Andrew Kane v. Brian Lewis

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1027

ANDREW KANE, Individually and as Personal Representative of
the Estate of Andrew Dwayne Cornish,

Plaintiff - Appellee,

v.

BRIAN LEWIS; OFFICER JOHN LEWIS; OFFICER JENSEN SHORTER;
OFFICER LEAF A. LOWE; KENNETH MALIK, Individually and in his
Official Capacity as Chief of Police for the Cambridge
Police Dept.; THE COMMISSIONERS OF CAMBRIDGE, A Body
Corporate and Politic,

Defendants - Appellants.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:08-cv-01157-JFM)

Argued: December 10, 2014 Decided: March 13, 2015

Before DUNCAN, AGEE, and HARRIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded with
instructions by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Agee joined. Judge Harris wrote a
separate opinion concurring in part and dissenting in part.

ARGUED: Victoria M. Shearer, KARPINSKI, COLARESI & KARP, P.A.,
Baltimore, Maryland, for Appellants. Terrell Roberts, ROBERTS &
WOOD, Riverdale, Maryland, for Appellee. ON BRIEF: Daniel Karp,
KARPINSKI, COLARESI & KARP, P.A., Baltimore, Maryland, for
Appellants.

Unpublished opinions are not binding precedent in this circuit.

2
DUNCAN, Circuit Judge:

This appeal is the second to come before us in a 42 U.S.C.

§ 1983 challenge to Maryland police officers’ alleged use of

excessive force and failure to properly knock and announce at

the residence of Andrew Cornish on May 6, 2005. The jury found

in favor of the police (the “Officers”) on the excessive force

claim, and in favor of Plaintiff-Appellee Andrew Kane, on behalf

of his deceased son, Cornish, on the knock-and-announce claim.

For the reasons that follow, we vacate the portion of the

district court’s judgment awarding Kane monetary relief in the

amount of $250,000 and remand for an entry of an award of

nominal damages only. We affirm the judgment of the district

court on all other grounds.

I.

We take many of the facts and much of the procedural

history from our prior opinion, adding to them as necessary.

See Kane v. Lewis, 483 F. App’x 816 (4th Cir. 2012)

(unpublished). In this exposition, we indicate where the facts

are in dispute.

A.

On May 6, 2005, the Officers set out to execute warrants at

408 High Street in Cambridge, Maryland, a residence consisting

of an upstairs apartment and a downstairs apartment. Andrew

3
Cornish and Bradrick Cornish (“Brad”) occupied the upstairs

apartment, Apartment B. The Officers wore clothing

“display[ing] the word ‘police,’ and had their badges clipped to

or screen printed on their shirts.” J.A. 36; see also J.A. 554.

The Officers testified that they breached the exterior door

of the building at approximately 4:30 a.m. J.A. 534. The four

officers assigned to search Apartment B--Officer Jensen Shorter,

Detective Brian Lewis, Detective Leaf Lowe, and Sergeant John

Lewis--climbed the stairs and lined up outside of the apartment.

They allege that they pounded on the door two separate times,

yelling “Cambridge Police, search warrant” and pausing one to

two seconds after each set of knocks, and that they used a

sledge hammer to knock down the apartment door when there was no

response. J.A. 828-29; see also J.A. 553. The downstairs

residents testified that they did not hear the police announce

themselves at Cornish’s door. See J.A. 457-59, 288.

Officer Shorter was the first inside Cornish’s apartment.

The exterior apartment door opened into the kitchen. A door on

the left side of the kitchen led to the living room and master

bedroom. The door between the kitchen and living room was 16.5

feet away from the master bedroom door. J.A. 243. A second

bedroom and a bathroom were located to the right of the kitchen.

The apartment was illuminated by a light in the kitchen and a

4
television set in the living room, both of which were turned on

at the time of the search. See J.A. 38, 570, 602, 639-40.

The following facts are drawn from the Officers’ testimony.

Upon entry into the apartment, Officer Shorter headed left

toward the living room and master bedroom, followed by Detective

Lewis. Detective Lowe and Sergeant Lewis moved to the right

side of the apartment towards the second bedroom. Officer

Shorter and Detective Lewis testified that they shouted

“Cambridge Police, search warrant” as they entered the apartment

and headed towards Cornish’s master bedroom door. See J.A. 853-

54. The master bedroom door was closed, and Officer Shorter

unsuccessfully attempted to kick it down. After the Officers

had been in Cornish’s apartment for about “30 seconds,” the

master bedroom “door fl[ew] open” and knocked Officer Shorter

off balance to the right side of the doorway. J.A. 856-57.

Officer Shorter lost sight of Detective Lewis at that point, but

testified that he saw Cornish charging across the living room

with a knife. Detective Lewis testified that Cornish emerged

from the master bedroom with a knife, swinging it in a “back and

forth” motion, and crossed the living room towards him at a

“steady pace.” J.A. 859. Detective Lewis backpedaled “15 feet

or more” to the kitchen while yelling at Cornish repeatedly to

“drop the knife.” J.A. 858-59. Cornish was approximately three

feet away when Detective Lewis backed into an object in the

5
kitchen and was unable to retreat further. At this point,

Detective Lewis fired two shots at Cornish.

The first shot hit Cornish in the cheek, and the second hit

Cornish’s forehead, fatally wounding him. Cornish’s body landed

halfway through the doorway between the kitchen and the living

room--in other words, a distance from his master bedroom

amounting to the length of the living room. See J.A. 243. A

15–inch knife, still in its sheath, was recovered from

underneath his right leg.

On May 5, 2008, Kane filed a complaint in his individual

capacity and as representative of Cornish’s estate in the U.S.

