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.
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 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 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.
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 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 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.
We review the district court's grant of summary judgment de novo.
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.
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."
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."
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.
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 unless he acted with actual malice toward the plaintiff, i.e. with ill will, improper motivation or evil purpose."
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.
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 two eyewitnesses at trial—Swonger and Borden.
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."
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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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."
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. 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."
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."
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.
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 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.
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."
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.
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 employees within the scope of the employment."
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.