                          UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 11-1378


ANDREW KANE, Individually and as Personal Representative of
the Estate of Andrew Dwayne Cornish,

              Plaintiff - Appellant,

         v.

BRIAN LEWIS; JOHN LEWIS, Officer; JENSEN SHORTER, Officer;
LEAF A. LOWE, Officer; KENNETH MALIK, Individually and in
his Official Capacity as Chief of Police for the Cambridge
Police Dept.; THE COMMISSIONERS OF CAMBRIDGE, A Body
Corporate and Politic,

              Defendants - Appellees.



                          No. 11-1379


ANDREW KANE, Individually and as Personal Representative of
the Estate of Andrew Dwayne Cornish,

              Plaintiff – Appellee,

         v.

BRIAN LEWIS; JOHN LEWIS, Officer; JENSEN SHORTER, Officer;
LEAF A. LOWE, Officer; THE COMMISSIONERS OF CAMBRIDGE, A
Body Corporate and Politic; KENNETH MALIK, Individually and
in his Official Capacity as Chief of Police for the
Cambridge Police Dept.,

              Defendants – Appellants.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:08-cv-01157-BEL)


Argued:   May 17, 2012                    Decided:   June 18, 2012


Before KING, DUNCAN, and THACKER, Circuit Judges.


Dismissed by unpublished opinion.       Judge Duncan wrote    the
opinion, in which Judge King and Judge Thacker joined.


ARGUED: Terrell Roberts, ROBERTS & WOOD, Riverdale, Maryland,
for Appellant/Cross-Appellee.    Victoria M. Shearer, KARPINSKI,
COLARESI & KARP, PA, Baltimore, Maryland, for Appellees/Cross-
Appellants. ON BRIEF: Daniel Karp, KARPINSKI, COLARESI & KARP,
PA, Baltimore, Maryland, for Appellees/Cross-Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

     This     appeal      and     cross-appeal          arise      from    the     district

court’s partial grant of summary judgment on appellant Andrew

Kane’s     claims       under     42      U.S.C.       § 1983      and     the     Maryland

Constitution. 1         Kane’s     claims        are    based      on    the     2005    fatal

shooting     of   his    son,     Andrew     Cornish,         by   police        during   the

execution    of     a   narcotics       search     warrant         at    Cornish’s       home.

Because the district court has not yet entered a final judgment

resolving all of Kane’s claims, however, his appeal is premature

under 28 U.S.C. § 1291.                Likewise, the cross-appeal brought by

appellees (“appellees” or “the officers”)--the four officers who

participated       in    the     search     of     Cornish’s        apartment--is          not

properly     before      us     because    their       contention         that    they    are

entitled to qualified immunity rests on an unresolved question

of   fact.        As    such,     we    dismiss        both   appeals       for    lack    of

jurisdiction.




     1
       Kane’s Maryland constitutional claims track his Fourth
Amendment claims. See Hines v. French, 852 A.2d 1047, 1069 (Md.
Ct. Spec. App. 2004) (“The standards for analyzing claims of
excessive force are the same under Articles 24 and 26 of the
Maryland Constitution as that under the Fourth Amendment of the
United States Constitution.”); Ford v. State, 967 A.2d 210, 231
(Md. Ct. Spec. App. 2009) (“Ordinarily, Article 26 of the
[Maryland] Declaration of Rights is to be read in pari materia
with the Fourth Amendment.”).


                                             3
                                               I.

                                               A.

       Although       they       offer   differing      versions    of     the    story    at

specific points, the parties agree as to the general sequence of

events      that     led   to     Cornish’s     fatal    shooting--the       event       upon

which       Kane’s    claims       are     based.       The    following         facts    are

undisputed.

