Littleton Ex Rel. Estate of Boggs v. Swonger

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1800

ALITA LITTLETON, Individually; as the next best friend of
and personal Representative of the Estate of Gregory Boggs,
Jr.; LANAYA BORDEN,

Plaintiffs – Appellants,

v.

JORDAN SWONGER, Officer, in both his official and individual
capacities; PRINCE GEORGE’S COUNTY, MD,

Defendants – Appellees,

and

MELVIN HIGH,

Defendant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:07-cv-01409-PJM)

Argued: October 23, 2012 Decided: December 28, 2012

Before TRAXLER, Chief Judge, and WYNN and THACKER, Circuit
Judges.

Affirmed in part, reversed in part, and remanded by unpublished
opinion. Judge Wynn wrote the opinion, in which Chief Judge
Traxler and Judge Thacker joined.
ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER,
Washington, D.C., for Appellants. Shelley Lynn Johnson, PRINCE
GEORGE'S COUNTY OFFICE OF LAW, Upper Marlboro, Maryland, for
Appellees. ON BRIEF: Ted J. Williams, Washington, D.C., for
Appellants. M. Andree Green, Acting County Attorney, William A.
Snoddy, Deputy County Attorney, PRINCE GEORGE'S COUNTY OFFICE OF
LAW, Upper Marlboro, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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WYNN, Circuit Judge:

This appeal arises from an incident in which Prince

George’s County, Maryland Police Officer Jordan Swonger

(“Swonger”) fatally shot Gregory Boggs, Jr. (“Boggs”). Boggs’s

mother, Alita Littleton (“Littleton”), and Boggs’s girlfriend,

Lanaya Borden (“Borden”), sued Swonger; Chief of Police Melvin

High (“Chief High”); and Prince George’s County. The district

court dismissed the claims against Chief High and granted

summary judgment for Prince George’s County. The claims against

Swonger proceeded to trial in which the jury deadlocked and the

district court declared a mistrial. Thereafter, Swonger renewed

his motion for summary judgment and the district court granted

it, determining that Swonger had acted reasonably. Because a

genuine factual dispute exists about whether it was objectively

reasonable for Swonger to use deadly force, we hold that the

district court erred in granting summary judgment in Swonger’s

favor and remand this case for a retrial on the excessive force

and state law claims.

I.

A.

After midnight on September 18, 2006, Swonger responded to

a reported assault. At 1:44 a.m., Swonger radioed in to police

dispatch to say that he had arrived at the scene and had spotted

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two people there, Boggs and Borden. Less than two minutes

later, Swonger fatally shot Boggs. Swonger and Borden were the

only eyewitnesses to the shooting, and they gave dramatically

different accounts of the events.

Borden gave the following testimony at trial: She and Boggs

were standing on the sidewalk when she heard a car door slam and

she noticed Swonger walking towards them with “his gun pointed

out at [them].” J.A. 198. Borden “was standing partially in

front of [Boggs,]” with her “right back . . . to his left

chest.” J.A. 405. Boggs’s left arm was around her neck.

Swonger ordered Borden and Boggs to put their hands up but as

she and Boggs were “attempting to comply,” Appellant’s Br. at 5,

Swonger shot Boggs in the right midline of his chest. Boggs hit

the back of Borden’s legs as he fell to the ground. Borden

knelt down to help Boggs and did not see anything in his hands.

Borden’s bloodstained pants were introduced as evidence at

trial.

In contrast, Swonger testified that: when he arrived,

Borden was on the ground and Boggs was standing above her with

his hands “either around her throat or holding her shoulders.”

J.A. 334–35. Upon noticing Swonger, Boggs began walking Borden

in the direction of a car parked nearby. Swonger moved to

position himself between the couple and the car, ordering them

to stop, sit, and put their hands up. Swonger could not see

4
Boggs’s right hand because Borden was standing in front of

Boggs, when Swonger saw Boggs push Borden down, reach behind

himself into his waistband with his right hand, and pull out an

object. Believing Boggs had a weapon, Swonger fired at him.

Swonger went up to Boggs’s body and brushed a wallet out of his

right hand. An evidence technician recovered a wallet from the

scene.

