United States District Court, D. Maryland
CATHERINE C. BLAKE, District Judge.
Plaintiff Timothy Brockington sues Antwan Boykin and his former employer, the Baltimore City Police Department ("BPD"), under 42 U.S.C. § 1983, alleging that Boykin employed excessive force to subdue Brockington in an encounter early on the morning of July 5, 2005. The circumstances of that encounter supported Brockington's conviction, in a previous proceeding in Maryland court, of carjacking, conspiring to kidnap, kidnapping, and robbing Boykin. And Boykin's use of force that night, which brought the encounter to a close, has left Brockington paralyzed and paraplegic. Boykin and the BPD each move for summary judgment, (Boykin Mot. Summ. J., ECF No. 208; BPD Mot. Summ. J., ECF No. 210), as they have twice before, (Boykin Mots. Summ. J., ECF Nos. 108, 168; BPD Mots. Summ. J., ECF Nos. 86, 167). The motions have been fully briefed and no hearing is necessary to their resolution. See Local Rule 105.5 (D. Md. 2014). For the reasons explained below, both motions will be denied.
In March 2007, a Maryland jury convicted both Brockington and Tyrone Gross, who is not a party to this lawsuit, of carjacking, conspiring to kidnap, kidnapping, and robbing Boykin on the night of July 4, 2005, and the early morning of July 5, 2005. (Pl.'s Opp. Summ. J., Ex. J, Verdict Tr., at H21-H22, H24-H25, ECF No. 173-10). The jury found both men not guilty, however, of possession of a firearm, of various armed offenses, and of conspiring to murder Boykin. ( Id. at H20-H25.) The Maryland Court of Special appeals subsequently affirmed Brockington's conviction. (BPD Mot. Summ. J., Ex. 1, State v. Brockington, Maryland Court of Special Appeals Unpublished Op., Nov. 7, 2008, at 13, ECF No. 167-3).
The encounter that gave rise to Brockington's conviction and to this lawsuit culminated in the early morning hours of July 5, 2005, behind the vacant house at 1123 Myrtle Avenue, Baltimore. (Boykin Mot. Summ. J., Ex. 1, Boykin Dep. 121-22, ECF No. 208-4; Boykin Mot. Summ. J., Ex. 2, Brockington Dep. 79-92, May 8, 2012, ECF No. 208-5.) In depositions taken in this case, both Boykin and Brockington testified that Boykin used a handgun to fire at least two volleys of shots at Brockington: He discharged the first salvo while both men were standing on the stairs leading to the back door of 1123 Myrtle Avenue, with Boykin standing above Brockington. (Boykin Dep. 98, 105-06, ECF No. 208-4; Brockington Dep. 92, May 8, 2012, ECF No. 208-5). And he fired the second salvo while the two were still behind the house but no longer on the back steps, this time with Boykin standing and Brockington on the ground. (Boykin Dep. 111-15, ECF No. 208-4; Brockington Dep. 90, 93, May 8, 2012, ECF No. 208-5). During that second volley, Boykin also paused to pivot and shoot into the house at 1123 Myrtle Avenue, before turning the gun again on Brockington. (Boykin Dep. 115-18, ECF No. 208-4; Brockington Dep. 94-96, May 8, 2012, ECF No. 208-5). After running out of bullets, Boykin fled the yard behind 1123 Myrtle Avenue. (Boykin Dep. 118, ECF No. 208-4; Boykin Mot. Summ. J., Ex. 3, Brockington Dep. 109-10, May 23, 2013, ECF No. 208-6). The events of that evening left Brockington paralyzed from the waist down.