       The City of Cambridge Police Department began investigating

Cornish based on an anonymous tip it received during the week of

March 28, 2005.              The tip indicated that the occupants of 408

High       Street    in    Cambridge,       Maryland,      were     engaging       in    drug

activity.           The residence located at 408 High Street has two

stories, which are divided into a downstairs apartment and an

upstairs apartment.               At the time police received the anonymous

tip, Nathan Latting and Karen Camper occupied the downstairs

apartment      (“Apartment          A”),    and     Andrew    Cornish      occupied       the

upstairs apartment (“Apartment B”). 2

       In response to the tip, Officer Leaf Lowe twice pulled and

examined      trash       bins    from   the    sidewalk      in   front    of    408    High

Street.       On April 5, 2005, Lowe’s search yielded trace amounts


       2
       Andrew Cornish’s uncle Brad Cornish resided with him in
Apartment B.     Brad Cornish was not a target of the 2005
narcotics search, was not present at the time of the shooting,
and is not otherwise involved in this litigation.


                                               4
of marijuana, as well as letters addressed to both Latting and

Cornish.      A subsequent search of the trash from 408 High Street,

on April 19, 2005, produced similar results.                            Based on this

information, Lowe sought warrants to search Apartments A and B

for       evidence     of     controlled          substances       and     associated

paraphernalia.          The   Dorchester        County    District       Court   issued

search warrants for both apartments on April 25, 2005.

      On    May   6,    2005,      Lowe   and   eight     other    members       of   the

Cambridge Emergency Response Team and Narcotics Enforcement Team

set out to execute the warrants at 408 High Street.                          Officers

Lowe, Brian Lewis, John Lewis, 3 and Jensen Shorter planned to

search Cornish’s upstairs apartment--Apartment B--and the other

five officers planned to search Apartment A.                       At approximately

4:30 a.m., the officers entered the common door that led to both

apartments.       The four officers assigned to search Apartment B

climbed the stairs and lined up in the vestibule outside the

door to that apartment.               Brian Lewis used a sledgehammer to

breach the door, and the officers entered.

      Shorter,       acting   as    the   point    man,   was     the    first   inside

Cornish’s     apartment.           The    exterior    door      through    which      the


      3
       John Lewis is Brian Lewis’s uncle. Because Brian Lewis is
the officer most directly involved in the shooting, references
in this opinion to “Officer Lewis” or “Lewis” indicate Brian
Lewis unless otherwise specified.


                                            5
officers entered opened into the apartment’s kitchen.                          A door on

the left side of the kitchen led first to the living room and

then to the master bedroom; a bathroom and a second bedroom were

located off to the right side of the kitchen.                         Shorter proceeded

left   toward       the   living     room    and    master   bedroom,      followed     by

Brian Lewis, acting as his cover man.                         Lowe and John Lewis

covered      the     right    side   of     the    apartment,     moving      toward   the

second bedroom.

       At some point during the officers’ search of Apartment B,

Cornish emerged from the master bedroom, wearing boxer shorts.

All four officers who participated in the search of Cornish’s

apartment reported seeing Cornish advancing on Brian Lewis with

some       sort    of   weapon--what      appeared     to    be   a    “machete”   or    a

“pipe”--at the time of the shooting.                     See J.A. 79-85, 238-50,

343-44, 423-24. 4            It is uncontested that, after Cornish emerged

from   his        bedroom,    he   encountered      Brian    Lewis,     who    fired   two

shots at Cornish.             One shot hit Cornish in the cheek, and the

other hit Cornish’s forehead, fatally wounding him.                            Cornish’s

body was found halfway between the living room and the kitchen,


       4
       Although Kane alleged in his complaint that Cornish had
“grabbed a sheathed knife for his protection” when the officers
entered his apartment, J.A. 18, he now posits that Cornish may
not have been armed at the time of the encounter, Appellant’s
Br. 40.      This factual dispute is not relevant to our
disposition.


                                              6
and a 15-inch knife, still in its sheath, was recovered from

underneath his right leg.

                                         B.

