body cameras is clear enough to conclusively show how Galindo was holding the
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`pistol in his left hand or where the pistol itself was pointing as he raised his left and then
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`right arms. But the plaintiff maintains that the video footage firmly establishes that Galindo
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`was ultimately standing still with both his arms frozen in place and both his hands in the
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`air, in a universally recognized position of surrender. And Galindo’s left arm remained
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`pointing at the wall of Building 1920, not at Officer Guerra.
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`It was at that point that Officer Guerra fired at Galindo twice. Under the plaintiffs’
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`interpretation of the video footage, the first shot caused Galindo to collapse and fall
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`forward, and the second shot hit him in the top of the head as he fell. Approximately four
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`seconds had elapsed between Guerra’s first English commands to “put it down, drop the
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`gun, put it down” and his first shot at Galindo, who died at the scene.4
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`f.
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`Two days later, on September 8, 2017, investigators with the Charlotte-
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`Mecklenburg Police Department interviewed Officer Guerra about the fatal shooting.
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`Notably, Guerra had not yet viewed the video footage from his and the other responding
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`officers’ body cameras.
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`In his interview with the shooting investigators, Officer Guerra asserted that when
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`Galindo opened his screen patio door, Guerra called out “manos arriba” (“put your hands
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`up”). See J.A. 446. Guerra described Galindo as facing Guerra, with the door open behind
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`Galindo. Additionally, Guerra demonstrated that Galindo fully raised both his arms in
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`response to Guerra’s “manos arriba” command. Guerra then said that — after Galindo
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`fully raised both his arms — Galindo kept his right arm raised but lowered his left arm,
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`reached into his pocket, and pulled out his pistol. According to Guerra, Galindo had the
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`pistol “gripped high in the palm of the hand” and “his fingers were wrapped around the
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`4 Plaintiff Azucena Zamorano Aleman was inside the apartment at the time of the
`fatal shooting and was heard screaming in the background of Galindo’s still-connected
`second 911 call, which had been made on a cell phone that Galindo was carrying during
`the encounter with Officer Guerra and his colleagues. The plaintiff has described the video
`footage from the officers’ body cameras as showing her rushing outside, shouting “Ruben,”
`and becoming hysterical when she saw Galindo’s body on the ground. The plaintiff asserts
`that she has since been diagnosed with severe chronic depression and post-traumatic stress
`disorder related to the shooting.
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`pistol grip” such that he was “about to fire.” Id. at 447. Guerra also recounted that, upon
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`his subsequent instructions to “drop the gun,” Galindo “pivot[ed] the firearm towards me”
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`with “the muzzle raised in my direction.” Id. at 448-49. In Guerra’s words, “I had the
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`conscious thought of I have to shoot this guy because I immediately felt a threat [of] death
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`[or] serious bodily injury from him pointing a firearm at me.” Id. at 449. Guerra explained
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`that he fired the second shot at Galindo because Galindo remained standing after the first
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`shot, making it unclear whether the first shot had hit him.
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`At Officer Guerra’s subsequent deposition in this civil action, after viewing the
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`video footage from the responding officers’ body cameras, Guerra conceded that he had
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`called out only “manos” to Galindo, not “manos arriba.” See J.A. 315. Guerra confirmed
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`that Galindo had been facing Guerra during the encounter. He also reiterated, based on his
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`“memory” rather than the video footage, that Galindo initially raised both his arms and
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`then kept his right arm raised while lowering his left arm and retrieving his pistol from his
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`pocket. Id. at 318.
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`Upon rewatching the video footage during his deposition, Officer Guerra admitted
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`that, when he shot Galindo, both of Galindo’s arms were raised and extended about 45
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`degrees from the center of his body, with his left arm pointed at the wall of Building 1920,
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`away from Guerra. Further, Guerra acknowledged that he would consider that to be a
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`position of surrender “[f]or an unarmed subject.” See J.A. 326.
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`In any event, Officer Guerra stood by his previous account that Galindo had pivoted
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`his pistol toward Guerra, justifying Guerra’s shooting of Galindo. Guerra sought to clarify
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`that Galindo had pivoted his left elbow and thereby pointed his pistol at Guerra. Further,
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`Guerra asserted that, although Galindo’s left arm continued to point at the wall of Building
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`1920, “it is possible to hold your arm up and still point [a pistol] in a separate direction.”
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`See J.A. 332. Guerra did not claim that any pivot of Galindo’s left elbow, or the direction
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`in which the pistol was pointed, can be seen in the video footage.
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`Regarding his prior statement that he fired the second shot at Galindo because
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`Galindo remained standing after the first, Officer Guerra conceded that the second shot hit
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`Galindo in the top of the head. But Guerra allowed only that it was “possible” that Galindo
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`must have been falling from the first shot in order for the second shot to have hit where it
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`did. See J.A. 340.