In most other respects, Boykin and Brockington's accounts of what occurred behind 1123 Myrtle Avenue diverge. First, in his deposition, Boykin stated that he fired the first volley at Brockington blindly, under his left arm, while Brockington stood behind him. (Boykin Dep 102, ECF No. 208-4.) He did not know whether the first volley of shots wounded Brockington, only that Brockington screamed and fell from the steps as a result of the gunfire, pulling Boykin with him by a bandana he was holding over Boykin's eyes as a blindfold. (Boykin Dep. 106, ECF No. 208-4.) Brockington, for his part, testified that Boykin was facing him at the time of the first salvo, which struck his hand and what he characterized as his "middle." (Brockington Dep. 94-96, 107, May 8, 2012, ECF No. 208-5.) Second, Boykin stated that he fired his weapon into the house to keep Gross-at whom Boykin indicated he had shot prior to initiating the first salvo against Brockington and who then ran into the vacant house, screaming-at bay and that he ran out of ammunition immediately after shooting toward the home. (Boykin Dep. 99-101, 115-16, ECF No. 208-5.) Brockington, on the other hand, indicated that he never saw Gross behind 1123 Myrtle during the confrontation with Boykin, that he never saw Boykin shoot Gross, that he could not see what Boykin shot when Boykin discharged his weapon toward the vacant house, and that Boykin unleashed a third volley of shots on him after firing toward the house. (Brockington Dep. 140, May 8, 2012, ECF No. 208-5; Brockingon Dep. 39, 51-52, May 23, 2013, ECF No. 208-6.) Third, and most importantly, Boykin testified that Brockington was armed with a handgun throughout the encounter behind 1123 Myrtle; after the first volley of shots, Boykin continued, he saw Brockington "crawling with the gun in his hand, " face down on the ground. (Boykin Dep. 108-09, ECF No. 208-4.) Brockington, meanwhile, maintains that he was unarmed behind 1123 Myrtle, that he fell onto his back after the first round of shots, and that, wounded and unable to sit up but still capable of moving his arms, he tried to block his face with his hands as Boykin fired the second salvo at him. (Brockington Dep. 98-99, 113, May 8, 2012, ECF No. 208-5.)
The physical evidence is ambiguous: Police responding to the scene recovered a handgun in a fenced yard two houses away from 1123 Myrtle Avenue. (Boykin Mot. Summ. J., Ex. 9, Brown Dep. 92-93, 99, ECF No. 208-12.) Although the police discovered shell casings from that weapon close to the location where they found Brockington lying, no physical evidence conclusively demonstrates that Brockington handled that weapon. (Boykin Mot. Summ. J., Ex. 7, Wegster Dep. 43-44, ECF No. 208-10; Boykin Mot. Summ. J., Ex. 8, Lilly Dep. 132, ECF No. 208-12; Brockington Opp. Summ. J., Ex. F, Lansey Dep. 81-82, ECF No. 212-6.)
Brockington's excessive-force claim is premised on the latter volley(s) of shots alone; he long ago conceded that Boykin's initial use of force to subdue him was lawful. See, e.g., Brockington v. Boykins, 637 F.3d 503, 507 (4th Cir. 2011). In denying a previous motion for summary judgment on Brockington's excessive-force claim, this court emphasized the "genuine dispute between the parties regarding the threat Brockington posed once he was initially wounded and on the ground." (Mem. 3, ECF No. 178.) That dispute remains unresolved, as explained below.
A. Standard of Review
Under Federal Rule of Civil Procedure 56(a), summary judgment should be granted "if the movant shows that 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) (emphases added). Whether a fact is material depends upon the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Id. at 247-48. "A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, ' but rather must set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must view the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in his favor. Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted); see also Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 283 (4th Cir. 2013). At the same time, the court must not yield its obligation "to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (citation and internal quotation marks omitted).
B. Qualified Immunity
Boykin and the BPD invoke the doctrine of qualified immunity, (Boykin Mem. Supp. Summ. J. 18, ECF No. 208-1; BPD Mem. Supp. Summ. J. 1, ECF No. 210-1), "which shields government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person." Meyers v. Balt. Cnty, Md., 713 F.3d 723, 731 (4th Cir. 2013). Accordingly, officials receive no such protection where "(1) the allegations underlying the claim, if true, substantiate a violation of federal authority or constitutional right; and (2) this violation was a clearly established right of which a reasonable person would have known.'" Occupy Columbia v. Haley, 738 F.3d 107, 121 (4th Cir. 2013) (quoting Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006)). Where, as here, a plaintiff alleges that he was the victim of an official's use of excessive force, the constitutionality of that conduct is governed by the "objective reasonableness' under the circumstances [of the officer's actions] without regard to [the officer's] underlying intent or motivation.'" Brockington, 637 F.3d at 506 (second alteration in original) (quoting Graham v. Connor, 490 U.S. 386, 390, 397 (1989)).
Boykin and the BPD have asserted this qualified-immunity argument before and lost. In an opinion affirming the previous denial of qualified immunity on the defendant's motion to dismiss Brockington's complaint, the Fourth Circuit explained that "[t]here is no indication that deadly force was necessary or reasonable once Brockington was initially shot, thrown to the ground by the force of the bullets, and wounded." Brockington, 637 F.3d 503, 507 (4th Cir. 2011). If the record developed on discovery confirmed those allegations, the Fourth Circuit held, then Boykin would not be entitled to the protection of qualified immunity. Id. at 507-08. Before the culmination of discovery, the defendants twice sought the protection of qualified immunity, ...