     On    May    5,   2008,   Cornish’s      father,    Andrew     Kane,    filed   a

complaint in his individual capacity and as representative of

Cornish’s estate in the U.S. District Court for the District of

Maryland.        Kane sought relief under 42 U.S.C. § 1983, alleging

that Officers Brian Lewis, John Lewis, Shorter, and Lowe had

violated the Fourth Amendment through use of excessive force

(namely,     Brian     Lewis’s    shooting       of     Cornish),     by    entering

Cornish’s apartment based on a warrant not supported by probable

cause, and by improperly executing the warrant by failing to

knock and announce their presence. 5                  He also claimed that the

officers     violated      equivalent         provisions       of   the     Maryland

Declaration       of   Rights.    Kane       alleged    that    Cornish     suffered

injuries consisting of the violation of his Fourth Amendment

rights,    wrongful     death,   and   physical        and   emotional      pain   and

suffering.       He sought damages as compensation for these alleged

injuries.



     5
       Kane also named the Commissioners of Cambridge                       and Chief
of Police Kenneth Malik as defendants in his                               complaint,
asserting that they failed to properly train and                            supervise
officers in violation of § 1983.     Kane voluntarily                       dismissed
these claims prior to this appeal.


                                         7
       Following      preliminary       discovery,         the    officers     moved     for

summary judgment, claiming that their actions were protected by

qualified      immunity.           Discovery      elicited       the   undisputed      facts

previously laid out; it also exposed discrepancies between the

officers’ version of events and other evidence offered by Kane.

As    relevant      here,    all    four   officers      who      participated      in   the

search      claim    that    they    knocked      and    announced      their     presence

prior to breaching both the common door at 408 High Street and

the interior door to Cornish’s apartment. 6                        Kane, on the other

hand,      claims    that    the    officers      failed     to    knock    and   announce

prior to entering either door, thus failing to alert Cornish to

the    fact    that    the    intruders     who     entered       his   apartment        were

police officers.

       After     hearing     evidence,      the     district       court     granted     the

officers’ summary judgment motion in part and denied it in part.

Kane v. Lewis, Civil No. L-08-1157, 2010 WL 1257884, at *6-7 (D.

Md. March 26, 2010).           Specifically, the district court held that

the    warrant      authorizing       entry       into   Cornish’s         apartment     was

supported by probable cause and that Brian Lewis was entitled to

       6
       The parties also offer competing versions of what occurred
inside Apartment B in the moments leading up to Cornish’s death.
The district court found that Kane had not presented sufficient
evidence to create a genuine issue of fact regarding what
transpired in the apartment, and because of the procedural
issues explained below, we need not consider the differing
accounts at this juncture.


                                              8
qualified            immunity     on     the       excessive          force     claim   because    a

“reasonable            officer”        in     Lewis’s             situation    “could   have      had

probable         cause      to    believe          that       Cornish     presented      a    deadly

threat”         as     he   approached            the       officers     with    a   knife,     thus

authorizing the use of deadly force.                                  Id. at *7.        The court

denied summary judgment with regard to Kane’s knock-and-announce

claim, however, concluding that a genuine issue of material fact

existed         as     to     whether        the        officers       actually      knocked     and

announced their presence prior to entering Cornish’s apartment.

       As the case progressed toward trial for a jury resolution

of this factual dispute, the officers filed a motion in limine

seeking to limit the type of damages a jury could award Kane

were       it   to     find      that       the    officers          violated     the   knock-and-

announce rule.                In a July 9, 2010 order, the district court

noted       that       Kane      could       potentially             recover    three   types     of

damages:         nominal         damages          for       the     alleged    Fourth    Amendment

violation itself 7; damages for the emotional distress Cornish

experienced from the time the officers entered his home until he

either discovered they were police officers or until his death;

       7
       We note that, prior to making a determination regarding
whether the jury would be entitled to award any actual damages,
the district court stated in a June 24, 2010 letter order that
“the case will go to trial, at least for nominal damages, to
determine whether the officers knocked and announced their
presence and purpose prior to entering Mr. Cornish’s apartment.”
J.A. 1437.


