                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-2148



ERNESTO ACEVEDO GUERRA,

                                               Plaintiff - Appellant,

           versus


MONTGOMERY COUNTY, MARYLAND; RICHARD HARRIS,

                                              Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Richard D. Bennett, District Judge. (CA-
02-1995-RDB)


Argued:   October 29, 2004                 Decided:   December 7, 2004


Before WILKINSON, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jonathan Christian Dailey, DAILEY & ASSOCIATES, CHTD.,
Washington, D.C., for Appellant. Sharon Veronica Burrell, COUNTY
ATTORNEY’S OFFICE FOR THE COUNTY OF MONTGOMERY, Rockville,
Maryland, for Appellees.    ON BRIEF: Charles W. Thompson, Jr.,
County Attorney, Patricia P. Via, Associate County Attorney,
Rockville, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Ernesto Acevedo Guerra sued Montgomery County, Maryland,

and Officer Richard Harris in his official capacity asserting,

among other things, Section 1983 claims premised on the violation

of his constitutional rights.      The complaint alleges that Guerra’s

rights   under   the   Fourth   Amendment   were   violated   when   Harris

unintentionally shot him in the face during a so-called “dynamic

extraction” while the stolen vehicle driven by Guerra was stopped

at an intersection.      The district court granted the defendants’

motion for summary judgment on Guerra’s Section 1983 claims on the

basis that no underlying federal constitutional violation had

occurred.     We affirm the district court’s order, but we do so on

the alternative basis that Guerra has not raised an issue of

material fact with respect to the county’s failure to provide

adequate training to its police officers.



                                    I.

            We state the facts in the light most favorable to Guerra,

the non-prevailing party in the summary judgment proceedings.           See

EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 375 (4th Cir. 2000).

On the afternoon of January 31, 2002, Officer Harris was on duty as

an undercover auto theft detective along with other plainclothes

officers of the Central Auto Theft Team of the Montgomery County

Police Department.       The officers located a stolen Honda Civic


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parked in a Silver Spring apartment complex and began surveillance

of the vehicle.      Eventually, Detective Thomas Reich saw Guerra

enter the Honda and drive away.         The detective radioed this

information to the other officers, who proceeded to follow the

Honda in several unmarked police cars.      Before long, when Guerra

had to stop for a red light at an intersection, the officers

decided to confront him using the dynamic extraction technique. In

Montgomery County, dynamic extraction involves the positioning of

unmarked police cars in such a way as to block a suspect’s vehicle

and prevent its movement.       Plainclothes officers then quickly

approach the suspect and physically remove him from or order him

out of the vehicle.     It is unclear how the decision was made to

confront Guerra by using dynamic extraction at a busy intersection.

          As Guerra pulled up to the intersection in the stolen

Honda,   Officer   Harris   stopped   his   car   immediately   behind.

Detective Michael Chaconas pulled his car into the median along the

driver’s side of the Honda. Sergeant Michael Sugrue positioned his

car in front of the civilian vehicle that was directly in front of

the Honda.   Several other civilian vehicles were in the traffic

lane next to the Honda’s passenger’s side. Officer Harris then got

out of his car with his gun drawn and approached the driver’s side

door of the Honda.     In the course of his approach, Harris struck

the Honda’s rear quarter panel with his hand, advised Guerra that

he was a police officer, and ordered Guerra to raise his hands.


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Guerra released his hands from the steering wheel and raised them,

which Harris considered an act of compliance.                  Harris continued

toward the driver’s side door with his firearm in a downward

position.    As he approached, Harris raised his firearm from the

downward position and pointed it in Guerra’s general direction. As

Harris reached to open the door, his weapon discharged. The bullet

shattered the driver’s side window and struck Guerra in the face.

All   parties     agree    that     Harris   did     not    pull    the    trigger

intentionally.

            Guerra filed a complaint against Montgomery County and

Officer Harris in his official capacity in the United States

District Court for the District of Maryland on June 13, 2002.

Guerra   alleges    that     Harris,    by   using    excessive      force,     and

Montgomery County, by failing to train its officers adequately,

violated his Fourth Amendment (and other constitutional) rights.

Guerra seeks relief under 42 U.S.C. § 1983 and state law.                      Upon

completion of discovery, the defendants moved for summary judgment

on all claims.     The district court granted the motion in part and

dismissed Guerra’s Section 1983 claims with prejudice.                    The court

declined to exercise pendent jurisdiction over the state law claims

and dismissed them without prejudice.

            The district court concluded that Guerra’s Section 1983

claims   failed    for    several   reasons.       The     court   construed    the

complaint to allege that Harris violated Guerra’s Fourth Amendment


                                        4
rights by simultaneously approaching the Honda with his weapon

drawn and attempting to open the driver’s side door. Because there

was probable cause to stop the car, the court said, it was both

reasonable and lawful for Harris to approach the Honda with his

weapon drawn. Moreover, the court concluded that no constitutional

violation occurred as Harris approached the car because Guerra

suffered no injury until the gun discharged.    The district court

presumably believed that the shooting itself did not violate the

Fourth Amendment because it was accidental.   This appeal followed.



                               II.

          To prevail on his federal claim, Guerra must show that

(1) an underlying constitutional violation (2) resulted from a

Montgomery County policy or custom.    See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690-91 (1978).    The use of excessive force

violates the Fourth Amendment’s protection against unreasonable

seizures. See Jenkins v. Averett, 424 F.2d 1228, 1231-32 (4th Cir.

1970).   And, a county’s failure to adequately train its officers

can be so egregious as to warrant a finding that it amounts to a

policy or custom for which the county should be held responsible.

See City of Canton v. Harris, 489 U.S. 378, 389-90 (1989).   As we

will explain, Guerra has not raised an issue of material fact with

respect to his assertion that a county practice of inadequate

training led to a constitutional violation.     We affirm on this


                                5
alternative basis, even though it was not addressed by the district

court.   See Ostrzenski v. Seigel, 177 F.3d 245, 253 (4th Cir. 1999)

(noting that we may affirm on any ground supported by the record,

even if it is not one relied on by the district court).

           As an initial matter, Guerra does not allege a pattern of

unconstitutional police conduct so pervasive as to imply actual or

constructive    knowledge   on    the   part   of    Montgomery    County

policymakers.   Rather, on the basis of a single shooting incident,

he argues that the county’s police training programs for proper

trigger finger placement and the use of dynamic extraction are

constitutionally deficient and reflect such deliberate indifference

to the risk of injury that the deficiencies themselves may be

properly considered county policy or custom.        Guerra relies on the

statements of a single expert witness to support his claim of

deficient training.

           With respect to training on trigger finger placement, the

expert concedes that Harris received a certain amount of training

on this subject and that this training even included some exercises

designed to approximate high-stress situations.           The fact that

Harris may have deviated from his training is insufficient to

render   Montgomery   County’s   training   programs   involving   proper

trigger finger placement constitutionally inadequate as a general

proposition.    Ultimately, the expert believes Harris did not

receive enough high-stress training on trigger finger placement.


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Under City of Canton, 489 U.S. at 390-91, however, the fact that

more or better training could have been instituted is not enough by

itself to establish a claim for deliberate indifference.

          With respect to training in dynamic extraction vehicle

takedowns, Guerra’s expert also concedes that Harris received some

training in this area.   The expert nevertheless maintains that the

county’s training plan for this procedure is fundamentally flawed.

Yet, the expert acknowledges that he is generally unfamiliar with

undercover auto theft units and their use of the dynamic extraction

technique.   As a result, his statements do not create an issue of

material fact about the inadequacy of Montgomery County’s program

for training its undercover auto theft detectives in the use of

dynamic extraction.   Specifically, the expert’s statements cannot

sustain the proposition that training deficiencies represent county

policy or custom because any such deficiencies are not sufficient

to establish the necessary deliberate indifference.

          For these reasons, we affirm the judgment of the district

court.

                                                           AFFIRMED




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