Nicholson v. State of Maryland

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

JAWONE D. NICHOLSON

:

v. : Civil Action No. DKC 20-3146

:

BALTIMORE POLICE DEPARTMENT,

et al. :

MEMORANDUM OPINION

Presently pending and ready for resolution in this civil

rights action is the motion for summary judgment filed by Defendant

Damond Durant.1 (ECF No. 71). The issues have been briefed, and

the court now rules, no hearing being deemed necessary. Local

Rule 105.6. For the following reasons, the motion for summary

judgment will be granted in part and denied in part.

I. Background

A. Factual Summary

On the afternoon of November 10, 2017, Plaintiff Jawone D.

Nicholson was standing with a friend in the cul-de-sac behind

1 Also pending are the motion to seal filed by Defendant and

the motion for leave to file tangible items filed by Plaintiff

Jawone D. Nicholson. (ECF Nos. 73, 85). Defendant moves to seal

exhibit 11 to his motion for summary judgment. (ECF No. 73). This

exhibit contains Plaintiff’s medical information. Neither

Plaintiff nor anyone else has opposed the sealing of this exhibit,

and the court did not rely on it in its analysis of Defendant’s

motion. Thus, Defendant’s motion will be granted. Plaintiff seeks

leave to file exhibits 3 and 4 to his opposition to Defendant’s

motion, which contain the audio files of the 911 calls, in compact

disc format. (ECF No. 85). Plaintiff’s motion will be granted.

Plaintiff’s home in Howard County, waiting to be picked up for an

after-school program. (ECF Nos. 71-3, at 16; 71-4, at 5, 9-10).

Plaintiff was sixteen years old at the time. (ECF No. 71-4, at

18). It was a cold day; Plaintiff was wearing a hood pulled tight

over his head, and his friend was wearing a face covering. (ECF

No. 71-3, at 21). At some point while Plaintiff and his friend

were waiting there, Defendant, a police officer for the Baltimore

City Police Department, arrived home from work in his personal

vehicle to his house in the same cul-de-sac. (Id. at 5, 12). He

was in plain clothes—a black hooded sweatshirt and jeans—and he

was carrying his personal firearm—which he was authorized to carry

by his employer but was not his assigned service weapon—in a

holster in his sweatshirt pocket. (Id. at 10, 12, 15). As he

parked his car in front of his house, Defendant saw Plaintiff and

Plaintiff’s friend standing in the parking pad of a neighboring

house. (Id. at 13). Defendant did not observe the teenagers

committing any crimes. (Id. at 15). In their depositions, the

parties presented differing versions of the events that followed.

According to Plaintiff’s deposition testimony, Defendant

approached Plaintiff and his friend and said, “What y’all standing

here for?” (ECF No. 71-4, at 10). Plaintiff perceived Defendant

to be a “regular person” in plain clothes. (Id. at 12). Neither

Plaintiff nor his friend had any weapons on them at the time. (Id.

at 12). The teenagers explained to Defendant that they were

“waiting for [their] transportation,” and Defendant asked, “What

transportation?” (Id. at 10). Plaintiff responded, “Why you

asking so many questions?” (Id.). Defendant then said, “Man,

y’all wasn’t going to do shit,” and he started walking toward them.

(Id.). The teenagers walked toward Defendant in response, and it

was at that point that Defendant pulled his weapon from the holster

in his pocket and pointed it at Plaintiff’s friend’s stomach. (Id.

at 10, 12). Plaintiff and his friend then “threw [their] hands

up[] [and] walked away.” (Id. at 10). They walked around a

corner, and Plaintiff called his mother. (Id.). Defendant

continued to follow the teenagers from a distance until moments

later when Plaintiff’s mother, grandmother, and other family

members arrived on the scene. (Id. at 12-13). It was at that

point that Defendant finally revealed his affiliation with the

Baltimore City Police Department. (Id. at 14).

Defendant recalls some of the facts differently. He testified

that he approached Plaintiff and his friend because the two were

“looking around suspiciously.” (ECF No. 71-3, at 13). He was

concerned that they might be trespassing on his neighbor’s property

and that they might be about to break into or damage his neighbor’s

property. (Id. at 14, 20). Defendant observed that Plaintiff’s

friend had a knife clipped into his pocket. (Id. at 19). Defendant

approached them and asked, “[D]o you live around here?” (Id. at

23). The two teenagers responded by “cussing [him] out.” (Id. at

25). Defendant said, “I don’t want you guys to get in no trouble”

and then turned away to leave. (Id.). At this point, Plaintiff

and his friend quickly approached Defendant from behind. (Id. at

27). Believing that the two were about to attack him, Defendant

drew his gun—still in the holster—from his pocket. (Id.).

Defendant testified that he pointed his holstered gun at the ground

and identified himself as a police officer, communicating to the

teenagers, “[Y]ou don’t want to do this, go ahead and leave.” (Id.

at 27-28). The teenagers then walked away, and Defendant called

the police. When he spoke to the 911 operator, Defendant stated,

“[W]hen they came up, I showed them my badge; I showed them my

gun.” (ECF No. 80-5).2

Plaintiff testified that he was traumatized from this

experience: he was forced to relive the experience every day when

he walked past the cul-de-sac to get to school and whenever he

looked through his bedroom window to the area where the incident

took place. (ECF No. 71-4, at 15). Plaintiff experienced—and

continues to experience—sleepless nights, stomachaches, random

outbursts of tears, and a fear of police. (Id. at 17-18). He

began seeing a therapist shortly after the incident, and the

2 He testified at deposition that he showed his badge for the

first time when the family members approached. (ECF No. 71-3, at

34).

therapist recommended that he take medication, although he

declined to do so. (Id. at 18-19).

