Burgess v. Howard County MD

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT L. BURGESS,
Plaintiff-Appellant,

v.

HOWARD COUNTY, MARYLAND; RICKY
LEE, Officer, Individually and in his
official capacity; STEVEN STANTON,
Officer, Individually and in his
official capacity,
Defendants-Appellees, No. 97-2628

and

RICKY JOHNSON, Officer, Individually
and in his official capacity; JOHN
DOE #1, Officer, Individually and in
his official capacity; JOHN DOE #2,
Officer, Individually and in his
official capacity,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-97-2378-S)

Submitted: July 14, 1998

Decided: August 4, 1998

Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

Matthew E. Bennett, David F. Albright, Jr., HORN & BENNETT,
P.A., Baltimore, Maryland, for Appellant. Barbara M. Cook, Howard
County Solicitor, Rebecca A. Laws, Senior Assistant County Solici-
tor, Ellicott City, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Robert L. Burgess ("Burgess") appeals the district court's grant of
summary judgment to Howard County, Maryland and two members
of the Howard County Police Department (collectively the "defen-
dants") in Burgess' suit against them for alleged violations of his
rights under the United States Constitution, as well as its dismissal of
certain state law claims. Burgess sued the defendants pursuant to 42
U.S.C. §§ 1983, 1985, and added to those federal claims state law
negligence, civil conspiracy, false imprisonment, battery, and defama-
tion causes of action. The district court, however, found that Burgess
raised "no triable dispute" with regard to his federal claims and
granted the defendants' motion for summary judgment. Accordingly,
the district court also dismissed the state law claims on the ground
that it no longer had jurisdiction over them. Because we find no error
in these determinations, we affirm.

I.

Burgess' suit against the defendants arose out of an incident that
occurred on August 26, 1994 in Columbia, Maryland. On that eve-
ning, the Howard County, Maryland, Police Department (the "Depart-
ment"), which has jurisdiction over Columbia, received an
anonymous tip that Philip Wise, known to the Department as "Philly

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Dog" was, in conjunction with another individual, selling drugs out-
side the Shadow Oaks Condominiums. The Department dispatched
Officers Lee and Stanton, who were in plain clothes, to investigate.
Upon arrival at the scene, the officers observed two black males,
whom they later identified as Burgess and Dennis Smith ("Smith"),
standing on a bicycle path adjacent to the condominium parking lot.
The two officers began surveillance and over the next thirty minutes,
observed behavior that both officers, one of whom had extensive
experience in narcotics work, thought to be consistent with the sale
of illegal drugs.1

After this period of surveillance, the officers decided to approach
the two suspects. Because the officers thought one of the suspects was
"Philly Dog," who was known to them to be armed, Officer Lee drew
his handgun as they approached the suspects. Lee then ordered the
suspects to "freeze," and immediately thereafter accidentally dis-
charged his handgun in a downward direction. The bullet from this
discharge struck the pavement between Lee and the suspects, and a
fragment of the bullet struck Burgess in the lower part of his right leg.
In addition, another fragment of the bullet struck Smith in the hand.

The officers did not arrest Burgess or Smith, but searched both for
weapons while waiting for medical and supervisory personnel to
arrive. Although Burgess was taken to a hospital, the wound to his leg
did not require treatment. Burgess subsequently brought this action
against Howard County and Officers Lee and Stanton. The court
found that Burgess presented no triable issues with regard to his fed-
eral claims and granted summary judgment to the defendants. In addi-
tion, the district court dismissed the state law claims for lack of
jurisdiction. This appeal followed.
_________________________________________________________________

1 According to the police report, other individuals would periodically
approach the two suspects, at which time one of the suspects would walk
behind an adjacent building and out of sight. The suspect would return
to the others in approximately fifteen minutes, and both suspects would
then walk out of view. See J.A. at 78.

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II.

