Black v. Alexander

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JENNELL BLACK, et al. *

*

v. * Civil Action No. 20-cv-3644

*

THOMAS WEBSTER IV, et al.

. *

************

MEMORANDUM

Pending before the court is a fourteen-count complaint filed by Plaintiffs Jennell Black,

individually and as Personal Representative of the Estate of Anton Black; Antone Black,

individually and as Personal Representative of the Estate of Anton Black; Katyra Boyce, as mother

and next friend of W.B.; and the Coalition for Justice for Anton Black against defendants Thomas

Webster IV, Gary Manos, and Dennis Lannon (“defendant officers”), alleging use of excessive

force in violation of the U.S. and Maryland Constitutions as well as various tort claims. (ECF 38,

First Am. Compl.).1 Webster is a former police officer of the town of Greensboro, Maryland,

Manos is the former Chief of the Ridgley, Maryland Police Department, and Lannon is a police

officer of the town of Centreville, Maryland.

On January 21, 2021, the defendant officers filed a motion for summary judgment (ECF

19), which they supplemented on March 5, 2021 (ECF 48). Though the complaint was

1 The plaintiffs also bring claims against former Greensboro, Maryland Police Chief Michael

Petyo; former Greensboro Town Manager Jeannette Cleveland; the Towns of Greensboro,

Ridgley, and Centreville, Maryland; Assistant Medical Examiner for the State of Maryland

Russell Alexander; Chief Medical Examiner for the State of Maryland Victor Weedn; former

Chief Medical Examiner for the State of Maryland David Fowler; and the State of Maryland.

subsequently amended on February 18, 2021, all parties agree that the officers’ motion for

summary judgment remains pending before the court. (See ECFs 82, 83, 84).2 The motion is fully

briefed (ECFs 19, 48, 56, 75) and no oral argument is necessary. See Local Rule 105.6 (D. Md.

2021). For the reasons explained below, the motion will be denied.

BACKGROUND

This case stems from the 2018 death of Anton Black, a nineteen-year-old resident of

Greensboro, Maryland, following his physical encounter with and arrest by the defendant officers.

The following facts are taken from the First Amended Complaint, Webster’s body worn camera

footage, and the affidavits and reports submitted by the parties.

I. Initial Confrontation Between Webster and Black and Subsequent Foot Chase

On August 29, 2018, Anton Black had been acting strangely at home, prompting his father,

Antone Black, to call the police. (ECF 38 ¶ 70). Black was subsequently taken into custody by the

Kent County Sheriff for an Emergency Petition and behavioral health screening. (Id.). Based on

this petition, Black was diagnosed with a severe form of bipolar disorder. (Id. ¶ 71). Black was

discharged from the hospital upon judicial order on September 5, 2018. (Id. ¶ 72).

Approximately a week-and-a-half after his discharge from the hospital, on September 15,

2018, Black and X.B., a twelve-year-old family friend of the Blacks, met on a basketball court in

Greensboro. (Id. ¶ 74). The two left the court and walked around town together. (Id. ¶ 76). Black

began grabbing and pulling X.B., catching the attention of onlookers and prompting one witness

to ask X.B. if he wanted her to call the police. (Id. ¶ 78, ECF 19-10, Manos Aff., ¶ 3). X.B.

requested that she call, and the witness informed the 911 operator that an older boy was dragging

a younger boy along the road. (ECF 19-5, 911 Call, at 4-5).

2 The other defendants’ pending motions to dismiss will be addressed separately.

At approximately 7:10 p.m., Officer Webster arrived where Black and X.B. were walking

on the side of the road and turned on his body worn camera after exiting his vehicle. (ECF 38 ¶

81). X.B. informed Webster that Black was “schizophrenic” and had been acting strangely. (Id. ¶

82). In response to Webster’s questions, Black stated that he and X.B. were brothers, but X.B.

denied this multiple times. (ECF 19-8, Body Worn Camera Footage, at 0:00-0:10). Officer Webster

then ordered Black to put his hands behind his back and told him he was under arrest. (Id. at 0:11-

0:12). Black said “I love you,” turned, and jogged in the opposite direction. (Id. at 0:12-0:20).

Webster told Kevin Clark, a civilian motorcyclist, to “hang out with him,” ostensibly

requesting that Clark monitor Black as he fled on foot. (Id. at 0:24-0:26). Webster got back in his

patrol vehicle, informed dispatch that Black was schizophrenic, and proceeded to turn the vehicle

around to follow Black. (Id. at 0:25-0:46). Upon seeing Officer Dennis Lannon, who was off duty

and standing outside his own residence, Black reversed direction. (Id. 0:46-0:48; ECF 19-11,

Lannon Decl., ¶¶ 6-8, 12). Webster exited the car and, along with Lannon, pursued Black on foot

into the trailer park where Black’s family home was located. (ECF 19-8 at 0:48-2:30; ECF 19-11

¶¶ 13-17). Chief Gary Manos, who, while off duty, had witnessed Webster’s initial confrontation

with Black, drove Webster’s car into the trailer park and parked near the Black residence. (ECF

19-8 at 2:12-2:29, ECF 19-10 ¶¶ 3-4, 6).

II. Webster’s Use of the Baton and Taser

Upon reaching the lot of his family’s home, Black entered a white Honda sedan parked in

the driveway through the driver’s side, shutting the door behind him. (ECF 19-8 at 2:27-2:30).

Webster, following close behind, immediately struck the driver’s side window of the car twice

with his baton, causing it to shatter. (Id. at 2:30-2:39). Manos moved toward the passenger side of

the car as Black moved from the driver’s to the passenger’s seat. (Id. at 2:40-2:44). Manos yelled

“Watch his hands” to Webster and told Webster twice to “Tase him.” (Id.).

Webster unholstered his taser, aimed it at Black, and shot it through the shattered driver’s

side window of the vehicle. (Id.). After pulling the trigger, Webster called out ‘Taser! Taser!

Taser!” (Id. at 2:44-2:46). Because only one of two darts of the taser made contact with Black, in

his left buttock, the device failed to incapacitate him. (Id.; ECF 19-13, Autopsy Report, at 2-3).

Black proceeded to exit the car out the passenger door. (ECF 19-8 at 2:45-2:46).

