United States District Court, D. Maryland
Xinis United States District Judge
Kevin Jones, brings this 42 U.S.C. § 1983 action against
Prince George's County Police Officers Gary Allen,
Gregory Powell, and Joseph Bunce, claiming that he was
unjustifiably shot by Officers Allen and Powell as well as
wrongfully arrested and detained. Pending before this Court
is a Motion for Summary Judgement by Defendants Gary Allen,
Joseph Bunce, Gregory Powell (collectively,
“Defendants”). ECF No. 40. The issues are fully
briefed and the Court now rules pursuant to Local Rule 105.6
because no hearing is necessary. For the reasons stated
below, Defendants' joint motion is DENIED IN PART and
GRANTED IN PART.
April 5, 2014, Plaintiff Darren Jones
(“Plaintiff” or “Jones”) asked an
acquaintance of his, Carlos Barksdale
(“Barksdale”), if he could borrow his dirt bike.
Deposition of Darren Jones, ECF No. 42-1 at 60. Barksdale
obliged and the two agreed to meet at Plaintiff's shop.
From the shop, Barksdale and the Plaintiff drove in separate
cars to an M&T Bank branch close to Barksdale's old
residence, then occupied by Barksdale's ex-girlfriend,
Andrea Battle (“Battle”). Barksdale had left his
dirt bike in the Battle's garage. ECF No. 42-1 at 63. The
Plaintiff jumped into Barksdale's car at the M&T Bank
branch and the two proceeded to Battle's house. On the
way, Barksdale told Plaintiff that the dirt bike would need
gas so they arrived Battle's home, retrieved the gas can
from the garage, and left to fill up the can at a local gas
station. ECF No. 42-1 at 64-66, 68-70.
immediately returned to Battle's home to refuel and
retrieve the dirt bike. Barksdale backed into the driveway at
an angle so that the front of the car was pointed more
towards the right side of the driveway if facing the street.
Plaintiff and Barksdale got out of the car and walked into
the garage. ECF No. 42-1 at 70, 78. Barksdale picked up some
of his clothes lying on the floor of the garage and placed
them in the trunk of his car. ECF No. 42-1 at 71. At the same
time, Plaintiff finished putting gas in the dirt bike and
tried to start it, but the battery was dead. ECF No. 42-1 at
74. He then heard Barksdale arguing with a woman in front of
the house who turned out to be Battle. ECF No. 42-1 at 71-75.
Plaintiff was still in the garage with his back facing
outside when he heard Barksdale say “come on, Kevin.
Let's go, ” indicating it was time to leave. ECF
No. 42-1 at 76.
time, Battle called Prince George's County's
emergency number and reported that her ex-boyfriend Barksdale
was kicking in the garage door and his Honda was parked in
her driveway. Deposition of Andrea Battle, ECF No. 42-3 at 5;
Deposition of Gary Allen, ECF No. 50-1 at 14; Certified Audio
Recording: Public Safety Communications Call Initiated by
Andrea Battle (April 5, 2014), ECF No. 40-1 [hereinafter
“Public Safety Recording”]. Officer Gary Allen
(“Allen”) and Officer Gregory Powell
(“Powell”) (collectively, “the
Officers”) responded to Battle's residence in
Allen's marked police cruiser. ECF No. 42-1 at 77; ECF
No. 50-1 at 14- 15. While the dispatcher told the Officers
that Barksdale had a history of carrying a handgun and prior
assault charges, ECF No. 50-1 at 14, the Court's record
is unclear as to the source of this information.
juncture, the eye-witness accounts of events diverge
significantly. According to the Plaintiff, when he left the
garage, he realized Barksdale was already in the car. ECF No.
42-1 at 77. While walking to the passenger side of the Honda,
Plaintiff noticed a Prince George's County police
cruiser, still moving, and “passing by the
driveway” of Battle's residence and where Plaintiff
was located. ECF No. 42-1 at 78-79, 83. The police cruiser
came to a stop past the house, ECF No. 42-1 at 78; ECF No.
50-1 at 11, its lights and sirens turned on. ECF No. 50-1 at
13. As Plaintiff approached the passenger side of the Honda,
he saw Allen exiting the police cruiser on the passenger side
“with his weapon drawn.” ECF No. 42-1 at 78; ECF
No. 50-1 (Allen was a passenger in the police cruiser).
Plaintiff opened the Honda passenger door and as he was
getting in the car, saw Allen at the rear of his police
vehicle. ECF No. 42-1 at 78. Powell stood to the left of
Allen, further away from the Honda. ECF No. 42-3 at 6.
then “pointed his weapon” at the Plaintiff and
said “freeze . . . if you move I'll shoot.”
ECF No. 42-1 at 79. The Officers were attempting to detain
both men because the officers regarded both as
suspected burglars. Transcript of Maryland v.