District Court for the District of Maryland. As relevant here,

Kane sued under 42 U.S.C. § 1983, alleging that the Officers

violated the Fourth Amendment by using excessive force and

failing to knock and announce their presence. Kane sought

damages for wrongful death and physical and emotional pain and

suffering.

The Officers moved for summary judgment, arguing that their

actions were protected by qualified immunity. The Officers

claimed that they knocked and announced their presence prior to

breaching both the exterior door at 408 High Street and the

interior door to Cornish’s apartment. Kane, on the other hand,

claimed that the officers failed to knock and announce at either

6
door, thus failing to alert Cornish to the fact that the men

forcefully entering his apartment were police officers.

The district court granted the Officers’ summary judgment

motion in part and denied it in part. Kane v. Lewis, No. 08–cv-

1157, 2010 WL 1257884, at *6–7 (D. Md. Mar. 26, 2010). With

respect to the issues before us, the district court held that

Detective Lewis was entitled to qualified immunity on the

excessive force claim because a reasonable officer under the

circumstances could have believed Cornish presented a deadly

threat as he approached the Officers with a knife. The court,

however, denied summary judgment on Kane’s knock-and-announce

claim, finding it based on a genuine issue of material fact.

As the case progressed toward trial, the Officers filed a

motion in limine seeking to limit the type of damages a jury

could award Kane were it to find that the Officers violated the

knock-and-announce rule. By order dated July 9, 2010, the

district court concluded that Kane could recover nominal damages

for such a violation and, separately, damages for the emotional

distress Cornish experienced from the time the Officers entered

his home until his death. The court held that Kane could not

recover wrongful death damages for Cornish’s death itself

because the evidence suggested that Cornish “must have known

that the men in his apartment were police officers but advanced

on them nonetheless, and that no reasonable jury could conclude

7
otherwise.” J.A. 79. The court determined that Cornish’s

conduct constituted a superseding cause of his death that

extinguished monetary liability for these damages.

As a result of this order, the case was set to proceed to

trial to resolve two questions: First, whether the Officers

knocked and announced prior to entering Cornish’s apartment. If

the jury determined that they did not, Kane would be entitled to

nominal damages for the violation of Cornish’s rights. Then,

the jury would have to resolve a second question: whether to

award actual damages to Kane to compensate for Cornish’s

emotional distress prior to his death.

On April 4, 2011, the day of trial, Kane voluntarily

dismissed with prejudice his § 1983 claims for damages for pain,

suffering, and emotional distress. Kane then sought to appeal

the partial grant of summary judgment and the order limiting

damages. The Officers cross-appealed.

We dismissed both appeals for lack of jurisdiction. See

Kane v. Lewis, 483 F. App’x 816 (4th Cir. 2012). We held that

Kane’s appeal was premature because there remained a genuine

factual dispute over “whether the officers knocked and announced

prior to entering Cornish’s apartment.” Id. at 822. Indeed, we

noted that Kane might still “be able to recover nominal damages

under § 1983 for the violation of Cornish’s constitutional

rights” if the jury determined that the Officers failed to knock

8
and announce. Id. We also held that this factual dispute

precluded review of the Officers’ cross-appeal because

Defendants’ qualified immunity defense would require the

resolution of disputed facts. See id. at 822-23.

B.

On remand, Kane asked the court either to reconsider its

ruling denying wrongful death damages or to enter summary

judgment in favor of Kane on his knock-and-announce claim. The

court denied the request and set the case for trial to

“determine whether a knock-and-announce violation occurred.”

J.A. 83.

On December 7, 2012, the case was reassigned to a different

district court judge 1 and Kane made the same request that the

previous court had denied. The second district court reversed

several of the prior rulings. Significantly for our purposes,

instead of allowing trial to proceed solely on the knock-and-

announce issue, the second district court also permitted the

jury to “consider the excessive force claim and the claim for

wrongful damages arising from the alleged unlawful entry.” 2 J.A.

84.

1
For ease of reference, we shall refer to this as the
second district court.
2
The claim for emotional distress, having previously been
dismissed with prejudice at Kane’s request, was not reinstated
(Continued)
9
 At the close of trial, the jury returned a verdict in favor

of Kane on the knock-and-announce claim, but found in favor of

Detective Lewis, the officer who fired the fatal shot, on the

excessive force claim. The jury awarded non-economic damages in

the amount of $250,000 for wrongful death associated with the

knock-and-announce violation and the district court entered

judgment pursuant to this verdict.

The district court denied in part and granted in part the

Officers’ subsequent motion to alter or amend the judgment. It

held that the excessive force verdict did not conflict with the

knock-and-announce verdict because the Officers “created an

unnecessary risk of harm to Cornish by their violation of the

knock and announce rule.” J.A. 1110.

The district court also denied the Officers qualified

immunity, holding that the law with respect to the Officers’

duty to knock and announce in these circumstances was clearly

established. This appeal followed.

II.

On appeal, the Officers claim that they are liable only for

nominal damages arising out of their failure to properly knock

and announce and that they are entitled to qualified immunity on

by the second district court, nor could it have been at that
point in the case.

10
the knock-and-announce claim. We devote our attention to the

knock-and-announce and qualified immunity issues because they

were the primary focus of this appeal, and consider each

argument in turn. 3

As a threshold issue, however, we must first determine the

governing standard of review. The Officers’ motion to alter or

amend the judgment, the denial of which they appeal here, cites

both Rule 50 and Rule 59 of Federal Rules of Civil Procedure,

and the district court did not identify either authority in its

ruling. See J.A. 1108-10.

Although the Officers styled their motion as one to alter

or amend the judgment, it is more appropriately viewed as one

under Rule 50(b). The Officers moved for judgment as a matter

of law under Rule 50(a) before the jury retired to deliberate,

arguing that Detective Lewis’s use of force was justified as a

matter of law and, as a consequence, that Kane could recover

only nominal damages on the knock-and-announce claim. See J.A.

734 (moving for judgment as a matter of law at close of Kane’s

evidence), J.A. 907-08 (renewing the motion at the close of the

Officers’ evidence). The district court denied the motions.

See J.A. 763, 908. Following the jury’s verdict--and as

contemplated by Rule 50(b)--the Officers filed this post-

3
We have considered the Officers’ challenges to the
district court’s jury instructions and find them without merit.

11
judgment motion raising the same arguments. See Mem. Supp.

Defs.’ Mot. Alter Am. J., Kane, No. 08-cv-01157 (D. Md. Nov. 7,

2013), ECF No. 199-1. Accordingly, we consider the Officers’

motion to alter or amend the judgment under Rule 50(b). See

Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998)

(holding under similar circumstances that a motion styled as a

Rule 59(e) motion was properly treated as a Rule 50(b) motion).

We review a district court’s denial of a Rule 50(b) motion

de novo. See White v. Cnty. of Newberry, S.C., 985 F.2d 168,

172-73 (4th Cir. 1993). A Rule 50(b) motion should be granted

if a district court determines, without considering the

credibility of the witnesses or weighing the evidence, that

substantial evidence does not support the jury’s findings. See

id. at 173. In reviewing a district court’s decision on a Rule

50(b) motion, “we view the evidence adduced at trial ‘in the

light most favorable to the prevailing party,’” Durham v. Jones,

737 F.3d 291, 298 (4th Cir. 2013) (quoting Sloas v. CSX Transp.,

Inc., 616 F.3d 380, 392 (4th Cir. 2010)), and “reverse only if

‘the evidence favoring the [plaintiff] is [not] legally

sufficient to overcome the defense,’” id. (alterations in

original) (quoting Ortiz v. Jordan, 131 S. Ct. 884, 889 (2011)).

A.

We turn now to the Officers’ primary argument on appeal--

that the district court erred by failing to remit the jury’s

12
damages award in favor of Kane on the knock-and-announce claim

to nominal damages. For the reasons that follow, we agree.

The Officers argue that, in finding in the Officers’ favor

on the excessive force claim, the jury determined that Detective

Lewis shot Cornish in self-defense, and therefore “necessarily

concluded that Cornish realized and appreciated that the

Officers were police officers prior to advancing upon

[Detective] Lewis with a knife.” Appellants’ Br. at 33-34.

They therefore contend that “Cornish’s undisputed [conduct] in

attacking [Detective] Lewis” was the “superseding cause of his

death,” id. at 39--and that there was no evidence that would

have allowed the jury reasonably to conclude otherwise.

Kane responds, and the second district court agreed, that

“[t]he jury had sufficient evidence to conclude that in the

absence of a knock and announcement . . . it was reasonably

foreseeable that a surprised Cornish may rush to the front door

and take action in supposed self-defense and that a police

officer may view that action as threatening and shoot and kill

him.” Appellee’s Br. at 33. This view, however, does not

accurately reflect either the applicable law or the facts of

record.

Damages awarded under § 1983 for violations of

constitutional rights are ordinarily governed by common law tort

principles. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S.

13
299, 305-06 (1986). “[T]he basic purpose of a § 1983 damages

award should be to compensate persons for injuries caused by the

deprivation of constitutional rights . . . .” Carey v. Piphus,

435 U.S. 247, 254 (1978) (emphasis added). A plaintiff

asserting a constitutional tort under § 1983 must therefore

satisfy the familiar element of proximate causation. See Murray

v. Earle, 405 F.3d 278, 290 (5th Cir. 2005) (“Section 1983 . . .

require[s] a showing of proximate causation, which is evaluated

under the common law standard.”); see also Shaw v. Stroud, 13

F.3d 791, 800 (4th Cir. 1994) (“[T]he causal link in § 1983

cases is analogous to proximate cause.”). Section 1983 tort

defendants are certainly “responsible for the natural

consequences of [their] actions.” Malley v. Briggs, 475 U.S.

335, 344 n.7 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 187

(1961)) (internal quotation mark omitted). However, “[a]

superseding cause [will] break[] the chain of proximate

causation.” Lamont v. New Jersey, 637 F.3d 177, 185 (3d Cir.

2011); see also Warner v. Orange Cnty. Dep’t of Prob., 115 F.3d

1068, 1071 (2d Cir. 1996) (noting that “in cases brought under §

1983 a superseding cause, as traditionally understood in common

law tort doctrine, will relieve a defendant of liability”).

Specifically, the “subsequent acts of independent decision-

makers . . . may constitute intervening superseding causes that

break the causal chain” and insulate police officers from § 1983

14
liability. Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir.

2012).

In similar circumstances, the Third Circuit has held that

officers are liable only for “the harm ‘proximately’ or

‘legally’ caused by [their illegal entry]” and not “for all of

the harm caused in the ‘philosophic’ or but-for sense by the

illegal entry.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir.

1995) (Alito, J.). 4 As such, officers who have unlawfully

entered a home are not liable for “harm produced by a

‘superseding cause’” or the harm caused by the officers’ “non-

tortious, as opposed to . . . tortious, ‘conduct,’ such as the

use of reasonable force.” Id. The Bodine court illustrated its

view with a hypothetical similar to the facts before us: 5 if

officers improperly entered a suspect’s house without knocking

and announcing their presence but--once the officers were inside

and had identified themselves--the suspect broke away and killed

two of the officers, a third officer would not “necessarily [be]

liable for the harm caused to the suspect [in attempting to

4
The Fifth and Tenth Circuits have cited Bodine favorably.
See Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007); Trask v.
Franco, 446 F.3d 1036, 1046 (10th Cir. 2006).
5
Bodine involved police officers carrying out a custody
order, rather than a search warrant. However, the court in
Bodine noted that the “troopers’ authority to enter the Bodine
residence in carrying out the mandate of that [custody] order
was similar to that of an officer executing an ordinary [search
or arrest] warrant.” 72 F.3d at 397.

15
disarm him] on the theory that the illegal entry without

knocking and announcing rendered any subsequent use of force

unlawful.” Id.

Other courts have also addressed § 1983 causation in

similar circumstances and determined that a plaintiff’s conduct

was the superseding cause of harm when it precipitated

subsequent harm caused by an officer’s use of force. See James

v. Chavez, 511 F. App’x 742, 750 (10th Cir. 2013) (unpublished)

(concluding that, when a suspect was killed while attempting to

stab a police officer, it was the suspect’s “unlawful and

deliberate attack on the SWAT team [that] constitute[d] a

superseding cause of his death”); Estate of Sowards v. City of

Trenton, 125 F. App’x 31, 41 (6th Cir. 2005) (unpublished)

(holding that the suspect’s “actions in threatening . . .

officers with [a] handgun are what led to his injuries and

death”).

Turning to the record, we conclude that no reasonable jury

could have found that the Officers’ knock-and-announce violation

proximately caused Cornish’s death. 6 See Bodine, 72 F.3d at 400.

6
The dissent states that “[i]t was up to the Officers . . .
to prove that Cornish’s advance on them was knowing and
intentional, thus qualifying it as a superseding cause.” Diss.
Op. at 28. However, because “a superseding cause acts as an
affirmative defense,” id. (emphasis added), a defendant bears
the burden of establishing this defense only after a plaintiff
proves the proximate cause element of a § 1983 claim. Here, for
(Continued)
16
The evidence Kane presented at trial was insufficient to

establish that Cornish did not recognize that the men in his

apartment were police officers, and therefore that the Officers’

illegal entry was the legal cause of Cornish’s death. Kane

presented the testimony of Cornish’s roommate, Brad, who was not

at home at the time of the search, and the expert testimony of

Dr. John Adams, a physician and board certified pathologist. 7

Brad testified that the door to the master bedroom, which was

old and had to be lifted before it could be opened, was open

when he left the apartment approximately two hours before the

search. See J.A. 481-83. He also testified that a bicycle and

a stereo were located in the area where Officer Shorter stumbled

to the right of Cornish’s master bedroom door, J.A. 483; a crime

scene photo indicated that neither item toppled during the

confrontation. J.A. 205-06. Dr. Adams testified that he

believed that Cornish moved “a foot or two . . . forward” in

between the first and second shots before landing in the doorway

between the living room and kitchen, and that he was unable to

determine how fast Cornish was moving when he was shot. J.A.

688. Dr. Adams also testified that he could form only a “very

the reasons we explain below, Kane failed to show proximate
causation, which ends our analysis.
7
Dr. Adams was deceased at the time of trial. His
deposition testimony was read into the record. See J.A. 680.

17
incomplete” opinion as to Cornish’s position at the time of each

shot, J.A. 684, and that he could not definitely conclude

whether Cornish was holding a sheathed knife in his hand at the

time of the first shot, although the knife was found under his

body. J.A. 697. Drawing all reasonable inferences in Kane’s

favor, this evidence reveals nothing about Cornish’s state of

mind as he advanced on the Officers or his opportunity to

recognize them as police. 8 Accordingly, Kane’s evidence is

insufficient to establish that Cornish’s death was “the natural

consequence[] of [the Officers’] actions.” Malley, 475 U.S. at

344 n.7.

Moreover, the undisputed evidence establishes that Cornish

must have recognized that the men in his apartment were police

officers. It is undisputed that Cornish was found in the

doorway between the living room and the kitchen. To reach that

point, he had to travel more than 16 feet across an illuminated

living room toward an illuminated kitchen in the direction of

two police officers in SWAT gear who were shouting their

8
The dissent points out that, “at the moment [Cornish]
heard the commotion at his front door, Cornish simply had no
reason to expect . . . the police.” Diss. Op. at 29. We agree,
but that Cornish may have initially thought the intruders in his
home were not the police has no bearing on the issue of whether,
after then traveling more than 16 feet across the apartment,
Cornish knew that he was advancing on police officers.

18
identity. 9 On these facts, as the first district court aptly

recognized, Cornish “must have known that the men in his

apartment were police officers but advanced on them nonetheless,

and . . . no reasonable jury could conclude otherwise.” J.A.

79.

Unfortunately for Kane, the strategic decision to abandon

his claim for damages for emotional distress Cornish suffered

during the period of time between the Officers’ entry and

Cornish’s death constrains him here. Kane is no longer able to

9
In concluding “that Cornish never had a chance to . . .
properly identify the Officers,” Diss. Op. at 31, the dissent
does not account for critical facts. The dissent states that an
illuminated television set was the only source of light in the
apartment. But, as we mention above, the apartment’s kitchen
light was also on, providing an additional source of brighter
light. Given the layout of the apartment and the fact that the
fatal shooting occurred when the Officers were in the kitchen
and Cornish was in the kitchen doorway, this fact is critical.
The dissent also relies on the fact that the Officers “were not
wearing the traditional and easily recognizable blue police
uniform.” Id. at 10. All of the Officers, including Detective
Lewis, were wearing clothing “marked ‘police,’” J.A. 894, and
some wore SWAT gear that included “military-style helmet[s] with
goggles,” J.A. 893, and “bulletproof vest[s]” displaying the
word police “in bright white letters,” J.A. 593, 638. And aside
from this distinctive clothing, the Officers were also shouting
their identity as police throughout the encounter. Finally, the
dissent does not meaningfully account for how, in the time it
took to cross 16 feet, Cornish could have failed to perceive the
Officers’ identity. Although it may be the case in some
circumstances that “[o]nce officers breach the door unannounced
. . . it is too late to count on badges or other forms of notice
to prevent the surprised and violent conflict with which the
[knock-and-announce] rule is concerned,” id. at 12, this is not
true here. The uncontroverted evidence shows that Cornish
chose, for reasons unknown, to advance with a knife on people he
knew to be police officers.

19
pursue recovery for that critical interval, which the claim

itself recognizes existed. 10 Had those claims been presented to

the jury, it would have been easier for us to find an

evidentiary basis for a monetary award other than nominal

damages.

Because Cornish must have known that the men were police

officers, yet advanced toward them with a knife, his “unlawful

and deliberate attack on the [police] constitute[d] a

superseding cause of his death.” James, 511 F. App’x at 750.

In other words, the Officers’ illegal entry was not the legal

cause of Cornish’s death; rather, he was “killed as a direct

result of trying to stab a police officer.” Id. Accordingly,

Kane is entitled only to nominal damages to vindicate the

deprivation of Cornish’s constitutional rights on the knock-and-

announce claim.

B.

The Officers next contend that they are entitled to

qualified immunity on Kane’s knock-and-announce claim. We

10
Kane’s own recognition of the time lapse between the
Officers’ unannounced entry and Cornish’s death refutes the
dissent’s contention “that Cornish never had a chance to
reassess the situation and properly identify the Officers.”
Diss. Op. at 31.

20
disagree. 11

The Officers argue that “the jury found that the Officers

knocked and announced their presence at Andrew Cornish’s door,

but . . . also determined that the Officers did not ‘properly’

wait long enough before entering.” 12 Appellants’ Br. at 44.

They further contend that, at the time of this search, it was

not clearly established how long “police officers must wait

after knocking and announcing their presence before forcibly

11
The Officers also argue that they are entitled to
statutory public-official immunity under Maryland law. Unlike
the objective analysis of federal qualified immunity, Maryland
public-official immunity turns on a subjective inquiry into
“malice”; an official may not be held liable even for
objectively unreasonable conduct if it is undertaken without an
improper motive. See, e.g., Shoemaker v. Smith, 725 A.2d 549,
557-59 (Md. 1999); Moxley v. Town of Walkersville, 601 F. Supp.
2d 648, 665-66 (D. Md. 2009). However, we need not separately
address the state-law immunity question here. The parties
agree that there is only one jury verdict, for $250,000,
covering both the federal and state constitutional violations.
See ECF No. 37-2 (letter memorializing agreement between the
parties); J.A. 1112 (amended judgment). And because state-law
immunity cannot inoculate the Officers from liability for a
federal constitutional violation, our holding that the Officers
are not entitled to qualified immunity on the federal knock-and-
announce claim is sufficient to impart liability for the entire
verdict, without respect to the state constitutional claim.
Moreover, under Maryland law the municipality--here the City of
Cambridge--is responsible for the first $200,000 of damages on
the state constitutional claim. See J.A. 1110. Therefore,
given our holding limiting Kane’s recovery to nominal damages,
there will be no personal liability on the state-law claim in
any event.

12
We note that the jury verdict found that the Officers
failed to “properly” knock and announce. It did not include a
temporal reference.

21
entering a dwelling to execute a narcotics search warrant,

particularly where, as here, both an outer and inner door are

involved.” Appellants’ Br. at 51.

Qualified immunity shields government officials from civil

liability for § 1983 claims unless “(1) the allegations, if

true, substantiate a violation of a federal statutory or

constitutional right and (2) the right was ‘clearly established’

such that a reasonable person would have known his acts or

omissions violated that right.” Brockington v. Boykins, 637

F.3d 503, 506 (4th Cir. 2011) (quoting Ridpath v. Bd. of

Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006)).

The knock-and-announce rule, in the absence of unusual

circumstances not present here, is a clearly established right.

See Wilson v. Arkansas, 514 U.S. 927, 931-36 (1995). Therefore,

if the Officers violated the knock-and-announce rule here, they

would not be entitled to qualified immunity.

The evidence substantiates the jury’s verdict finding that

the Officers “fail[ed] properly to knock and announce before

entering [Cornish’s] apartment.” J.A. 1091. For example, the

downstairs residents testified that they did not hear the

Officers knock at the exterior door to the house, J.A. 285-88,

451-59, nor did they hear, though the walls in the High Street

residence were thin, the police announce themselves at Cornish’s

door, J.A. 288, 457. And despite the Officers’ testimony that

22
they used a battering ram to breach the outside door, Kane

presented evidence that the glass portion of the door was

unbroken. J.A. 547. As the first district court noted below,

“[b]ecause the officers synchronized their entry into both

[apartments], and because the walls were thin, the silence

supports the proposition that the police failed to knock and

announce before entering either apartment.” J.A. 53.

Because there was sufficient evidence that the Officers

failed to properly knock and announce their presence and the

requirement is clearly established, we reject the Officers’

argument that they are entitled to qualified immunity.

III.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS.

23
PAMELA HARRIS, Circuit Judge, concurring in part and dissenting
in part:

This case began with an anonymous tip of drug activity at

408 High Street in Cambridge, Maryland, a duplex in which Andrew

Cornish (“Cornish”) lived in the upstairs apartment. To

investigate, the Cambridge police inspected the contents of

trash bags left on the sidewalk in front of the residence. What

they found, in bags associated with each of the two apartments,

was trace amounts of marijuana and associated drug

paraphernalia. Based on that discovery, they obtained search

warrants for both apartments, and then assembled two Emergency

Response Teams (commonly known as SWAT teams) — heavily armed,

dressed in black, and carrying battering rams — to execute the

warrants in the middle of the night. In Cornish’s apartment,

they recovered two bags of marijuana.

They also, as the majority recounts, failed to knock and

announce their presence before breaking down the door to

Cornish’s home, as required by the Fourth Amendment. And no

more than a minute later, in the confusion that immediately

followed their unannounced 4:30 a.m. entry on suspicion of

marijuana use, the police shot and killed Cornish.

After a four-day trial, the jury found that the officers

who executed the warrant in Cornish’s apartment (the “Officers”)

did not properly knock and announce before entering, and awarded

24
Cornish’s father, Andrew Kane (“Kane”), damages of $250,000 for

the death of his son caused by the knock-and-announce violation.

Today, the majority sets aside that damages award on the ground

that no reasonable jury could have found that the Officers’

unlawful execution of the search warrant was a proximate cause

of Cornish’s death. I disagree, and respectfully dissent from

that portion of the majority’s decision. 1

I.

The tort-law principles that govern this case are a matter

of common ground. It is clear, as the majority holds, that the

jury could award damages for Cornish’s death only on a finding

that it was proximately caused by the Officers’ knock-and-

announce violation. Indeed, the jury was so instructed by the

district court, and the court’s proximate cause instructions

were never challenged by the Officers. And it follows that

officers who unlawfully enter a home may not be held responsible

for harm produced by a “superseding cause,” or some

unforeseeable intervening event that breaks the causal link

between entry and ultimate injury. See, e.g., Massey v.

1
I agree fully with the majority’s disposition of the
Officers’ claim to federal qualified immunity and state-law
immunity, as well as its determination that there was no error
in the district court’s instructions to the jury.

25
Ojaniit, 759 F.3d 343, 355 (4th Cir. 2014) (analyzing proximate

causation in the Section 1983 context).

Finally — and this is the crux of the matter — there is

agreement that an attack on the Officers by Cornish, if it were

knowing and deliberate, would constitute just such a superseding

cause and thus insulate the Officers from liability for

Cornish’s death. See Maj. Op. at 18. 2 Both district courts to

review the case endorsed that premise, and for good reason. As

the cases cited by the majority uniformly hold, when a resident

reacts violently to an unlawful police entry, knowing full well

that he is dealing with the police, that intentional act of

aggression is a superseding cause of any resulting harm to the

resident. See, e.g., Bodine v. Warwick, 72 F.3d 393, 400 (3d

Cir. 1995); Maj. Op. at 18. As the first district court to

consider this case explained: “If Cornish knew that the

intruders were the police when he advanced on them, there can be

no recovery for his death,” because the Officers are not liable

“for harm produced by a superseding cause, such as an occupant’s

knowing decision to attack them.” J.A. 53.

The pivotal question, then, is whether Cornish in fact knew

that the men who broke into his home at 4:30 a.m. were police

2
Citations to “Maj. Op.” refer to the majority slip
opinion.

26
officers — or, more precisely, whether the evidence presented at

trial compelled such a finding. The majority answers that

question in the affirmative, holding that based on the record

evidence, “Cornish must have known that the men were police

officers, yet advanced on them” with a sheathed knife anyway.

Maj. Op. at 18. It is on that narrow but important point that

we disagree. For the reasons outlined below, I believe there

was ample evidence from which a jury could conclude that in the

minute that elapsed after the officers unlawfully broke down his

door and before he was shot, Cornish never realized that he was

confronting the police.

II.

A.

Because we “accord the utmost respect to jury verdicts and

tread gingerly in reviewing them,” a party challenging the

result reached by a jury — like the Officers here — “bears a

hefty burden.” Price v. City of Charlotte, N.C., 93 F.3d 1241,

1249, 1250 (4th Cir. 1996). We must view the evidence presented

at trial in the light most favorable to Kane, the prevailing

party, and draw all reasonable inferences in favor of the jury’s

verdict. Durham v. Jones, 737 F.3d 291, 298 (4th Cir. 2013);

ABT Bldg. Prods. Corp. v. Nat'l Union Fire Ins. Co. of

Pittsburgh, 472 F.3d 99, 113 (4th Cir. 2006). And we cannot

27
reject the jury’s conclusions simply because we would have

reached different ones: “If reasonable minds could differ about

the verdict, we are obliged to affirm.” King v. McMillan, 594

F.3d 301, 312 (4th Cir. 2010).

In applying this standard, we must keep in mind that it is

the Officers, not Kane, who bore the burden of proof on the

dispositive question. In tort law, a superseding cause acts as

an affirmative defense, and the defendant bears the burden of

proving its existence. See In re Neurontin Mktg. & Sales

Practices Litig., 712 F.3d 21, 45 (1st Cir. 2013); Bouriez v.

Carnegie Mellon Univ., 585 F.3d 765, 773 n.4 (3d Cir. 2009); BCS

Servs., Inc. v. Heartwood 88, LLC, 637 F.3d 750, 757 (7th Cir.

2011); Beck v. City of Upland, 527 F.3d 853, 863 (9th Cir.

2008). It was up to the Officers, that is, to prove that

Cornish’s advance on them was knowing and intentional, thus

qualifying it as a superseding cause — and not Kane’s obligation

to prove otherwise. So whether Kane’s evidence on Cornish’s

state of mind at the crucial moment is inconclusive, Maj. Op. at

18, is beside the point. What matters is whether a reasonable

jury could have found that the Officers’ evidence was

28
inconclusive, and that they had failed to prove that Cornish was

aware of their identity before he died. 3

B.

Drawing every reasonable inference in favor of the jury’s

verdict, as we must, I can find no reason to second-guess the

jury’s judgment on this score. For three principal reasons, I

believe there was more than sufficient evidence from which a

reasonable jury could have concluded that Cornish need not have

known that the men who forced their way into his apartment at

4:30 a.m. were police officers, and could have died while

running toward his door to investigate the source of the violent

break-in.

First, at the moment he heard the commotion at his front

door, Cornish simply had no reason to expect that it might be

3
As Bodine and all of the other precedent cited by the
majority make clear, the existence of a superseding cause is the
only proximate-cause question in this case and cases like it.
See Bodine, 72 F.3d at 400 (no proximate causation because
resident’s reaction is superseding cause); see also Brief of
Appellants at 38-41 (citing Bodine and cases following it to
argue against proximate cause solely on the ground that
Cornish’s knowing attack on Officers was a superseding cause);
J.A. 53 (district court holding that Officers cannot be held
liable for Cornish’s death if Cornish’s reaction qualifies as a
superseding cause). Because violence in the wake of an
unannounced home entry is eminently foreseeable, see Hudson v.
Michigan, 547 U.S. 586, 594 (2006) (explaining rationale for
knock-and-announce rule), the standard for proximate cause is
met unless the Officers can show the existence of a superseding
cause that will insulate them from liability.

29
the police. Indeed, thanks to the knock-and-announce rule, he

was entitled to and likely did assume the opposite: that if

somebody was coming crashing into his home at 4:30 a.m. without

knocking and announcing, it must be someone other than the

police.

Certainly there is nothing about the facts of this case

that would have deprived Cornish of the right to rest on that

presumption. Cornish was not some drug kingpin who might be on

notice as to the possibility of an unannounced police raid. On

the contrary, Cornish enjoyed a cordial relationship with the

police; one of the Officers testified that while on duty he

would occasionally stop by Cornish’s building and share a Pepsi

with Cornish on the front porch. And as noted above, as to

Cornish, this was a case about trace amounts of marijuana found

in a trash rip, which ultimately led to the seizure of a small

quantity of marijuana in Cornish’s apartment — not exactly the

stuff of no-knock nighttime SWAT raids.

The point, to be clear, is not to take issue here with the

Officers’ decision to execute a search warrant based on

marijuana traces by way of a military-style nighttime raid. All

that matters for this case is that Cornish could have had no

reason to expect such a raid, and that the jury understood as

much. As a Cambridge police officer testified, the department

typically does not execute narcotics warrants at 4:30 a.m., and

30
in cases involving marijuana use, typically does not seek

warrants at all. J.A. 812–13. Add to that the fact on which

the jury verdict rests — that the Officers failed to knock and

announce their presence before breaking down Cornish’s door, as

they were required to do by law — and the jury very reasonably

could have concluded that Cornish would have presumed that the

intruders in his home were not the police.

Second, the events in question unfolded so quickly, and

under conditions so conducive to confusion and mistake, that a

jury readily could find that Cornish never had a chance to

reassess the situation and properly identify the Officers. This

was no drawn-out encounter between police and suspect, giving

each the opportunity fully to appraise the situation, as in many

of the cases cited by the majority. 4 According to Officer

testimony, this encounter lasted for all of one minute — one

minute, possibly less, between the first bang on Cornish’s door

and the final shots. J.A. 884. Cornish, who was in his bedroom

and presumably asleep, had one minute to wake up, register and

4
See, e.g., James v. Chavez, 511 F. App’x 742, 743–45 (10th
Cir. 2013) (resident who responded to officer approaching his
home by waving a knife and forcing his daughter to stay inside
the house is ultimately killed in standoff with SWAT team);
Estate of Sowards v. City of Trenton, 125 F. App’x 31, 33–34
(6th Cir. 2005) (officers chased resident to the door of his
apartment, interacted with resident at door; resident stated
that he had a “surprise” for the officers and pointed a gun at
them when they entered).

31
assess the commotion, decide how to respond, and then, as the

majority describes, find a sheathed knife and cross the

approximately 16 feet between his bedroom and the area near the

front door, where he was shot. Even under the best of

circumstances, that does not leave a lot of time to discern and

comprehend all of the details.

And these were decidedly not the best of circumstances. It

was, for one thing, the middle of the night. The jury certainly

could have inferred that Cornish, likely awakened from sleep,

would have been startled, confused, and frightened. Though the

Officers testified that the living room through which Cornish

traveled was “illuminated,” to use the majority’s word, by a

small tube-style television left on when Cornish retired, it was

dark enough that at least one of the Officers took the

opportunity to turn on a flashlight after the shooting, and

another testified that he may have been using the light attached

to his gun. And the Officers, by their own testimony, were

moving rapidly and shouting loudly, making the situation

volatile as well as confusing.

Those are precisely the circumstances — “tense, uncertain,

and rapidly evolving” — under which we give police officers the

benefit of the doubt when it comes to their perceptions.

Graham v. Connor, 490 U.S. 386, 396–97 (1989). In evaluating

the use of force by officers, we make allowances for the fact

32
that such situations can be exceptionally confusing and fast-

moving, with officers required to make split-second judgments

under suboptimal conditions. See id.; Waterman v. Batton, 393

F.3d 471, 478 (4th Cir. 2005); Anderson v. Russell, 247 F.3d

125, 130–31 (4th Cir. 2001); Elliott v. Leavitt, 99 F.3d 640,

642 (4th Cir. 1996). In the context of a rapid-deployment and

high-pressure nighttime raid, police officers cannot be held to

“the 20/20 vision of hindsight,” Graham, 490 U.S. at 396, and

must instead be judged under a more forgiving standard.