III. Physical Struggle and Initial Restraint of Black

Upon his exit from the vehicle, Black ran directly into Manos. (Id. at 2:46-2:48). Black

attacked Manos by punching, kicking, and biting while Manos told him he was under arrest. Id. at

2:48-3:09). During this struggle, Black and Manos, joined by Webster, moved up the wooden ramp

to the Black family’s trailer. (Id.). Manos told Black to “stop” resisting arrest. (Id. at 3:06-3:09).

Webster cautioned the other officers that Black was “schizophrenic.” (Id. at 3:22-3:23). As the

three men approached the door, followed closely by Lannon and Clark, the civilian motorcyclist,

Webster requested that someone pull Black’s legs out from under him. (Id. at 3:28-3:31). Once

Black was horizontal on the porch, Manos requested that Lannon “prone him out,” or place Black

flat on the ground on his stomach. (Id. at 3:53). The officers and Clark subsequently laid him in

the prone position on his stomach. (Id. at 3:54-4:00).

Webster’s body worn camera shows him to be located somewhere over Black’s head,

shoulders, and (at times) chest, though the camera angle fails to show the exact placement of

Webster’s body or depict what—if any—pressure he applied to Black’s person during the

approximately six minutes he was on top of Black. (Id. at 3:45-9:50). Webster claims that he placed

only his right knee over the “edge” of Black’s left shoulder in the “catcher’s mitt” position to

isolate and gain control of his arms and secure the handcuffs. (ECF 19-9, Webster Aff., ¶ 27).

Webster asserts that he never placed his full body weight on Black at any point during the

encounter. (Id. ¶ 39). At this time, Manos can be seen wedged between Black and the trailer, lying

parallel to and on top of Black’s hip and leg. (ECF 19-8 at 3:45-5:03). Officer Lannon assisted in

straightening Black’s legs and then straddling his left leg, never placing pressure on Black’s upper

body. (Id. at 3:45-5:05). After the officers successfully handcuffed Black, Lannon stood up and

moved off the porch. (Id. at 5:03-5:07). Webster told the officers to “take a breather,” and Manos

moved his body off Black to rest temporarily on the trailer. (Id. at 5:05-5:12). Webster states that

he removed his knee from Black’s shoulder approximately one minute or less after it was first

placed there. (ECF 19-9 ¶ 30). Webster explained to Black’s mother, Jennell Black, who came to

the door, that Black had attempted “to abduct a twelve-year-old and then fled from the police.”

(ECF 19-8 at 5:10-5:14).

With his hands secured, Black began kicking and struck Lannon in the face with his shoe.

(Id. at 5:27-5:29). Lannon subsequently folded Black’s legs above his body. (Id. 5:28-5:34). Manos

again told Black to stop resisting, and Webster asked for leg shackles to be retrieved from the trunk

of his vehicle. (Id. at 5:32-5:38). Throughout, Black called out to his mother, “I love you,” and

“You were always there. Thank you!” (Id. at 3:23 and 5:39). Black did not appear to kick the

officers again as Lannon, Manos, Webster, and Sergeant Richard Baker, the first Caroline County

Deputy Sheriff to arrive,3 unsuccessfully attempted to place a Velcro restraint on Black’s legs. (Id.

at 5:47-9:34). Someone can be heard on the body worn camera saying, “It will be better if you

don’t fight, calm down.” (Id. at 7:00-7:03). During this attempt, Webster assured Jenell Black that

3 The man referred to as “Sgt. Baker” does not identify himself on video. Rather, he is identified

as such in the defendants’ memorandum.

they were treating the situation as a “mental health emergency, we’re not treating this like a crime.”

(Id. at 9:16-9:19). Eventually, approximately five minutes after Black was first handcuffed, the

officers secured Black’s legs with leg shackles and all officers ceased applying pressure to Black’s

person. (Id. at 9:52). Webster and Manos then positioned Black on his side in the “recovery”

position. (Id. at 9:55-9:58).

IV. Black’s Loss of Consciousness and Unsuccessful Emergency Treatment

Seconds after Black was placed on his side, the officers noticed that he appeared

unresponsive. (Id. at 9:58-10:00). Manos returned to Black and verbally confirmed that he was

breathing and had a pulse. (Id. at 10:00-10:08). Information about Black was then relayed by

someone at the scene out of view of the body worn camera to emergency medical service (EMS)

providers en route to the location. (Id. at 10:29-10:50, ECF 19-9 ¶ 37). Approximately a minute

later, an unidentified voice relayed to EMS that Black was not conscious and asked them to “step

it up.” (ECF 19-8 at 13:18-13:20).

Baker commenced CPR and began chest compressions shortly thereafter, and Manos

assisted with ventilation. (Id. at 13:25-17:57). Shawn Starkey, Chief of the Greensboro Fire

Department, arrived with an Automated External Defibrillator (AED). (Id. at 15:45). The AED

advised three times against shocking Black, and CPR was administered again after each use of the

AED. (Id. at 17:18-17:20, 18:17-18:24, 19:30-19:32). Because Starkey advised that X.B. said

Black had ingested laced marijuana, Manos administered two doses of Narcan to no effect. (Id. at

16:45-17:10; 17:20-17:45; ECF 19-12, Aff. of Shawn Starkey, ¶ 6; ECF 19-10 ¶¶ 47-49). Black

was carried into the paramedics’ ambulance approximately twenty-five minutes after the officers

noticed that he had become unresponsive. (ECF 19-8 at 34:50-35:20).

V. Autopsy and Toxicology Report Results and Criminal Investigation Into the Officers’

Conduct

Black was pronounced dead at 8:36 p.m., shortly after his arrival at the University of

Maryland Shore Medical Center in Easton, Maryland. (ECF 19-13, Autopsy Report, at 4). Russell

Alexander, M.D., Assistant Medical Examiner for the State of Maryland, performed an autopsy

the next day, on September 16, 2018. (Id.). The autopsy lists Black’s death as an “Accident,”

specifically “Sudden Cardiac Death” caused by an “Anomalous Right Coronary Artery and

Myocardial Tunneling of the Left Anterior Descending Coronary Artery.” (Id.). “Bipolar disorder”

is listed as a “significant contributing condition” to the death. (Id. at 2, 8). The report concluded

that, “[b]ased on a review of the investigation and autopsy findings, it is likely that the stress of

his struggle contributed to his death. However, no evidence was found that restraint by law

enforcement directly caused or significantly contributed to the decedent’s death.” (Id. at 8).4 The

accompanying toxicology report read negative for the presence of marijuana in Black’s system.

