Opinion

Cooper v. Doyle

Court
District Court, D. Maryland
Filed
Oct 16, 2024
Cited by
0 cases
Authority
More cited than 31.5%

emphasizing “the importance of drawing inferences in favor of the nonmovant, even when . . . a court decides only the clearly-established prong” (quoting Tolan v. Cotton, 572 U.S. 650, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014))

How later courts described this case

  • emphasizing “the importance of drawing inferences in favor of the nonmovant, even when . . . a court decides only the clearly-established prong” (quoting Tolan v. Cotton, 572 U.S. 650, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014))
  • “[T]he judge must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story—the person shot dead—is unable to testify.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

MELODY COOPER, Individually and :

as Personal Representative of

The Estate of Kwamena Ocran :

v. : Civil Action No. DKC 22-0052

:

OFFICER JAMES DOYLE, et al.

:

MEMORANDUM OPINION

Presently pending and ready for resolution in this civil

rights action brought by Melody Cooper (“Plaintiff”), the mother

and personal representative of the Estate of Kwamena Ocran (“Mr.

Ocran”), is the motion for reconsideration filed by James Doyle

(“Officer Doyle”), Willie Delgado (“Sgt. Delgado”), Kyle Khuen

(“Officer Khuen”), and Larbi Dakkouni (“Cpl. Dakkouni”)

(collectively, “Defendant Officers”) and City of Gaithersburg

(“the City”) (collectively with Defendant Officers, “Defendants”),

(ECF No. 56). 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 will be denied.

Defendants seek reconsideration of the court’s July 29, 2024

memorandum opinion and order denying in part Defendants’ motion

for summary judgment. (ECF No. 54). Federal Rule of Civil

Procedure 54(b) governs motions for reconsideration of orders

“that adjudicate[] fewer than all the claims” and “do[] not end

the action.” See Carlson v. Bos. Sci. Corp., 856 F.3d 320, 325

(4th Cir. 2017). Courts in this circuit generally only reconsider

interlocutory orders under the following narrow circumstances:

“(1) there has been an intervening change in controlling law; (2)

there is additional evidence that was not previously available; or

(3) the prior decision was based on clear error or would work

manifest injustice.” Akeva, LLC v. Adidas Am., Inc., 385 F.Supp.2d

559, 565–66 (M.D.N.C. 2005); see also Carlson, 856 F.3d at 325. A

motion for reconsideration “may not be used merely to reiterate

arguments previously rejected by the court.” Innes v. Bd. of

Regents of the Univ. Sys. of Md., 121 F.Supp.3d 504, 507 (D.Md.

2015).

In a strongly worded motion, Defendants argue that

reconsideration is necessary because the court’s prior ruling was

“grounded on significant error.” (ECF No. 56, at 1).

Specifically, Defendants argue that summary judgment should be

granted in their favor on all the claims because there is no

genuine dispute of material fact regarding the “objectively

reasonable nature of the [Defendant] Officers’ conduct.” (Id. at

13).

As set out in the memorandum opinion:

Excessive force claims are evaluated under “a

standard of ‘objective reasonableness.’”

Betton v. Belue, 942 F.3d 184, 191 (4th Cir.

2019) (quoting Graham [v. Conner], 490 U.S.

[386,] [] 399 [(1989)]). “When deadly force

is used, . . . [the court must] consider

whether the hypothetical reasonable officer in

that situation would have had ‘probable cause

to believe that the suspect pose[d] a threat

of serious physical harm, either to the

officer or to others.’” Stanton v. Elliott,

25 F.4th 227, 233 (4th Cir. 2022) (quoting

Waterman v. Batton, 393 F.3d 471, 477 (4th Cir.

2005)). Factors to be considered when

applying the objective reasonableness

standard are “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, 490 U.S. at 396 (citing

Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).

The “reasonableness ‘determination must focus

on the moment that deadly force was used, not

the whole episode,’ and [the court] must be

mindful that ‘the justification for deadly

force can fall away in seconds.’” Aleman v.