B. Procedural History

Plaintiff filed a lawsuit in the Circuit Court for Baltimore

City, naming as defendants Mr. Durant as well as the Baltimore

Police Department, the Mayor and City Council of Baltimore, and

the State of Maryland. The case was removed to this court on

October 29, 2020. (ECF No. 1). Plaintiff filed an Amended

Complaint on November 24, 2020. (ECF No. 17). The Amended

Complaint contained the following claims against all four then-

defendants: (I) False Arrest in violation of the Fourth Amendment

to the United States Constitution, (II) False Imprisonment in

violation of the Fourth Amendment, (III) Excessive Force in

violation of the Fourth Amendment, (IV) False Arrest in violation

of Articles 24 and 26 of the Maryland Declaration of Rights, (V)

False Imprisonment in violation of Articles 24 and 26, (VI)

Excessive Force in violation of Articles 24 and 26, (VII) False

Arrest in violation of Maryland common law, (VIII) False

Imprisonment in violation of Maryland common law, (IX) Intentional

Infliction of Emotional Distress, and (X) Gross Negligence. The

Amended Complaint also contained a claim for Negligent Training,

Supervision, and Retention and a Monell claim against the State of

Maryland, Baltimore Police, and Mayor and City Council of

Baltimore.

All four defendants moved to dismiss on December 18, 2020.

(ECF Nos. 27-28). Defendant Durant moved to dismiss only the

intentional infliction of emotional distress claim against him,

and the other defendants moved to dismiss all claims against them.

The court granted the latter motion to dismiss in full, dismissing

all claims against the State, City, and Police Department. (ECF

Nos. 38-39). The court denied Defendant Durant’s partial motion

to dismiss.

The parties engaged in discovery, and Defendant Durant moved

for summary judgment on January 17, 2023. (ECF No. 71). Plaintiff

responded in opposition, and Defendant replied. (ECF Nos. 80,

86).

II. Standard of Review

A court may enter summary judgment only if there is no genuine

dispute as to any material fact and the moving party is entitled

to judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute

about a material fact is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

court must construe the facts that are presented in the light most

favorable to the party opposing the motion. Scott v. Harris, 550

U.S. 372, 378 (2007).

“A party opposing a properly supported motion for summary

judgment ‘may not rest upon the mere allegations or denials of

[his] pleadings,’ but rather must ‘set forth specific facts showing

that there is a genuine issue for trial.’” Bouchat v. Balt. Ravens

Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration

in original) (quoting former Fed.R.Civ.P. 56(e)). “A mere

scintilla of proof . . . will not suffice to prevent summary

judgment[.]” Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).

“If the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.” Liberty Lobby, 477

U.S. at 249–50 (citations omitted).

III. Analysis

A. Section 1983 Claims

Counts I through III of the Amended Complaint are claims

brought under 42 U.S.C. § 1983 for violations of Plaintiff’s rights

under the Fourth Amendment to the United States Constitution. (ECF

No. 17, at 10-15). Defendant argues that he is entitled to summary

judgment on Plaintiff’s § 1983 claims because (1) he was not acting

under color of law during the events at issue in this case, and

even if he was, (2) he is entitled to qualified immunity. (ECF

No. 71-1, at 19-33).

1. Color of Law

Defendant argues that it cannot be genuinely disputed that he

was not acting under color of law during his interaction with

Plaintiff. (ECF No. 71-1, at 19). In order to recover under

§ 1983, Plaintiff must demonstrate that Defendant acted “under

color of state law” when he deprived Plaintiff of his federal

rights. See Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.

2003) (citing 42 U.S.C. § 1983). It is clear that “§ 1983 excludes

from its reach merely private conduct, no matter how discriminatory

or wrongful,” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50

(1999) (internal quotation marks omitted), but there is no “simple

line between States and people operating outside formally

governmental organizations,” Brentwood Acad. v. Tenn. Secondary

Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001). Indeed, “the

question of what is fairly attributable to the State ‘is a matter

of normative judgment, and the criteria lack rigid simplicity.’”

Rossignol, 316 F.3d at 523 (quoting Brentwood Acad., 531 U.S. at

295). “[T]he ultimate resolution of whether an actor was . . .

functioning under color of law is a question of law for the court.”

Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 344

n.7 (4th Cir. 2000).

The United States Court of Appeals for the Fourth Circuit has

recognized that “[a]cts of police officers in the ambit of their

personal, private pursuits fall outside of 42 U.S.C. § 1983,” but

“the lack of the outward indicia suggestive of state authority—

such as being on duty, wearing a uniform, or driving a patrol car—

are not alone determinative of whether a police officer is acting

under color of state law.” Revene v. Charles Cnty. Comm’rs, 882

F.2d 870, 872 (4th Cir. 1989) (internal quotation marks omitted)

(alteration in original). On the other hand, identifying oneself

as a police officer, while not necessarily dispositive,

“generally” indicates acting in official capacity. See McDonough

v. Toles, 476 F.Supp.3d 882, 891 (D.Minn. 2020) (“It is true that,

based on all of the facts and circumstances of a case, an officer

may be found not to have acted under color of law, even though the

officer identified himself as a police officer. . . . But that is

the exception, not the rule.”). If a police officer’s “purportedly

private actions are linked to events which arose out of his

official status, the nexus between the two can play a role in

establishing that he acted under color of state law.” Rossignol,

316 F.3d at 524. Ultimately, “the nature of the act performed is

controlling,” and “[t]he act therefore must be carefully

scrutinized to determine whether an officer, when either on or off

duty, is acting under color of state law.” Revene, 882 F.2d at

872.