Burgess' federal claims, brought pursuant to 42 U.S.C. §§ 1983,
1985, were premised on Burgess' contention that Lee and Stanton
violated his constitutional rights. However, Burgess' complaint did
not state precisely what rights were at issue or how they were vio-
lated. As the defendants stated below, Burgess' federal claims were
"at best ambiguously stated,"2 and indeed reference only the "rights,
privileges, and immunities provided by the Constitution and laws of
the United States including but not limited to, the right of privacy, the
right to bodily security, and the Fourteenth Amendment,"3 as well as
"the equal protection of the laws . . . equal privileges and immunities
under the laws, and other rights provided under the Constitution."4 In
granting summary judgment, the district court found that the facts
alleged by Burgess amounted only to claims that the actions of Lee
and Stanton were an unreasonable seizure in violation of the Fourth
Amendment and that the same actions "violate[d] due process by
shocking the judicial conscience."5 Based on the facts presented, the
court found "no violation of any clearly established federal constitu-
tional right" and therefore determined that the defendants were enti-
tled to qualified immunity from suit and entered summary judgment
accordingly.6 We agree.

From a reading of Burgess' brief, we can discern five separate
arguments: four regarding violations of clearly established Fourth
Amendment rights and one regarding the district court's dismissal of
Burgess' state law claims. Burgess alleges that three separate unlaw-
ful seizures took place: (1) When Lee and Stanton decided to
approach and detain Burgess and Smith on suspicion of selling drugs;
(2) When Lee drew his handgun as he and Stanton approached Bur-
gess and Smith; and (3) When Lee's handgun discharged, wounding
Burgess and Smith. Burgess also argues that the defendants violated
his Fourth Amendment rights by searching him after he was wounded
_________________________________________________________________
2 J.A. at 23.
3 Id. at 8.
4 Id. at 9.
5 Id. at 108.
6 Id. (citing Wagner v. Wheeler, 13 F.3d 86 (4th Cir. 1993)).

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and alleges that the court erred in dismissing his state law claims
against the defendants. We consider each argument in turn.

First, we hold that Lee and Stanton's initial seizure of Burgess--
approaching Burgess and Smith and ordering them to"freeze"--did
not violate a clearly established right under the Fourth Amendment.
Terry v. Ohio7 and United States v. Sokolow8 authorize law enforce-
ment to "stop and briefly detain a person for investigative purposes
if the officer has a reasonable suspicion supported by articulable facts
that criminal activity `may be afoot,' even if the officer lacks probable
cause."9 In United States v. Perrin,10 we upheld the constitutionality
of such a stop based on an anonymous tip on the ground that the tip,
coupled with the observations of the officers in question, created a
"`totality of the circumstances--[a] whole picture'"11 that gave rise to
a reasonable and articulable suspicion that criminal activity was tak-
ing place.

We are satisfied that Officers Lee and Stanton faced a set of factual
circumstances that clearly gave rise to a reasonable suspicion that
Burgess and Smith were selling illegal drugs. The anonymous tip,
together with the officers' observations of Burgess' and Smith's
activities, constitute a factual picture that is plainly sufficient to lead
a reasonable officer to suspect that illegal conduct was taking place.
Therefore, we hold that the officers' seizure of Burgess and Smith
was valid and that it did not constitute a violation of any clearly estab-
lished federal constitutional right.

Next, we consider whether Lee's decision to draw his handgun in
the process of seizing Burgess and Smith was reasonable. Based on
our holding in Foote v. Dunagan,12 we conclude it was. In Foote, we
_________________________________________________________________
7 392 U.S. 1 (1968).
8 490 U.S. 1 (1989).
9 United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio,
392 U.S. 1, 30 (1968)).
10 45 F.3d 869 (4th Cir. 1995).
11 United States v. Perrin, 45 F.3d 869, 872 (4th Cir. 1995) (quoting
United States v. Cortez, 449 U.S. 411, 417 (1981)).
12 33 F.3d 445 (4th Cir. 1994).

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deemed reasonable an officer's drawing of a gun during an investiga-
tive stop on the ground that "[a]n officer is`authorized to take such
steps as [are] reasonably necessary to protect[his] personal safety and
to maintain the status quo during the course of[a Terry] stop.'"13

In the instant case, there is no evidence in the record to controvert
Lee's testimony that he reasonably believed it was necessary to draw
his handgun in order to protect himself. Like the officer in Foote, Lee
had been informed that the suspect he believed he was approaching
was likely to be armed. And even without such information, an officer
who approaches two potential drug dealers at night in a high crime
area does not act unreasonably when he draws his gun, points its
downward, and prepares to protect himself if necessary.