Barksdale, 14-0716A, ECF No. 42-2 at 45 [hereinafter,
Barksdale Criminal Trial]; ECF No. 50-2 at 37; ECF No. 50-1
at 17 (Allen was giving instructions to both Barksdale and
Jones to “freeze, stop” and “stop, stay
right there.”). Allen did not know which suspect was
Barksdale. ECF No. 50-1 at 19 (“At the time I
didn't know who it was, but I did see a black male in the
driver's seat . . . [and Powell] was also saying stop. He
was basically telling them to freeze, don't
move.”). Plaintiff responded to Allen, “if I move
my hand you're going to shoot me.” ECF No. 42-1 at
110. Allen also said “don't move the
vehicle.” ECF No. 42-1 at 89. Plaintiff initially froze
with the passenger door open, but Barksdale kept telling him
to get in the car. ECF No. 42-1 at 80. The Honda started to
drift “not very fast” down the driveway to the
right (ECF No. 42-1 at 82, 86); so, the Plaintiff
continuously moved with the Honda so that his body would not
be squeezed between a box or mailbox “on the side of
the street in the grass” and the door. ECF No. 42-1 at
to Plaintiff and other witnesses, Defendants Allen and Powell
began shooting at the Honda as it drove away from the
officers. ECF No. 42-3 at 9; ECF No. 50-1 at 24; ECF No. 50-2
at 19. The Plaintiff heard a gunshot before he got into the
Honda, ECF No. 42-1 at 110, but he did not recall whether he
was struck while he was standing outside of the vehicle. ECF
No. 42-1 at 81-82. Before the shots were fired, the Plaintiff
did not hear the car's engine revving. ECF No. 42-1 at
testified that he drove to the right where the passenger side
tires went “through the grass and over a curb” in
his attempts to avoid being shot. ECF No. 42-1 at 99;
Accord ECF No. 42-1 at 95, 104. Plaintiff similarly
recalls that the Honda drove away from the Officers, with
shots continuing as the Honda pulled on to Temple Hills Road
and “way away from the police cruiser.” ECF No.
42-1 at 92, 95-96. Plaintiff noted that the shots continued
from a “police officer still standing in the street
firing.” ECF No. 42-1 at 96-97. The Plaintiff could not
identify which officer he saw, but according to the
Plaintiff, the officer fired at least one shot, shattering
the back window. ECF No. 42-1 at 98.
admitted that he shot at the Honda as the vehicle was leaving
and he was likely the only officer shooting from behind the
car. Barksdale Criminal Trial, ECF No. 42-2 at 37-38.
Physical evidence also corroborates that some of the shots
were fired while the officers were directly behind the Honda
as it drove away. Corporal Jeremy Webb testified as an expert
at Barksdale's criminal trial regarding the trajectory of
the four bullets that struck the vehicle, noted that although
one bullet entered the driver's side of the vehicle
(Barksdale Criminal Trial, ECF No. 42-2 at 69), at least two
others entered from behind the vehicle. Barksdale Criminal
Trial, ECF No. 42-2 at 60-69. One of the two bullets struck
the open trunk and shattered the back windowpane. The other
struck the driver's side rear vent window. Barksdale
Criminal Trial, ECF No. 42-2 at 62, 65, 67-68.
to the Plaintiff, Barksdale, and Battle, the Honda at all
times drove away from the officers and never made contact
with an officer or any other object. ECF No. 42-1 at 93, 100;
ECF No. 42-3 at 17; Barksdale Criminal Trial, ECF No. 42-2 at
102. In fact, the Plaintiff testified that neither officer
was ever around the Honda. ECF No. 42-1 at 100, and that
Plaintiff had jumped in the passenger seat of the Honda,
Allen was to the left of the Honda close to the rear of his
cruiser. ECF No. 42-1 at 100. Battle also testified to having
seen the officers in front of the Honda about five to ten
feet away when the shooting occurred and that while Allen
fell at some point, Battle did not see the Honda hit him. ECF
No. 42-3 at 21.
Officers recount these events differently. They testified
that as the Honda drove out of the driveway, the vehicle
struck Allen, Deposition of Gregory Powell, ECF No. 50-2 at
17; ECF No. 50-1 at 91. According to Allen, he fired after
the vehicle hit him “when the vehicle was directly
beside” him, ECF No. 50-1 at 26, because Allen feared
he “could have got [sic] ran over by the rear of the
vehicle.” ECF No. 50-1 at 49. At Barksdale's
criminal trial (Maryland v. Barksdale, 14-0716A),
Powell also testified that he was about ten feet away from
the vehicle when he saw the driver's side front of the
vehicle hit Allen (Barksdale Criminal Trial, ECF No. 42-2 at
18), prompting him to shoot at the vehicle. Barksdale
Criminal Trial, ECF No. 42-2 at 34; see also
Barksdale Criminal Trial, ECF No. 42-2 at 28 (“My
reason for firing is because he [Allen] got hit by the car.
He [Barksdale] used the car as a weapon.”).
however, Powell now doubles back on his own rationale for
shooting at the vehicle. Powell confirmed that he shot at the
vehicle as he stood directly behind it and as the car drove
away. ECF No. 50-2 at 20. But Powell testified at
Barksdale's criminal trial that Allen possibly being
dragged by the car was “not
the reason why I shot.” Barksdale Criminal Trial, ECF
No. 42-2 at 34. Rather, Powell confirmed that the reason why
he shot at the vehicle was because it had already hit Allen.