(Id. at 13-14). Black was not tested for synthetic cannabinoids.

The plaintiffs provide two expert declarations disputing the official causes of death listed

in the state’s autopsy report. Dr. Jon Resar, a cardiologist at Johns Hopkins University, asserts his

opinion, based on the body worn camera video and autopsy report, that asphyxiation was the cause

of Black’s death, and that myocardial bridging5 and an anomalous right coronary artery were not

the causes of death. (ECF 56-4, Resar Decl., ¶¶ 3-13). Francisco Diaz, Chief Medical Examiner

for the Office of the Medical Examiner of Washington, D.C., upon review of the same documents

and toxicology report, similarly concluded that the “pressure and positioning [of the officers]

prevented Black from being able to breathe, depriving him of the oxygen necessary for his brain

4 The autopsy report does note that certain video footage showed “an officer lying across the

decedent’s back at one point.” (Id. at 8).

5 Dr. Resar’s preferred term for what Dr. Alexander described as myocardial tunneling. (ECF 56-

4 ¶ 5).

and heart to function correctly, which led to Black’s death.” (ECF 56-2, ¶¶ 3, 10). Dr. Diaz also

agreed that Black’s death “was not caused by myocardial bridging or anomalous right coronary

artery.” (Id. ¶ 11).

After the State’s autopsy was conducted, the Maryland State Police, assigned to investigate

the circumstances of Black’s death, provided the results of their investigation to the State’s

Attorney for Caroline County. (ECF 19-14, Doc. Declining Charges). On March 7, 2019, the

State’s Attorney informed the State Police that the office was declining “to seek charges against

any individuals in the matter involving the In-Custody Death of Anton Black.” (Id.).

The plaintiffs filed suit against the defendant officers, as well as former Greensboro Police

Chief Michael Petyo, former Greensboro Town Manager Jeannette Cleveland, the Towns of

Greensboro, Ridgely, and Centreville, Assistant Medical Examiner for the State of Maryland

Russell Alexander, Chief Medical Examiner for the State of Maryland Victor Weedn, former Chief

Medical Examiner for the State of Maryland David Fowler, and the State of Maryland on

December 17, 2020, later amending the complaint on February 18, 2021. (ECF 1, Original Compl.;

ECF 38, First Amended Compl.).

LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) provides that 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). “A dispute is

genuine if ‘a reasonable jury could return a verdict for the nonmoving party.’” Libertarian Party

of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am.,

673 F.3d 323, 330 (4th Cir. 2012)). “A fact is material if it ‘might affect the outcome of the suit

under the governing law.’” Id. (quoting 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[.]” Anderson, 477 U.S.

at 247–48. The court must view the evidence in the light most favorable to the nonmoving party,

Tolan v. Cotton, 572 U.S. 650, 657 (2014) (per curiam), and draw all reasonable inferences in that

party’s favor, Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted); see also Jacobs v. N.C.

Admin. Office of the Courts, 780 F.3d 562, 568–69 (4th Cir. 2015). In light of the indisputable

video evidence, “facts must be viewed in the light most favorable to the nonmoving party only if

there is a ‘genuine’ dispute as to those facts.” Scott, 550 U.S. at 380. “[W]hen the moving party

has carried its burden under Rule 56(c), its opponent must do more than simply show that there is

some metaphysical doubt as to the material facts.” Id. (quoting Matsushita Elec. Industrial Co. v.

Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (footnote omitted)).

At the same time, the court must “prevent factually unsupported claims and defenses from

proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003)

(quoting Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993)). The relevant inquiry is whether

the evidence “presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” McAirlaids, Inc. v. Kimberly-Clark

Corp., 756 F.3d 307, 310 (4th Cir. 2014) (quoting Anderson, 477 U.S. at 255).

DISCUSSION

I. Excessive Use of Force

Whether the defendant officers engaged in an excessive use of force lies at the heart of all

of the plaintiffs’ claims against them. If, as the defendant officers contend, there is no genuine

dispute of material fact that they did not use excessive force against Anton Black on September

15, 2018, then summary judgment should be entered in their favor as to all claims against them.

Accordingly, the court will begin by examining Count 3 of the First Amended Complaint, a Section

1983 claim for excessive use of force in violation of the Fourth and Fourteenth Amendments.

The Fourth Amendment protects citizens from “unreasonable seizures,” and thus prohibits

the use of excessive force by police officers “to seize a free citizen.” 6 Jones v. Buchanan, 325

F.3d 520, 527 (4th Cir. 2003). A police officer’s use of force against a subject violates that

individual’s Fourth Amendment right against unreasonable seizure if the officer’s actions are not

“‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989) (internal

citation omitted). Evaluating the reasonableness of a particular use of force “requires a careful

balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests

against the countervailing governmental interests at stake.” Id. at 396. In Graham, the Supreme

Court specified three non-exhaustive factors for assessing the reasonableness of a particular

application of force: (1) the severity of the crime at issue, (2) whether the suspect posed an

immediate threat to the safety of the officers or others, and (3) whether the suspect was actively

resisting arrest or attempting to flee. Id.; see also Armstrong, 810 F.3d at 899. Courts must judge

the reasonableness of a particular use of force “from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.

Claims brought under Articles 24 and 26 of the Maryland Constitution are interpreted in

pari materia with their federal analogs, the Fourth and Fourteenth Amendments. See, e.g. Dent v.

6 The Fourth Amendment governs whether the officers’ use of force against Black during the

course of his arrest was excessive. “[A]ll claims that law enforcement officers’ have used

excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’

of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’

standard, rather than under a ‘substantive due process’ approach.” Graham v. Connor, 490 U.S.

386, 395 (1989); see Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892,

899 (4th Cir. 2016) (analyzing excessive force claim under the Fourth Amendment).

Montgomery County Police Dept., 745 F. Supp. 2d 648, 661 (D. Md. 2010). Accordingly, analysis

of these claims will be conducted under the same federal standard as the plaintiffs’ Section 1983

claims.

