United States District Court, D. Maryland, Southern Division
W. GRIMM, UNITED STATES DISTRICT JUDGE.
Clyde Peterson and Derrick Simmons allege that their Fourth
Amendment rights were violated when Defendant Officer David
Gross shot them while they occupied a parked vehicle. They
seek redress pursuant to 42 U.S.C. § 1983. Pending is
Officer Gross's Motion for Summary
Judgment. ECF No. 40. I find that Officer Gross
acted reasonably, and therefore, no constitutional violation
occurred. Accordingly, I will grant Officer Gross's
Motion. And, consequently, I will dismiss the
Monell claim against Defendant Prince
George's County (the “County”).
9, 2015, a supervisor sent Officer Gross and Corporal Fu
Cheung (formerly a defendant but now dismissed) to a shopping
mall parking lot in unmarked vehicles in search of a black
Ford Mustang that had been reported stolen. Gross Dep.
32:6-14, ECF No. 42-1; see also Cheung Dep.
16:11-21, 18:3-17, ECF No. 42-2. Corporal Cheung identified
the Mustang and attempted to observe whether anyone was
inside. Cheung Dep. 18:20-19:4. He observed one person in the
driver's seat upon his initial pass. Id.; Gross
Gross, Corporal Cheung, and Detective Dichoso (all of whom
were communicating via radio) decided that the car would be
remotely disabled and Officer Gross would use his unmarked
vehicle to conduct a tactical maneuver known as a
“pinch” to block the driver's side of the
vehicle and to force the occupant to exit on the passenger
side, where Corporal Cheung would apprehend him. Gross Dep.
38:8-39:19, 51:4-17; Cheung Dep. 22:11-22; Pls.'
Opp'n Mem. 2. According to Officer Gross, after a pinch
is executed, “most people will either do one of two
things in a situation like that; they will comply or
they'll run, fight or flight . . . In this particular
thing you're going to figure out which one, and
that's going to be really fast.” Gross Dep.
51:4-17. After completing the maneuver, Officer Gross exited
his vehicle and approached Plaintiffs' vehicle, crossing
the front of the Mustang to the passenger side. Id.
53:1-7; see also Pls.' Opp'n Mem. 2.
Officer Gross moved around the Mustang, he “g[ot] to a
point where [he saw] the driver, after he pushe[d] on the
driver's door, lift his butt off the seat and reach down
and pull a handgun out and [the officer was] able to look
into the car and see the handgun.” Gross Dep.
53:13-54:2, 62:17-19, 64:1-3. Simmons, who was sitting in the
driver's seat of the Mustang, acknowledged that he had a
weapon in the front right pocket of his pants. Simmons Dep.
2d Excerpt 40:6-20, ECF No. 42-6. Officer Gross issued
multiple warnings to “drop the gun, ” and the car
began to shake as Plaintiffs moved inside it. Gross Dep.
64:20-65:3, 10-12, 67:1-14; Simmons Dep. 35:24-36:2; Peterson
Dep. 19:2-3, ECF No. 42-4. Plaintiffs agree that Officer
Gross yelled “gun” as he approached the passenger
side of the Mustang. Simmons Dep. 35:24- 36:2, ECF No. 42-3;
Peterson Dep. 19:2-3. At his deposition, Officer Gross
And then I remember thinking, like, they're not complying
and that I'm in fear for my life. “I'm going to
get into a gunfight with these guys.” At that point, I
abandoned the door and I started working backwards away from
the passenger door . . . I realized that these two armed
individuals were going to get out of the passenger side. I
had no cover, I had nothing to go to, and I felt lethal force
at that point was my only option.
Gross Dep. 68:1-6, 69:7-11. As Officer Gross backed away, he
shot into the vehicle, striking Peterson (who was in the
backseat) once and Simmons multiple times. Def.'s Mem. 2;
Pls.' Opp'n Mem. 2. Corporal Cheung, who had been in
another location in the parking lot, arrived after Officer
Gross began discharging his weapon. Cheung Dep. 26:4-10.
Simmons was dragged from the car, the weapon fell out of his
pocket, and he was “laying on it” on the ground.
Id. 41:11-42:3. Simmons testified that he learned
after the incident that Peterson was armed. Simmons Dep.
31:24-32:8; see also Cheung Dep. 37:17-38:13
(stating the individual in the backseat was found to have a
weapon in his pocket).
8, 2016, Peterson and Simmons filed suit against Officer
Gross, the County, and Corporal Cheung. Compl., ECF No. 1. On
June 21, 2017, I denied Defendants' motion to dismiss and
bifurcated the Monell claim against the County,
pending the resolution of the claims against Officer Gross.
ECF No. 23. The claims against Corporal Cheung were
voluntarily dismissed with prejudice. See Ltr.
Order, ECF No. 37. Officer Gross now moves for summary
judgment, arguing that there are no genuine disputes of
material fact and that he is entitled to qualified immunity.
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials,
” 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), (c)(1)(A); see
also Baldwin v. City of Greensboro, 714 F.3d 828, 833
(4th Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585-87 & n.10 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a
motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). Instead, the
evidentiary materials submitted must show facts from which
the finder of fact reasonably could find for the party
opposing summary judgment. Id. A
“genuine” dispute of material fact is one where
the conflicting evidence creates “fair doubt”;
wholly speculative assertions do not create “fair
doubt.” Cox v. Cty. of Prince William, 249
F.3d 295, 299 (4th Cir. 2001); see also Miskin v. Baxter
Healthcare Corp., 107 F.Supp.2d 669, 671 (D. Md. 1999).
The substantive law governing the case determines what is
material. See Hooven-Lewis v. Caldera, 249 F.3d 259,
265 (4th Cir. 2001). A fact that is not of consequence to the
case, or is not relevant in light of the governing law, is
not material. Id.; see also Fed. R. Evid.
401 (defining relevance).
1983 Claim (Count I) - Qualified Immunity and Excessive
immunity “protects law enforcement agents from federal
claims when they act in objectively reasonable reliance on
existing law.” Queen v. Prince George's
Cty., 188 F.Supp.3d 535, 541 (D. Md. 2016) (quoting
Rockwell v. Mayor & City Council of Baltimore,
No. RDB-13-3049, 2014 WL 949859, at *8 n.10 (D. Md. Mar. 11,
2014)). It “balances two important interests-the need
to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan,
555 U.S. 223, 231 (2009). “In particular, . . .
qualified immunity protects law officers from ‘bad
guesses in gray areas' and it ensures that they may ...