Estate of Hammond v. Cox

• Decision Date: 24 September 2020
• Docket Number: No. 781,781
• Parties: THE ESTATE OF ANTHONY A. HAMMOND, JR., ET AL. v. MICHAEL COX, ET AL.
• Court: Court of Special Appeals of Maryland

THE ESTATE OF ANTHONY A. HAMMOND, JR., ET AL. v. MICHAEL COX, ET AL.

No. 781

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

September 24, 2020

Circuit Court for Cecil County

Case No. 07-C-15-002008

UNREPORTED

Graeff, Berger, Sharer, J., Frederick (Senior Judge, Specially Assigned), JJ.

Opinion by Sharer, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

This case comes before this Court for a second time, this time on the merits.¹ In its present iteration, summary judgement having been granted by the Circuit Court for Cecil County in favor of all defendants on all counts, plaintiffs below have noted this appeal.

Appellants, plaintiffs below, are Elizabeth Hammond, for herself as the mother of Anthony A. Hammond, Jr., the deceased, and as personal representative of his estate; Anthony Hammond, Sr., the decedent's father; decedent's three adult children and three minor children by their respective parents/next friends. Appellees are Cpl. Michael Cox, a Maryland State Police officer, and the State of Maryland.²

Following our dismissal of the first appeal, appellees again moved for summary judgment as to all remaining counts. Appellants moved in opposition to the motion, but without filing exhibits. Following a hearing, the court granted summary judgment on the remaining counts. This appeal followed, in which appellants, in sum, ask whether the trial court erred in granting summary judgment.³

We shall hold that the trial court did not err in granting summary judgment.

BACKGROUND

The circumstances surrounding the death of Anthony A. Hammond, Jr. are not in dispute; however, the parties dispute the legal consequences of the event. We highlight the relevant aspects of the events of that early morning, as drawn largely from the excerpts of Cpl. Cox's deposition testimony,⁴ which were, in large part, adopted by appellants in the "Statement of Facts" of their opening brief.⁵

Just after midnight on December 20, 2012,⁶ Cpl. Cox was in his marked Maryland State Police vehicle near the Winding Brook neighborhood in Elkton, Cecil County, checking for traffic violations when he observed a white Dodge Durango pass hislocation. He was aware that a white Durango was involved in a police chase in the area several weeks earlier, but that the driver had eluded the pursuit.

With that information, Cpl. Cox turned his lights on to follow the Durango, upon which, the Durango "immediately took a quick left turn" and "accelerated ..., going through stop signs." Cpl. Cox activated emergency devices and gave chase, observing the Durango in several moving violations, including that "the operator [had] turned his vehicle lights off[]" during the chase. At one point, the Durango attempted to make a U-turn, which allowed for Cpl. Cox's headlights to shine into the Durango, revealing the driver to be "someone that resembled Mr. Hammond." The driver of the Durango, conceded to be Anthony A. Hammond, Jr., disregarded Cpl. Cox's effort to stop him and led him on a chase through the Winding Brook neighborhood, committing additional moving violations. Hammond was known to Cpl. Cox from previous contact, and Cpl. Cox was aware that Hammond was subject at that time to an outstanding arrest warrant "from the fleeing and eluding from[] the month and a half before[,]" where Hammond was suspected to have been involved in a car chase with police in a white Durango.

The vehicular pursuit ended when Hammond stopped and ran from his vehicle with Cpl. Cox pursuing him on foot. Cpl. Cox repeatedly identified himself as a "police officer, state trooper" and gave orders to stop, which Hammond disregarded. Hammond ran to a townhouse, "knocked a door off the hinges to one of the back of the town homes[,]" and "threw the door at [Cpl. Cox]." Cpl. Cox deflected the door and continued to follow Hammond. Cpl. Cox pursued him into the residence, continuing commands for Hammond to stop, and, unaware of whether others were present, drew his service weaponas Hammond ran up the stairs to the second floor. From the bottom of the stairs, Cpl. Cox ordered him to come down. In response, Hammond "hesitates for a second[,]" then came down the stairs "quickly and in an aggressive manner[,]" grabbed Cpl. Cox and "swipe[d] [his] weapon away."

At that point, Cpl. Cox testified that he, believing that Hammond was attempting to take his weapon, "pushed him and gained separation, ... and fired [his] first round[]" at Hammond. Hammond again approached Cpl. Cox and grabbed his uniform, and Cpl. Cox again pushed Hammond backwards up the stairs and fired a second shot, this time incapacitating Hammond. According to Cpl. Cox, during the struggle, he and Hammond were never more than four feet apart. Hammond died because of the gunshot wound to the upper right chest.