There are several facts in dispute here that are relevant to

the determination of this question. Resolving all factual disputes

in Plaintiff’s favor (which results in the adoption of certain

parts of Defendant’s version of events), the facts most relevant

to this question are as follows. On the day of the incident,

Plaintiff and his friend were standing in the cul-de-sac where

Defendant’s home was located when Defendant arrived home from his

job as a police officer. Defendant was dressed in plain clothes,

in his personal vehicle, off duty, and out of his employer’s

jurisdiction. Defendant approached Plaintiff and his friend,

acting on a suspicion that the pair were committing, or were about

to commit, a crime. Defendant proceeded to question Plaintiff and

his friend, investigating their presence in an area where he

believed they did not have a right to be. Then, Defendant walked

toward the teenagers and, after identifying himself as a police

officer (verbally and possibly by showing his badge), Defendant

pulled out his privately-owned (but department authorized) weapon

and pointed it at Plaintiff’s friend. In doing so, Defendant

indicated that Plaintiff and his friend should leave the area.

Plaintiff and his friend put their hands up and walked away.

Defendant is not entitled to a determination as a matter of

law that he was not acting under color of law when he interacted

with Plaintiff. If a jury finds that the facts occurred as just

described (or similarly), the interaction would have resembled a

Terry stop that culminated in forced compliance using a show of

police authority and a weapon.3 While Defendant was off duty at

the time and had no authority to arrest Plaintiff in that

jurisdiction, the nature of the act itself as described above—an

interrogation and orders to comply accompanied by self-

3 “Terry stop” refers to the Supreme Court case Terry v. Ohio,

392 U.S. 1, 30 (1968), in which the Court recognized that a police

officer may conduct a brief investigatory stop where the officer

has reasonable suspicion that criminal activity may be afoot.

identification as a police officer and a show of force—amounts to

a performance of police duties rather than a purely personal

pursuit. Thus, there are material facts in dispute that a jury

must resolve before it can be determined whether Defendant acted

under color of law.

2. Qualified Immunity

Defendant argues that even if he was acting under color of

law during his interaction with Plaintiff, he is entitled to

qualified immunity on Plaintiff’s Fourth Amendment claims. (ECF

No. 71-1, at 25). The Amended Complaint contains three claims

based on violations of the Fourth Amendment: a false arrest claim,

a false imprisonment claim, and an excessive force claim. The

questions posed as to each claim are (1) “whether a constitutional

right was violated,” and if so (2) “whether the unconstitutionality

of the officers’ conduct was clearly established.” Thorpe v.

Clarke, 37 F.4th 926, 933 (4th Cir. 2022) (internal quotation marks

omitted) (quoting Pearson v. Callahan, 555 U.S. 223, 227 (2009)).4

a. False Arrest and False Imprisonment

The Fourth Amendment false arrest and false imprisonment

claims are identical to one another in the Amended Complaint.

Plaintiff does not explain how the claims differ from one another,

4 Which party has the burden of proof on each question can be

complicated. See Stanton v. Elliott, 25 F.4th 227, 233 n.5 (4th

Cir. 2022).

and the parties discuss them under one analysis. Following the

parties’ lead, those two claims will be treated as a single Fourth

Amendment unlawful seizure claim. See Rogers v. Pendleton, 249

F.3d 279, 294 (4th Cir. 2001) (“[F]alse arrest and false

imprisonment claims . . . are essentially claims alleging a seizure

of the person in violation of the Fourth Amendment[.]”).

Plaintiff argues that he was unconstitutionally seized in two

separate instances: (1) in the moment that Defendant pointed his

gun at him and his friend and (2) when Defendant forced him to

leave the area. (ECF No. 80, at 18-19). In assessing whether

Defendant’s actions in each instance violated Plaintiff’s Fourth

Amendment rights, it must be determined whether Plaintiff was

seized and, if so, whether the seizure was done without legal

justification. See United States v. Harrison, 667 F.2d 1158, 1160

(4th Cir. 1982).

Because Defendant did not arrest Plaintiff or detain him for

an extended period, Defendant’s interaction with Plaintiff would,

at most, be characterized as a Terry stop. A law enforcement

officer engages in a Terry stop when he “seize[s] a person for a

brief investigatory stop” after “observ[ing] unusual conduct which

leads him reasonably to conclude in light of his experience that

criminal activity may be afoot.” United States v. Slocumb, 804

F.3d 677, 681 (4th Cir. 2015) (internal quotation marks omitted)

(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). Law enforcement

officers do not seize individuals “merely by approaching [them] on

the street or in other public places and putting questions to them

if they are willing to listen.” United States v. Drayton, 536

U.S. 194, 200 (2002). As the Supreme Court of the United States

has explained,

Even when law enforcement officers have no

basis for suspecting a particular individual,

they may pose questions, ask for

identification, and request consent to search

luggage—provided they do not induce

cooperation by coercive means. If a

reasonable person would feel free to terminate

the encounter, then he or she has not been

seized.

