A federal appeals court in Virginia this week ruled that a Fairfax County police officer who shot a suspected drug dealer through the back window of his SUV may have violated the man’s constitutional rights, calling into question the department’s tactics surrounding use of force during undercover operations.
The decision by the U.S. Court of Appeals for the Fourth Circuit revolves around a 2022 incident in Fairfax’s Seven Corners neighborhood, where a police sergeant riding in an unmarked pickup truck fired at Jeffery Payne during a chase, striking him in the arm before he was arrested. Payne was charged with possession with intent to distribute cocaine, for which he served a two-year prison sentence.
Payne sued the sergeant, Joshua Moser, in March 2024, claiming that the use of force was excessive and that he wasn’t aware that he was being pursued by law enforcement officers after leaving a parking lot before a drug transaction set up by police through a confidential informant was allegedly meant to occur.
In November of that year, U.S. District Judge Michael S. Nachmanoff, in Virginia’s Eastern District, agreed with Fairfax County’s motion to dismiss the case, ruling that Moser used “an objectively reasonable amount of force” when he shot Payne, 43, because, acting on information from the confidential informant, he thought Payne was armed and reaching for a gun.
But the appeals court disagreed with Nachmanoff’s decision and remanded the case back to his court.
In a joint opinion written by Judge Nicole G. Berner, the three-judge panel said Nachmanoff did not account for other instances of excessive force used by police against Payne, and must now decide whether the shooting was justified and if Payne’s Fourth Amendment rights guarding against unreasonable searches and seizures were violated.
The judges noted Nachmanoff must also determine whether Moser should be shielded from liability through qualified immunity — which protects law enforcement officers in cases involving use of force unless they violate a person’s clearly established constitutional rights.
“We are mindful that police officers are sometimes forced to make split second decisions that can mean the difference between life or death for themselves and their fellow officers,” Berner wrote. “Such considerations cannot, however, excuse the use of excessive force in violation of the Fourth Amendment.”
The incident in question occurred on the night of Aug. 2, 2022. Undercover Fairfax police detectives set up a “controlled drug buy” from Payne. The detectives, with the help of an informant who had been arrested earlier in the day, planned to meet Payne in a Wendy’s parking lot, court documents show.
The detectives, who pulled up in five unmarked cars, were told repeatedly by the informant that Payne was known to carry a firearm, according to Berner’s opinion. Upon his arrival, they agreed they would have probable cause to arrest Payne, “regardless of whether the controlled buy actually occurred.”
But Payne drove away as one of the undercover officers approached his SUV, later saying in a court filing that something “didn’t feel right.”
The detectives followed him to a stop sign. Moser, who was wearing a police uniform and sitting in the passenger seat of a pickup truck, directed the other detectives to arrest Payne, according to court documents.
The detective driving the truck pulled in front of Payne’s SUV, which caused him to drive over a curb.
“Believing that someone was attempting to rob or kill him, Payne tried to get away from the potential assailants,” Berner wrote.
Another detective rammed their vehicle into Payne’s from behind, causing it to spin in circles. It was after this moment that Payne said he noticed police lights and sirens for the first time, Berner wrote in the joint opinion.
“He had previously been unaware that the vehicles pursuing him belonged to law enforcement,” the judge wrote. Moser had contended that the detectives activated their lights just after the pursuit started.
Less than a week before the incident, Payne had surgery on his right arm and shoulder, his attorney, Andrew Omar Clarke, wrote in a complaint filed in the Eastern District of Virginia. His right arm was in a cast and a sling, so he said he used his left hand to regain control of the vehicle while it was spinning.
The detectives boxed Payne in with their unmarked vehicles, and Moser exited the pickup truck, according to the documents. He approached Payne’s SUV from the rear and, according to a court filing, said Payne reached toward the center console. Fearing he had a gun, Moser shot through the back window, striking Payne in the left arm.
Police shouted at Payne for him to raise his hands and “throw the gun out the window,” Berner wrote. Payne told the detectives he couldn’t move and was not armed.
The detectives found cocaine inside Payne’s bag but did not find any weapons in the vehicle.
None of the detectives present that night were wearing body cameras, which Berner said made it difficult to weigh the major inconsistencies between the two men’s accounts.
Besides activating the police lights, Moser said he gave Payne multiple verbal commands identifying himself as a police officer before he fired his weapon. Payne said he didn’t hear anything. And while Payne maintains that he kept his arm to his side, Moser says he saw Payne reach into the center console as he shined a flashlight into Payne’s vehicle that night.
Nachmanoff granted a summary judgment in favor of Moser, saying in his decision that the sergeant “reasonably interpreted Plaintiff’s movements … as being consistent with reaching for a weapon.”
In their opinion, the appeals court judges noted that the detectives’ maneuvers to block Payne’s SUV did not appear warranted because, driving away slowly from the parking lot, he posed no significant danger to the public.
Fairfax County police did not directly respond to questions about the appellate court decision or use-of-force policies when conducting undercover operations. A spokesperson shared links to the department’s general orders that lay out department policy.
Use of force “must be objectively reasonable based upon the totality” of the known circumstances by police, according to the general order. Before an officer deploys deadly force — which is allowed only if it’s “immediately necessary” to protect an officer or another person, and all other options have been exhausted — they should provide a verbal warning. If a person was accused of a felony and attempts to flee, Fairfax police officers should deploy deadly force only when, among other things, the person “possessed or appeared to possess a deadly weapon and refused to comply with the officer’s lawful order to surrender an object believed to be a deadly weapon prior to the officer deploying deadly force.”
The lawsuit seeks $5.1 million in damages, though Clarke said a jury could settle on a different amount.
After the shooting, Payne’s left arm required surgery, which has left it with minimal function, the attorney said.
Clarke said Payne “accepted responsibility” for the criminal charge against him, but “that does not give the officers the opportunity for nonviolent offenses to go out and shoot and try to injure citizens.”
“Mr. Payne almost lost his life on that day,” he said.
Clarke recalled another incident that happened months after Payne was shot, in which a mother was driving on Richmond Highway with her two kids when Fairfax County police officers mistook her for another person connected to a crime and struck her vehicle with their own.
Clarke said the appellate court’s ruling shows that “these officers can no longer conduct those maneuvers unless there is some kind of danger to the public.”
The case will be heard again in Virginia’s Eastern District.
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