                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-1477


THOMAS S. SHERWOOD, SR., in his individual capacity, and as
father and Personal Representative of the Estate of Thomas
S. Sherwood, Jr., the deceased; BEVERLY ANNE SHERWOOD, in
her individual capacity and as mother of Thomas S.
Sherwood, Jr., the deceased,

                Plaintiffs - Appellants,

           v.

STATE OF MARYLAND; MARYLAND DEPARTMENT OF NATURAL RESOURCES;
HUBERT F. BROHAWN, a Police Officer for the State of
Maryland Department of Natural Resources, and in his
individual capacity,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.      Andre M. Davis, District Judge.
(1:07-cv-01331-AMD)


Argued:   September 22, 2009                 Decided:   November 4, 2009


Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Margaret B. SEYMOUR, United States District Judge for the
District of South Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Mark Robert Millstein, Baltimore, Maryland; David
Michael Silbiger, Baltimore, Maryland, for Appellants. Paul J.
Cucuzzella, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Annapolis, Maryland, for Appellees.      ON BRIEF: Douglas F.
Gansler, Attorney General of Maryland, Baltimore, Maryland, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

      Following      the     deadly     shooting         of   their    son,    Thomas

Sherwood, Jr. (Sherwood), by Hubert Brohawn (Officer Brohawn), a

law enforcement officer with the Maryland Department of Natural

Resources   (the     DNR),    Thomas        (Sr.)    and   Beverly    Sherwood      (the

Sherwoods) brought this action pursuant to 42 U.S.C. § 1983 and

Maryland    state    law     against        Officer      Brohawn,     the   State    of

Maryland,   and     the    DNR.       The    district      court    granted   summary

judgment to Officer Brohawn on the only viable federal claim,

the § 1983 excessive force claim against Officer Brohawn, and

declined to exercise supplemental jurisdiction over the state

law claims, dismissing them without prejudice.                        The Sherwoods

appeal, and we affirm.



                                             I

      Shortly before 11:00 a.m. on July 31, 2006, Officer Brohawn

observed    Sherwood        driving    a         motor   vehicle     near   Bellevue,

Maryland.     From his past contacts with Sherwood, Officer Brohawn

suspected that Sherwood was driving with a suspended license,

and   Officer     Brohawn    so    confirmed        through   phone   calls   to    the

Talbot County Sheriff’s Office and the DNR Police Communications

Center.

      As Officer Brohawn was traveling in the opposite direction

of    Sherwood,    Officer        Brohawn    had     difficulty      effectuating     a

                                        - 3 -
traffic stop.         After parking his vehicle in several roadside

locations,      Officer     Brohawn       was    unsuccessful       in    locating

Sherwood.      As a result, Officer Brohawn proceeded to the wharf

where he knew Sherwood lived.

       Officer Brohawn arrived at the wharf and proceeded down the

dock toward Sherwood’s boat.                As Officer Brohawn approached,

Sherwood exited the boat’s cabin with a beer can in his hand,

stepped      onto   the   dock,    and    walked    toward    Officer     Brohawn.

Officer Brohawn told Sherwood he was taking him to the Maryland

District Court Commissioner, but Sherwood responded that he was

not going anywhere, and walked away from Officer Brohawn and

back onto his boat.

       Sherwood promptly untied two lines from the boat’s stern

cleats, put the boat in gear, started to move the boat forward

from   the    dock,   looked      at   Officer     Brohawn,   and   spoke      in   a

sarcastic tone, “now what are you going to do?”                       (J.A. 983).

Officer Brohawn, who was then standing near the edge of the dock

from where Sherwood had pulled the boat away, informed Sherwood

that he intended to “just come . . . get you.”                (J.A. 987).

       As   Sherwood’s    boat     was    pulling   forward    from      the   dock,

Officer Brohawn picked up the boat’s starboard stern line and

then the port stern line, which were both lying in the water

from having been untied and released by Sherwood from the boat’s

stern cleats, and placed the lines upon the dock.                   In response,

                                         - 4 -
Sherwood     put    the    boat   in    reverse    and    walked   away    from     the

controls to the rear exterior of the boat’s cabin, where he

grabbed a tire jack (which weighed about six pounds), which was

then leaning against the exterior wall of the cabin.