Id. at 201 (citation omitted). The Supreme Court has identified

“[e]xamples of circumstances that might indicate a seizure,”

including:

the threatening presence of several officers,

the display of a weapon by an officer, some

physical touching of the person of the

citizen, or the use of language or tone of

voice indicating that compliance with the

officer’s request might be compelled.

United States v. Mendenhall, 446 U.S. 544, 554 (1980).

A seizure can occur either “by means of physical force or

show of authority” that “in some way restrain[s] the liberty of a

citizen.” Terry, 392 U.S. at 19 n.16. In the absence of physical

contact between the officer and the citizen, however, the citizen

“must actually submit to [the officer’s] show of authority” for

the show of authority alone to constitute a seizure. United States

v. Cloud, 994 F.3d 233, 242 (4th Cir. 2021); see also California

v. Hodari D., 499 U.S. 621, 626 (1991).

Defendant did not seize Plaintiff simply by approaching him

and asking questions. At issue is whether Plaintiff was seized

when Defendant pulled out his weapon—a “show of authority.”

Assuming the sequence of events happened as previously described—

Defendant identified himself as police, pulled out his weapon, and

directed Plaintiff to leave—a reasonable person under those

circumstances would not have felt “free to terminate the encounter”

once the gun was pulled out. It is not particularly relevant

whether Defendant pointed the gun at the ground or at Plaintiff’s

friend. As the Supreme Court has said, an officer’s mere “display

of a weapon” can indicate that a seizure occurred. Evidence in

the record would support a conclusion that Defendant sought the

teenagers’ subordination to his show of force when he pulled out

his weapon; thus, Defendant “induce[d] [Plaintiff’s] cooperation

by coercive means” in that moment. Additionally, Plaintiff

submitted to Defendant’s show of authority by putting his hands up

and walking away, as Defendant directed him to do. Therefore,

Defendant is not entitled to a determination as a matter of law

that there was no seizure in the moment that he brandished his

firearm.

The next question is whether such a seizure would have been

legally justified. In order for a Terry stop to be legally

permissible, an officer “must have a particularized and objective

basis for suspecting the particular person stopped” “is, or is

about to be, engaged in criminal activity”—also known as

“reasonable articulable suspicion.” United States v. Cortez, 449

U.S. 411, 417-18 (1981). Here, Defendant has not identified any

particularized or objective reasons for suspecting that Plaintiff

and his friend were engaged in criminal activity. In his

deposition, he stated that he merely observed the two teenagers

standing and looking around the cul-de-sac “suspiciously,” and he

admitted that he did not observe them commit any crimes. (ECF No.

71-3, at 13, 15). He noted that he found it suspicious that

Plaintiff was wearing a hood pulled tight over his head and that

Plaintiff’s friend was wearing a face covering, but he also stated

that it was “really cold” that day and admitted that it might have

been reasonable for someone to wear a hood or face mask for warmth.

(Id. at 21-22). When asked, “Why did you think they were going to

do something they would regret?”, Defendant responded, “Just a gut

feeling.” (Id. at 25). An officer’s “inchoate and

unparticularized suspicion or ‘hunch’” does not suffice as

reasonable articulable suspicion. Terry, 392 U.S. at 27.

Defendant has not demonstrated as a matter of law that he had

reasonable articulable suspicion that Plaintiff was engaged or

about to engage in criminal activity at the time of the encounter.

Moreover, these rules are clearly established, both by the

Supreme Court and the Fourth Circuit. As previously noted, the

Supreme Court has recognized that an officer’s “display of a

weapon” can indicate that a seizure occurred. See Mendenhall, 446

U.S. at 554. Additionally, Defendant’s purported reasons for being

suspicious of Plaintiff are far less objective and reasonable than

other cases where the Fourth Circuit determined that there was no

reasonable articulable suspicion. See, e.g., United States v.

Massenburg, 654 F.3d 480, 488-91 (4th Cir. 2011) (holding that

there was no reasonable articulable suspicion based on a

plaintiff’s presence in a high-crime area shortly after reports of

gunfire nearby, nervous behavior, and hesitance to submit to a

pat-down); United States v. Sprinkle, 106 F.3d 613, 617-19 (4th

Cir. 1997) (holding that there was no reasonable articulable

suspicion where a plaintiff entered the car of a person who was

known to the officers as having recently completed a prison

sentence for narcotics violations and made hand movements

consistent with a covert exchange). Thus, Defendant is not

entitled to qualified immunity on Plaintiff’s claim that Defendant

unlawfully seized him when he approached him, asked him questions,

and then brandished his weapon.

Plaintiff also argues that he was seized when Defendant

ordered that he and his friend leave the area.5 As previously

stated, a seizure occurs when a reasonable person would not “feel

free to terminate the encounter” with the police officer.

Plaintiff is, in essence, arguing that he was seized because

Defendant forced him to terminate the encounter, which seems to be

a contradictory concept.6 Plaintiff contends that he was deprived

of his “liberty” to “remain in a public place of his choice.” (ECF

No. 80, at 19). He does not, however, cite any Fourth Amendment

case law in support of this contention; he only cites cases

discussing a person’s “liberty” interests under the Due Process

Clause of the Fourteenth Amendment. See, e.g., City of Chicago v.

