Swann v. City of Richmond , 309 F. App'x 757 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1981
DWAYNE SWANN,
Plaintiff - Appellant,
v.
CITY OF RICHMOND, VIRGINIA, The; JAMES EARL WILSON, Officer,
In his individual capacity; KEVIN PAUL HATHAWAY, Officer, In
his individual capacity; MICHAEL SEAN MOCELLO, Officer, In
his individual capacity,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:06-cv-00069-REP)
Argued: October 30, 2008 Decided: January 27, 2009
Before WILLIAMS, Chief Judge, and NIEMEYER and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Timothy Dezso Greszler, COVINGTON & BURLING, Washington,
D.C., for Appellant. Charles Franklin Midkiff, MIDKIFF, MUNCIE
& ROSS, P.C., Richmond, Virginia, for Appellees. ON BRIEF: John
E. Hall, Joshua D. Wolson, M. Ryan Calo, COVINGTON & BURLING,
Washington, D.C.; Steven D. Benjamin, Betty Layne DesPortes,
BENJAMIN & DESPORTES, P.C., Richmond, Virginia, for Appellant.
Robert S. Reverski, Jr., MIDKIFF, MUNCIE & ROSS, P.C., Richmond,
Virginia, for Appellee Michael Sean Mocello, Officer; William J.
Owen, III, OWEN & OWENS, P.L.C., Richmond, Virginia, for
Appellee James Earl Wilson, Officer; William J. Hoppe, CITY
ATTORNEY’S OFFICE FOR THE CITY OF RICHMOND, Richmond, Virginia,
for Appellee City of Richmond; David P. Corrigan, Jeremy D.
Capps, HARMAN, CLAYTOR, CORRIGAN & WELLMAN, P.C., Glen Allen,
Virginia, for Appellee Kevin Paul Hathaway, Officer.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dwayne Swann was shot five times by Richmond City police
officers during an encounter in the Hillside Court area of
Richmond, Virginia, on February 3, 2004. Alleging the excessive
use of force, Swann commenced this action against three officers
and the City of Richmond under 42 U.S.C. § 1983 and Virginia
common law. The district court granted the defendants’ motions
for summary judgment, concluding that the officers either did
not seize Swann in the constitutional sense or that they acted
objectively reasonably in the circumstances, or both. On the
common law claims, the court concluded that the officers acted
objectively reasonably and in their own self-defense. We
affirm.
I
At approximately midnight on the evening of February 3,
2004, Richmond police officers traveled to Hillside Court, a
well-known high crime and drug trafficking area, to serve
warrants. Observing a group of individuals standing outside one
of the buildings there, the officers decided to approach. As
they did, the group broke and Swann began running from the
officers. One of the lead officers relayed over the radio to
the other officers to be careful and to watch for weapons
because he had observed Swann move his hands towards his
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waistband as he ran and discard something. Swann led several
officers, including Detectives Hathaway and Wilson on a foot
chase to a white Altima where Taiquan Byrd was sitting in the
passenger seat. Swann got into the back seat and began making
movements from his waist to the floorboard. Detective Mocello
arrived on the scene shortly thereafter and took a position near
the left rear door of the Altima. Detective Hathaway positioned
himself in the center front of the car and Wilson, at the center
right of the car, ordering Swann and Byrd to raise their hands,
to stop moving, and to exit the vehicle. Swann and Byrd ignored
the orders.
Instead, at Swann’s prompting, Byrd moved into the driver’s
seat, started the car, and drove the vehicle toward Detectives
Wilson and Hathaway, knocking Wilson to the ground. Hathaway
and Wilson both fired their weapons at Byrd. When Mocello heard
the shots, he believed that they had come from inside the car,
principally based on his earlier observations of Swann’s furtive
movements, the warnings given by other officers that Swann might
be armed, and the fact that a bullet exited the rear window of
the car. After firing at Byrd for the purpose of keeping him
from hitting Hathaway, Mocello proceeded to fire at Swann, who
he thought was the likely shooter. The car subsequently crashed
into a tractor-trailer across the street, and Byrd and Swann
were both apprehended.