Considering this standard, the court will assess holistically the sequence of events the

evening of Black’s arrest and death to determine whether there is a genuine dispute of material

fact regarding the objective reasonableness of each instance of force. Five distinct uses of force

occurred, each at least partially captured on body worn camera footage: (1) Webster’s initial

attempt to arrest and chase Black, (2) Webster’s use of his baton to smash the car window, (3)

Webster’s use of the taser while Black was inside the Honda, (4) Manos and Webster’s physical

struggle with Black, and (5) Manos, Lannon, and Webster’s application of pressure and restraint

on Black on the porch. Additionally, the plaintiffs contend that the officers violated Black’s

constitutional rights by not immediately administering medical aid after he became non-

responsive.

a) The Initial Decision to Arrest and Pursue Black

The first use of force that plaintiffs contend was excessive was Webster’s determination to

seize Black and Webster’s subsequent pursuit of Black after he fled.

The decision to arrest and detain a suspect is reasonable if there is probable cause to believe

the individual committed a criminal offense. Probable cause exists where facts and circumstances

within the officer’s knowledge are sufficient to warrant a prudent person, or one of reasonable

caution, in believing, in the circumstances shown, that a criminal offense has been committed and

that the suspect committed it. Humbert v. Mayor of Balt. City, 866 F.3d 546, 555 (4th Cir. 2017).

Courts evaluate probable cause under an objective standard, considering the totality of the

circumstances. Illinois v. Gates, 462 U.S. 213, 230-31 (1983); U.S. v. Gray, 137 F.3d 765, 769

(4th Cir. 1998). Probable cause requires more than bare suspicion, but less than the evidence

needed to convict. Gray, 137 F.3d at 769. At the time Webster turned on his body worn camera

and first confronted Black, Webster had substantial information available suggesting that Black

was unlawfully forcing X.B. down the road with him. The 911 call, which Webster attested to

being informed about by dispatch (ECF 19-9 ¶ 5), provided him credible information that an adult

black male was roughly “dragging” a juvenile down the road in a “headlock.” (ECF 19-5 at 2:4-

10; 4:2-3). It is clear from the body worn camera footage that Black and X.B. were still close

together by the time Webster had exited his vehicle and approached them. (ECF 19-8 at 0:00-

0:02). Shawn Starkey, who later assisted in efforts to revive Black, also attested to seeing Black

dragging X.B. down the street momentarily before Webster arrived. (ECF 19-12 ¶ 3). Further,

X.B.’s insistence that Black was not his brother and either mentally dissociated and in need of

involuntary assistance or lying about their relationship provided additional reason to believe that

Black was acting illegally. (ECF 19-8 at 0:00-0:10).

Webster’s knowledge of the situation and his presence at the scene created sufficient

probable cause under Maryland law to initiate a warrantless arrest of Black for assault.7 In

Maryland, “Assault” means the crimes of “assault, battery, and assault and battery, which retain

their judicially determined meanings.” Md. Code Ann., Crim. Law § 3-201. “A battery occurs

when one intends a harmful or offensive contact with another without that person’s consent.”

Nelson v. Carroll, 355 Md. 593, 600 (1999). “[T]he unlawful application of force to another,

7 In Maryland, “a police officer may arrest without a warrant a person who commits or attempts

to commit a felony or misdemeanor in the presence or within the view of the police officer.” Md.

Code Ann., Crim. Proc. § 2-202(a). Additionally, a police officer who has probable cause to

believe that a felony or misdemeanor is being committed in the presence or within the view of

the police officer may arrest without a warrant any person whom the police officer reasonably

believes to have committed the crime. Id. § 2-202(b).

however slight, constitutes a battery.” Claggett v. State of Maryland, 108 Md. App. 32, 47 (1996).

An assault is a consummated battery, an attempted battery, or placing a victim in reasonable fear

of an imminent battery. Snyder v. State, 210 Md. App. 370, 381-82 (2013). The multiple reports

of a headlock and dragging, combined with the inconsistent answers given by Black and X.B.,

provided Webster with a reasonable belief that, at minimum, an ongoing assault was occurring.

Plaintiffs do not dispute the above-mentioned facts, but rather argue that the decision to

arrest and pursue Black was disproportionate because Webster knew Black was suffering a mental

health crisis. (See ECF 19-8 at 0:45 (Webster tells dispatch that Black was “schizophrenic”)). The

information available to Webster, however, indicated that Black, whether or not he was having a

mental health emergency, posed an ongoing danger to X.B., himself, and the community. Each

Graham factor favors Webster’s decision to arrest and pursue Black: assault is a serious crime,

Black posed a non-negligible threat to the safety of those around him, and he attempted to flee.

490 U.S. at 396. Thus, there is no genuine dispute that Webster acted objectively reasonably when

he sought to detain Black and chose to pursue him when Black failed to comply.

b) Webster’s Use of The Baton to Smash the Car Window

The second use of force plaintiffs allege to be disproportionate is Webster’s use of his baton

to break the window of the car in which Black locked himself.

The defendant officers analogize Webster’s use of his baton to smash the car window to

the actions of the defendant officer deemed reasonable in the case of Kimpel v. Board. of County.

Comm’rs of Cecil County, No. CCB-06-0097, 2009 WL 890092 (D. Md. Mar. 25, 2009). An

unpublished decision, Kimpel dealt with a materially different situation where officers reasonably

believed the suspect to be an armed fugitive who was attempting to violate a protective order and

visit his minor children. Id. at *2, *10. Moreover, the officer in that case only used his baton after

the suspect refused to comply with repeated orders to step out of the vehicle, which was beginning

to move forward. Id. The comparison of the present situation to these facts is inapt, as Webster

issued no warnings, the vehicle’s engine was not running, and there was no indication that Black

was armed.