      With tire jack in hand and the boat in reverse, Sherwood

walked back towards the starboard stern of the boat and exited

the   boat   onto    the    dock,      leaving    the    running   boat    pinned    up

against the dock.           Sherwood, who had a history of threatening

police officers with weapons, then made a couple “quick, like

running steps” in Officer Brohawn’s direction, (J.A. 1008-09),

took another skip step, said to Officer Brohawn, “you goddamn

mother f***er. . . .          I’m tired of your sh**,” (J.A. 1011), and

then slid his hands down the shaft of the tire jack and placed

his hands together as he prepared to swing the tire jack.

      From a position of about eight feet in front of Officer

Brohawn, the left-handed Sherwood took a left-handed baseball

batter’s swing at Officer Brohawn with the tire jack level with

Officer Brohawn’s head, and then an immediate back swing in the

reverse direction.          During the first swing, the end of the tire

jack, which had attached to it the tire jack’s steel ratchet

mechanism, passed in front of Officer Brohawn’s head.                         During

the   back   swing,       Officer   Brohawn,      who    had   retreated    slightly

between the two swings, ducked as the end of the tire jack

passed directly over his exposed head.                     Officer Brohawn, who

                                         - 5 -
attempted unsuccessfully during the swings of the tire jack to

grab with his left hand his pepper spray, recalls that at the

instant of the back swing he was afraid that he “was going to

feel [the tire jack] crushing down on [him].”                       (J.A. 1039).

       Following the back swing, Officer Brohawn immediately told

Sherwood    to     drop    the   tire      jack.     He     then    drew     his   service

weapon,    extended        his   arms      towards       Sherwood,     and    instructed

Sherwood    a    second     time      to   drop    the    tire     jack.      Instead    of

dropping the tire jack, Sherwood attempted to swing the tire

jack   a   third    time.        As    Sherwood     attempted       the    third     swing,

Officer    Brohawn        discharged       his    weapon    three     times     in   rapid

succession.         The     bullets        from    the     three     gunshots      entered

Sherwood’s body as Sherwood rotated in a clockwise position in

front of Officer Brohawn, much like a left-handed batter might

rotate as he executes a baseball swing.                      As a result of these

gunshot wounds, Sherwood died.                   His blood alcohol level at the

time of his death was .11.

       The Sherwoods brought this action pursuant to 42 U.S.C.

§ 1983 and Maryland state law against Officer Brohawn, the State

of Maryland, and the DNR.                  The district court granted summary

judgment to Officer Brohawn on the only viable federal claim,

the § 1983 excessive force claim against Officer Brohawn, and




                                           - 6 -
declined to exercise supplemental jurisdiction over the state

law claims, dismissing the state law claims without prejudice. 1



                                       II

     The Sherwoods maintain that the district court erred in

granting summary judgment to Officer Brohawn, contending that

the evidence in the record could support a finding that Officer

Brohawn used excessive force in shooting Sherwood.              Having had

the benefit of oral argument and the parties’ briefs, and after

careful    consideration    of   the   record    and   applicable   law,   we

conclude    that   the   district      court    correctly   concluded   that

Officer Brohawn did not use excessive force in shooting Sherwood

as a matter of law.        Accordingly, we affirm on the reasoning of

the district court.        See Sherwood v. State of Maryland, Civil

No. 07-1331 (D. Md. April 7, 2008). 2

                                                                    AFFIRMED



     1
       The § 1983 claims against the State of Maryland and the
DNR were dismissed on Eleventh Amendment immunity grounds, and
the Sherwoods understandably do not challenge this ruling on
appeal.
     2
       The Sherwoods also contend that, with regard to their
§ 1983 claim against Officer Brohawn, they are entitled to a
presumption, based on the spoliation of evidence, that Officer
Brohawn was intoxicated and/or under the influence of a mind
altering substance at the time of the shooting. This contention
lacks merit for the simple reason that Officer Brohawn had
nothing to do with the alleged spoliation.



                                    - 7 -
