                                                Filed:     December 3, 2003

                       UNITED STATES COURT OF APPEALS

                           FOR THE FOURTH CIRCUIT


                                 No. 02-2071
                               (CA-01-302-AW)



Elaine Stewart, etc.,

                                                     Plaintiff - Appellee,

            versus


Prince George’s County, Maryland, et al.,

                                                   Defendants - Appellants.



                                 O R D E R



     The court amends its opinion filed September 23, 2003, as

follows:

     On    page   5,   first   full   paragraph,    line   3   --   the   words

“manhandled him” are deleted and replaced with “that Stewart was

escorted.”

                                             For the Court - By Direction



                                             /s/ Patricia S. Connor
                                                      Clerk
                           UNPUBLISHED

            UNITED STATES COURT OF APPEALS

                  FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
ELAINE STEWART, in her individual
capacity, as the lawful wife,
personal representative and next of
friend of Clarence Edward Stewart,
deceased,
       Plaintiff-Appellee,

      v.

PRINCE GEORGE'S COUNTY,
MARYLAND; STEPHEN A. VITKO,
individually and as a police officer
in the Prince George's County,
Maryland Police Department;
DARRYL R. POLLOCK, individually
and as a police officer in the Prince
George's County, Maryland Police           No. 02-2071
Department; RYAN D. CHAMBERS,
individually and as a police officer
in the Prince George's County,
Maryland Police Department;
MICHAEL S. ROSE, individually and
as a police officer in the Prince
George's County, Maryland Police
Department,
       Defendants-Appellants,

      and

PRINCE GEORGE'S COUNTY POLICE
DEPARTMENT; TROY L. WALLACE,
individually and as a police officer
in the Prince George's County,
Maryland Police Department;
4444444444444444444444444444444444444444444444448
4444444444444444444444444444444444444444444444447
JOHN DOE; JANE DOE; OTHERS
UNKNOWN; TARGET STORES,
INCORPORATED, as a corporation
doing business in the State of
Maryland; TARGET CORPORATION, a
corporation doing business in the

State of Maryland; TARGET SECURITY
STAFF, in their individual capacity
and as employees of Target Stores,
Incorporated; CORNEY PATRICK
BRITTON,
       Defendants.
4444444444444444444444444444444444444444444444448

           Appeal from the United States District Court
            for the District of Maryland, at Greenbelt.
             Alexander Williams, Jr., District Judge.
                         (CA-01-302-AW)

                      Argued: May 6, 2003

                  Decided: September 23, 2003

Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.

____________________________________________________________

Reversed and remanded by unpublished per curiam opinion.

____________________________________________________________
                           COUNSEL

ARGUED: Crystal Renee Mittelstaedt, COUNTY ATTORNEY'S
OFFICE, Upper Marlboro, Maryland, for Appellants. Harry Truman
Spikes, Washington, D.C., for Appellee. ON BRIEF: Jay H. Creech,
Acting Deputy County Attorney, Laura J. Gwinn, Upper Marlboro,
Maryland, for Appellants.

____________________________________________________________

                                2
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

____________________________________________________________
                                OPINION

PER CURIAM:

    Plaintiff-appellee Elaine Stewart, acting individually and as next
friend and representative of her deceased husband, Clarence Stewart,
brought constitutional and state-law claims against Prince George's
County, Maryland (PGC), PGC's police department, several individ-
ual PGC officers, Target Stores, Inc., and several Target employees
(collectively, the "defendants" or "appellants"), in connection with her
husband's death. After a hearing on the defendants' motion for sum-
mary judgment, the district court granted in part and denied in part the
motion, setting for trial the plaintiff's federal and state law claims, the
latter including wrongful death, loss of consortium, assault and bat-
tery, and false arrest. For the reasons set forth below, we reverse the
district court's denial of summary judgment as to the section 1983
claims and remand the case to the district court.

                                    I.

   This case involves the death of Clarence Stewart, which occurred
while he was being taken into custody by law enforcement officers.
At the summary judgment hearing, the decedent's representative sub-
mitted evidence from several individuals who stated that they had
seen the incident and that the police had used excessive force. The
officers' evidence was quite to the contrary. What makes this case
unusual is that video cameras at the store recorded enough of the
scene to corroborate what the officers said happened and to refute
thoroughly the version presented by the decedent's estate.

