Njang v. Montgomery County MD

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-1815

SEBASTIAN E. NJANG, Individually, as the next
best friend of and Personal Representative of
the Estate of Peter A. Njang; DOREEN NJANG,

Plaintiffs - Appellants,

versus

MONTGOMERY COUNTY, MARYLAND; CANDICE MARCHONE,
Officer,

Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(8:05-cv-03068-AW)

Argued: April 11, 2008 Decided: May 14, 2008

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Gregory L. Lattimer, Washington, D.C., for Appellants.
Edward Barry Lattner, COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF
ROCKVILLE, Rockville, Maryland, for Appellees. ON BRIEF: Leon
Rodriguez, County Attorney, Marc P. Hansen, Deputy County Attorney,
Paul F. Leonard, Jr., Associate County Attorney, COUNTY ATTORNEY’S
OFFICE FOR THE COUNTY OF MONTGOMERY, Rockville, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

On August 12, 2004, Peter Njang (“Njang”) was shot and killed

by Montgomery County, Maryland (“County”) police officer Candice

Marchone (“Officer Marchone”), acting in the line of duty. Njang’s

brother Sebastian Njang and his wife Doreen Njang (together,

“Appellants”) filed this survival and wrongful death action against

Officer Marchone and the County (together, “Appellees”) pursuant to

42 U.S.C. § 1983. The district court below found Officer Marchone

entitled to qualified immunity from the § 1983 action, and likewise

granted summary judgment to Appellees on the other state and

federal claims. For the reasons that follow, we affirm.

I.

We begin by setting forth the essential facts leading up to

the shooting, as corroborated by eyewitnesses and substantially

undisputed by Appellants. Njang and his wife emigrated to the

United States from Cameroon in the spring of 2004 on so-called

“diversity visas.”1 Njang’s transition to the United States was

made easier both by Njang’s fluency in English2 and the fact that

1
A limited number of such permanent visas are awarded by
lottery each year to applicants from countries that do not
otherwise send a large number of immigrants to the United States.
See 8 U.S.C. § 1153(c).
2
Njang’s brother Sebastian confirmed that Njang had studied
English “[t]hroughout his educational career,” communicated with
Sebastian in English at home, and was not known to ever have had
any problems understanding English. J.A. 121A-B.

3
a number of Njang’s relatives had already relocated to the United

States on diversity visas. Upon arrival in the United States,

Njang and his wife moved into an apartment with Njang’s brother

Sebastian on Metzerrot Road in Maryland, just outside the District

of Columbia.

On the morning of Thursday, August 12, 2004, Njang caught a

bus from his residence to his aunt’s apartment, a few miles away in

the White Oak area of Montgomery County, Maryland. Njang and his

aunt had plans to meet and go job-hunting. When Njang arrived

after their prearranged meeting time, his aunt had already left

without him. Njang posted himself outside of the window of his

aunt’s ground floor apartment, knocking on the window and peering

in from time to time.3

Officer Marchone, a seven-year veteran of the County police

force, was on regular patrol in her police cruiser that morning in

the White Oak area. Just before noon, while she was eating her

lunch and driving, she pulled into the apartment complex where

Njang’s aunt lived. She noticed Njang standing near a first-floor

apartment window, but did not recognize him despite her frequent

patrols in the neighborhood. As the cruiser approached Njang, he

3
Appellants’ brief offers descriptions of Njang’s activities
that morning as he ostensibly waited for his aunt to return. See,
e.g., Appellants’ Br. at 3 (describing Njang as “read[ing] his
pocket bible” outside the window, “with not so much as a terse word
or an awkward glance”). We are unable to determine the evidentiary
basis for these assertions, and Appellants have offered none. We
therefore cannot consider these assertions as valid.

4
walked away from the window, but did not return Officer Marchone’s

gaze. As Officer Marchone drove past, she noticed in her rear-view

mirror that Njang continued to move away from the window, looking

in the rough direction of her cruiser as it departed.