Morales, 527 U.S. 41, 53 (1999) (“[T]he freedom to loiter for

innocent purposes is part of the ‘liberty’ protected by the Due

Process Clause of the Fourteenth Amendment.”).

5 It is unclear whether any evidence in the record supports a

finding that Defendant verbally ordered Plaintiff and his friend

to leave the area or whether the evidence at most shows that he

implied that they should leave with his body language and

withdrawal of the weapon. Whether he communicated it implicitly

or explicitly does not impact the following analysis.

6 The Supreme Court has, in other cases, articulated the

seizure standard as a question of whether “in view of all of the

circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave.” Mendenhall, 446

U.S. at 554. Again, Plaintiff’s argument that he was seized

because he was forced to leave is seemingly contradictory.

The Fourth Circuit has not recognized a police officer’s use

of force to compel a person to leave an area as a seizure under

the Fourth Amendment. Other circuits have considered this

question. The Sixth Circuit has held that “Fourth Amendment

jurisprudence suggests a person is seized not only when a

reasonable person would not feel free to leave an encounter with

police, but also when a reasonable person would not feel free to

remain somewhere, by virtue of some official action.” Bennett v.

City of Eastpointe, 410 F.3d 810, 834 (6th Cir. 2005). The Second

Circuit, on the other hand, has held that a person who was ordered

to leave a premises and escorted out by police was not seized

because he was “free to go anywhere else that he desired.”

Sheppard v. Beerman, 18 F.3d 147, 153 (2d Cir. 1994). The Second

Circuit reaffirmed this position in a subsequent case, explaining,

Police officers frequently order persons to

leave public areas: crime scenes, accident

sites, dangerous construction venues,

anticipated flood or fire paths, parade

routes, areas of public disorder, etc. A

person may feel obliged to obey such an order.

Indeed, police may take a person by the elbow

or employ comparable guiding force short of

actual restraint to ensure obedience with a

departure order. Our precedent does not view

such police conduct, without more, as a

seizure under the Fourth Amendment as long as

the person is otherwise free to go where he

wishes.

Salmon v. Blesser, 802 F.3d 249, 253 (2d Cir. 2015). The Seventh

Circuit considered this question but ultimately decided that even

though it was unclear that a command by a police officer to leave

a premises, coupled with an arrest threat, did not constitute an

unlawful seizure, it was also not clear that it did; therefore,

the police officer was entitled to qualified immunity. Kernats v.

O’Sullivan, 35 F.3d 1171, 1181 (7th Cir. 1994).

The Seventh Circuit’s reasoning in Kernats is persuasive, and

the same conclusion is appropriate in the present case. Fourth

Circuit case law does not clearly establish that Defendant’s order

to Plaintiff to leave the area constituted a seizure. The

existence of conflicting case law in other circuits is far from

sufficient to establish this issue clearly in this circuit. See

Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999)

(“[I]f a right is recognized in some other circuit, but not in

this one, an official will ordinarily retain the immunity defense.”

(internal quotation marks omitted) (alteration in original)).

Thus, Defendant is entitled to qualified immunity on Plaintiff’s

claim that Defendant unlawfully seized him when he ordered him to

leave.

b. Excessive Force

Plaintiff’s Fourth Amendment excessive force claim is that

Defendant used excessive force by brandishing his weapon, despite

the fact that Plaintiff did not pose any threat to Defendant’s or

any other person’s safety. Defendant argues that he is entitled

to qualified immunity on this claim.

The question whether police officers used excessive force

“requires careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Graham v. Connor, 490 U.S.

386, 396 (1989). “[T]he question is whether the officers’ actions

[we]re ‘objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to their underlying

intent or motivation.” Id. at 397.

An officer may, under certain circumstances, draw his weapon

as a “justified safety precaution” during a Terry stop. See United

States v. Manbeck, 744 F.2d 360, 377 (4th Cir. 1984), cert. denied,

469 U.S. 1217 (1985). The Fourth Circuit has referred to police

officers “approaching a suspect with drawn weapons” as an

“extraordinary measure[]” that may be justified “as a reasonable

means of neutralizing potential danger to police and innocent

bystanders.” United States v. Taylor, 857 F.2d 210, 214 (4th Cir.

1988). Generally, the Fourth Circuit has recognized that it is

reasonable for police officers to draw their weapons on a person

when they have reason to believe that the person is armed or

otherwise dangerous, that the person is engaged in criminal

activity, or that some other threat to the officers’ safety is

present due to the nature of the interaction. See, e.g., Bellotte

v. Edwards, 629 F.3d 415, 426 (4th Cir. 2011) (holding that it was

reasonable for officers to draw their weapons when executing a

search of a child’s bedroom where they suspected child pornography

was located because “the officers had good reason to fear for their

own safety upon entering an unsecured room”); Taft v. Vines, 83

F.3d 681, 684 (4th Cir. 1996) (en banc) (adopting the dissenting

opinion of the panel, 70 F.3d 304, 320 (4th Cir. 1995), that it was

reasonable for officers to point their weapons at children exiting

a vehicle because they had reason to believe that an occupant of

the vehicle was an armed and dangerous murder suspect); Foote v.

Dunagan, 33 F.3d 445, 448 (4th Cir. 1994) (holding that it was

reasonable for an officer to draw his weapon during a Terry stop

of a truck driver who the 911 dispatcher had said “was wanted in

connection with an assault and was armed and dangerous”); United

States v. Sinclair, 983 F.2d 598, 602-03 (4th Cir. 1993) (holding

that it was reasonable to draw weapons when stopping suspected

drug traffickers).