B.

On May 29, 2007, Littleton, individually and as the

administrator of Boggs’s estate, and Borden (“Plaintiffs”)

brought this action against Prince George’s County, Chief High,

and Swonger, asserting: (I) claims under Maryland’s Survival

Act; (II) claims under Maryland’s Wrongful Death Act; (III)

excessive force/police brutality; (IV) assault and battery; (V)

claims under 42 U.S.C. § 1983 for violations of the Fourth and

Fifth Amendments to the U.S. Constitution; (VI) negligent

training and supervision; (VII) intentional/negligent infliction

of emotional distress; and (VIII) violations of Articles 24 and

26 of the Maryland Declaration of Rights.

After Chief High successfully moved to dismiss all claims

against him, Prince George’s County and Swonger moved for

summary judgment, asserting that: Swonger was protected from

liability by qualified immunity; his use of force was

reasonable; and any unreasonable use of force was not the policy

5
of Prince George’s County. The district court granted summary

judgment for Prince George’s County on all counts and for

Swonger on the assault and battery count and the
1
intentional/negligent infliction count as to Borden.

Following a trial on the remaining claims against Swonger,

the jury deadlocked and the district court declared a mistrial.

Thereafter, Swonger renewed his motion for summary judgment,

which the district court granted, dismissing all claims against

him. Plaintiffs appeal the initial and post-trial grants of

summary judgment in favor of Swonger and Prince George’s County,

contending that there is a genuine issue of material fact as to

whether it was objectively reasonable under the circumstances

for Swonger to use deadly force against Boggs.

II.

We review the district court’s grant of summary judgment de

novo. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119

(4th Cir. 2011). Summary judgment is appropriate when “there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A court reviewing a motion for summary judgment is not

1
Negligent infliction of emotional distress is not a
cognizable claim under Maryland law. E.g., Abrams v. City of
Rockville, 596 A.2d 116, 118 (Md. Ct. Spec. App. 1991).

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“to weigh the evidence, to count how many affidavits favor the

plaintiff and how many oppose him, or to disregard stories that

seem hard to believe.” Gray v. Spillman, 925 F.2d 90, 95 (4th

Cir. 1991) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249

(1986)). Instead, courts must view the evidence in the light

most favorable to the nonmoving party, drawing all reasonable

inferences in her favor, Liberty Lobby, 477 U.S. at 255, and

grant summary judgment only “[i]f the nonmovant’s evidence fails

to put a material fact in dispute or is not significantly

probative,” Gray, 925 F.2d at 95 (citing Liberty Lobby, 477 U.S.

at 249–50).

III.

A.

Under Counts III and V, Littleton asserted that Swonger

used unconstitutionally excessive force. A claim that an

officer used excessive force during an apprehension or arrest is

“analyzed under the Fourth Amendment and its ‘reasonableness’

standard”—that is, the use of force is not excessive if the

officer’s actions are “objectively reasonable” under the

circumstances. Graham v. Connor, 490 U.S. 386, 395–97 (1989).

Littleton also asserted that Swonger violated Articles 24 and 26

of the Maryland Declaration of Rights (Count VIII). Because

Articles 24 and 26 are construed in pari materia with the Fourth

7
and Fourteenth Amendments of the U.S. Constitution, the district

court assessed Littleton’s state constitutional claims under the

same objective reasonableness standard. Carter v. State, 788

A.2d 646, 652 (Md. 2002) (Article 26); Dua v. Comcast Cable of

Md., Inc., 805 A.2d 1061, 1070 (Md. 2002) (Article 24); Muse v.

State, 807 A.2d 113, 117 n.7 (Md. Ct. Spec. App. 2002) (Article

26).

The district court determined “as a matter of law that

Swonger’s decision to use deadly force was objectively

reasonable under the circumstances and that Boggs’ Fourth

Amendment right was not violated.” Littleton v. Prince George's

Cnty., Md., 797 F. Supp. 2d 648, 657 (D. Md. 2011). Further,

the district court held that even if Swonger had violated

Boggs’s constitutional rights, he was entitled to qualified

immunity. 2

Under the doctrine of qualified immunity, a law enforcement

officer performing a discretionary function is shielded from

liability for civil damages unless his conduct (1) violated a

constitutional right, and (2) “it would be clear to an

objectively reasonable officer that his conduct violated that

right.” Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002).