With regard to the discharge of Lee's gun, the district court found
the discharge was clearly accidental. Based upon a review of the
facts, we affirm that finding. First, we note that the bullet from the
discharge never struck Burgess. Rather, a fragment of that bullet,
which ricocheted off the pavement between Burgess and the officers,
struck Burgess in the leg. In addition, aside from Burgess' own specu-
lative testimony, the evidence in the record clearly indicates that Lee
discharged his handgun while pointing it downward, not in the direc-
tion of Burgess and Smith.14 Therefore, we agree that the discharge
of Lee's handgun was indeed accidental.

Accordingly, we affirm the district court's conclusion that Lee's
discharge of the handgun did not violate any clearly established right
under the Fourth Amendment. As we held in Rucker v. Harford County,15
for there to be an illegal seizure for Fourth Amendment purposes,
there must be an intent to seize on the part of the officer in question.
_________________________________________________________________
13 Foote v. Dunagan, 33 F.3d 445, 448 (4th Cir. 1994) (quoting United
States v. Hensley, 469 U.S. 221, 235 (1985)).
14 See, e.g., J.A. at 43 (report of Peter D'Antuono, who investigated the
incident, stating that a mark on the pavement at the scene indicated that
bullet was fired "at a downward angle"); id. at 76 (Lee's sworn statement
that the discharge was accidental); id. at 68 (Smith's admission that he
did not see Lee point the handgun at him and that the discharge may have
been unintentional).
15 946 F.2d 278, 281 (4th Cir. 1991).

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Accidental conduct on the part of law enforcement does not qualify,
as "`unintended consequences of government action [cannot] form the
basis for a fourth amendment violation.'"16

Further, we agree with the district court's determination that Lee
and Stanton were justified in searching Burgess after he was struck
by the bullet fragment.17 Courts have consistently considered searches
of wounded individuals "entirely reasonable . . .`strictly tied to and
justified by' the exigencies of the situation." 18

Therefore, we agree with the district court's determination that
Burgess has presented no genuine issues of material fact regarding his
broad allegations that Lee and Stanton violated his clearly established
constitutional rights. Accordingly, we affirm the district court's grant
of summary judgment to the defendants on Burgess' federal claims.

Finally, we affirm the district court's dismissal of Burgess' state
law claims. Burgess challenges the district court's dismissal of these
claims solely on the ground that, because the state claims are now
barred by Maryland's statute of limitations, such dismissal will deny
him any relief on those claims. However, as the defendants note in
their brief, in making this argument, Burgess ignores Maryland's
"savings statute,"19 which expressly states that "if an action is filed in
a United States District Court or a court of another state within the
period of limitations prescribed by Maryland law and the foreign
court enters an order of dismissal for lack of jurisdiction . . . an action
filed in this State within 30 days after the foreign court's order of dis-
missal shall be treated as timely filed in this State."20

As the district court clearly dismissed Burgess' pendent state law
claims for lack of jurisdiction,21 we find that, contrary to Burgess'
_________________________________________________________________
16 Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991) (quot-
ing Ansley v. Heinrich, 925 F.2d 1339, 1344 (11th Cir. 1991)).
17 J.A. at 109.
18 Russell v. Cox, 326 F. Supp. 27, 30 (W.D. Va. 1971) (quoting
Warden v. Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concurring)).
19 MD. CODE ANN., Maryland Rules § 2-101 (1998).
20 MD. CODE ANN., Maryland Rules § 2-101(b) (1998).
21 See J.A. at 109.

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argument here, Burgess could have refiled those claims in state court.
Accordingly, there was no foreclosure of remedy on these state law
claims, and we therefore decline to disturb the district court's decision
in this regard.

III.

Based on the foregoing, we affirm the district court's order grant-
ing summary judgment to the defendants on Burgess' federal claims
and dismissing Burgess' state law claims. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
in the decisional process.

AFFIRMED

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