Littleton Ex Rel. Estate of Boggs v. Swonger , 502 F. App'x 271 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1800
ALITA LITTLETON, Individually; as the next best friend of
and personal Representative of the Estate of Gregory Boggs,
Jr.; LANAYA BORDEN,
Plaintiffs – Appellants,
v.
JORDAN SWONGER, Officer, in both his official and individual
capacities; PRINCE GEORGE’S COUNTY, MD,
Defendants – Appellees,
and
MELVIN HIGH,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:07-cv-01409-PJM)
Argued: October 23, 2012 Decided: December 28, 2012
Before TRAXLER, Chief Judge, and WYNN and THACKER, Circuit
Judges.
Affirmed in part, reversed in part, and remanded by unpublished
opinion. Judge Wynn wrote the opinion, in which Chief Judge
Traxler and Judge Thacker joined.
ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER,
Washington, D.C., for Appellants. Shelley Lynn Johnson, PRINCE
GEORGE'S COUNTY OFFICE OF LAW, Upper Marlboro, Maryland, for
Appellees. ON BRIEF: Ted J. Williams, Washington, D.C., for
Appellants. M. Andree Green, Acting County Attorney, William A.
Snoddy, Deputy County Attorney, PRINCE GEORGE'S COUNTY OFFICE OF
LAW, Upper Marlboro, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
WYNN, Circuit Judge:
This appeal arises from an incident in which Prince
George’s County, Maryland Police Officer Jordan Swonger
(“Swonger”) fatally shot Gregory Boggs, Jr. (“Boggs”). Boggs’s
mother, Alita Littleton (“Littleton”), and Boggs’s girlfriend,
Lanaya Borden (“Borden”), sued Swonger; Chief of Police Melvin
High (“Chief High”); and Prince George’s County. The district
court dismissed the claims against Chief High and granted
summary judgment for Prince George’s County. The claims against
Swonger proceeded to trial in which the jury deadlocked and the
district court declared a mistrial. Thereafter, Swonger renewed
his motion for summary judgment and the district court granted
it, determining that Swonger had acted reasonably. Because a
genuine factual dispute exists about whether it was objectively
reasonable for Swonger to use deadly force, we hold that the
district court erred in granting summary judgment in Swonger’s
favor and remand this case for a retrial on the excessive force
and state law claims.
I.
A.
After midnight on September 18, 2006, Swonger responded to
a reported assault. At 1:44 a.m., Swonger radioed in to police
dispatch to say that he had arrived at the scene and had spotted
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two people there, Boggs and Borden. Less than two minutes
later, Swonger fatally shot Boggs. Swonger and Borden were the
only eyewitnesses to the shooting, and they gave dramatically
different accounts of the events.
Borden gave the following testimony at trial: She and Boggs
were standing on the sidewalk when she heard a car door slam and
she noticed Swonger walking towards them with “his gun pointed
out at [them].” J.A. 198. Borden “was standing partially in
front of [Boggs,]” with her “right back . . . to his left
chest.” J.A. 405. Boggs’s left arm was around her neck.
Swonger ordered Borden and Boggs to put their hands up but as
she and Boggs were “attempting to comply,” Appellant’s Br. at 5,
Swonger shot Boggs in the right midline of his chest. Boggs hit
the back of Borden’s legs as he fell to the ground. Borden
knelt down to help Boggs and did not see anything in his hands.
Borden’s bloodstained pants were introduced as evidence at
trial.
In contrast, Swonger testified that: when he arrived,
Borden was on the ground and Boggs was standing above her with
his hands “either around her throat or holding her shoulders.”
J.A. 334–35. Upon noticing Swonger, Boggs began walking Borden
in the direction of a car parked nearby. Swonger moved to
position himself between the couple and the car, ordering them
to stop, sit, and put their hands up. Swonger could not see
4
Boggs’s right hand because Borden was standing in front of
Boggs, when Swonger saw Boggs push Borden down, reach behind
himself into his waistband with his right hand, and pull out an
object. Believing Boggs had a weapon, Swonger fired at him.
Swonger went up to Boggs’s body and brushed a wallet out of his
right hand. An evidence technician recovered a wallet from the
scene.