City of Charlotte, 80 F.4th 264, 285 (4th Cir.

2023), cert. denied, 144 S.Ct. 1032, 218

L.Ed.2d 187 (2024)) (quoting Stanton, 25 F.4th

at 233).

(ECF No. 54, at 20-21).1 Defendants argue that there is no genuine

dispute of material fact that their behavior met the “objective

reasonableness standard.” (ECF No. 56, at 12). Defendants contend

that the two genuine disputes of material fact that this court

1 The Supreme Court of the United States recently granted

certiorari in Barnes v. Felix, 91 F.4th 393 (5th Cir. 2024), cert.

granted, 2024 WL 4394125 (U.S. Oct. 4, 2024)(No. 23-1239),

presenting the issue whether courts should apply the “moment of

the threat” doctrine when evaluating an excessive force claim under

the Fourth Amendment, as opposed to evaluating “the totality of

the circumstances when analyzing the reasonableness of an

officer’s actions, including the events leading up to the use of

force.” Petition for Writ of Certiorari at *2, Barnes, 91 F.4th

393 (No. 23-1239).

identified in its memorandum opinion, (1) whether Mr. Ocran pointed

a firearm at Defendant Officers, and (2) whether Mr. Ocran fired

a firearm at Defendant Officers, are based on “speculation.” (ECF

No. 56, at 12). Respectfully, the court disagrees. After a

thorough re-review of the record and case law, the court finds

that there is a genuine dispute of material fact, so Defendants

are not entitled to summary judgment.

Focusing primarily on the second Graham factor, Defendants

argue that there is no genuine dispute of material fact that Mr.

Ocran posed a threat to Defendant Officers’ safety. (ECF No. 56,

at 2-7). First, Defendants argue that Plaintiff has not put forth

any evidence to dispute the Officers’ testimony of the account.

(Id. at 4). Defendants appear to take offense that this court

considered the possibility that Defendants’ testimony may be self-

serving. (Id. at 4-5). However, as discussed in the memorandum

opinion, the United States Court of Appeals for the Fourth Circuit

has instructed:

With deadly force cases, special difficulties

can arise during summary judgment. Often, the

officer has killed the only other potential

witness. Courts should be careful at summary

judgment to avoid simply accepting an

officer’s self-serving statements and must

consider all contradictory evidence. See

Ingle ex rel. Est. of Ingle v. Yelton, 439

F.3d 191, 195 (4th Cir. 2006); see also Brown

ex rel. Lawhorn v. Elliott, 876 F.3d 637, 641

(4th Cir. 2017) (emphasizing “the importance

of drawing inferences in favor of the

nonmovant, even when . . . a court decides

only the clearly-established prong” (quoting

Tolan v. Cotton, 572 U.S. 650, 134 S.Ct. 1861,

1866, 188 L.Ed.2d 895 (2014))). Speculation

alone cannot create a factual dispute. Elliott

[v. Leavitt], 99 F.3d [640,] 644–45 [(4th Cir.

1996)] (requiring “specific, material factual

contentions”). But in these cases, it would

be easy to overvalue the narrative testimony

of an officer and to undervalue potentially

contradictory physical evidence. See, e.g.,

Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.

1994) (“[T]he judge must ensure that the

officer is not taking advantage of the fact

that the witness most likely to contradict his

story—the person shot dead—is unable to

testify.”). So we should be cautious to avoid

simply accepting officer testimony as true.

See Abraham v. Raso, 183 F.3d 279, 294 (3d Cir.

1999). But neither does caution lead us to be

especially critical of officer testimony in

these cases. We need only apply our normal

summary-judgment rules, which ask whether

reasonable juries might disagree over some

material factual dispute. See Harris [v.

Pittman], 927 F.3d [266,] 276 [(4th Cir. 2019)]

(suggesting that exculpatory officer

statements “do not justify a departure from

the normal summary judgment standard”); Plakas

v. Drinski, 19 F.3d 1143, 1147 (7th Cir. 1994).

Stanton, 25 F.4th at 234.