2
As the district court noted, qualified immunity was not a
defense to Littleton’s claims under the Maryland Constitution.
See, e.g., Okwa v. Harper, 757 A.2d 118, 140 (Md. 2000).

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The district court determined that it was reasonable for an

officer in Swonger’s position to “have believed that Boggs posed

a serious deadly threat” warranting the use of deadly force to

protect himself or Borden. Littleton, 797 F. Supp. 2d at 658.

Because the district court concluded that Swonger’s conduct

was objectively reasonable under the circumstances, the court

ruled that Plaintiffs’ state law claims also failed. Littleton

had brought claims under Maryland’s Survival Act and Wrongful

Death Act (Counts I and II), both of which required establishing
3
that Swonger’s conduct was wrongful. The district court stated

that because Swonger’s use of force was reasonable, “Littleton

[could not] show that Swonger [had] committed a wrongful act

that would entitle her to recover for wrongful death or

survivorship.” Littleton, 797 F. Supp. 2d at 658.

Regarding Littleton’s assault and battery claim (Count IV)

and Borden’s intentional infliction of emotional distress claim

(Count VII), Maryland law provides that “a law enforcement

officer is not liable for assault and battery or other tortious

conduct performed during the course of his official duties

3
The Survival Act permits the personal representative of an
estate to bring an action that the decedent could have brought
“against a tort-feasor for a wrong which resulted in the death
of the decedent.” Md. Code Ann., Est. & Trusts § 7-401(y)
(emphasis added). The Wrongful Death Act permits an individual
to bring an action against a person “whose wrongful acts caused
the death of another.” Md. Code Ann., Cts. & Jud. Proc. § 3-
902(a) (emphasis added).

9
unless he acted with actual malice toward the plaintiff, i.e.

with ill will, improper motivation or evil purpose.” Goehring

v. United States, 870 F. Supp. 106, 108 (D. Md. 1994) (internal

quotations omitted). Further, to establish intentional

infliction of emotional distress, a plaintiff must show that the

defendant intentionally or recklessly engaged in extreme or

outrageous conduct that caused severe emotional distress.

Valderrama v. Honeywell Tech. Solutions, Inc., 473 F. Supp. 2d

658, 666 n.20 (D. Md. 2007). The district court concluded that

because Swonger’s conduct was objectively reasonable, it was

neither malicious nor outrageous.

In sum, for each of Plaintiffs’ claims against Swonger, the

district court granted summary judgment based on its

determination that there was no genuine issue of material fact

as to whether Swonger’s use of deadly force was objectively

reasonable. Therefore, the issue central to this appeal, and

the question we now turn to, is whether the district erred in

determining that no genuine issue of fact exists as to the

objective reasonableness of Swonger’s use of deadly force.

B.

To determine whether a genuine issue of fact exists as to

whether Swonger’s use of deadly force was objectively

reasonable, we must consider the circumstances Swonger

confronted at the time of the shooting as described by the only

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two eyewitnesses at trial—Swonger and Borden. See Graham, 490

U.S. at 397.

In his testimony, Swonger stated that he believed Boggs was

reaching for a weapon. “A police officer may use deadly force

when the officer has sound reason to believe that a suspect

poses a threat of serious physical harm to the officer or

others.” Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996)

(citing Tennessee v. Garner, 471 U.S. 1 (1985)). We evaluate

the facts “from the perspective of a reasonable officer on the

scene,” Waterman v. Batton, 393 F.3d 471, 477 (4th Cir. 2005),

recognizing that “police officers are often forced to make

split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving,” Graham, 490 U.S. at 397.

Determining the reasonableness of an officer’s use of force

“requires careful attention to the facts and circumstances of

each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.”

Graham, 490 U.S. at 396 (citing Garner, 471 U.S. at 8–9).

Here, the district court concluded that Swonger’s use of

deadly force was objectively reasonable because Swonger thought

“that Boggs was reaching for a weapon and he reasonably feared

Boggs could inflict serious physical harm on him or on Borden.”