Id. But cf. ECF No. 50-2 at 19 (Powell deposition
testimony where he claimed to have shot at car because he
believed Allen was being dragged).
Defendants do not dispute that Plaintiff was shot in the leg,
left hand, and abdomen, with one bullet piercing his liver.
He also sustained broken ribs. ECF No. 42-1 at 116. Plaintiff
first realized that he had been shot while he was still in
the car because he was having trouble breathing. ECF No. 42-1
at 104. Immediately after being shot, Plaintiff told
Barksdale to get to the hospital. ECF No. 42-1 at 104.
Barksdale instead drove the Plaintiff to the M&T Bank
where Barksdale fled the scene on foot. ECF No. 42-1 at 104,
by contrast, could not even walk because of the gunshot wound
to his leg. ECF No. 42-1 at 108. Plaintiff “already
couldn't breathe” and “didn't know how
much time [he] had” so he implored a friend to drive
him directly to the hospital instead of waiting on an
ambulance. ECF No. 42-1 at 109. The Officers followed the
Honda as it departed Battle's house (Public Safety
Recording, CD 1, Track 4, 3:40, ECF No. 40-1). The Officers
were advised of the location of Plaintiff and Barksdale at
the M&T Bank where the two split up. Id. Police
officers, knowing that Plaintiff was shot, proceeded directly
to the Southern Maryland Hospital and radioed ahead, ensuring
hospital security detained Plaintiff upon his arrival.
Id. There, Plaintiff arrived at the hospital, and a
police officer went directly to the Plaintiff's operating
room. Id. And the Plaintiff was placed under arrest.
ECF No. 42-1 at 109.
Allen and Powell spoke with their supervisor, Sergeant Mark
Jensen (“Sergeant Jensen”), shortly after the
incident. Deposition of Mark Jensen, ECF No. 42-6 at 9- 10,
23. Both officers told Sergeant Jensen that Allen had been
struck by Barksdale's vehicle. ECF No. 42-6 at 9-10.
Based on that information, Sergeant Jensen drafted an
incident report stating that Barksdale drove directly at the
officers (ECF No. 42-6 at 27-31) “in an effort to
assault them” and struck an officer. ECF No. 42-6 at
34-35. Sergeant Jensen testified that he did not recall
whether the officers communicated to him that they had been
in fear for their life or whether he just used the standard
“jargon” for officer-involved shootings. ECF No.
42-6 at 35- 36.
Sergeant Joseph Bunce (“Bunce”), a detective in
the Criminal Investigation Division, Homicide Section, was
assigned to investigate the breaking and entering of
Battle's garage. Deposition of Joseph Bunce, ECF No. 42-7
at 18. Bunce spoke only with Powell at the scene of the
incident about how the incident “unfolded up until the
time the shots were fired.” ECF No. 42-7 at 27-28;
30-31; see also ECF No. 42-7 at 21, 34, 47. Powell
told Bunce that Barksdale “accelerated very quickly
towards the officers, ” striking Allen. ECF No. 42-7 at
34. Powell also told Bunce that both the officers “were
in fear for their lives” as a result of Barksdale's
misconduct. ECF No. 42-7 at 35. Bunce also spoke to other
police officers who had interviewed Battle. ECF No. 42-7 at
38-41, 44-47; see Statement of Battle, ECF No. 40-7.
upon the information Bunce received from Battle, his own
on-scene investigation, his interview of Defendant Powell,
and conversations with other officers who interviewed Battle
(ECF No. 42-7 at 33, 36, 38-39), Bunce submitted an
Application for Statement of Charges for two counts of
burglary to be lodged against Plaintiff. Application for
Statement of Charges, ECF No. 40-8; ECF No. 42-7 at 48. Bunce
accurately noted in the Application that Barksdale was the
driver, and thus implicitly made clear that only Barksdale
could be responsible for allegedly accelerating towards the
officers and striking the police officer. ECF No. 40-8 at 2.
By contrast, Bunce requested only burglary charges against
Prince George's County District Court Commissioner,
however, unilaterally added first and second degree assault
charges against Plaintiff . ECF No. 42-7 at 48-51, 55;
compare Statement of Charges, ECF No. 42-4
with Application for Statement of Charges, ECF No.
40-8. Statement of Charges, ECF No. 42-4.When Bunce realized
that Jones was also charged with assaulting the officers, he
contacted the state's attorney within days to urge
dismissal of the additional charges. ECF No. 40-8 at 48-55.
Ultimately, all charges against Plaintiff were nolle
prossed. ECF No. 42-8.
on the foregoing events, the Plaintiff filed his Complaint
alleging (1) malicious prosecution under 42 U.S.C. §
1983 against all Defendants; (2) excessive force under 42
U.S.C. § 1983 against Powell and Allen; (3) battery
under Maryland law against Allen and Powell; (4) wanton
negligence under Maryland law against Allen and Powell; and
(5) malicious prosecution and excessive force in ...