Application of the Graham factors demonstrates the difficulty in deciding as a matter of

law whether Webster’s actions were reasonable under the circumstances. The first and third

factors, the severity of the crime and that Black was resisting arrest, had not changed since

Webster’s initial decision to detain Black. The second Graham factor, whether the suspect posed

an immediate threat to the safety of others, changed once Black entered the parked vehicle. The

defendant officers assert that it was reasonable to suspect Black, who was acting erratically, had

entered the car in order to use it as a weapon or to retrieve a weapon stored in the vehicle. The

concern that Black could use the car or another weapon and pose a risk to the safety of officers

and bystanders weighs in favor of finding Webster’s use of his baton reasonable under the rapidly

evolving circumstances.8

The plaintiffs, however, present evidence to support that Webster’s split-second reaction

to use force instead of verbal orders was unreasonable, given that Black did not at that point

provide any indication of an intent to be violent. (See, e.g. ECF 56-3, Powers Decl., at ¶ 11 (stating

that Black was “under control” while locked in the vehicle, making Webster’s use of force

unreasonable)). The Greensboro Police Handbook instructs that “control devices” such as batons

should be used only “when a decision has been made to control, restrain, or arrest a person who is

violent or demonstrates the intent to be violent.” (ECF 56-3C, Greensboro Handbook, at 78). The

8 The plaintiffs note that the car had a flat front right tire, visible in the body worn camera footage.

(ECF 19-8 at 4:15). A flat tire, however, would not necessarily prevent a driver from operating a

vehicle and posing a danger to those outside. Further, it is not apparent that the officers saw and

processed that the vehicle had a flat tire during their pursuit of Black.

Handbook instructs officers to try to de-escalate mental health crises by being “patient, polite, calm,

courteous and [not] overreacting,” to “speak and move slowly and in a non-threatening manner,” and

not to “corner a person who is not believed to be armed, violent, or suicidal.” (Id. at 326). Webster’s

use of his baton without warning, and without an indication that Black planned to act violently, weighs

against a finding that this use of force was reasonable.

In sum, a genuine dispute of material fact exists regarding whether it was reasonable for

Webster to resort to immediate use of his baton to break the car window without warning.

c) Webster’s Use of the Taser

The plaintiffs next contend that Webster acted unreasonably by discharging his taser in an

attempt to incapacitate Black. Webster fired the less lethal weapon immediately after breaking the

car window, also without warning. (ECF 19-8 at 2:44-2:46). Only after the trigger was pulled did

he shout “Taser! Taser! Taser!” (Id.).

As a general principle, a law enforcement officer may deploy a taser when “confronted

with an exigency that created an immediate safety risk and that is reasonably likely to be cured by

using the taser.” Estate of Armstrong, 810 F.3d at 909.

Like Webster’s use of his baton, the officer’s decision to deploy the taser was made

quickly, against the backdrop of uncertainty about what weapons Black may have had access to

inside the vehicle.9 In this instance, again, Webster did not choose to attempt to deescalate, as the

Greensboro Police Handbook cautions is the best practice when dealing with mental health

emergencies. (ECF 56-3C at 326). As with Webster’s use of the baton, there remains a genuine

dispute of material fact regarding the reasonableness of Webster’s decision to use the taser.

d) The Struggle with Black Outside the Car and On the Porch

9 Black, by this time in the passenger seat, clearly posed less of a threat of driving the vehicle

recklessly or using the car itself as a weapon.

Immediately after Webster unsuccessfully deployed his taser, Black exited the Honda and

began to attack Manos, pushing him toward the door of the trailer. (ECF 19-8 at 2:46-2:48). Black

escalated his resistance, first by charging Manos and then by punching, biting and kicking the

officers as they grappled with him. (Id. at 2:48-3:09).

The plaintiffs do not appear to argue in their response to the defendant officers’ motion for

summary judgment that Manos and Webster’s use of force to subdue Black at this point was

excessive. (See ECF 56 at 17-18). Accordingly, it is undisputed that the officers’ initial use of force

to subdue Black outside the car, on the ramp, and against the wall of the trailer was reasonable

under the circumstances.

e) The Application of Pressure and Restraints on Black

The fifth alleged excessive use of force was Webster, Lannon, and Manos’s application of

pressure on and restraint of Black’s person as the officers applied handcuffs and later leg shackles.

(EFC 19-8 at 4:00-9:47). Specifically, the plaintiffs, through their expert, assert that the continued

placement of unnecessary weight on Black’s lower body and torso in the prone position after

handcuffs were placed on his wrists was “unreasonable and an excessive use of force that could

result in serious injury or death” (ECF 56-3, Powers Decl., ¶¶ 18, 20). The plaintiffs’ other medical

expert states that Lannon, by positioning Black’s legs in the air as though “hog-tying” him “further

compromis[ed] his ability to breathe.” (ECF 56-2, Diaz Decl., ¶ 9).

The plaintiffs argue that the video evidence shows that Manos’s body weight contributed

to Black’s inability to breathe due to compression on his lungs; the defendants disagree. The body

worn camera footage is not sufficiently clear for the court to find as a manner of undisputed fact

that Manos never placed weight on Black in a way that could asphyxiate him. See Scott, 550 U.S.

at 380. Manos can be seen to place his body parallel to Black’s, pinning his waist and legs on the

porch. (ECF 19-8 at 3:48-5:07). Later, Manos removed most of his weight from Black’s body,

keeping only his right leg over Black’s left leg. (Id. at 5:07-5:20). Subsequent footage less clearly

depicts Manos’s position in the approximately four minutes that followed. (Id. at 5:21-9:52).

Manos claims in his declaration that he did not reapply pressure, and glimpses of his legs and hips

suggest this may be true, but the video does not offer a consistent shot of his position during the

time Black is unresponsive before the leg shackles are applied. (ECF 19-10, Manos Decl., ¶ 37).

Therefore, a genuine dispute of material fact exists as to whether Manos used excessive force in

applying pressure to Black on the porch.

The video evidence, moreover, does not conclusively establish the degree of force used by

Webster either before or after Black appears to stop resisting arrest. While the footage from

Webster’s body worn camera does make clear that the officer who most plausibly could have

placed pressure on Black’s upper body throughout the confrontation was Webster himself, it fails

to capture Webster’s position above Black. It is impossible to tell how much weight and what body

parts, if any, Webster placed on Black throughout the nearly six minutes of footage. Nor can a

viewer discern if or for how long Webster placed his knees on Black’s neck, shoulders, or upper

torso.

