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Jones v. Allen

United States District Court, D. Maryland

September 15, 2016

GARY ALLEN et al., Defendants.


          Paula Xinis United States District Judge

         Plaintiff, 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.

         I. BACKGROUND[1]

         On 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.

         The two 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.

         At this 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.

         At this 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.

         Allen 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 81.

         According 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 87.

         Barksdale 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.

         Powell 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.

         According 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.

         Defendant 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.”).

         Notably, 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).

         The 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, 109.

         Plaintiff, 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.

         Defendants 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.

         Defendant 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.

         Based 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 Plaintiff.

         The 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.

         Based 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 ...

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