# Nicholson v. State of Maryland

> District Court, D. Maryland · July 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10208698

## Case

- **Court:** District Court, D. Maryland
- **Decided:** July 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10208698

## How later opinions describe it (automated extraction)

- 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”
- holding that it was reasonable to draw weapons when stopping suspected drug traffickers

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10208698. Public record. Not legal advice.