There are several disputed facts that bear significantly on

this analysis. For the purposes of this motion, however, all

disputes of facts must be resolved in Plaintiff’s favor. Thus,

assuming that Plaintiff and his friend were unarmed and only

approached Defendant as he approached them, Plaintiff posed no

threat to Defendant’s or anyone else’s safety. Under those facts,

“the severity of the crime at issue” was nonexistent because

Plaintiff and his friend had not committed any crimes; the

teenagers did not “pose[] an immediate threat to the safety of the

officer[] or others”; and they were not “actively resisting arrest

or attempting to evade arrest by flight.” Thus, there was no

objective reason to justify Defendant’s drawing of his weapon.

This conclusion is well-supported by Supreme Court and Fourth

Circuit precedents, which uniformly require at least some minimal

level of justification for officers to draw their weapons during

an interaction with a civilian. This case is somewhat comparable

to Turmon v. Jordan, 405 F.3d 202 (4th Cir. 2005), in which the

Fourth Circuit determined a police officer was not entitled to

qualified immunity on an excessive force claim for pointing a gun

in a person’s face, pulling the person from his hotel room, and

handcuffing him. Id. at 207-08. The court explained,

First, “the severity of the crime” cannot be

taken into account because there was no crime.

Of course, [the defendant police officer]

Jordan claims that he reasonably believed that

arson or some other crime was being committed,

but the facts do not support a reasonable

suspicion that criminal activity was afoot.

This weighs heavily in [the plaintiff]

Turmon’s favor. Second, there is no evidence

that Turmon “pose[d] an immediate threat to

the safety of [Deputy Jordan] or others.”

Third, Turmon did not “actively

resist[ detention] or attempt to evade

[detention] by flight.” To the contrary, all

of the relevant evidence indicates that Turmon

was compliant and non-threatening. When

Turmon opened the [hotel room] door, and

Jordan pointed the gun at his face, Turmon

raised his hands and offered no resistance.

Even Jordan acknowledges that Turmon was

completely passive and caused no trouble as he

was being handled and handcuffed.

Accordingly, we conclude that “the facts

alleged show [that Jordan’s] conduct violated

a constitutional right,” namely the Fourth

Amendment right to be free from a seizure

carried out by the use of excessive force.

Id. (citations omitted). Thus, Defendant is not entitled to

qualified immunity on Plaintiff’s excessive force claim at this

juncture.

B. Maryland Constitutional Claims

Plaintiff brings false arrest, false imprisonment, and

excessive force claims under Articles 24 and 26 of the Maryland

Declaration of Rights that are identical to his Fourth Amendment

claims. (ECF No. 17, at 15-21). Article 24 is interpreted in

pari materia with the Fourteenth Amendment to the United States

Constitution, and Article 26 is interpreted in pari materia with

the Fourth Amendment. See Canaj, Inc. v. Baker & Div. Phase III,

391 Md. 374, 424 (2006); Carter v. State, 367 Md. 447, 458 (2002).

There is one important difference, however, between how the state

and federal provisions are applied: state public officials who are

alleged to have violated the Maryland Declaration of Rights are

not entitled to qualified immunity. Okwa v. Harper, 360 Md. 161,

201 (2000).

As an initial matter, summary judgment must be granted in

favor of Defendant on the portion of Plaintiff’s excessive force

claim that invokes Article 24, which is the functional equivalent

of the federal Due Process Clause. The Supreme Court held in

Graham v. Connor, 490 U.S. 386 (1989), that “all 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 [Fourteenth

Amendment] ‘substantive due process’ approach.” Id. at 395. Thus,

that claim can only be brought under Article 26—the Fourth

Amendment equivalent—and not Article 24. See Barnes v. Montgomery

Cnty., Md., 798 F.Supp.2d 688, 700 (D.Md. 2011) (holding the same).

Summary judgment will be denied, however, on Plaintiff’s Article

26 excessive force claim for the same reasons that summary judgment

was denied on his Fourth Amendment excessive force claim.

The earlier analysis of Plaintiff’s Fourth Amendment false

arrest/imprisonment claim also applies to Plaintiff’s false

arrest/imprisonment claim under Articles 24 and 26, except the

analysis regarding qualified immunity.7 Thus, summary judgment

will be denied on Plaintiff’s claim that Defendant violated his

state constitutional rights when Defendant seized him by

brandishing a weapon. Summary judgment will be granted on

Plaintiff’s claim that Defendant seized Plaintiff in violation of

7 The parties do not differentiate between the application of

Article 24 and Article 26 to Plaintiff’s unlawful seizure claim.

the Maryland Declaration of Rights by ordering him to leave the

area. Although Defendant is not entitled to qualified immunity on

the state constitutional claim, Plaintiff has not identified any

Maryland case law that supports his position that a seizure occurs

when a police officer compels a person to leave an area in which

the person wishes to remain. Decisions of the United States

Supreme Court are persuasive authority for Maryland courts’

interpretations of Articles 24 and 26, see Att’y Gen. of Md. v.

Waldron, 289 Md. 683, 705 (1981), but a few inconsistent federal

circuit court holdings are not. Absent any Supreme Court or

Maryland case law establishing that an order to leave an area by

a police officer can constitute a seizure, Plaintiff’s claim cannot

survive summary judgment.