By virtue of her own familiarity with the area and specific

conversations she had had with the property manager of the

apartment complex, Officer Marchone was aware that there had been

a series of daytime burglaries of first-floor apartments in the

complex that summer. The perpetrators had, in some instances,

gained entry into the first-floor apartments through first-floor

windows. In light of this knowledge, Officer Marchone decided to

pull into a parking space to further observe Njang’s behavior.

Realizing that a truck obstructed her view of Njang and the window,

Officer Marchone pulled out and drove back towards Njang. She

observed that he had resumed his post near the same window. As she

pulled up parallel to the curb, Njang again took a few steps away

from the window.

Officer Marchone opened her car door, asking Njang “something

along the lines of . . . ‘[W]hat are you doing here? Come over

here.’” J.A. 51. Njang did not move. Officer Marchone exited her

cruiser, in uniform, and began walking towards Njang. She asked

him, “Do you live around here?” J.A. 127A. Njang responded,

“[N]o.” Id. She then asked him where he lived, and Njang

5
responded “Metzerott.”4 J.A. 127B. Officer Marchone asked Njang

if he was carrying identification, to which he responded in the

negative. Officer Marchone observed that Njang was acting

nervously.

Officer Marchone decided to initiate a pat-down, or frisk, of

Njang to check for weapons. In particular, she wanted to ensure

that he had no “knifes [sic], handguns, [or] burglary tools.” J.A.

127C. She leaned towards him, reaching towards the waistband on

his right side. Njang responded by turning the right half of his

body away from Officer Marchone, and began to move his right arm

behind his back. Officer Marchone then grabbed Njang’s right

wrist, but he broke free, reaching his hand behind his back and

under his untucked shirttails. Fearing that Njang was reaching for

a weapon, Officer Marchone pulled out her service handgun, aimed it

at Njang, and simultaneously took a few steps back.

Officer Marchone demanded, “[L]et me see your hands.” J.A.

128C. Njang responded by “pull[ing] out his right hand from his

waist, behind him area, and had what appeared to be a weapon in his

right hand.” J.A. 57. Officer Marchone later explained that the

weapon “looked to be a sharp metal object with a sharp tip on it,

and it had what looked to be like a green handle.” Id. That is,

4
Officer Marchone was initially uncertain whether Njang
responded “Metzerott” or “Merrimac.” J.A. 127B. Both roads,
however, were familiar to Officer Marchone and were only a few
miles from Njang’s aunt’s apartment complex.

6
it “looked like a knife” to her. Id. It was later confirmed that

the object was a green-handled box cutter with a silver-colored

blade-holder extended, though the actual blades remained inside the

box cutter and were not extended.

Officer Marchone “felt there was an immediate threat” and told

Njang to “drop the weapon” and “[g]et down on the ground.” Id.

She repeated those orders several times. Njang did not comply, and

instead began walking towards her with the box cutter extended in

front of him. She began backing up, keeping her handgun trained on

Njang. Njang raised his hands in the air as he advanced, saying

“what, what” repeatedly. J.A. 59.

As Officer Marchone continued to back up, she radioed for

help, but could not break through among other police

communications. She finally did “break through and . . . said, I

need help. I’m at this location. I have one at gunpoint.” J.A.

60. She became concerned that, if she had to shoot Njang, and

missed, the bullet might pass through an apartment window or strike

a bystander. She thus angled her retreat so that the backdrop

behind Njang would be a forest. Retreating at this angle led her

back in the direction of her cruiser.

Officer Marchone repeated her commands more forcefully,

telling Njang “to drop it, to get down on the ground on his stomach

or [she was] going to shoot.” J.A. 61. She warned a bystander and

child to “get down.” J.A. 60. As she continued to implore Njang

7
to drop the weapon, Njang “continued to wave [the box cutter] in

the air.” J.A. 61.

Officer Marchone had, by this time, backed up nearly to her

cruiser. Unable to retreat further, she decided to reach for her

pepper spray. Njang kept advancing, getting so close that “[a]ll

he had to do was lean forward [to] . . . get a hold of [her] gun,”

which prompted her to return both hands to her service handgun.

