Littleton v. Prince George's Cnty. Maryland

• Decision Date: 21 June 2011
• Docket Number: Civil No. PJM 07–1409.
• Citation: 797 F.Supp.2d 648
• Parties: Alita LITTLETON, et al., Plaintiffs v. PRINCE GEORGE'S COUNTY, MARYLAND, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

797 F.Supp.2d 648

Alita LITTLETON, et al., Plaintiffs
v.
PRINCE GEORGE'S COUNTY, MARYLAND, et al., Defendants.

Civil No. PJM 07–1409.

United States District Court, D. Maryland.

June 21, 2011.

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Gregory L. Lattimer, Ted Justice Williams, Law Offices of Gregory L. Lattimer PLLC, Washington, DC, for Plaintiffs.

Shelley Lynn Johnson, Office of Law, Upper Marlboro, MD, for Defendants.

MEMORANDUM OPINION PETER J. MESSITTE, District Judge.

Alita Littleton, in her individual capacity and as Personal Representative of the estate of her deceased son, Gregory Boggs, Jr., and Lanaya Borden, Boggs' girlfriend, sued Prince George's County, Maryland, its then Chief of Police Melvin High, and Officer Jordan Swonger in eight counts stemming from an incident that resulted in Boggs' death on September 18, 2006. The original Counts were styled: I Survival Act; II Wrongful Death; III Excessive force/police brutality; IV Assault and Battery; V Deprivation of Civil Rights (42 U.S.C. § 1983); VI Negligent Training & Supervision by Prince George's County; VII Intentional/Negligent Infliction of Emotional Distress; and VIII Violation of the Maryland Constitution.¹

A jury hearing the case deadlocked and a mistrial was declared. Swonger has since filed a Renewed Motion for Summary

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Judgment based upon the record made at trial, and asks for dismissal of all counts against him. For the reasons that follow, his Motion for Summary Judgment is GRANTED.

I.

The trial record shows as follows:

On September 18, 2006 Swonger was working as a patrol officer in Prince George's County. At approximately 1:13 a.m., he received a dispatch call after a citizen reported that on Walker Mill Road in District Heights, Maryland, a male was assaulting a female after having exited from a red vehicle with Virginia tags. Swonger and other officers proceeded to that location to investigate, but did not encounter any individuals matching the description of the dispatch call. About 30 minutes later, Swonger received a second dispatch call reporting an assault with similar characteristics taking place at Rochelle Ave, in District Heights, Maryland not far from where the first incident had reportedly taken place.

Swonger was the first officer to arrive at the 1900 block of Rochelle Avenue, proximate to an apartment complex. He testified at trial that, upon arriving, he saw two people engaged in a violent encounter. Swonger said that he saw a female on the ground while a male, standing over her with one foot on either side of her hips, was holding her either by the neck and was choking her or was shaking her shoulders in a violent manner. The two individuals were later identified as Gregory Boggs and Lanaya Borden. Swonger also testified that he radioed-in the exact location of the incident to summon other police units to provide backup. He then exited his vehicle, slamming the door to get the attention of the couple and began walking towards them, pointing a flashlight with his left hand. He testified that because the assault was in progress, he did not wait for backup to arrive.

Swonger testified that once Boggs saw him, Boggs began to pickup Borden off the ground. Swonger has stated that he heard Boggs say to Borden “Let's go” and that in response Borden said “no” several times. Swonger said he told the couple to sit on the ground so he could sort out the situation, but received no verbal response from either Boggs or Borden. Swonger said that Boggs in fact was attempting to drag Borden toward a red car with Virginia plates parked directly behind Boggs. Swonger testified that seeing this, he decided to walk to his right in a wide arc in order to position himself between the two individuals and the car, so as to stop Boggs from advancing toward the vehicle. Swonger said that, as he was moving in a wide arc, he observed Boggs shift his position so as to put Borden in front of him, placing his left arm over the top of Borden's left shoulder and across Borden's neck.

Swonger testified that, because he could not see Boggs' right hand, he instructed Boggs to show his hands. According to Swonger, when Boggs did not comply, Swonger drew his weapon and kept it “at the low ready,” while continuing to give verbal commands to Boggs to put the girl down and show his hands.