C. Maryland Tort Claims

1. False Arrest and False Imprisonment

Plaintiff also brings false arrest and false imprisonment

claims under Maryland common law. (ECF No. 17, at 21-24). The

elements of false arrest and false imprisonment are identical under

Maryland law: “1) the deprivation of the liberty of another; 2)

without consent; and 3) without legal justification.” Heron v.

Strader, 361 Md. 258, 264 (2000). To constitute the requisite

deprivation of liberty, “there must be some direct restraint of

the person,” which may come in the form of “[a]ny exercise of

force, or threat of force, by which in fact the other person is

deprived of his liberty, compelled to remain where he does not

wish to remain, or to go where he does not wish to go.” Mason v.

Wrightson, 205 Md. 481, 487 (1954).

Generally, the tort of false arrest or imprisonment “requires

some sort of volitional conduct that continually prevents the

plaintiff from moving from his or her current space.” Gray v.

Kern, 124 F.Supp.3d 600, 615 (D.Md. 2015), aff’d in part, vacated

in part sub nom. Gray by Gray v. Kern, 702 F.App’x 132 (4th Cir.

2017); see also Restatement (Second) of Torts § 35 (Am. L. Inst.

1965) (“(1) An actor is subject to liability to another for false

imprisonment if (a) he acts intending to confine the other or a

third person within boundaries fixed by the actor, and (b) his act

directly or indirectly results in such a confinement of the other,

and (c) the other is conscious of the confinement or is harmed by

it.” (emphasis added)). Often, in cases challenging police officer

conduct, this requirement is easily satisfied by the occurrence of

a custodial arrest. See Gray, 124 F.Supp.3d at 615. “In cases,

however, not involving an arrest or a detention, a hallmark of

false imprisonment is a continuing action on the part of the

tortfeasor that restrains the movement of the plaintiff.” Id.

Here, it is undisputed that Defendant did not detain or arrest

Plaintiff, nor did he confine him to a fixed area or intend to

restrain his movement. To the contrary, the parties agree that

Defendant intended that Plaintiff generally move away from the

area, and Defendant did not direct Plaintiff to go anywhere in

particular. Because there was no “arrest” or “imprisonment,”

judgment in favor of Defendant is appropriate on Plaintiff’s common

law false arrest and false imprisonment claims. See id. (granting

summary judgment on false imprisonment claim in favor of police

officer who shot the plaintiff because the officer “took no further

action to confine him to the [area and], in fact, took steps to

enable his removal from the building”); see also Smith v. Comair,

Inc., 134 F.3d 254, 259-60 (4th Cir. 1998) (affirming summary

judgment in favor of police officer on Kentucky false imprisonment

claim, citing language identical to the previously quoted language

from Mason v. Wrightson, because the officer “grabbed [the

plaintiff’s] arms only momentarily and nonforcefully” and then

helped him board a flight to another city); id. (“False

imprisonment results only if ‘the restraint be a total one, rather

than a mere obstruction of the right to go where the plaintiff

pleases.’” (quoting W. Page Keeton et al., Prosser and Keeton on

the Law of Torts § 11, at 47 (5th ed. 1984)).

2. Intentional Infliction of Emotional Distress

Defendant argues that Plaintiff cannot prove the elements of

an intentional infliction of emotional distress claim. (ECF No.

71-1, at 36-39). In order to succeed on such a claim, a plaintiff

must demonstrate that the defendant engaged in (1) intentional or

reckless conduct (2) that is extreme or outrageous (3) and caused

(4) the plaintiff’s severe emotional distress. See Caldor, Inc.

v. Bowden, 330 Md. 632, 641-42 (1993). Maryland courts have “made

it clear that liability for the tort of intentional infliction of

emotional distress should be imposed sparingly, and ‘its balm

reserved for those wounds that are truly severe and incapable of

healing themselves.’” Id. at 642. Indeed, the tort is “rarely

viable” in Maryland. McPherson v. Balt. Police Dep’t, 494

F.Supp.3d 269, 286 (D.Md. 2020). To meet the “extreme and

outrageous” element, the conduct must be “so outrageous in

character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Harris v. Jones, 281 Md.

560, 567 (1977) (quoting Restatement (Second) of Torts § 46 cmt.

d (Am. L. Inst. 1965)). To be considered “severe emotional

distress,” the plaintiff must “show that he suffered a severely

disabling emotional response to the defendant’s conduct” that “no

reasonable man could be expected to endure.” Id. at 570-71.

Here, even resolving all factual disputes in Plaintiff’s

favor, there is insufficient evidence in support of the intentional

infliction of emotional distress claim to allow it to go to trial.

The parties agree that Defendant did not point his gun directly at

Plaintiff—he either pointed it at Plaintiff’s friend or at the

ground—and, assuming the gun was pointed at Plaintiff’s friend, it

was in that position for a few moments at most. More egregious

conduct by police officers has been held not extreme or outrageous

enough. In Williams v. Prince George’s County, 112 Md.App. 526

(1996), the court determined that although the plaintiff claimed

that a police officer pointed a gun at him for several minutes,

then ordered him onto the ground, put a knee on his back, and

accused him of having stolen the car he was driving, “as a matter

of law, there was nothing that the arresting officers did that

could be characterized as so outrageous in character and so extreme

in degree as to go beyond all bounds of decency, and to be regarded

as atrocious, and utterly intolerable in a civilized community.”