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During the encounter, Hathaway fired three shots; Wilson,
two; and Mocello, four. Byrd was hit once, and Swann was hit
five times. No gun was found inside the car, but several
individually-wrapped drug packages were found on the floorboard.
Swann commenced this action against Hathaway, Wilson,
Mocello, and the City of Richmond, alleging the use of excessive
force, in violation of his constitutional rights. He also
alleged state law claims for assault, battery, intentional
infliction of emotional distress, and gross negligence.
On the motions of the defendants, the district court
granted summary judgment in favor of the defendants on all
claims. Swann v. City of Richmond, 498 F. Supp. 2d 847 (E.D.
Va. 2007).
As to Swann’s claim against Detective Hathaway, the
district court concluded that Swann was unable to demonstrate
that Hathaway had intended to shoot Swann or that he actually
shot him. The court also noted that even if Hathaway had seized
Swann (in a constitutional sense) by shooting him, Hathaway had
acted in an objectively reasonable manner, intending to “protect
himself from a vehicle that was being driven towards him and
another officer.” Id. at 865.
As to Swann’s claim against Detective Wilson, again the
court concluded that Swann was unable to demonstrate that Wilson
had intended to shoot Swann or that he actually shot him. The
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court also concluded that even if Wilson had seized Swann (in a
constitutional sense) by shooting him, Wilson had acted in an
objectively reasonable manner. He was faced with an
accelerating vehicle coming directly at him and bullets flying,
forcing him to “make a split-second decision about his own
protection and the protection of his fellow officers.” Id. at
873. The district court noted that “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.’” Id. at 855(quoting McLenagan v. Karnes, 27 F.3d 1002, 1007-08 (4th Cir.
1994)).
As to Swann’s claim against Detective Mocello, the district
court concluded that Mocello acted objectively reasonably in the
circumstances. Based on Swann’s furtive movements, his refusal
to comply with officers’ orders, and the firing of guns, with
one bullet exiting through the back windshield of the car,
Mocello perceived that Swann was shooting at him. The district
court held that Mocello acted objectively reasonably in choosing
to shoot back. The district court noted that Mocello was “faced
with an impossible choice” and “pausing to reflect upon his
options could have cost him his life.” Id. at 869, 870
(internal quotation marks omitted). The district court
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concluded that “[w]hile hindsight may now show that Swann did
not present any actual threat of harm to Detective Mocello from
a gun, Detective Mocello was not afforded the luxury of armchair
reflection to decide how to respond to the perceived threat.”
Id. at 869 (internal quotation marks omitted); see also Graham
v. Connor, 490 U.S. 386, 396 (1989) (“The ‘reasonableness’ of a
particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight”).
On Swann’s claims against the officers for state common law
assault, battery, intentional infliction of emotional distress,
and gross negligence, the court concluded that the officers
acted in an objectively reasonable manner in the circumstances
and in their own self-defense.
Finally, on Swann’s claim against the City of Richmond, the
court granted summary judgment in favor of the City based on its
grant of summary judgment in favor of the individual officers.
The court noted that “there can be no municipal liability in the
absence of a claim of a constitutional violation by one of the
individual defendants.” Swann v. City of Richmond, No. 3:06-cv-
00069 (E.D. Va. Aug. 23, 2007).
From the district court’s judgment, dated August 23, 2007,
Swann filed this appeal.
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II
Having had the benefit of the parties’ briefs and their
oral argument and having thoroughly reviewed the record, we
conclude that the district court correctly granted the motions
for summary judgment in favor of the defendants as to all of
Swann’s claims. Accordingly, we affirm on the reasoning of the
district court’s careful and thorough opinion in this case.
AFFIRMED
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