Shand v. City of Hyattsville
| Docket Number | 1266- 2022 |
| Decision Date | 31 May 2023 |
| Parties | ESTATE OF LEONARD SHAND v. CITY OF HYATTSVILLE, MARYLAND, et al. |
| Court | Court of Special Appeals of Maryland |
Leahy, Beachley, Moylan, Charles E. (Senior Judge, Specially Assigned), JJ.
For the reasons that follow, we reverse and remand.
FACTS AND PROCEEDINGS[2]
On September 26, 2019, a transmission on the police radio announced that a man, who had apparently assaulted a Starbucks barista a few days earlier, was back at the Starbucks. Officer Evans[3] responded and encountered Leonard Shand on the street. Officer Evans advised other officers by radio that Mr. Shand was armed with a knife. Police officers from multiple police departments responded to Officer Evans' radio transmission. Among those responding to the scene were Lieutenant Zachary Nemser and PFC Scott Hall of the Hyattsville Police Department.
When PFC Hall arrived on the scene, "Shand was being confronted with at least 10 to 12 police officers." Mr. Shand was screaming at officers about "an altercation he [previously] had with a New Carrollton officer" during which he had been stabbed. After learning that officers had unsuccessfully attempted to subdue Mr. Shand with tasers and pepper spray, PFC Hall arranged for another officer to charge and kick Mr. Shand to the ground, but that effort also failed. Next, officers attempted a vehicle takedown,[4] but Mr. Shand was able to avoid contact with the police vehicle. Throughout the encounter with Mr. Shand, officers pleaded with him to drop the knife, to no avail. Instead, Mr. Shand ignored police commands, and ultimately drew a second knife.
When Lieutenant Nemser arrived on the scene, Mr. Shand was holding a small knife in each hand and was "standing in the center of [an] intersection with kind of a semicircle of officers around him." At this point, Mr. Shand was "contained and standing still" and approximately 15 to 25 feet away from officers.[5] As the officer in command, Lieutenant Nemser immediately went to the patrol supervisor, Corporal Tulio Quevedo of the Hyattsville Police Department, and PFC Hall to devise a plan to resolve the situation. Although Corporal Quevedo wanted to send his police dog to subdue Mr. Shand, he declined to do so because he feared that Mr. Shand would stab the dog. Corporal Quevedo offered that, "If we can just get him to drop one of the knives, I can send in the dog." Accordingly, after a "very brief conversation," the three officers decided to contemporaneously deploy PFC Hall's department-issued distraction device-a flash bang grenade[6]-and Lieutenant Nemser's bean bag shotgun[7] as part of their plan to subdue Mr. Shand. Specifically, the officers hoped that "the discomfort from the [bean bag] rounds and the disorientation and distraction from the device" would cause Mr. Shand to drop at least one of his knives. PFC Hall proceeded to roll the flash bang grenade toward Mr. Shand, followed by Lieutenant Nemser firing the bean bag shotgun.[8] Mr. Shand immediately began running in the opposite direction of the flash bang grenade and toward Lieutenant Nemser.[9] Lieutenant Nemser continued firing his bean bag shotgun, discharging four rounds while Mr. Shand continued toward him with a knife in each hand. In response, multiple officers fired their service weapons, killing Mr. Shand. The entire altercation with Mr. Shand lasted roughly thirty minutes, during which Mr. Shand meandered a quarter of a mile on public streets.
On May 11, 2020, the Estate of Leonard Shand filed a complaint against the City of Hyattsville, Prince George's County, and the City of Mount Rainier for use of excessive force in violation of Article 26 of the Maryland Declaration of Rights. On September 28, 2020, the Estate amended its complaint to add counts of excessive force and assault and battery against Lieutenant Nemser and PFC Hall. The amended complaint also included a survival action asserted by the Estate against each defendant.[10] Prince George's County, Mt. Rainier, the City of Hyattsville, Lieutenant Nemser, and PFC Hall all moved for summary judgment. At the motions hearing on August 24, 2022, the court first granted summary judgment in favor of Prince George's County and Mt. Rainier, finding that their officers' use of deadly force against Mr. Shand was reasonable. The court then granted summary judgment in favor of the City of Hyattsville, Lieutenant Nemser, and PFC Hall.
The Estate timely appealed only the grant of summary judgment in favor of the City of Hyattsville, Lieutenant Nemser, and PFC Hall.[11] As noted, we shall reverse and remand.
"We review a grant of summary judgment de novo." Smith v. Bortner, 193 Md.App. 534, 543 (2010) (citing Beyer v. Morgan State Univ., 369 Md. 335, 359 (2002)). "Maryland Rule 2-501 authorizes a grant of summary judgment where 'there is no genuine dispute as to any material fact and . . . the party is entitled to judgment as a matter of law.'" Id. (alteration in original). "When reviewing the grant or denial of a motion for summary judgment we must determine whether a material factual issue exists, and all inferences are resolved against the moving party." Id. (quoting Olde Severna Park Improvement Ass'n v. Gunby, 402 Md. 317, 328 (2007)). Piscatelli v. Smith, 197 Md.App. 23, 36 (2011) (citing Myers v. Kayhoe, 391 Md. 188, 203 (2006)). "Furthermore, 'it is a settled principle of Maryland appellate procedure that ordinarily an appellate court will review a grant of summary judgment only upon the grounds relied upon by the trial court.'" Hamilton v. Kirson, 439 Md. 501, 523 (2014) (quoting Bishop v. State Farm, 360 Md. 225, 234 (2000)).
The Estate alleged that the City of Hyattsville, Lieutenant Nemser, and PFC Hall violated Article 26 of the Maryland Declaration of Rights by using excessive force against Mr Shand. Article 26 of the Maryland Declaration of Rights provides:
That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.
"We have stated that Art. 26 is considered in pari materia with the Fourth Amendment" of the U.S. Constitution. Ford v. Balt. City Sheriff's Off., 149 Md.App. 107, 136 (2002) (quoting Carter v. State, 367 Md. 447, 458 (2002)); see also Cunningham v. Baltimore County, 246 Md.App. 630, 690 (2020). Thus, "[w]hether a police officer has used excessive force in violation of the Maryland Declaration of Rights is judged under the standard of objective reasonableness established by the United States Supreme Court to analyze analogous claims made under the Fourth Amendment to the federal Constitution." Estate of Blair by Blair v. Austin, 469 Md. 1, 22 (2020) (alteration in original) (quoting Austin v. Estate of Blair by Blair, No. 580, Sept. Term 2017, slip op. at 2 (filed Apr. 25, 2019)). "Determining whether the force used to effect a particular seizure is reasonable . . . requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. (alteration in original) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). "This 'reasonableness' determination, therefore, is incapable 'of precise definition or mechanical application.'" Id. at 22-23 (quoting Graham, 490 U.S. at 396). The proper application of the reasonableness test "requires careful attention to the facts and circumstances of each particular case," including application of the factors enunciated in Graham: "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. Graham made clear that "all claims that law enforcement officers have used excessive force - deadly or not - in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard[.]"[12] Id. at 395.
In light of its brevity and centrality to our analysis, we reprint the court's bench ruling verbatim:
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