Id. at 535, 556 (internal quotation marks omitted). In Branch v.

McGeeney, 123 Md.App. 330 (1998), the court determined that there

was “no evidence presented of the type of extreme and outrageous

conduct necessary to survive summary judgment on this tort claim,”

although there was evidence presented that police officers put a

nine-year-old girl in a police car in handcuffs for throwing acorns

at a building, told her she was “going to jail,” told her and her

mother to “shut up,” and made racial remarks. Id. at 338, 342-

45, 351-52. And in Morgan v. Prince George’s County, Md., No. 09-

cv-1584-AW, 2010 WL 2891700, at *12 (D.Md. July 20, 2010), the

court stated that a police officer’s punch to a woman’s face, which

caused her nose to bleed, did “not appear to meet the Court’s

standard for extreme and outrageous conduct.” Id. at *1, 12. The

officer was responding to reports of an argument between the woman

and her husband, and he had ordered the woman to sit on her sofa

while he questioned her. She attempted to stand up when she felt

the onset of an asthma attack, and the officer forced her back

down, then punched her on her third attempt to stand. Id. at *1.

Even if Defendant’s conduct here met the standard for extreme

and outrageous, Plaintiff has not come forward with sufficient

evidence of severe emotional distress that he has experienced as

a result of this incident. The only evidence in the record of

Plaintiff’s emotional distress is his own testimony and the

testimony of his mother about how the incident affected him. He

and his mother testified that he experienced sleepless nights,

stomachaches, random outbursts of tears, and a fear of police.

They also testified that Plaintiff saw a therapist for some time

after the incident. Maryland courts have required more

“evidentiary particulars” of severe and disabling emotional

distress than the difficulties Plaintiff describes. See, e.g.,

Harris, 281 Md. at 572 (determining that evidence that the

plaintiff was “shaken up,” felt “like going into a hole [to] hide”

out of humiliation, and saw a physician to treat his “nerves” was

not severe enough); Morgan, 2010 WL 2891700, at *12 (determining

that the plaintiff’s “claims that she suffers from depression and

Post Traumatic Stress Disorder (PTSD), is unable to sleep regularly

without medication, and has a dark area around her nose as a result

of [the defendant’s] alleged attack on her” were “too conclusory

to meet the very high standard of severe emotional distress” and

“not sufficient to demonstrate a severely disabling emotional

response”); Caldor, Inc., 330 Md. at 642-44 (determining that

evidence that the plaintiff “was distraught and worried,” “was

hurt a lot,” “felt ashamed,” “tended not to socialize as much as

before,” “kept to himself,” and “did not trust others very readily”

was insufficient to constitute a “severely disabling emotional

response that hindered his ability to carry out his daily

activities”).

Although the evidence viewed most favorably to Plaintiff

suggests that Defendant acted wholly without justification in

brandishing a weapon in the presence of two teenagers and that

Plaintiff was significantly impacted by this encounter, it does

not rise to the exceedingly high level of severity that is required

for these kinds of claims. Thus, there is legally insufficient

evidence to preclude summary judgment in Defendant’s favor on

Plaintiff’s intentional infliction of emotional distress claim.

3. Gross Negligence

Finally, Plaintiff claims that Defendant was grossly

negligent during the incident. (ECF No. 17, at 25-27). Defendant

argues that he is entitled to summary judgment on this claim

because he acted reasonably under the circumstances. (ECF No. 71-

1, at 40-42). Gross negligence is “an intentional failure to

perform a manifest duty in reckless disregard of the consequences

as affecting the life or property of another[] [that] implies a

thoughtless disregard of the consequences without the exertion of

any effort to avoid them.” Liscombe v. Potomac Edison Co., 303

Md. 619, 635 (1985) (internal quotation marks omitted). Maryland

courts have held that when a gross negligence claim is brought

against a police officer based on a claim of excessive use of

force, the “objective reasonableness” standard as articulated in

Graham v. Connor, 490 U.S. 386 (1989), controls. See Stutzman v.

Krenik, 350 F.Supp.3d 366, 383 (D.Md. 2018) (citing Richardson v.

McGriff, 361 Md. 437, 453 (2000) and Torbit v. Balt. City Police

Dep’t, 231 Md.App. 573, 593 (2017)). As previously discussed,

this standard is “whether the officers’ actions [we]re

‘objectively reasonable’ in light of the facts and circumstances

confronting them, without regard to their underlying intent or

motivation.” Graham, 490 U.S. at 397.

Because summary judgment will be denied on Plaintiff’s

excessive force claims, applying the same standard to his gross

negligence claim necessitates a denial of summary judgment on that

claim as well.

IV. Conclusion

For the foregoing reasons, Defendant’s motion for summary

judgment will be granted in part and denied in part. Specifically,

summary judgement will be granted in favor of Defendant and against

Plaintiff on Counts I, II, IV, and V to the extent Plaintiff claims

he was unlawfully seized by being forced to leave the area; Count

VI to the extent it invokes Article 24 of the Maryland Declaration

of Rights; and Counts VII, VIII, and IX. Defendant’s motion will

be denied as to Counts I, II, IV, and V to the extent Plaintiff

claims he was unlawfully seized when Defendant brandished his

weapon; as to Count VI to the extent it invokes Article 26 of the

Maryland Declaration of Rights; and as to Counts III and X. A

separate order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge