Littleton v. Swonger

ALITA LITTLETON, Individually; as the next best friend ofand 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,andMELVIN HIGH, Defendant.

No. 11-1800

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: October 23, 2012

Decided: December 28, 2012

UNPUBLISHED

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)

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Affirmed in part, reversed in part, and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.

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 spottedtwo 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 seeBoggs'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 policyof 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 intentional/negligent infliction count as to Borden.¹

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"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 Fourthand 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).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 that Swonger's conduct was wrongful.³ 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 dutiesunless he acted with actual malice toward the...