While Webster claims that he only placed his knee on Black’s left shoulder for one minute

(ECF 19-9 ¶ 30), the plaintiffs allege that Black remained “pinned [] down” by the officers’

“collective weight” with his legs positioned in the air throughout the officers’ attempts to shackle

his legs. (ECF 38 ¶¶ 125, 133, 142, 144). Thus, a genuine dispute exists as to the degree and

necessity of the force Webster, Lannon, and Manos used during the time Black was being placed

in handcuffs and leg shackles before he was found to be unresponsive.

In summary, the video evidence, considered by itself, is not so conclusive as to “clearly

contradict” and outweigh the plaintiffs’ allegations and their expert opinions. Scott, 580 U.S. at

378. As a reasonable jury could reach more than one conclusion regarding whether Manos, Lannon

and Webster’s use of force was reasonable, summary judgment must be denied.

f) Delayed Administration of Medical Aid

In addition to the allegations of excessive use of force detailed above, the plaintiffs allege

in their response to the defendant officers’ motion for summary judgment that Webster, Manos,

and Lannon violated Black’s constitutional rights by failing to administer medical aid promptly

upon realizing he was nonresponsive. (See ECF 56-3 ¶ 22). Unlike excessive use of force claims,

pre-detention denial of medical care claims are governed by the Due Process Clause of the

Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 (1979) (internal citation omitted)

(“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt

in accordance with due process of law.”). The Fourth Circuit has held that, though the precise

scope of a pretrial detainee’s Fourteenth Amendment rights is “unclear,” a violation can be made

out when a pretrial detainee “shows [that a state actor demonstrated] deliberate indifference to

serious medical needs” under cases interpreting the Eighth Amendment. Mays v. Sprinkle, 992

F.3d 295, 300 (4th Cir. 2021).

This denial of medical care claim, however, which is legally distinct from the excessive

force claim, was not pled in the plaintiffs’ amended complaint. It is well established that a plaintiff

may not amend his complaint through a memorandum and is bound by the allegations contained

in his complaint. See Stahlman v. U.S., 995 F. Supp. 2d 446, 453 (D. Md. 2014); Zachair, Ltd. v.

Driggs, 965 F. Supp. 741, 748 n.4 (D. Md. 1997). And even if the plaintiffs had sufficiently pled

this additional cause of action, the video evidence does plainly contradict the plaintiffs’ version of

events. Immediately after Black’s legs have been shackled and he was placed in the “recovery”

position on his side (ECF 19-8 at 9:58), Webster confirmed that he was breathing and had a pulse

(Id. at 10:00-10:08). Someone outside of view of the body worn camera then relayed details about

Black to emergency medical service (EMS) providers en route to the location. (Id. at 10:29-10:50,

ECF 19-9 ¶ 37). Approximately thirty seconds after Black’s mother first noticed that Black was

“turning dark” (Id. at 12:44-12:45), an unidentified voice relayed to EMS that Black was not

conscious and asked them to “step it up.” (ECF 19-8 at 13:18-13:20). The defendant officers then

proceeded to lay Black flat and unshackle his legs; Officers Baker and Manos commenced CPR.

(Id. at 14:14). At no point in this rapidly evolving sequence of events did any officer deliberately

ignore or refuse to assist Black, in fact, the officers worked in coordination to dispatch EMS and

provide CPR as soon as it became apparent to his mother and the officers that Black was no longer

breathing. Thus, there is no genuine dispute that the “deliberate indifference” to Black’s medical

needs required for an actionable Fourteenth Amendment violation has not been shown.

g) Bystander Liability Theory

The plaintiffs assert in Count 3 of the First Amended Complaint that Manos and Lannon

also are liable for Webster’s excessive uses of force because they failed to intervene to prevent the

alleged violations of Black’s Constitutional rights. (ECF 38 ¶ 231). The Fourth Circuit addresses

a failure to intervene claim as a theory of “bystander liability” wherein there is “an omission to act

. . . coupled with a duty to act.” Randall v. Prince George’s County, 302 F.3d 188, 203 (4th Cir.

2002). A “bystander officer” may be liable if he or she: “1) knows that a fellow officer is violating

an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3)

chooses not to act.” Id. at 204.

To the extent that the court has found genuine disputes of material fact regarding Webster’s

use of excessive force against Black while subduing him on the porch, Manos and Lannon, if not

directly liable, might be held accountable as bystanders. Lannon was in the immediate vicinity of

Webster and Manos and assisted them in incapacitating and shackling Black.10 Whether either

Manos or Lannon had a reasonable opportunity to tell Webster to stop applying pressure to Black’s

upper body (if Webster did so) cannot be decided as a matter of law based on the current record.

Additional discovery including deposition testimony of key witnesses may aid the court in

determining whether bystander liability for either Manos or Lannon can be determined as a matter

of law upon further summary judgment briefing.

*****

In sum, based on the evidence provided, a jury could conclude that Webster’s use of the

baton and taser as a first resort, as well as Webster’s and Manos’s use of their bodies to apply

pressure to Black with Lannon’s assistance and positioning of Black’s legs while he was being

cuffed and shackled, were unreasonable and therefore excessive uses of force in violation of

Black’s constitutional rights. The plaintiffs may not, however, proceed on any claims against the

officers for excessive use of force in deciding to arrest and pursue Black, in initially using force to

subdue him after he exited the parked car, or for the denial of medical care.11

10 Webster’s use of his Taser minutes earlier may have involved Manos directly because he can be

heard on video encouraging Webster to use the Taser just before he discharged it. (See ECF 19-8

at 2:42-2:45). Lannon, however, cannot be held responsible as a bystander for Webster’s use of

his Taser several yards away, as he did not have an opportunity to prevent it. Similarly, both Manos

and Lannon cannot be held liable as bystanders for Webster’s unannounced use of his baton to

smash the car window.

11 As the defendant officers’ only argument for summary judgment with respect to Counts 9 (Gross

Negligence or Recklessness in Retention, Training, and Supervision of Lannon and Manos) and

14 (a Fourteenth Amendment Equal Protection claim) was that no excessive force was used,

summary judgment will be denied at this time as to these claims.

II. Qualified Immunity

With respect to the plaintiffs’ Section 1983 claim, the defendant officers further argue that

they are protected from suit under the doctrine of qualified immunity.