Although the specific facts of Stanton may not be precisely

the same as the facts here, the premise in Stanton applies.

Especially at the summary judgment stage, courts should be careful

“to avoid simply accepting an officer’s self-serving statements

and must consider all contradictory evidence” when the only other

potential witness is unavailable to testify. Stanton, 25 F.4th at

234. Contrary to Defendants’ implication, this court is not

suggesting that Defendants used deadly force to “eliminate Mr.

Ocran’s ability to provide contrary testimony,” and it is

irrelevant that Defendant Officers had “no control whatsoever over

who might have viewed the use of force.” (ECF No. 56, at 6). The

reality at this stage of the proceedings remains: Defendant

Officers have testified as to their version of the events, but

they have also “killed the only other potential witness.” Stanton,

25 F.4th at 234.

Second, Defendants argue that the physical evidence in the

case supports a finding of summary judgment in Defendant Officers’

favor. (ECF No. 56, at 7). Specifically, Defendants point to the

“crucial, undisputed fact” that a firearm “was retrieved from near

Mr. Ocran’s hands and head” after the shooting. (Id.). While

this may be an undisputed fact, it does not resolve the disputed

facts of whether Mr. Ocran pointed or fired a firearm at Defendant

Officers. Even assuming that retrieving a firearm near Mr. Ocran’s

head and hands means Mr. Ocran must have been holding the firearm

before he was shot, it does not necessarily follow that Mr. Ocran

pointed or fired the firearm.

Moreover, Defendants argue:

Mr. Ocran was wounded in a manner consistent

with the Officers’ testimony that as he fled,

he turned to his right enough to raise the

pistol, which he indisputably possessed,

towards the officers. The entry wound to his

right hip is sufficient to demonstrate that he

was turned to the right when he was struck.

(ECF 56, at 12). However, as the court previously discussed in

its memorandum opinion:

The Autopsy Report provides that Mr. Ocran

suffered three gunshot wounds to the back, two

gunshot wounds to the left arm, one through

and through gunshot wound to the right thigh,

and one through and through gunshot wound to

the left thigh, all with a wound path of back

to front, as well as one graze gunshot wound

of the penis with an indeterminate wound path.

(ECF No. 54, at 30-31). A reasonable jury can conclude that the

wounds, especially the three wounds to Mr. Ocran’s back,2 support

a finding that Defendant Officers shot at Mr. Ocran as he was

fleeing, and not while posing an immediate threat to the Defendant

Officers. A genuine dispute of material fact remains; therefore,

as set out in detail in the memorandum opinion (ECF No. 54) and on

reconsideration, Defendants are not entitled to summary judgment

on the remaining claims.

Additionally, Defendants re-argue that the first Graham

factor, the severity of the crime at issue, weighs in Defendants’

favor. (ECF No. 56, 7-8). As the court previously discussed, Mr.

Ocran’s crime of unlawful possession of a handgun was nonviolent.

2 The autopsy report states that Mr. Ocran’s wounds to his

back were specifically to his “Upper Left Lateral Back,” “Left

Lateral Back,” and to the “Lateral Right Hip/Lower Back.” (ECF

No. 51-4, at 6). Defendants argue that the term “lateral” means

“from the side,” so Mr. Ocran was shot from the side, and not from

behind. (ECF No. 56, at 4). While “lateral” on its own means

relating to the side, when paired with the word “back,” it means

the side of the back.

(ECF No. 54, at 25). Police officers may, of course, stop and

investigate a person whom they reasonably suspect is a felon in

possession of a firearm. United States v. Gist-Davis, 41 F.4th

259, 264 (4th Cir. 2022). But concluding that the person is

presently dangerous – justifying a frisk - requires more. And

justifying the use of deadly force requires significantly more.