B.
On May 29, 2007, Littleton, individually and as the
administrator of Boggs’s estate, and Borden (“Plaintiffs”)
brought this action against Prince George’s County, Chief High,
and Swonger, asserting: (I) claims under Maryland’s Survival
Act; (II) claims under Maryland’s Wrongful Death Act; (III)
excessive force/police brutality; (IV) assault and battery; (V)
claims under 42 U.S.C. § 1983 for violations of the Fourth and
Fifth Amendments to the U.S. Constitution; (VI) negligent
training and supervision; (VII) intentional/negligent infliction
of emotional distress; and (VIII) violations of Articles 24 and
26 of the Maryland Declaration of Rights.
After Chief High successfully moved to dismiss all claims
against him, Prince George’s County and Swonger moved for
summary judgment, asserting that: Swonger was protected from
liability by qualified immunity; his use of force was
reasonable; and any unreasonable use of force was not the policy
5
of Prince George’s County. The district court granted summary
judgment for Prince George’s County on all counts and for
Swonger on the assault and battery count and the
1
intentional/negligent infliction count as to Borden.
Following a trial on the remaining claims against Swonger,
the jury deadlocked and the district court declared a mistrial.
Thereafter, Swonger renewed his motion for summary judgment,
which the district court granted, dismissing all claims against
him. Plaintiffs appeal the initial and post-trial grants of
summary judgment in favor of Swonger and Prince George’s County,
contending that there is a genuine issue of material fact as to
whether it was objectively reasonable under the circumstances
for Swonger to use deadly force against Boggs.
II.
We review the district court’s grant of summary judgment de
novo. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119
(4th Cir. 2011). Summary judgment is appropriate when “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A court reviewing a motion for summary judgment is not
1
Negligent infliction of emotional distress is not a
cognizable claim under Maryland law. E.g., Abrams v. City of
Rockville, 596 A.2d 116, 118 (Md. Ct. Spec. App. 1991).
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“to weigh the evidence, to count how many affidavits favor the
plaintiff and how many oppose him, or to disregard stories that
seem hard to believe.” Gray v. Spillman, 925 F.2d 90, 95 (4th
Cir. 1991) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249
(1986)). Instead, courts must view the evidence in the light
most favorable to the nonmoving party, drawing all reasonable
inferences in her favor, Liberty Lobby, 477 U.S. at 255, and
grant summary judgment only “[i]f the nonmovant’s evidence fails
to put a material fact in dispute or is not significantly
probative,” Gray, 925 F.2d at 95 (citing Liberty Lobby, 477 U.S.
at 249–50).
III.
A.
Under Counts III and V, Littleton asserted that Swonger
used unconstitutionally excessive force. A claim that an
officer used excessive force during an apprehension or arrest is
“analyzed under the Fourth Amendment and its ‘reasonableness’
standard”—that is, the use of force is not excessive if the
officer’s actions are “objectively reasonable” under the
circumstances. Graham v. Connor, 490 U.S. 386, 395–97 (1989).
Littleton also asserted that Swonger violated Articles 24 and 26
of the Maryland Declaration of Rights (Count VIII). Because
Articles 24 and 26 are construed in pari materia with the Fourth
7
and Fourteenth Amendments of the U.S. Constitution, the district
court assessed Littleton’s state constitutional claims under the
same objective reasonableness standard. Carter v. State, 788
A.2d 646, 652 (Md. 2002) (Article 26); Dua v. Comcast Cable of
Md., Inc., 805 A.2d 1061, 1070 (Md. 2002) (Article 24); Muse v.
State, 807 A.2d 113, 117 n.7 (Md. Ct. Spec. App. 2002) (Article
26).
The district court determined “as a matter of law that
Swonger’s decision to use deadly force was objectively
reasonable under the circumstances and that Boggs’ Fourth
Amendment right was not violated.” Littleton v. Prince George's
Cnty., Md., 797 F. Supp. 2d 648, 657 (D. Md. 2011). Further,
the district court held that even if Swonger had violated
Boggs’s constitutional rights, he was entitled to qualified
immunity. 2
Under the doctrine of qualified immunity, a law enforcement
officer performing a discretionary function is shielded from
liability for civil damages unless his conduct (1) violated a
constitutional right, and (2) “it would be clear to an
objectively reasonable officer that his conduct violated that
right.” Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002).
2
As the district court noted, qualified immunity was not a
defense to Littleton’s claims under the Maryland Constitution.
See, e.g., Okwa v. Harper, 757 A.2d 118, 140 (Md. 2000).
8
The district court determined that it was reasonable for an
officer in Swonger’s position to “have believed that Boggs posed
a serious deadly threat” warranting the use of deadly force to
protect himself or Borden. Littleton, 797 F. Supp. 2d at 658.
Because the district court concluded that Swonger’s conduct
was objectively reasonable under the circumstances, the court
ruled that Plaintiffs’ state law claims also failed. Littleton
had brought claims under Maryland’s Survival Act and Wrongful
Death Act (Counts I and II), both of which required establishing
3
that Swonger’s conduct was wrongful. The district court stated
that because Swonger’s use of force was reasonable, “Littleton
[could not] show that Swonger [had] committed a wrongful act
that would entitle her to recover for wrongful death or
survivorship.” Littleton, 797 F. Supp. 2d at 658.
Regarding Littleton’s assault and battery claim (Count IV)
and Borden’s intentional infliction of emotional distress claim
(Count VII), Maryland law provides that “a law enforcement
officer is not liable for assault and battery or other tortious
conduct performed during the course of his official duties
3
The Survival Act permits the personal representative of an
estate to bring an action that the decedent could have brought
“against a tort-feasor for a wrong which resulted in the death
of the decedent.” Md. Code Ann., Est. & Trusts § 7-401(y)
(emphasis added). The Wrongful Death Act permits an individual
to bring an action against a person “whose wrongful acts caused
the death of another.” Md. Code Ann., Cts. & Jud. Proc. § 3-
902(a) (emphasis added).
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unless he acted with actual malice toward the plaintiff, i.e.
with ill will, improper motivation or evil purpose.” Goehring
v. United States, 870 F. Supp. 106, 108 (D. Md. 1994) (internal
quotations omitted). Further, to establish intentional
infliction of emotional distress, a plaintiff must show that the
defendant intentionally or recklessly engaged in extreme or
outrageous conduct that caused severe emotional distress.
Valderrama v. Honeywell Tech. Solutions, Inc., 473 F. Supp. 2d
658, 666 n.20 (D. Md. 2007). The district court concluded that
because Swonger’s conduct was objectively reasonable, it was
neither malicious nor outrageous.
In sum, for each of Plaintiffs’ claims against Swonger, the
district court granted summary judgment based on its
determination that there was no genuine issue of material fact
as to whether Swonger’s use of deadly force was objectively
reasonable. Therefore, the issue central to this appeal, and
the question we now turn to, is whether the district erred in
determining that no genuine issue of fact exists as to the
objective reasonableness of Swonger’s use of deadly force.
B.
To determine whether a genuine issue of fact exists as to
whether Swonger’s use of deadly force was objectively
reasonable, we must consider the circumstances Swonger
confronted at the time of the shooting as described by the only
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two eyewitnesses at trial—Swonger and Borden. See Graham, 490
U.S. at 397.
In his testimony, Swonger stated that he believed Boggs was
reaching for a weapon. “A police officer may use deadly force
when the officer has sound reason to believe that a suspect
poses a threat of serious physical harm to the officer or
others.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996)
(citing Tennessee v. Garner, 471 U.S. 1 (1985)). We evaluate
the facts “from the perspective of a reasonable officer on the
scene,” Waterman v. Batton, 393 F.3d 471, 477 (4th Cir. 2005),
recognizing that “police officers are often forced to make
split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving,” Graham, 490 U.S. at 397.
Determining the reasonableness of an officer’s use of force
“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 (citing Garner, 471 U.S. at 8–9).
Here, the district court concluded that Swonger’s use of
deadly force was objectively reasonable because Swonger thought
“that Boggs was reaching for a weapon and he reasonably feared
Boggs could inflict serious physical harm on him or on Borden.”