                                                        9
and damages for Cornish’s death itself.                  It then determined that

Kane        could    recover    nominal   damages        for   the   constitutional

violation itself and actual damages based on Cornish’s emotional

distress, if a jury found such awards appropriate.                         It granted

the officers’ motion to limit damages in part, however, holding

that Kane could not recover actual damages based on Cornish’s

death because a reasonable jury would have to find that Cornish

knew he was advancing on police officers with a knife prior to

the     shooting,       and    the    decision      to    do   so    constituted    a

superseding cause of his death.

        As a result of this order, the case was set to proceed to

trial for resolution of two questions.                     First, the jury would

need to determine whether the officers knocked and announced

prior to entering Cornish’s apartment.                   If it were to determine

that they did not, Kane would be entitled to nominal damages for

the violation of Cornish’s rights.                  Assuming this outcome, the

jury would also have to resolve a second question: whether to

award       actual    damages    to    Kane    to    compensate      for    Cornish’s

emotional distress. 8


        8
       Following the district court’s ruling on the officers’
motion in limine regarding damages, Kane filed a motion for
reconsideration or, in the alternative, for an entry of judgment
under Rule 54(b) to allow him to appeal the district court’s
summary judgment and damages rulings to this court immediately.
The district court initially granted Kane’s motion for an entry
of judgment, but after further discussion with the parties, it
(Continued)
                                          10
     On the morning of April 4, 2011, the date on which the

trial was scheduled to begin, Kane voluntarily dismissed with

prejudice    what   he   had   designated   as   Counts   2   and   4   of   his

complaint.    These counts were styled as follows:

     Count 2--42 U.S.C. § 1983--Survival Action

     Plaintiff Kane claims damages for Estate [sic] of his
     son based upon . . . constitutional violations. Such
     damages include the decedent’s pain and suffering,
     fright suffered before the decedent was shot, pain and
     suffering associated with his injuries, and the cost
     of funeral and burial.

                                    . . .

     Count     4--Maryland       Constitutional      Claim--Survival
     Action

     Plaintiff Andrew Kane . . . claims damages as alleged
     in Count 2.

J.A. 20.      At this point, the district court appears to have

halted the progression of the trial.

     On April 14, 2011, Kane noted an appeal to this court,

challenging the partial grant of summary judgment and the order

limiting damages.        The officers filed a cross-appeal on April

18, 2011, challenging the partial denial of summary judgment

based on qualified immunity, the partial denial of their motion




declined to certify any issue in the case for interlocutory
appeal.    Instead, in an October 4, 2010 letter order, the
district court set a pretrial briefing schedule and determined
that trial would begin on April 4, 2011.


                                     11
in     limine   regarding     damages,           and        various     other      pretrial

evidentiary rulings.

       We   requested     supplemental          briefing       on     May    1,    2012,    to

address the question of whether we possess jurisdiction to hear

these appeals.        Kane maintains that the case is properly before

us.     In their supplemental brief, however, the officers concede

that “it does appear that jurisdiction may be lacking because a

‘final judgment’ under 28 U.S.C. § 1291 was never obtained.”

Appellees’ Sup. Br. 6.             Counsel for the officers confirmed at

oral    argument   that    they     have    come       to     believe       that    we   lack

jurisdiction.



                                       II.

       Although both parties initially asserted that this appeal

was    properly    before     our     court,           we     have     “an    independent

obligation to assess [our] subject-matter jurisdiction.”                                   Wye

Oak Tech., Inc. v. Republic of Iraq, 666 F.3d 205, 218 (4th Cir.

2011).      Upon review, we find jurisdiction lacking at this stage

of the litigation.          Specifically, we decline to consider the

various issues Kane raises on appeal--as well as the majority of

the    issues   the     officers    raise        on     cross-appeal--because              the

district court has not yet entered a final judgment under 28

U.S.C. § 1291.        Further, although the district court’s partial

denial of the officers’ claim to qualified immunity alone would

                                           12
be an appealable final decision if it turned on an issue of law,

we similarly lack jurisdiction over that holding because the

district court’s decision was based on a disputed question of

fact.     As such, we dismiss both the appeal and cross-appeal.

