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