Qualified immunity is an affirmative defense that shields government officials from

liability for civil damages in a Section 1983 suit as long as “their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity 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). Defendants bear

the burden of proving their entitlement to qualified immunity. Danser v. Stansberry, 772 F.3d 340,

345 (4th Cir. 2014). To prevail on a qualified immunity defense, a government official must

demonstrate either (1) that the facts, construed in the plaintiff’s favor, do not constitute a violation

of the plaintiff’s constitutional rights, or (2) that the right infringed upon was not clearly

established at the time of the alleged violation. See Saucier v. Katz, 533 U.S. 194, 201

(2001); Pearson, 555 U.S. at 231-33, 236.

An officer’s conduct violates clearly established law “when, at the time of the challenged

conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would

have understood that what he is doing violates that right.’” Ashcroft v. Al-Kidd, 563 U.S. 731, 741

(2011). Although there need not be a case directly on point for the law to be clearly established,

“existing precedent must have placed the statutory or constitutional question beyond debate.”

Stanton v. Sims, 571 U.S. 3, 6 (2013). The Supreme Court has emphasized that the “clearly

established law” should not be decided at a “high level of generality” but instead it must be

“particularized” to the facts of the case and the law determined beyond debate. White v. Pauly, __

U.S. __, 137 S. Ct. 548, 552 (2017) (per curiam) (internal citations omitted). “[S]pecificity is

especially important in the Fourth Amendment context, where the Court has recognized that it is

sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive

force, will apply to the factual situation the officer confronts.” Kisela v. Hughes, __ U.S. __, 138

S. Ct. 1148, 1152 (2018) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam)). When a

plaintiff can identify “cases of controlling authority in the jurisdiction at the time of the incident”

or “a consensus of cases of persuasive authority” affirming the allegedly violated right, the law

may be clearly established. Wilson v. Layne, 526 U.S. 603, 617 (1999). “The ‘exact conduct at

issue need not’ previously have been deemed unlawful for the law governing an officer’s actions

to be clearly established.” Sims v. Labowitz, 885 F.3d 254, 262 (4th Cir. 2018) (quoting Amaechi

v. West, 237 F.3d 356, 362 (4th Cir. 2001)).

As discussed above, three uses of force, when viewed in the light most favorable to the

plaintiffs, may have violated Black’s constitutional rights: Webster’s use of his baton, the

discharge of the taser, and the application of pressure to Black’s body while he was being cuffed

and shackled. As the baton and taser were deployed immediately in sequence, they will be analyzed

together for the purpose of determining whether clearly established law existed at the time of the

incident.

a) Baton and Taser Usage

On at least two occasions, the Fourth Circuit has spoken directly in published opinions as

to how baton and taser usage by law enforcement officers may become excessive uses of force.

First, in Meyers v. Baltimore County, Maryland, the Fourth Circuit found an officer’s initial uses

of a taser against an agitated man wielding a baseball bat were objectively reasonable, but

subsequent deployments of the taser after the man was subdued were not reasonable and the officer

was not entitled to qualified immunity. 713 F.3d 723, 733-34 (4th Cir. 2013). The Meyers court

held that the Fourth Circuit has “stated in forthright terms that officers using unnecessary,

gratuitous, and disproportionate force to seize a secured, unarmed citizen, do not act in an

objectively reasonable manner and, thus, are not entitled to qualified immunity.” Id. at 734

(quoting Bailey v. Kennedy, 349 F.3d 731, 744-45 (4th Cir. 2003)). Relevantly, such “unnecessary,

gratuitous, and disproportionate force” may arise from using a gun, baton, taser, or other weapon.

Id. at 745.

Second, in Estate of Armstrong, the Fourth Circuit clarified that law enforcement officers

may only deploy tasers when an officer is “confronted with an exigency that creates an immediate

safety risk and that is reasonably likely to be cured by using the taser.” 810 F.3d at 909. Put another

way, use of a taser is “proportional force only when deployed in response to a situation in which a

reasonable officer would perceive some immediate danger that could be mitigated by using the

taser.” Id. at 903.12 Armstrong additionally held that, when a law enforcement official is deciding

when and how to use force to subdue an individual known to be suffering from a mental health

crisis or disability, “[t]he diminished capacity of an unarmed detainee must be taken into account

when assessing the amount of force exerted.” Id. at 900 (quoting Champion v. Outlook Nashville,

Inc., 380 F.3d 893, 904 (6th Cir. 2004).

12 Other Fourth Circuit cases repeat this holding in circumstances where non-resisting and

unarmed suspects are Tased or otherwise punished through unnecessary uses of force. See Orem

v. Rephann, 523 F.3d 442, 449 (4th Cir. 2008) (no qualified immunity for officer who used taser

to “punish or intimidate” a pretrial detainee); Park v. Shiflett, 250 F.3d 843, 852-53 (4th Cir. 2001)

(no qualified immunity for officer who pepper-sprayed suspect’s wife twice at close range without

waiting to see if the first spray subdued her); Yates v. Terry, 817 F.3d 877, 886-87 (4th Cir. 2016)

(no qualified immunity for an officer who tased a non-resisting driver three times).

Whether Black was “secured” inside the car is a question of fact that the court cannot

resolve at this point in litigation. The vehicle was parked, not turned on, and had a flat front tire.

No testimony exists from the defendant officers about whether they believed Black had access to

a firearm while inside the vehicle. Affording the plaintiffs the most favorable interpretation of the

evidence, as is required for purposes of summary judgment, Black may be assumed to have been

secured and no longer actively posing an immediate threat when Webster smashed the window

and deployed his taser. Clearly established law in the Fourth Circuit, from Meyers and Armstrong,

provided sufficient particularized and unambiguous notice that Webster’s use of his baton and

taser, without prior warning or a verbal attempt to obtain compliance, when Black was seated in a

parked car and not posing an immediate threat to the officers’ safety, would violate Black’s Fourth

Amendment right to be free from the application of excessive force.

b) Application of Pressure on Black While He Was Prone

The defendant officers contend that there is no clearly established law regarding when the

use of pressure becomes “positional asphyxia,” a disputed medical term for the inability to breathe

while restrained. While the Fourth Circuit has not published a decision addressing this term

specifically, two cases have denied qualified immunity to law enforcement officers for the

gratuitous use of force in analogous situations. First, in Jones v. Buchanan, the court held that an

officer who knocked a drunk and disorderly, but already handcuffed, individual to the ground in a

secured room engaged in excessive use of force. 325 F.3d 520, 532 (4th Cir. 2003). Denying the

officer qualified immunity, the court reasoned that “years before 1999, it was clearly established

that a police officer was not entitled to use unnecessary, gratuitous, and disproportionate force

against a handcuffed, secured citizen, who posed no threat to the officer or others . . .” Id. at 534.