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Littleton, 797 F. Supp. 2d at 656–57. In the motion proceeding

before trial, the district court acknowledged that Borden gave a

very different account of the events, stating, “I can understand

that small discrepancies as the Anderson case points out always

would permit the officer’s testimony to prevail, but here the

divergence is radical. I mean, if [Borden’s version is]

believed, this officer totally unprovoked . . . shot these

people.” J.A. 175. After hearing the trial testimony, the

district court concluded that because Borden “was not in a

position to see what was visible to Swonger,” her testimony

“d[id] not create a genuine issue of material fact as to whether

Swonger had a reasonable basis to believe that Boggs had a

weapon and was going to use it.” Littleton, 797 F. Supp. 2d at

656. In light of the discrepancies between Borden’s testimony

and Swonger’s testimony, we cannot agree.

In Anderson v. Russell, this Court stated that “minor

discrepancies in testimony do not create a material issue of

fact in an excessive force claim, particularly when . . . the

witness views the event from a worse vantage point than that of

the officers.” 247 F.3d 125, 130–31 (4th Cir. 2001). Unlike

Anderson, however, the testimony offered here by Borden, if

believed by a jury, established that Borden’s vantage point was

irrelevant to at least two significant discrepancies between her

and Swonger’s testimonies: (1) whether Boggs pushed Borden down

12
as he reached behind himself; and (2) whether Boggs repeatedly

ignored Swonger’s commands and appeared to be trying to escape.

Regarding the first discrepancy, Swonger testified that he

shot Boggs when he saw Boggs lower his center of gravity and—“in

one motion”—push Borden to the ground and reach behind his

(Boggs’s) back. J.A. 349. According to Swonger, when he fired

at Boggs, Borden was “well on her way to the ground . . . below

[Boggs’s] waist level, on her way to the ground off to the

side.” J.A. 350–51.

In contrast, Borden testified that Boggs never pushed her

and that she was standing in front of Boggs when Swonger shot

him. Clearly, Borden did not need to see Boggs to know whether

he pushed her down. But the district court deemed this dispute

about whether Borden was pushed immaterial, stating that

“[w]hether Borden was pushed to the ground or whether she was

still standing in front of Boggs, she still was not in a

position to see what was visible to Swonger right before he

discharged his weapon.” Littleton, 797 F. Supp. 2d at 656.

Although Borden’s testimony does not directly contradict

Swonger’s assertion that Boggs reached behind himself, her

account conflicts with the entirety of what Swonger allegedly

saw Boggs do. Swonger had not received any information

suggesting Boggs was armed, such as observing a bulge at Boggs’s

waistline. Moreover, Boggs had not verbally threatened Swonger.

13
Rather, the threat Swonger perceived was based on Boggs’s

physical conduct—the motion of lowering his center of gravity,

pushing Borden down, and reaching behind himself. Borden’s

testimony puts in dispute whether Boggs ever assumed this

allegedly threatening posture.

Furthermore, the district court incorrectly discredited

Borden’s testimony about whether she was standing in front of

Boggs. Specifically, the district court found that Borden’s

statement about “her position at the time the shot was fired

[was] inconsistent with forensic evidence, which showed that

Boggs was hit in the midline of his right chest. If, as she

said, Borden was standing in front of Boggs, the likelihood is

that she and not Boggs would have been hit.” Id. The district

court’s assessment of Borden’s testimony conflicts with the

record. Borden testified that she was “standing partially in

front of [Boggs]”—that her “right back was to his left chest”—

not that she was standing directly in front of Boggs. J.A. 405.

Furthermore, physical evidence supports Borden’s version, i.e.,

that she was standing in front of Boggs when he was shot: his

blood stained the back of her pants.

Second, Borden’s testimony conflicts with Swonger’s account

of the events leading up to the shooting. The district court

emphasized that, according to Swonger, when he arrived he saw

“two people engaged in a violent encounter.” Littleton, 797 F.

14
Supp. 2d at 652. When Boggs noticed Swonger, Boggs picked

Borden up and attempted to drag her to a nearby car. Id.

Swonger testified that he ordered Boggs to put Borden down and

show his hands, but that Boggs ignored him and kept moving away.