J.A. 61-62. She then issued him “one more order to put it down,

drop it, get down on the ground,” saying, “I’m going to shoot.”

J.A. 62. Njang was two feet from Officer Marchone by this time,

but still refused her orders. She fired one shot at Njang, hitting

him in the chest.

Njang stumbled one step forward and fell to the ground.

Officer Marchone kicked the box cutter out of his hand, donned

protective gloves, and began administering first aid. With the

help of a bystander, she radioed in a report of the shooting.

Other officers arrived, and relieved her of her life-saving

efforts. Njang died shortly thereafter at a nearby hospital.

Two eyewitnesses, contractors taking a lunch break in their

truck parked some twenty feet from these events, observed the

entire interaction. With their windows down for most of Officer

Marchone’s conversation with Njang, they were able to hear her

repeated warnings, and see his refusal to comply. Their accounts

corroborate the key details of the encounter provided by Officer

8
Marchone. An internal County investigation quickly exonerated

Officer Marchone of any wrongdoing.

Appellants sued Officer Marchone and the County, raising

primarily a claim of wrongful death and survivorship under 42

U.S.C. § 1983 on the grounds that Officer Marchone employed

excessive force in shooting Njang, in violation of the Fourth

Amendment. Appellants also filed a number of pendent state law

claims, alleging violations of the Maryland state constitution and

state tort law. The district court granted qualified immunity and

summary judgment to Officer Marchone on the § 1983 claim and

summary judgment to the Appellees on the other claims. Appellants

timely appealed.

II.

The primary issue before us on appeal is whether Officer

Marchone is entitled to qualified immunity from suit on Appellants’

claim that she utilized excessive force in shooting Njang, in

violation of the Fourth Amendment.5 We review de novo the district

court’s grant of qualified immunity to Officer Marchone. See

Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir. 2007).

5
Although Appellants additionally contend that the initial
stop-and-frisk also violated the Fourth Amendment, the overarching
thrust of the relief they seek is recognition of, and compensation
for, the allegedly unauthorized shooting of Njang. We therefore
focus our analysis on the excessive force claim.

9
 “[G]overnment officials performing discretionary functions

generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This

qualified immunity from suit is “an entitlement not to stand trial

or face the other burdens of litigation.” Mitchell v. Forsyth, 472

U.S. 511, 526 (1985). Analysis of whether Officer Marchone is

entitled to qualified immunity proceeds in two ordered steps.

First, we must decide “whether a constitutional right would have

been violated on the facts alleged.” Saucier v. Katz, 533 U.S.

194, 200 (2001). Second, assuming we find a violation, we must

decide “whether the right [violated] was clearly established” at

the time of the challenged action. Id.

The Fourth Amendment protects “[t]he right of the people to be

secure in their persons . . . against unreasonable searches and

seizures.” U.S. Const. amend IV. “[T]here can be no question that

apprehension by the use of deadly force is a seizure” for purposes

of the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7

(1985). The inquiry in an excessive-force case is therefore

whether an officer’s use of deadly force was reasonable under the

Fourth Amendment. See Vathekan v. Prince George’s County, Md., 154

F.3d 173, 178-79 (4th Cir. 1998).

10
 A police officer’s use of deadly force against a suspect is

reasonable where the “officer has probable cause to believe that

the suspect poses a significant threat of death or serious physical

injury to the officer or others.” See Garner, 471 U.S. at 3;6 see

also Milstead v. Kibler, 243 F.3d 157, 162 (4th Cir. 2001).

Because officers must make “split-second judgments--in

circumstances that are tense, uncertain, and rapidly evolving,”

Graham v. Connor, 490 U.S. 386, 396 (1989), a reviewing court

evaluates the reasonableness of the officer’s conduct “from the

perspective of the officer on the scene, not through the more

leisurely lens of hindsight.” Abney v. Coe, 493 F.3d 412, 416 (4th

Cir. 2007). Thus, we consider only “the information possessed by

the officer at the moment that force is employed.” Waterman v.

Batton, 393 F.3d 471, 477 (4th Cir. 2005).

With those principles in mind, we begin our analysis by

recounting what Officer Marchone knew in the moments leading up to

the shooting. Officer Marchone was aware that there had been a

series of recent first-floor burglaries in the complex in which the

perpetrators sometimes gained entry through ground-level windows

like the one where Njang had taken post that morning. After asking

a few preliminary questions of Njang, Officer Marchone initiated a

6
In Garner, the Court added that the employ of deadly force
against a fleeing suspect is only reasonable if, in addition, such
force “is necessary to prevent the escape” of the suspect. 471
U.S. at 3. Here, because Njang never attempted to flee, this
requirement is inapposite.

11
pat-down search, checking for weapons. Njang pulled away and

brandished a box cutter as Officer Marchone retrieved her service

handgun. Despite Officer Marchone’s commands to drop the weapon,

Njang advanced upon her with the box cutter held in front of him.

Backed up against her police cruiser, with Njang only two feet

away, Officer Marchone warned him that she would shoot, and finally

did shoot.

It seems eminently reasonable that Officer Marchone believed

that Njang, advancing upon her with a box cutter despite her

commands to drop it, “pose[d] a significant threat of death or

serious physical injury” to her. See Garner, 471 U.S. at 3.

Nevertheless, Appellants raise three principal arguments that

Officer Marchone behaved unreasonably.

First, Appellants point out that the box cutter did not, in

fact, have its blade extended at the time of the shooting. They

argue that the box cutter was therefore not actually dangerous, and

posed no threat to Officer Marchone. Appellants misunderstand our

inquiry here. The proper test is whether a reasonable officer in

Officer Marchone’s position would have perceived Njang’s actions to

be threatening. See id. For example, this court has held that an

officer may use deadly force in certain circumstances even when the

officer has not confirmed that the suspect is armed. See McLenagan

v. Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994) (“[W]e do not think

it wise to require a police officer, in all instances, to actually

12
detect the presence of an object in a suspect’s hands before firing

on him.”).

Here, Officer Marchone testified that the object in Njang’s

hands “looked like a knife” to her. J.A. 57. One eyewitness

thought that the object was a box cutter, and another confirmed

that it “looked like a knife to [him].” J.A. 99.7 Considering the

“tense, uncertain, and rapidly evolving” circumstances preceding

the shooting, Graham, 490 U.S. at 396, we can hardly say that

Officer Marchone was unreasonable in believing that the box cutter,

blade extended or not, posed a serious threat.

Next, Appellants suggest that Njang did not intend to threaten

Officer Marchone by holding the box cutter before him, but instead

was trying to hand it over to her in response to her attempted pat-

down search. This characterization of the incident strains

credulity. Njang pulled his wrist away from Officer Marchone’s

grasp, moved it behind his back and extracted the box cutter. He

advanced upon her, waving his arms and the box cutter before him,

despite her commands for him to drop it. He continued to brandish

the box cutter even when she warned him she was about to shoot. We

simply cannot accept that it would appear to a reasonable officer

that a man fluent in English would persist in his attempts to

7
The record before us includes photographs of the box cutter
sans blade. J.A. 71-76. It is worth noting that the shiny metal
blade-holder that extends from the handle could, in our view,
easily be mistaken for a sharp implement.

13
peacefully hand over his weapon in the face of commands from a

uniformed officer to drop it. Instead, we have only the testimony

of Officer Marchone and the two eyewitnesses, who all viewed

Njang’s actions as intended aggression, not as attempted

capitulation. See, e.g., J.A. 88 (testimony by eyewitness that

Njang was “[t]hreatening [Officer Marchone] . . . by walking

towards her with . . . the [box cutter]”).

Finally, Appellants argue that Officer Marchone might have

been motivated to deploy more force than necessary because Njang

had questioned her authority as a female police officer. There is

nothing in the record to support this conjecture,8 save a statement

made by Officer Marchone several days after the incident to an

officer wrapping up an internal investigation, appearing in his

notes as: “thought [suspect] not respecting her authority because

woman.” J.A. 147. The context for this notation is far from

8
To the contrary, there is ample evidence that Officer
Marchone attempted to avoid the use of deadly force. First, she
attempted to back away from Njang instead of confronting him
immediately after he drew his box cutter. This decision to retreat
from the initial close confrontation does not, as Appellants
contend, suggest that Njang posed no serious threat, but rather
evidences Officer Marchone’s prudent decision to buy time in the
hope that the confrontation would end without incident. Indeed,
Officer Marchone sought to minimize the risk of serious injury
throughout the confrontation. For example, her retreat path backed
her into her police cruiser only because she was taking care to
ensure that no bystanders would be injured in the event she
discharged her weapon. She also attempted to use her pepper spray
instead of her handgun, but Njang’s proximity rendered it unsafe to
take her attentions away from the gun. Finally, she engaged in
life-saving efforts after the shooting, though they ultimately
proved unsuccessful.

14
clear; it could very well represent Officer Marchone’s post hoc

speculation as to why Njang had persisted in advancing upon her

despite the increasing certainty that he would be shot. In any

event, Officer Marchone’s subjective motivations are legally

irrelevant. As this court has made clear, “[w]e do not inquire

into an officer’s motives, intentions, or tendencies, and instead

determine whether a reasonable officer in the same circumstances

would have concluded that a threat existed justifying the

particular use of force.” Clem v. Corbeau, 284 F.3d 543, 550 (4th

Cir. 2002) (internal quotations omitted). As we have already

stated, we find that a reasonable officer would indeed have

concluded that the threat posed by Njang justified the shooting.

Because Officer Marchone reasonably believed that Njang posed

a threat of serious injury to her, we conclude that she did not

employ excessive force in shooting Njang.9 We therefore agree with

the district court that Officer Marchone is entitled to qualified

immunity from Appellants’ claim of excessive force, and that

summary judgment was appropriate.10

9
Because we find that Officer Marchone violated no
constitutional right of Njang, we do not reach the second step in
the qualified-immunity analysis, whether the right was clearly
established.
10
Appellants also seek to hold the County liable under § 1983
for alleged negligent training and supervision of Officer Marchone,
pursuant to Monell v. Dept. of Social Services, 436 U.S. 658
(1978). However, a government is “necessarily . . . not liable for
any alleged injuries” where “no constitutional violation occurred.”
S.P. v. City of Takoma Park, 134 F.3d 260, 274 (4th Cir. 1998); see

15
 III.

Appellants also challenge the district court’s grant of

summary judgment to Appellees on Appellants’ claims under the

Maryland constitution and under Maryland state tort law. We review

de novo an award of summary judgment. Odom v. S.C. Dep’t of

Corrections, 349 F.3d 765, 769 (4th Cir. 2003). Summary judgment

is proper “if the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c). We consider each of

Appellants’ challenges in turn.

A.

Appellants allege that Appellees violated Njang’s rights under

Article 26 of the Maryland Constitution.11 Maryland courts “have

also Belcher v. Oliver, 898 F.2d 32, 36 (4th Cir. 1990) (finding
that a § 1983 claim against officers’ superiors “is unavailing
where there has been no underlying constitutional infraction”).
Furthermore, Appellants have offered no evidence of improper
training or supervision. We therefore find the district court’s
grant of summary judgment on this claim to be proper.
11
Article 26 provides:

That all warrants, without oath or affirmation, to search
suspected places, or to seize any person or property, are
grievous and oppressive; and all general warrants to
search suspected places, or to apprehend suspected
persons, without naming or describing the place, or the
person in special, are illegal, and ought not to be
granted.

Md. Const. art. XXVI.

16
long recognized that Article 26 is in pari materia with the Fourth

Amendment and that decisions of the Supreme Court interpreting the

Federal right are entitled to great respect in construing the State

counterpart.” Richardson v. McGriff, 762 A.2d 48, 56 (Md. 2000).

The Richardson court expressly adopted, as the proper way to

analyze claims of excessive force under Article 26, the “reasonable

officer” test outlined in Garner and Graham and applied above to

Appellants’ § 1983 claims. See id. The Article 26 claim,

therefore, must fail for the same reasons that the § 1983 claims

fail.12 See supra Part II.

B.

Appellants also challenge the district court’s award of

summary judgment on a number of Maryland state-law tort claims,

specifically, claims against Officer Marchone for assault and

battery and for the negligent use of force, and derivative claims

against the County under the doctrine of respondeat superior.

With respect to the tort claims against Officer Marchone, the

district court found that: (1) though she had intentionally injured

Njang, the action was legally justified and therefore no action for

12
Appellants also allege that Appellees violated Article 24 of
the Maryland Constitution. Article 24 provides “[t]hat no man
ought to be . . . deprived of his life, liberty or property, but by
the judgment of his peers, or by the Law of the land.” Md. Const.
art. XXIV. A claim under Article 24 is analyzed under Maryland
state law “in the same manner as if the claim were brought under
Article 26.” Randall v. Peaco, 927 A.2d 83, 89 (Md. Ct. Spec. App.
2007). Thus, just as Appellants’ Article 26 claim fails, so too
must their Article 24 claim.

17
assault and battery could survive summary judgment; and (2) she was

entitled to public official immunity from the negligence claim. We

agree with both conclusions. As the highest court in Maryland has

explained, “th[e] jurisprudence [governing Fourth Amendment

excessive force actions] also controls [a party’s] actions for

battery and gross negligence. Self-defense is a defense to the

common law tort of battery.” Richardson, 762 A.2d at 56. Since we

have held that Officer Marchone did not employ excessive force in

shooting Njang, we likewise conclude that the shooting was

justified and therefore cannot give rise to Maryland state law

actions for assault and battery or for negligent use of force.13

13
With respect to the negligence action, Officer Marchone
cannot be held liable for the additional reason that she enjoys
public official immunity under state law. Maryland law recognizes
that “[q]ualified public official immunity is a defense to
negligence actions.” Williams v. Prince George’s County, 685 A.2d
884, 896 (Md. Ct. Spec. App. 1996). Under the public official
immunity doctrine, “‘an official of a municipal corporation while
acting in a discretionary capacity, without malice, and within the
scope of the official’s employment or authority shall be immune as
an official or individual from any civil liability for the
performance of the action.’” Id. (quoting Md. Code Ann., Cts. &
Jud. Proc. § 5-321(b)(1)). Appellants argue that Officer Marchone
does not enjoy public official immunity here because she acted with
malice in shooting Njang for allegedly disrespecting her authority
as a female police officer. Under Maryland law, however, “[m]alice
has been defined as the performance of an act without legal
justification or excuse and with an evil or rancorous motive
influenced by hate, the purpose of which is to deliberately and
wilfully injure another.” Id. (emphasis added). Again, since we
have already held that Officer Marchone was justified in shooting
Njang, she is entitled to public official immunity from Appellants
negligence claim.

18
 With respect to the tort claims against the County, the

district court found the County to enjoy governmental immunity.

“[L]ocal governments enjoy[] immunity from tort liability . . .

with respect to non-constitutional torts based on activity

classified as ‘governmental.’” Rios v. Montgomery County, 872 A.2d

1, 13 (Md. 2005) (recognizing that such immunity still obtains

notwithstanding the enactment of the Local Government Tort Claims

Act, Md. Code Ann., Cts. & Jud. Proc. § 5-304). There is no

dispute here that the County was acting in a governmental capacity

in employing, training, and supervising Officer Marchone.

Therefore, the County enjoys governmental immunity from both tort

claims, and summary judgment on the claims was appropriate.

IV.

We are not unsympathetic to the plight of the survivors of

Peter Njang, whose dream of building a life in the United States

was cut short by the unfortunate events of August 12, 2004.

Nevertheless, the law simply provides no remedy when a police

officer is driven to use deadly force in the face of a reasonably

perceived serious threat. The decision of the district court is

therefore

AFFIRMED.

19