Swonger testified that while Boggs continued to have his left arm around Borden's neck, he saw him begin to move his right arm back and forth behind Borden. According to Swonger, he could not see Boggs' right hand, but it appeared that he might be removing objects from his waistband area and stuffing them into Borden's back pockets. Swonger said that because he was unable to see what Boggs was doing with his right hand and fearing for his safety, he started to move back towards his patrol car for cover. Swonger

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testified that as he was retrieving, he saw Boggs' nostrils flare and his eyes open wide. Swonger said he then saw Boggs lower his center of gravity and in one fluid motion Boggs threw Borden to the ground, reached behind himself with his right hand, and retrieved a black object with a significant mass. Swonger testified he thought that the object in Boggs' right hand was a weapon and, fearing for both his own safety and that of Borden, he discharged a single round from his weapon at Boggs. After he fired one shot, Swonger fled to the patrol car for cover and, when he did not hear any shots fired back, glanced back and saw Boggs on the ground and Borden sitting next to him. Swonger then got on the police radio and reported “shots fired,” a call that was recorded at 1:46:07 a.m. Swonger said that he then walked towards Boggs and told Borden to “back up” and “go sit on the curb,” because he believed Boggs had retrieved a weapon and Swonger did not want Borden to pick it up. Swonger testified that Borden was “emotional,” crying and shouting at him, until she eventually walked away from Boggs. Swonger said that, as he approached Boggs' body, he saw a wallet in Boggs' right hand, which he then brushed with his foot to push it out of Boggs' hand.

Pictures taken during the autopsy show that the bullet wound in Boggs was about two inches from the midline on the right side of his chest. Pictures also show what appeared to be fresh scratch marks on the left side of Boggs' neck. An evidence technician recovered a wallet at the scene.

Borden testified to a different version of the events. She admitted that she and Boggs were having an argument over Boggs' cell phone, which Borden was trying to grab from him, in order to find out who had just made a call to Boggs. She stated that she was never on the ground but that at some point prior to Swonger's arrival, both she and Boggs went to the ground scrambling for Boggs' cell phone. Borden testified that she and Boggs were standing on the sidewalk and Boggs was attempting to take the phone from her hand when she heard the door of a vehicle being slammed. She testified that they turned toward the street and she saw a car's headlights and then a police officer approaching them with his gun pointed directly at them. She testified that she heard the officer tell them “put your hands up” and that she and Boggs looked at each other and were attempting to comply with Swonger's order when, without warning, Swonger suddenly discharged his weapon. Borden testified that she did not see the shot being fired but only heard it. Borden said that she only managed to raise her right arm but not her left, because her left thumb was still under Boggs' arm when she heard the shot. As for the position of Boggs' arms, Borden testified at trial that Boggs raised his right arm to comply with Swonger's command but her statement to the police immediately after the incident had been that: “He still had his left arm around my neck. His right arm, I cannot say. I can't honestly say.” (emphasis added). Borden further testified that, while she was standing in front of Boggs, he at no time attempted to put anything in her back pockets and that neither Swonger nor any other officer ever asked her to empty her pockets at the scene or afterwards.

Borden testified that she was still standing in front of Boggs when she heard the shot and that Boggs fell forward onto her after being hit. According to Borden, Boggs' knee hit the back of her leg and he then slid down to the ground, staining the back of her pants with his blood. Borden's pants with blood stains were introduced at trial. Borden further stated that when she first heard the shot, she thought that she had been hit but then realized it was Boggs who had been shot.

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Borden stated that once Boggs was on the ground, Borden testified that she kneeled down to assist him, but before she could touch him, she saw Swonger stepping toward her with the gun pointed at her. She said that she saw nothing in Boggs' right hand before she stepped away from Boggs following Swonger's order. Borden testified that Swonger's actions placed her in fear of her life; that she was hysterical and screaming, asking Swonger why he had shot Boggs, because Boggs was unarmed and had done nothing to justify the shooting. Borden testified that once she moved away from Boggs, Swonger remained close to Boggs' body, but that he did not touch or help Boggs in any way. Borden testified that she saw Swonger make a motion like he was talking to his shoulder and then another police car pulled up and Officer Ricks came out and took her across the street.

II.

A motion for summary judgment under Rule 56 challenges the factual sufficiency of the complaint. Summary judgment is appropriate when “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). A party is entitled to summary judgment if the evidence in the record “show[s] that there is no genius issue as to any material fact and that the movant is entitled to judgment as a...