In his deposition, Cpl. Cox recounted the event and explained how and why the altercation escalated to shots being fired:

[DEFENSE COUNSEL]: ... The first time he made contact with you, could you just articulate for us why it's such a concern for somebody to come at you when you have your gun drawn?

[CPL. COX]: ... [I]t's kind of mind blowing, if you ask me, if a police officer has his gun drawn on you and you're aggressively not only disobeying the commands but coming down aggressively down the stairs and then trying to disarm him. And then latching hold of you -- latching hold of that police officer.

[DEFENSE COUNSEL]: ... What could happen if he disarmed you?

[CPL. COX]: ... I still had no idea if he was armed. I didn't know. I don't know. So I would have had -- you know, it would have been a fight for the gun, I believe, because somebody -- you don't disarm somebody and then just let it go, in my opinion.

[DEFENSE COUNSEL]: During your use of force training, are you trained about the possibility of police officers being shot with their own gun?

[CPL. COX]: Yes.

[DEFENSE COUNSEL]: Was that a concern here?

* * *

[CPL. COX]: It was one of my concerns, yeah.

[DEFENSE COUNSEL]: Why did you fire the first shot?

[CPL. COX]: Because he came down the stairs very quickly, aggressively towards me, swatted my weapon away, and then grabbed a hold of me. So I gained separation. I pushed him and gained separation, punched out and fired my first round.⁷

[DEFENSE COUNSEL]: Why did you not fire multiple shots at that point? Why did you fire only one shot?

[CPL. COX]: I was only shooting to incapacitate him.

[DEFENSE COUNSEL]: So why did you feel a need to fire a second shot?

[CPL. COX]: Because it didn't do anything. The first round didn't do anything. Because he came back down and grabbed a hold of me.

[DEFENSE COUNSEL]: He was not incapacitated after the [first] shot?

[CPL. COX]: No.

DEFENSE COUNSEL: Did the second shot incapacitate him?

[CPL. COX]: Yes.

After Hammond was disabled and while Cpl. Cox was notifying the police barracks that shots were fired, several other persons appeared from within both the upper and lower areas of the house. Because the scene was not secured and concerned for his own safety, Cpl. Cox "backed [him]self up into a corner and put [his] weapon into a low ready[,]" and was unable to render aid to Hammond. From the group that gathered, Cpl. Cox asked for the address so that he could call for medical assistance. The group initially declined to assist, but eventually the address was given.⁸ Shortly thereafter, another Maryland State trooper, Adam LeCompte, arrived at the home and attempted, unsuccessfully, resuscitation of Hammond.

The Litigation

Appellants amended complaint was in six counts, three of wrongful death and three in the nature of a survival action. Counts 1 and 2 alleged intentional killing; Counts 3 and 4 alleged gross negligence; and Counts 5 and 6 alleged negligence. Appellants have made no constitutional claims under either Article 24 or 26 of the Maryland Declaration of Rights.⁹ Following discovery, appellees moved for summary judgment.Their filing included a memorandum of law and accompanying exhibits, which included transcript excerpts of the deposition testimony of Cpl. Cox and trooper LeCompte, the post mortem examination report, the affidavit of Mark Rauser, appellees' proffered use-of-force expert, and appellants' answers to interrogatories. Appellants opposed the motion for summary judgment without offering any additional supporting documents.

As we have noted, the trial court ultimately granted summary judgment in favor of appellees as to all counts. In doing so, the court observed at the initial motions hearing:

Here the facts are really -- they're not really in dispute. There is nothing in the record of a factual nature that is really in dispute.

Basically the Officer's conduct during the chase doesn't reveal any reckless behavior. Officer Cox is alone pursuing a wanted man, Mr. Hammond. Mr. Hammond did flee in the vehicle, exited the vehicle, fled on foot, and threw a door or a screen door or something at the Officer as Mr. Hammond was trying to gain access to this apartment or building or townhouse or home. I'm not exactly sure what it was.

And here is the way I look at the facts that [counsel have] argued. But the facts -- the standard of police behavior, the objectively reasonable standard is what a police officer would do under similar circumstances. And all we have to judge is the facts and circumstances that actually happened, not what Mr. Hammond could have done or the officer could have done. Actually, when they're in that position there is nothing prior to that confrontation that would indicate that the Officer was acting other than in a professional manner.

I look at the facts that are in the record a little bit different than [appellants' counsel] argued to the Court. We have Mr. Hammond, who approaches the Officer, grabs ahold of him in some manner, and tries to swipe the gun away. He's pushed

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