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Littleton, 797 F. Supp. 2d at 656–57. In the motion proceeding
before trial, the district court acknowledged that Borden gave a
very different account of the events, stating, “I can understand
that small discrepancies as the Anderson case points out always
would permit the officer’s testimony to prevail, but here the
divergence is radical. I mean, if [Borden’s version is]
believed, this officer totally unprovoked . . . shot these
people.” J.A. 175. After hearing the trial testimony, the
district court concluded that because Borden “was not in a
position to see what was visible to Swonger,” her testimony
“d[id] not create a genuine issue of material fact as to whether
Swonger had a reasonable basis to believe that Boggs had a
weapon and was going to use it.” Littleton, 797 F. Supp. 2d at
656. In light of the discrepancies between Borden’s testimony
and Swonger’s testimony, we cannot agree.
In Anderson v. Russell, this Court stated that “minor
discrepancies in testimony do not create a material issue of
fact in an excessive force claim, particularly when . . . the
witness views the event from a worse vantage point than that of
the officers.” 247 F.3d 125, 130–31 (4th Cir. 2001). Unlike
Anderson, however, the testimony offered here by Borden, if
believed by a jury, established that Borden’s vantage point was
irrelevant to at least two significant discrepancies between her
and Swonger’s testimonies: (1) whether Boggs pushed Borden down
12
as he reached behind himself; and (2) whether Boggs repeatedly
ignored Swonger’s commands and appeared to be trying to escape.
Regarding the first discrepancy, Swonger testified that he
shot Boggs when he saw Boggs lower his center of gravity and—“in
one motion”—push Borden to the ground and reach behind his
(Boggs’s) back. J.A. 349. According to Swonger, when he fired
at Boggs, Borden was “well on her way to the ground . . . below
[Boggs’s] waist level, on her way to the ground off to the
side.” J.A. 350–51.
In contrast, Borden testified that Boggs never pushed her
and that she was standing in front of Boggs when Swonger shot
him. Clearly, Borden did not need to see Boggs to know whether
he pushed her down. But the district court deemed this dispute
about whether Borden was pushed immaterial, stating that
“[w]hether Borden was pushed to the ground or whether she was
still standing in front of Boggs, she still was not in a
position to see what was visible to Swonger right before he
discharged his weapon.” Littleton, 797 F. Supp. 2d at 656.
Although Borden’s testimony does not directly contradict
Swonger’s assertion that Boggs reached behind himself, her
account conflicts with the entirety of what Swonger allegedly
saw Boggs do. Swonger had not received any information
suggesting Boggs was armed, such as observing a bulge at Boggs’s
waistline. Moreover, Boggs had not verbally threatened Swonger.
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Rather, the threat Swonger perceived was based on Boggs’s
physical conduct—the motion of lowering his center of gravity,
pushing Borden down, and reaching behind himself. Borden’s
testimony puts in dispute whether Boggs ever assumed this
allegedly threatening posture.
Furthermore, the district court incorrectly discredited
Borden’s testimony about whether she was standing in front of
Boggs. Specifically, the district court found that Borden’s
statement about “her position at the time the shot was fired
[was] inconsistent with forensic evidence, which showed that
Boggs was hit in the midline of his right chest. If, as she
said, Borden was standing in front of Boggs, the likelihood is
that she and not Boggs would have been hit.” Id. The district
court’s assessment of Borden’s testimony conflicts with the
record. Borden testified that she was “standing partially in
front of [Boggs]”—that her “right back was to his left chest”—
not that she was standing directly in front of Boggs. J.A. 405.
Furthermore, physical evidence supports Borden’s version, i.e.,
that she was standing in front of Boggs when he was shot: his
blood stained the back of her pants.
Second, Borden’s testimony conflicts with Swonger’s account
of the events leading up to the shooting. The district court
emphasized that, according to Swonger, when he arrived he saw
“two people engaged in a violent encounter.” Littleton, 797 F.
14Supp. 2d at 652. When Boggs noticed Swonger, Boggs picked
Borden up and attempted to drag her to a nearby car. Id.Swonger testified that he ordered Boggs to put Borden down and
show his hands, but that Boggs ignored him and kept moving away.
According to Borden, she and Boggs were standing and talking
when Swonger got out of his car, and they did not move as
Swonger approached. Even assuming that Swonger observed a
tussle before he got out of his car, Borden’s testimony calls
into question whether Boggs repeatedly ignored Swonger’s verbal
commands and casts doubt on whether the atmosphere was volatile.
Based on Borden’s version, a jury reasonably could find that
Boggs did not appear to be violent, resisting, or attempting to
flee in the moments leading up to the shooting.
In sum, the trial record reveals disputed facts material to
whether a reasonable officer in Swonger’s position would have
perceived that Boggs posed a “threat of serious physical harm”
justifying Swonger’s use of deadly force. See Elliott, 99 F.3d
at 642. Accordingly, we hold that the district court erred in
granting summary judgment for Swonger.
IV.
Finally, we turn to the district court’s grant of summary
judgment for Prince George’s County. Plaintiffs asserted that
Prince George’s County was liable for Swonger’s alleged assault
15
and battery (Count IV). Maryland counties are immune from
claims seeking to impose liability for the intentional torts of
county employees committed while the employee was acting within
the scope of his employment. Gray-Hopkins v. Prince George’s
Cnty., Md., 309 F.3d 224, 234 (4th Cir. 2002). Because Swonger
was on duty and responding to dispatch at the time of the
shooting, there is no question that he was acting within the
scope of his employment as a Prince George’s County police
officer. Accordingly, we uphold the district court’s
determination that Prince George’s County was immune from
Plaintiffs’ assault and battery claim.
Plaintiffs also alleged that Prince George’s County was
liable for Swonger’s use of excessive force in violation of the
federal constitution under Section 1983 (Count III). A county’s
liability under Section 1983 is limited to constitutional
violations caused by “official policy or custom.” Lytle v.
Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (citations omitted).
Policy or custom can be
written ordinances and regulations, . . . affirmative
decisions of individual policymaking officials, . . .
omissions on the part of policymaking officials that
manifest deliberate indifference to the rights of
citizens, . . . [and] practice[s] [] so persistent and
widespread . . . as to constitute a custom or usage
with the force of law.
16
Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (internal
quotations and citations omitted). Similarly, Plaintiffs
alleged that the Prince George’s County was liable for negligent
training and supervision (Count VI). Establishing a county’s
supervisory liability under Section 1983 requires showing that
the county had actual or constructive knowledge that a
subordinate’s conduct posed “a pervasive and unreasonable risk
of constitutional injury to citizens like the plaintiff.” Shaw
v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal quotations
and citations omitted).
Here, Plaintiffs failed to offer any evidence of a county
policy or custom, deficient training, or knowledge that Swonger
engaged in conduct that posed a risk of constitutional injury.
Rather, Plaintiffs merely made general assertions about Prince
George’s County’s failure to train and supervise. See J.A. 85,
171. Accordingly, the district court did not err in granting
summary judgment for Prince George’s County on Plaintiffs’
federal constitutional and negligent training claims.
In Count VIII, Plaintiffs asserted Prince George’s County
was liable for Swonger’s alleged state constitutional violation
under a theory of respondeat superior. Under Maryland law,
governmental entities do not enjoy immunity from “respondeat
superior liability for civil damages resulting from State
Constitutional violations committed by their agents and
17
employees within the scope of the employment.” DiPino v. Davis,
729 A.2d 354, 372 (Md. 1999). Because we reverse the district
court’s grant of summary judgment for Swonger on Plaintiffs’
state constitutional claim, we concordantly find that the
district court erred in granting summary judgment for Prince
George’s County on this claim.
V.
Whether Plaintiffs will ultimately prevail upon retrial
remains an open question. But at this stage of the legal
process, the record indicates a genuine dispute exists regarding
the reasonableness of Swonger’s conduct. That dispute is for a
jury to decide, not a trial court on summary judgment.
Therefore, we hold that the district court erred in granting
summary judgment in Swonger’s favor and remand this case for a
trial of Plaintiffs’ excessive force and state law claims
against Swonger and respondeat superior state constitutional
claim against Prince George’s County.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
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