Second, in Bailey v. Kennedy, the Fourth Circuit denied qualified immunity to officers who

continued to use force to roughly manipulate the body of an initially resistant suspect who, by that

time, had been fully secured. 349 F.3d 731, 745.13 The court found unreasonable officers’ kicks

and blows that continued “after Michael was bound hand and foot and lying face down on the

floor.” Id. at 744.

Although there is no Fourth Circuit caselaw precisely on point, the defendant officers were

sufficiently on notice of the controlling legal principle: that continued application of unnecessary

pressure after an initially-resisting subject has been incapacitated constitutes excessive force in

violation of the subject’s constitutional rights. It also is clear that an individual’s mental health

must be factored into the use of force. As with the baton and taser, the factual dispute as to whether

Black was secured and did not pose a threat to the officers throughout the time they were subduing

him on the porch must be viewed in the light most favorable to the plaintiffs at this stage in

litigation. Similarly, considering the plaintiffs’ proffered expert opinions, a genuine dispute of

material fact exists regarding whether “positional asphyxia” creates risk of serious injury or death

13 The plaintiffs analogize to a number of additional, mostly unpublished cases to support the

argument that the defendant officers were on notice that their actions violated Black’s

constitutional rights. Most notable among the cases the plaintiffs cite is Estate of Saylor v. Regal

Cinemas, Inc., 54 F. Supp. 3d 409 (D. Md. 2014), aff’d sub nom. Estate of Saylor v. Rochford,

698 F. App’x 72 (4th Cir. 2017), an unpublished Fourth Circuit case involving the death of Ethan

Saylor, an individual with Downs syndrome, after a police encounter in a movie theater. There,

the court determined that the deputies who placed Saylor on the floor of the theater should have

been aware of the risks of dragging and restraining an individual with a “mental disability” even

if the injury that led to his death (a fractured larynx) was not foreseeable. Id. at 418. Other

circuits have also ruled precisely on the issue at hand. See Champion v. Outlook Nashville, Inc.,

380 F.3d at 903 (“Creating asphyxiating conditions by putting substantial or significant pressure,

such as body weight, on the back of an incapacitated and bound suspect constitutes objectively

unreasonable excessive force.” Saylor and Champion’s conclusions and that of various other

unpublished and District Court opinions which concur with the court’s present decision, may be

considered in determining whether there is a consensus of cases of persuasive authority. See,

e.g. Myers v. City of Charleston, No. 2:19-CV-00757, 2021 WL 925326 at *12 (S.D.W. Va. Mar.

10, 2021).

in individuals who have pressure applied to them while prone. Clearly established law in Jones

and Bailey existed to provide Webster, Manos, and Lannon sufficiently particularized and

unambiguous notice that the continued application of unnecessary pressure on someone after he

has stopped resisting and no longer poses a threat to the officers or others constitutes excessive

force. Accordingly, summary judgment will be denied as to Count 3 (Excessive force in violation

of the Fourth Amendment) of the First Amended Complaint.

III. Statutory and Common Law Immunity

Defendant officers next assert that common law and statutory immunity protect them from

suit on their state law claims. Maryland grants public officials, including police officers, immunity

from suit for negligent acts performed during the course of their discretionary duties. Houghton v.

Forrest, 412 Md. 578, 585 (2010); see also Md. Cts. & Jud. Pro. Code § 5-507 (2015) (codifying

common law public official immunity for municipal officials). Such immunity, however, does not

protect public officials from suit for grossly negligent or reckless discretionary acts. Barbre v.

Pope, 402 Md. 157, 187-90 (2007).

As police officers at the time of the incident, Webster, Manos, and Lannon are entitled to

statutory immunity as public officials for acts of negligence performed in the course of their

discretionary duties. The defendant officers contend that, although plaintiffs allege recklessness or

intentionality with respect to each relevant count, the court must view the body worn camera

footage as dispositive of gross negligence, recklessness, and malice.

While there is little evidence of malice in the record, there are factual allegations, when

viewed in the light most favorable to the plaintiffs, that could support a finding of gross negligence

or recklessness on the part of the defendant officers. The record includes expert opinions that the

officers’ choice to prone and apply pressure to Black while he was restrained face down, with his

legs in the air, was not reasonable under the circumstances due to the risk of asphyxiation and that

this placement led to Black’s death. (ECF 56-2 ¶¶ 4, 10; ECF 56-3 ¶¶ 18, 20; ECF 56-4 ¶¶ 3-13).

Additionally, the Greensboro Police Handbook, to which Webster was supposed to adhere,

suggests that by smashing a car window by Black’s head and discharging a Taser, Webster did not

attempt to de-escalate, and to not overreact, when dealing with a person suffering from a mental

health crisis. (ECF 56-3C at 326). Thus, a genuine dispute exists as to the defendant officers’ mental

states, and sufficient evidence of gross negligence precludes summary judgment on the issue of

statutory and common law immunity.

As the defendant officers offer no other reasons for summary judgment with respect to

Counts 1 (Wrongful Death), 2 (Survival Action), 5 (Excessive Force in Violation of Article 24 of

the Maryland Declaration of Rights), 6 (Excessive Force and Deprivation of Liberty in Violation

of Article 26 of the Maryland Declaration of Rights), and 7 (Battery), their motion will be denied

as to these claims. Because the case will be proceeding to further discovery it also is not necessary

for the court to address the civil conspiracy and intentional infliction of emotional distress claims

at this time.

CONCLUSION

For the reasons stated above, the court will deny the defendant officers’ motion for

summary judgment at this time, without prejudice to its renewal after additional discovery has

been taken.14 A separate Order follows.

1/18/22 ___/s/_____________________

Date Catherine C. Blake

United States District Judge

14 As the court will deny the defendants’ motion for summary judgment, there is no need to

address the plaintiffs’ argument regarding the need for additional discovery under Federal Rule

of Civil Procedure 56(d).