Cox v. County of Prince William

• Decision Date: 01 March 2001
• Docket Number: No. 00-2159,00-2159
• Citation: 249 F.3d 295
• Parties: (4th Cir. 2001) JOAN H. COX, Individually, and as Widow and Personal Representative of the Estate of Brian J. Cox, Deceased; and as Mother and Legal Guardian of Brian Justin-Tyler Cox, a minor, Plaintiff-Appellant, v. COUNTY OF PRINCE WILLIAM; CHARLIE T. DEANE, Individually and as Chief, Prince William County Police Department; JAMES FORD, Individually and in his Official Capacity as a Police Officer; MARK J. HARMAN, Individually and in his Official Capacity; ROBERT C. SHAUL, Individually and in his Official Capacity, Defendants-Appellees, and PRINCE WILLIAM COUNTY SHERIFF'S DEPARTMENT; PRINCE WILLIAM COUNTY POLICE DEPARTMENT; MARK HAMILL, Individually and in his Official Capacity as a Police Officer; JOHN DOES 1-10, Supervisors and Trainers at the Prince William County Police Department; JOHN DOES, 11-20, Individually and in their Official Capacities as Police Officers in the Prince William County Police Department, Defendants. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 295

249 F.3d 295 (4th Cir. 2001)

JOAN H. COX, Individually, and as Widow and Personal Representative of the Estate of Brian J. Cox, Deceased; and as Mother and Legal Guardian of Brian Justin-Tyler Cox, a minor, Plaintiff-Appellant, v. COUNTY OF PRINCE WILLIAM; CHARLIE T. DEANE, Individually and as Chief, Prince William County Police Department; JAMES FORD, Individually and in his Official Capacity as a Police Officer; MARK J. HARMAN, Individually and in his Official Capacity; ROBERT C. SHAUL, Individually and in his Official Capacity, Defendants-Appellees and PRINCE WILLIAM COUNTY SHERIFF'S DEPARTMENT; PRINCE WILLIAM COUNTY POLICE DEPARTMENT; MARK HAMILL, Individually and in his Official Capacity as a Police Officer; JOHN DOES 1-10, Supervisors and Trainers at the Prince William County Police Department; JOHN DOES, 11-20, Individually and in their Official Capacities as Police Officers in the Prince William County Police Department, Defendants.

No. 00-2159

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: March 1, 2001

Decided: May 4, 2001

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Chief District Judge.

(CA-99-1880-A)

COUNSEL: ARGUED: Patrick Michael Regan, REGAN, HALPERIN & LONG, P.L.L.C., Washington, D.C., for Appellant. Sharon Elizabeth Pandak, OFFICE OF THE COUNTY ATTORNEY, Prince William, Virginia, for Appellees. ON BRIEF: Thanos Basdekis, REGAN, HALPERIN & LONG, P.L.L.C., Washington, D.C., for Appellant. Gifford R. Hampshire, OFFICE OF THE COUNTY ATTORNEY, Prince William, Virginia, for Appellees.

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge Gregory wrote the opinion, in which Judge King and Senior Judge Hamilton joined.

OPINION

GREGORY, Circuit Judge:

Joan Cox, individually and as widow and personal representative of the Estate of Brian J. Cox, and as mother and legal guardian of Brian Justin-Tyler Cox, a minor ("Appellant"), appeals the district court's order granting summary judgment to the Appellees on her claims of excessive force pursuant to 42 U.S.C.A.S 1983 (West Supp. 2000) and assault, battery, and wrongful death under Virginia law. In response to a neighbor's report that a burglary may have taken place at the Cox residence, the police searched the residence and discovered a man (later identified as Brian Cox) asleep in one of the bedrooms. After Cox awoke, pointed a previously concealed rifle at the officers, and failed to drop the weapon as ordered, the officers shot and killed Cox. Because we find that the officers' use of force was reasonable under the circumstances, we affirm the district court's order.^*

I.

On December 12, 1997, the Appellant and her husband, Brian Cox had an argument after driving home from a party. After Cox struck the Appellant, she left with the keys and drove to a friend's house. Locked out, Cox proceeded to break into his home by breaking a rear window. Cox, who was intoxicated at the time, went straight to bed, taking a rifle to bed with him. The Appellant speculates that the rifle was for protection in light of the broken back window.

At approximately midnight, Adam Conrath, the Cox's next door neighbor, telephoned the Prince William County police to report that his wife had heard the sound of breaking glass at the Cox residence. Conrath stated that a light inside the residence had then been turned off and that he saw that a window in the rear of the house had been pushed up. Conrath further reported that there was no car in the Cox driveway, which was unusual for that time of night.

The police dispatcher sent out an alert over the radio for a suspected burglary in progress. Officers Mark J. Harman and Nathan J. Jones responded to the call, arriving at approximately 12:05 a.m. Harman went to the front of the residence, a unit in a row of townhouses, and Jones approached from the back. At the back of the residence, Jones observed that the Venetian blind to one of the second level windows was disturbed or broken with a screen missing. Jones spoke or motioned to someone standing at the window of the Conrath residence and inquired whether anyone had exited the window; he received a negative response. Meanwhile, Officers Sandra J. Conlon and Stephen C. Mercer arrived on the scene. Conlon joined Jones at the rear of the residence and Mercer went to the front where Harman was stationed.

While waiting for a canine unit to arrive, Harman went back to his squad car and telephoned Communications and the Conrath residence in an attempt to obtain additional information about the residence, including the names of the residents. Although Harman attempted to obtain a telephone number for the residence, using both the address and the name Brian Cox, Communications was unable to locate the number.

Officer James Ford arrived with a police canine at approximately 12:30 a.m. Officers Harman and Jones climbed through the broken window in the rear of the residence and proceeded directly and quickly through the front door, leaving it open behind them. Before entering the residence to conduct a search with the canine, Jones and Ford noticed what they took to be broken automobile glass on the driveway of the Cox residence. Ford then stood at the entrance and shouted three identical loud announcements into the residence with pauses between them: "Police canine. Speak to me now or I'll turn the dog loose!" After one of these announcements, Ford thought he heard movement inside the residence, but Harman believed the movement came from the Conrath residence next door. The warnings were heard by the Conraths from inside their townhouse and by a neighbor 100 yards away who came out to his front porch after hearing the warnings. Cox, however, did not respond to these announcements. Ford entered the Cox residence with his canine on lead, accompanied by Harman and Jones.

Jones stationed himself at the top of the staircase to the basement. After searching the main level, Harman followed Ford and his canine upstairs. Near the top of the stairs, Harman saw a man (later identified as Cox) lying on a bed in a room across the hallway from the stairs. Cox did not respond to additional police announcements made at the top of the stairs. The officers entered his bedroom with Ford maintaining the canine on lead. Both of the officers were dressed in uniform with identifying badges and markings.

Inside the bedroom, Ford and his canine remained at the foot of the bed, while Harman took up a position at the right side of the bed near the foot. According to the officers, Cox was lying on his left side with his left arm underneath him and his right arm extended in front of him with at least one of his hands concealed by the bedcovers. He was lying across the length of the bed, about three-quarters down from the head, on a slight diagonal, with his eyes closed, facing towards the bedroom door. Cox was wearing a white t-shirt and boxer shorts and remained motionless.

Ford testified that he yelled out "hey" in another attempt to get Cox to respond. After Cox failed to respond, Ford and Harman switched places -with Ford and the canine assuming a position at the right side of the bed. The canine was reportedly barking ferociously approximately one and a half feet from Cox's head. The officers testified that Harman slowly and methodically reached out to touch or tap the bottom of Cox's foot in a continued attempt to rouse him. The Appellant, however, claims that Harman struck the top of Cox's left foot with a blunt object such as his flashlight, hard enough to leave a bruise.

Harman testified that he was studying the colored tattoo on Cox's right leg at this time when his attention was diverted by the sound of Ford yelling at Cox to put his hands up. Cox brought a rifle up from underneath the covers, pointing it in the direction of Ford and yelling "AHHHHHH." Ford removed his service weapon from its holster and started shooting at Cox. Harman, who already had his weapon drawn, also started shooting because he thought Cox was going to kill Ford. At least one of the shots went through Cox's right wrist, splitting the wooden stock of the rifle as he held it in a firing position. Jones came up the stairs and moved the rifle away from Cox's reach. Although the officers immediately called for an ambulance, the rescue crew determined that Cox was dead upon arrival.

The Appellant filed a complaint in the district court, alleging excessive force pursuant to S 1983 and assault, battery, and wrongful death under Virginia law. She named Prince William County, Police Chief Charlie T. Deane, Lt. Robert C. Shaul (the supervising officer on the scene), Ford, and Harman ("Appellees") as defendants. Finding that the officers were justified in their use of deadly force, the district court granted summary judgment to the Appellees and dismissed the case.

II.

We review a district court's grant of summary judgment de novo. Higgins v. E. I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988). Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is in dispute when its existence or non-existence could lead a jury to different outcomes. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists when there is sufficient evidence on which a reasonable jury could return a verdict in favor of the non-moving party. Id. Mere speculation by the non-moving party cannot create a genuine issue of material fact. Beale v. Hardy, 769...