                                             A.

      Kane     seeks    to     challenge     the    district       court’s       grant    of

summary      judgment     to     Officer      Brian       Lewis     regarding         Kane’s

excessive      force    claim,       based    on   its     finding    that       Lewis    is

entitled to qualified immunity.                   He also asks us to review the

district court’s limitation of damages regarding his knock-and-

announce claim, contending that its decision not to present to

the   jury     the    option    of    awarding      wrongful       death   damages       was

erroneous. 9     Because it is indisputable that the threshold issue

of whether the officers knocked and announced prior to executing

the search warrant of Cornish’s apartment has not been resolved,

however, Kane’s appeal is premature.

      Under     § 1291,        “[t]he    courts      of    appeals     .     .    .     have

jurisdiction of appeals from all final decisions of the district

courts    of    the    United     States.”         28     U.S.C.    § 1291       (emphasis


      9
       Kane raises a third issue on appeal, claiming that the
evidence Officer Lowe presented to establish probable cause to
support the warrant authorizing the search of Cornish’s
apartment was stale by the time the warrant was executed.  For
the reasons set forth herein, we lack jurisdiction over this
claim, as well.


                                             13
added).     A   final   decision     “generally        is     one   which    ends    the

litigation on the merits and leaves nothing for the court to do

but execute the judgment.”           Dilly v. S.S. Kresge, 606 F.2d 62,

63 (4th Cir. 1979) (quoting Catlin v. United States, 324 U.S.

229, 223 (1945)).          As such, “[t]he partial grant of summary

judgment to defendants [is] not a ‘final decision’ for purposes

of 28 U.S.C. § 1291” if “[t]here is obviously something else for

the district court to do but execute the judgment.”                       Bellotte v.

Edwards, 629 F.3d 415, 426 (4th Cir. 2011) (quoting Dilly, 606

F.2d at 63).      Further, we have previously held that “a judgment

on liability that does not fix damages is not a final judgment

because the assessment of damages is part of the merits of the

claim that must be determined.”                Carolina Power and Light Co. v.

Dynegy Mktg. and Trade, 415 F.3d 354, 358 (4th Cir. 2005).                            It

stands to reason that the reverse must also be true: a judgment

that partially determines damages but does not resolve the issue

of liability leaves unresolved a portion of the merits of a

claim.

     Based on these principles, we find that here, “[t]here is

obviously      something    else     for       the   district       court    to     do.”

Bellotte, 629 F.3d at 426.           Although the district court granted

summary judgment on Kane’s excessive force and probable cause

claims,   it    declined   to   do   so    with      regard    to   his     knock-and-

announce claim.      It denied summary judgment because the question

                                          14
of whether the officers knocked and announced their presence

prior to entering Cornish’s apartment must be determined by a

trier     of    fact    before     the      issue   of   Kane’s   right    to   any

compensation can be addressed.                   The question of liability has

thus not been resolved.             The knock-and-announce claim therefore

still     remains      in    the    case     pending     the   district    court’s

resolution of this factual dispute.

     Kane contends in his supplemental brief that the district

court’s limitation of damages on the one issue remaining in the

case--the knock-and-announce question--“was a final adjudication

because it completely foreclosed Kane’s wrongful death claims.”