In Defendants’ reply to Plaintiff’s opposition to Defendants’

motion for reconsideration, Defendants rely on Caraway v. City of

Pineville, 111 F.4th 369 (4th Cir. 2024), and Rambert v. City of

Greenville, 107 F.4th 388 (4th Cir. 2024), two recent section 1983

excessive force cases where the Fourth Circuit found that defendant

police officers were entitled to qualified immunity. (ECF No. 58,

at 1-6). These cases are factually distinguishable from this case,

and thus do not “demonstrate the Defendants’ entitlement to

qualified immunity here.” (ECF No. 58, at 1). In Caraway, the

Fourth Circuit affirmed the district court’s summary judgment for

the defendant police officers based on qualified immunity. 111

F.4th at 373-74. In Caraway, four officers responded to a call

about a pedestrian, Caraway, waving a gun. In fact, Caraway was

just holding a cellphone, but upon hearing the officers’ commands

to drop his gun, Caraway reached into his jacket to drop the gun

he stored there. Id. at 373. In response, two of the officers

fired at Caraway, injuring him. Id.

Although Caraway disputed whether he had pointed his gun

intentionally at the officers, the Fourth Circuit found there was

no genuine dispute of any material fact. Id. at 377, 381.

Defendants point to this finding as support for summary judgment

in Defendants’ favor despite disputes whether Mr. Ocran pointed or

shot his firearm at Defendant Officers. (ECF No. 58, at 3-4).

However, Caraway is distinguishable. First, and notably, in

Caraway, Caraway survived and was able to testify to his account

of the incident. 111 F.4th at 379. Obviously, Mr. Ocran is not

available to testify, so this court must be “careful at summary

judgment to avoid simply accepting an officer’s self-serving

statements and must consider all contradictory evidence.”

Stanton, 25 F.4th at 234. Additionally, while Caraway disputed

whether he had pointed his gun at the officers intentionally, he

did not dispute that he pulled his gun out of his jacket in front

of the officers. Caraway, 111 F.4th at 379-380. Therefore, the

Fourth Circuit agreed that there was not a dispute of material

fact on this point, and affirmed summary judgment in favor of the

officers based on qualified immunity. Id. at 381-85.

Rambert is similarly distinguishable. In Rambert, the

district court denied summary judgment to the defendant police

officer on qualified immunity grounds, finding that there was a

genuine dispute of material fact regarding the reasonableness of

the officer’s conduct. 107 F.4th at 393. On appeal, the Fourth

Circuit reversed in part,3 finding that the officer was entitled

to qualified immunity. Id. at 407. In Rambert, a police officer

responded to a breaking-and-entering call in the middle of the

night. Id. at 394. As the officer was walking toward the house,

he heard loud yelling, and the officer commanded the person to

“get on the ground.” Id. Instead, Rambert, the intruder, began

running at the officer while continuing to yell. Id. The officer

shot at Rambert, and Rambert fell to the ground. Id. At that

point, the officer tripped and also fell. Id. Rambert rose up

and “attempted to advance toward [the officer],” so the officer

fired at Rambert again. Id. Rambert was unarmed, and he

eventually died from his gunshot wounds. Id. at 394-95. The

Fourth Circuit found that summary judgment was appropriate because

the officer’s behavior was reasonable under the circumstances, so

the officer was entitled to qualified immunity. Id. at 400.

Defendants cite this case to argue that, here, summary

judgment based on qualified immunity is also appropriate. (ECF

No. 58, at 6). However, the undisputed facts in Rambert are

distinguishable. First, in Rambert, the officer was responding to

a breaking-and-entering call in middle of the night alone. 107

F.4th at 394. In this case, there were four officers following

3 The Fourth Circuit declined to exercise jurisdiction over

the plaintiff’s state law claims and claims against the city, so

the Fourth Circuit dismissed that portion of the appeal. 107 F.4th

at 393.

Mr. Ocran. (ECF No. 54, at 6). Additionally, in Rambert, it was

undisputed that Rambert ran toward the officer, while here, Mr.

Ocran was trying to flee. 107 F.4th at 394. Therefore, the recent

Fourth Circuit cases do not show that Defendants are entitled to

summary judgment.

For the foregoing reasons, Defendants’ motion for

reconsideration will be denied. A separate order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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