Indeed, the Officers here argued as much to the jury, in

defending against Kane’s claim for excessive force. According

to the Officers, for instance, events in the apartment were so

fast-moving and conditions for observation so poor that they

could not discern — nor be expected to discern — that what

Cornish held in his hand was a knife in a sheath and not, as

they thought at the time, an unsheathed knife, or perhaps a

machete or a pipe. The jury apparently credited that account,

and decided the excessive force claim against Kane. There is no

reason I can think of that the same jury could not apply the

same standard to Cornish — who, unlike the Officers, had the

benefit of neither training nor advance warning when he found

himself caught up in the tumult of a military-style nighttime

raid — and assume that Cornish, too, would be unable to exercise

33
the powers of careful discernment that could be expected under

less fraught circumstances.

Against all of this, the majority posits that the Officers’

SWAT apparel necessarily would have alerted Cornish to their

identity. 5 But we are not talking, of course, about the

traditional and easily recognizable blue police uniform. These

Officers were clad all in black, for stealth rather than ease of

identification. The Officer who confronted and shot Cornish —

of the four, the Officer whose appearance is most crucial here —

was not in fact dressed in SWAT gear, J.A. 893, but rather a

black sweatshirt or t-shirt, and his badge was the only police

marking he testified to wearing, J.A. 593. One of the other

Officers testified that he, too, was without a helmet, and

instead wore a baseball cap, as well as a black sweatshirt with

a police “emblem” on the left breast and a vest with a “police

patch” on the right. J.A. 554. Another testified that in

addition to a military-style helmet and goggles, he wore a vest

that somewhere displayed the word “police,” J.A. 893, from which

5
The majority also points out that the first district court
to consider this case on the pleadings concluded that Cornish
“must have known that the men in his apartment were police
officers.” But surely it is at least as significant that the
second district court — the one that presided over the four-day
trial in this case and heard all of the evidence and testimony —
came to the opposite conclusion. See Kane v. Lewis, 989 F.
Supp. 2d 468, 469–70 (D. Md. 2013).

34
the jury could infer that he had in mind the same “police

patch.” And the single Officer who testified that he was

wearing a vest with the word “police” in “bright white letters”

was, by his own account, out of Cornish’s sight during the

entire encounter. J.A. 646. From this evidence, a reasonable

jury could have concluded that the Officers had not met their

burden of proving that, in the heat of the moment and by the

light of a television, their patches or badges or any other

identifying features would have been visible and recognizable to

Cornish.

Nor, it bears noting, should it be at all surprising that

police officers might find it difficult to convey their identity

in the confusion that inevitably follows an unannounced home

entry. That is precisely the point of the knock-and-announce

rule, which recognizes that “an unannounced entry may provoke

violence in supposed self-defense by the surprised resident.”

Hudson v. Michigan, 547 U.S. 586, 594 (2006). There is a reason

we have a knock-and-announce rule and not, say, a wear-a-badge

rule: Once officers breach the door unannounced, as the tragic

facts of this case make clear, it is too late to count on badges

or other forms of notice to prevent the surprised and violent

conflict with which the rule is concerned.

Third and finally, there is the credibility of the

Officers’ trial account, in which Cornish knowingly advanced on

35
the Officers. It is the province of the jury, of course, to

weigh the credibility of trial witnesses. See United States v.

Dinkins, 691 F.3d 358, 387 (4th Cir. 2012). And here, that

credibility was very much at issue during the trial, given that

the Officers never conceded the knock-and-announce violation

found by the jury. For instance, the Officers testified that

they gave Cornish a form of notice by forcing open the exterior

door to his building with a 25-pound battering ram, generating

noise he would have heard from his upstairs apartment. On the

other hand, the exterior door showed no visible signs of any

damage, and Cornish’s downstairs neighbors testified that they

never heard any noise at that door. The district court

specifically instructed the jury that it could consider this

evidence for purposes of “judging [] the credibility” of the

Officers, J.A. 1062, and we should assume, drawing all

inferences in Kane’s favor, that it did exactly that.

A reasonable jury also could have considered the inherent

plausibility of an account that had Cornish knowingly advancing

on a heavily armed SWAT team while carrying a knife still in its

sheath. This, too, was a major focus of the trial, with Kane

arguing throughout that imputing awareness of the Officers’

identity to Cornish simply “defies common sense.” J.A. 972.

The jury knew that Cornish had a cooperative and friendly

relationship with the police, that he suffered from no mental

36
infirmity, and that he was not under the influence of drugs or

alcohol on the night he died, and it was free to infer that he

would have had no reason to take on the Officers had he known

their identity.

To be fair, the jury also had the benefit of the Officers’

response to Kane’s argument from common sense: “[P]eople do []

irrational things.” J.A. 996. But it was not incumbent on the

jury to find that explanation compelling. Viewed in the light

most favorable to Kane, the evidence at trial allowed for a

different conclusion, which a reasonable jury might find more

plausible: that because the Officers failed to knock and

announce before entering Cornish’s apartment at 4:30 a.m., as

required by law, Cornish died before he could identify the

intruders he was confronting as police officers.

That precise sequence of events — a surprised and defensive

reaction by a resident, to which the police respond with force —

is exactly what the knock-and-announce rule is intended to

prevent. Hudson, 547 U.S. at 594; see also McDonald v. United

States, 335 U.S. 451, 458–61 (1948) (Jackson, J., concurring).

To my mind, the jury’s verdict in this case represents a

substantially supported and eminently reasonable effort to hold

police officers accountable for an unnecessary death — one that

could have been avoided had the Officers complied with their

Fourth Amendment obligation to announce themselves before

37
breaking into Cornish’s apartment in the middle of the night. I

would not disturb the jury’s verdict in this case, and would

affirm the district court’s judgment in full.

38