Appellant’s Sup. Br. 4.             Kane argues that the district court’s

limitation      of     wrongful     death     damages    and   Kane’s    subsequent

choice to voluntarily abandon his attempt to seek damages for

Cornish’s       emotional     distress       left    nothing   further    for   the

district court to do.          We disagree.         Rather, we find that Kane’s

voluntary abandonment of the other “claims” in his complaint

merely foreclosed the possibility of his recovering a certain

type of damages.            The question that will determine liability--

whether the officers knocked and announced prior to entering

Cornish’s apartment--is still live.                  Further, if this question

is resolved in Kane’s favor, he will be able to recover nominal

damages        under     § 1983      for      the    violation     of     Cornish’s

constitutional rights.             See Carey v. Piphus, 435 U.S. 247, 266

                                            15
(1978) (holding that under § 1983, violations of constitutional

rights    are   “actionable   for    nominal   damages    without   proof   of

actual injury”).         As such, a jury must resolve this factual

dispute before the district court may enter a final judgment

under § 1291.     Absent a final decision or another valid means of

establishing Kane’s right to appear before this court--which he

has not presented--we lack jurisdiction over his appeal.

                                      B.

     Although      the    officers     have    conceded     that    we    lack

jurisdiction     over    their   cross-appeal,     for    thoroughness,     we

briefly explain why we agree.              The officers assert on cross-

appeal that the district court erred by denying their motion for

summary judgment based on qualified immunity with respect to the

knock-and-announce claim. 10        We lack jurisdiction over this claim

as well.

     “Notwithstanding the absence of a final judgment, we have

jurisdiction to review a district court’s denial of a claim of

qualified immunity . . . to the extent that it turns on an issue

of law. . . .”       Orem v. Rephann, 523 F.3d 442, 445 (4th Cir.


     10
        The officers also contend on cross-appeal that the
district court erred by denying their motion for a protective
order and by denying their motion to exclude evidence of
Cornish’s shooting at trial.    We lack jurisdiction over these
claims for the reason detailed above: the district court has not
issued a final judgment under § 1291.


                                      16
2008) (quotations omitted) (emphasis added).                          “However, we lack

jurisdiction to review the district court’s order ‘insofar as

that order determines whether or not the pretrial record sets

forth a ‘genuine’ issue of fact for trial.’”                               Gould v. Davis,

165 F.3d 265, 268 (4th Cir. 1998) (quoting Johnson v. Jones, 515

U.S. 304, 320 (1995)).               In other words, “a defendant, entitled

to   invoke         a    qualified    immunity      defense,         may    not   appeal   a

district court’s summary judgment order” if the district court

“acted    on    the       basis    that    there   existed      in    the    case   genuine

disputes       of       material    fact    and    that   the    resolution         of   such

disputes at trial was necessary before the legal issue of . . .

qualified immunity could be determined.”                     Culosi v. Bullock, 596

F.3d 195, 201-02 (4th Cir. 2010) (quoting Johnson, 515 U.S. at

319-20).

     Here, the district court denied the officers’ motion for

summary    judgment         based    on    qualified      immunity         with   regard   to

Kane’s knock-and-announce claim “because a dispute of material

fact exists as to whether the officers knocked and announced.” 11

J.A. 1348.              “Whether we agree or disagree with the district

court’s assessment of the record evidence on that issue . . . is

     11
        As discussed above, the district court found that
conflicting testimony elicited during the discovery process
created a genuine issue of material fact as to whether the
officers knocked and announced their presence before entering
Cornish’s apartment, as required under the Fourth Amendment.
See Bellotte, 629 F.3d at 419.


                                              17
of   no   moment      in    the   context     of    this   interlocutory    appeal.”

Culosi, 596 F.3d at 201.               This is because “there is no legal

issue on appeal on which we could base jurisdiction.”                         Iko v.

Shreve, 535 F.3d 225, 237 (4th Cir. 2008).                    Illustrative of this

point is the fact that the officers present no legal questions

in   their     opening       brief,   only        arguments   about   the   disputed

factual questions regarding the knock-and-announce claim.                          As

such,     we   must        also   dismiss     the    cross-appeal     for   lack   of

jurisdiction.



                                            III.

      For the foregoing reasons, this appeal and cross-appeal are

dismissed for lack of jurisdiction and remanded to the district

court for further proceedings in line with this opinion.

                                                                            DISMISSED




                                             18