According to Borden, she and Boggs were standing and talking

when Swonger got out of his car, and they did not move as

Swonger approached. Even assuming that Swonger observed a

tussle before he got out of his car, Borden’s testimony calls

into question whether Boggs repeatedly ignored Swonger’s verbal

commands and casts doubt on whether the atmosphere was volatile.

Based on Borden’s version, a jury reasonably could find that

Boggs did not appear to be violent, resisting, or attempting to

flee in the moments leading up to the shooting.

In sum, the trial record reveals disputed facts material to

whether a reasonable officer in Swonger’s position would have

perceived that Boggs posed a “threat of serious physical harm”

justifying Swonger’s use of deadly force. See Elliott, 99 F.3d

at 642. Accordingly, we hold that the district court erred in

granting summary judgment for Swonger.

IV.

Finally, we turn to the district court’s grant of summary

judgment for Prince George’s County. Plaintiffs asserted that

Prince George’s County was liable for Swonger’s alleged assault

15
and battery (Count IV). Maryland counties are immune from

claims seeking to impose liability for the intentional torts of

county employees committed while the employee was acting within

the scope of his employment. Gray-Hopkins v. Prince George’s

Cnty., Md., 309 F.3d 224, 234 (4th Cir. 2002). Because Swonger

was on duty and responding to dispatch at the time of the

shooting, there is no question that he was acting within the

scope of his employment as a Prince George’s County police

officer. Accordingly, we uphold the district court’s

determination that Prince George’s County was immune from

Plaintiffs’ assault and battery claim.

Plaintiffs also alleged that Prince George’s County was

liable for Swonger’s use of excessive force in violation of the

federal constitution under Section 1983 (Count III). A county’s

liability under Section 1983 is limited to constitutional

violations caused by “official policy or custom.” Lytle v.

Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (citations omitted).

Policy or custom can be

written ordinances and regulations, . . . affirmative
decisions of individual policymaking officials, . . .
omissions on the part of policymaking officials that
manifest deliberate indifference to the rights of
citizens, . . . [and] practice[s] [] so persistent and
widespread . . . as to constitute a custom or usage
with the force of law.

16
Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (internal

quotations and citations omitted). Similarly, Plaintiffs

alleged that the Prince George’s County was liable for negligent

training and supervision (Count VI). Establishing a county’s

supervisory liability under Section 1983 requires showing that

the county had actual or constructive knowledge that a

subordinate’s conduct posed “a pervasive and unreasonable risk

of constitutional injury to citizens like the plaintiff.” Shaw

v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal quotations

and citations omitted).

Here, Plaintiffs failed to offer any evidence of a county

policy or custom, deficient training, or knowledge that Swonger

engaged in conduct that posed a risk of constitutional injury.

Rather, Plaintiffs merely made general assertions about Prince

George’s County’s failure to train and supervise. See J.A. 85,

171. Accordingly, the district court did not err in granting

summary judgment for Prince George’s County on Plaintiffs’

federal constitutional and negligent training claims.

In Count VIII, Plaintiffs asserted Prince George’s County

was liable for Swonger’s alleged state constitutional violation

under a theory of respondeat superior. Under Maryland law,

governmental entities do not enjoy immunity from “respondeat

superior liability for civil damages resulting from State

Constitutional violations committed by their agents and

17
employees within the scope of the employment.” DiPino v. Davis,

729 A.2d 354, 372 (Md. 1999). Because we reverse the district

court’s grant of summary judgment for Swonger on Plaintiffs’

state constitutional claim, we concordantly find that the

district court erred in granting summary judgment for Prince

George’s County on this claim.

V.

Whether Plaintiffs will ultimately prevail upon retrial

remains an open question. But at this stage of the legal

process, the record indicates a genuine dispute exists regarding

the reasonableness of Swonger’s conduct. That dispute is for a

jury to decide, not a trial court on summary judgment.

Therefore, we hold that the district court erred in granting

summary judgment in Swonger’s favor and remand this case for a

trial of Plaintiffs’ excessive force and state law claims

against Swonger and respondeat superior state constitutional

claim against Prince George’s County.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

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