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`Finally, as for the issue of how Galindo had been holding his pistol, Officer Guerra
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`continued to insist that Galindo held the pistol “high and firm with a pistol grip,” which is
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`“how you hold [a pistol] before you fire it.” See J.A. 317. Prior to Guerra’s deposition,
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`however, Officer Batson had related in his interview with the shooting investigators that
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`he saw Galindo holding the pistol upside down, with the grip pinched between his thumb
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`and fingers — not in the shooter’s position described by Guerra. Batson later, in his
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`deposition testimony, reiterated that description of how Galindo had been holding his
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`pistol. Confronted with Batson’s account during his own deposition, Guerra acknowledged
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`that the manner in which Batson saw Galindo holding the pistol was “pretty much the
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`opposite” from the way in which Guerra saw it. Id. at 333. Guerra then suggested that he
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`was in a better position than Batson to discern how the pistol was actually being held, as
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`his “vantage point” had “better lighting” and was “much closer” than Batson’s. Id. at 335.
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`
`
`17
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`
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`Indeed, Guerra confirmed that he “could see the gun and the details of the gun” throughout
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`the encounter with Galindo. Id. at 338.
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`2.
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`For their parts, Officer Guerra and the City of Charlotte have highlighted much of
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`the same foregoing evidence in the summary judgment proceedings, with an emphasis on
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`inferences that can be drawn in their favor. The defendants have also raised some
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`additional aspects of the record. Those include Officer Batson’s deposition testimony that
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`Galindo could have fired his pistol while holding it upside down by either using his pinky
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`finger or changing his grip, along with deposition testimony of Batson, as well as Officer
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`Suggs, that Galindo’s pistol had been pointed toward Guerra.
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`In other deposition testimony invoked by the defendants, Officer Tran-Thompson
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`recounted hearing Officer Guerra shout out “manos arriba” to Galindo and seeing a metallic
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`object in Galindo’s left hand. Tran-Thompson stated that, as he then joined Guerra in
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`yelling “drop the gun” and “drop it,” Galindo raised both his hands upward, turned his
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`body toward Guerra, took a small step in Guerra’s direction, and began to lower his left
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`arm or elbow. According to Tran-Thompson, it appeared to him that “Galindo was getting
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`ready to punch out and take a shooter’s stance by punching his arm straight forward out
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`towards Officer Guerra and possibly begin shooting at Officer Guerra.” See J.A. 619. That
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`is, Tran-Thompson said he “observed movements [indicating that Galindo] was going to
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`take a shooter’s stance and start firing at Guerra.” Id. at 624. Once the deposition
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`proceeded to a viewing of the video footage from the responding officers’ body cameras,
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`
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`18
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`
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`however, Tran-Thompson acknowledged that the footage does not show any of the
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`threatening movements that he had described.
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`3.
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`
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`Turning to the expert witnesses, the parties collectively presented three experts on
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`the use of force and police officer training: Jon Blum for the defendants, and William
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`Harmening and Melvin Tucker for the plaintiff. Upon reviewing the evidence in the
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`summary judgment record, those witnesses opined — by written reports and, in the case of
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`the plaintiff’s experts, by deposition testimony — on both the reasonableness of Officer
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`Guerra’s actions and the adequacy of the training provided by the City of Charlotte.5
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`a.
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`Regarding the issue of whether Officer Guerra’s actions were reasonable, each
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`expert witness considered the totality of the circumstances facing Guerra when he fired the
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`fatal shots at Galindo. Those circumstances included that Galindo: had called 911 for
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`unclear reasons and admitted to drinking and being armed with a “gun”; was described by
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`the Spanish-speaking dispatcher as being uncooperative and seemingly “delusional”; was
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`suspected of having committed a previous firearm-related offense; presently posed a threat
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`5 We note that, in summary judgment proceedings, a court may consider an expert
`report that would itself be inadmissible at trial where “the party submitting the evidence
`shows that it will be possible to put the information into an admissible form.” See
`Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 538 (4th
`Cir. 2015) (alterations and internal quotation marks omitted). That showing must be made
`where there has been an objection to the court’s consideration of the expert report on
`grounds of inadmissibility. Id. at 538-39 (citing Fed. R. Civ. P. 56(c)(2)). Here, however,
`no such objection was lodged.
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`
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`19
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`
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`of domestic violence to a “female” inside his apartment and of ambush to the responding
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`police officers; brandished his pistol when he met the other officers outside the apartment,
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`in contravention of the dispatcher’s repeated Spanish instructions to leave the firearm
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`behind; and failed to drop the pistol in response to Guerra’s and the other officers’ English
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`commands to “drop the gun” and “put it down.” See J.A. 108-09.
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`As part of the analysis in his report, the defendants’ expert (Blum) also accepted as
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`true — based on Officer Guerra’s post-shooting statements, and not on the video footage
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`from the body cameras worn by Guerra and the other responding officers — that Galindo
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`had “pivoted his left elbow backwards” after raising his left arm and hand holding his
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`pistol. See J.A. 203. According to Blum, that movement “led officers on the scene and in
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`the moment to belie
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