   The facts leading to the incident are not really in dispute. On May
19, 2000, Clarence Stewart made a number of visits to a Target store
in Upper Marlboro, Maryland. On one of these occasions he went to
the jewelry counter where he spoke to a Target employee, Renee
Dancy, in a manner she found offensive and threatening. Stewart was

                                    3
asked by Target security personnel to leave the store and not to return.
Stewart nevertheless returned several times. Target contacted the
police around 1:15 p.m., but no officers were dispatched. At around
3:00 p.m., Target called the police again because Stewart was persist-
ing in his disruptive and threatening behavior. This time, a PGC offi-
cer, Stephen Vitko, was dispatched and advised of a disorderly
individual who had been throwing items at a cashier. Based on a
detailed description, Vitko located Stewart at a nearby store. When
Vitko confirmed that Stewart was the person about whom the call had
been made, the two men returned to Target so that Stewart could
apologize to the employee. Stewart was advised in Vitko's presence
by another Target employee not to return to the store. Vitko warned
Stewart that if he did so, he would be arrested. On the Target surveil-
lance videotape, Vitko and Stewart can be seen entering the store,
walking side-by-side to the jewelry section, and then leaving. Vitko
is not touching Stewart at any time in these pictures. Within minutes
of leaving the store with Vitko, Stewart reentered Target and again
headed for the jewelry section and Dancy. He was intercepted by a
security officer and escorted out, an episode that is also clearly
recorded on videotape. Another call was placed and Vitko returned to
the scene a few minutes later.

    What happened upon Vitko's return to the store is at the heart of
the case. Vitko, other officers, and Target employees gave evidence
that the following occurred: Vitko found Stewart at a nearby store and
walked with him back to Target, where the two were met just outside
the main entrance by two Target employees, Corney Britton and Mar-
sha Johnson. The videotape shows Vitko and Stewart on the sidewalk
outside Target walking toward the store, with Vitko in front, and no
physical contact between Vitko and Stewart. Vitko indicated that he
would write a citation for Stewart, and he asked Britton if he could
use the Target security room. Britton agreed, and he and Johnson
accompanied Stewart to the room, while Vitko returned to his cruiser
to obtain his citation book. The videotape shows Stewart and the two
employees entering the store. Vitko is also seen at the front of the
store walking to his cruiser, speaking to another individual, then reen-
tering the store about a minute later.

    According to Vitko, Vitko entered the security room a few minutes
later and explained to Stewart the reason for the citation. While Vitko

                                  4
was filling out the citation, Stewart became agitated and refused to
provide information Vitko requested. Stewart continued to be uncoop-
erative and began to gesture threateningly at Vitko, who informed
him that, if Stewart persisted, he risked being placed under arrest. A
melee ensued, during the course of which Vitko frantically radioed
his dispatcher for assistance. Vitko's request for help was captured on
audiotape maintained routinely by the police dispatcher. Vitko
repeated his instructions to Stewart to cooperate, but Stewart lunged
for him. Vitko administered pepper spray and several blows with his
ASP baton. About five minutes into the struggle, Ryan Chambers,
another PGC officer, got to the store, went to the security room, and
assisted Vitko in subduing Stewart. Chambers' arrival and entry are
recorded on the videotape. Stewart continued to resist and, although
the two officers managed to wrestle him to the ground, they were
unable to handcuff him. A few minutes later, as also shown on the
videotape, Officers Darryl Pollock, Michael Rose, and Troy Wallace
arrived at the store and were directed by Target personnel to the
security room. Together, the officers managed to cuff Stewart behind
his back, by which time Stewart had been sprayed repeatedly in the
face with pepper spray and had sustained several additional blows
from ASP batons. Not long afterwards, while handcuffed, Stewart
was brought out of the security room into the public area of the store
where he subsequently went into cardiac arrest. The officers sum-
moned medical assistance, but Stewart died en route to the hospital.

    Stewart's three witnesses describe a very different scene. Eugene
Thomas testified at his deposition that Vitko grabbed Stewart by the
arm outside the store and that Stewart was escorted into the store with the
assistance of the two Target employees. Once inside the store,
Thomas claims that the three began immediately to pummel Stewart.
According to Thomas, another officer joined the fray while Stewart,
lying defenseless on the ground, cried out for the police to stop.
Thomas also emphasized that Stewart was never in the Target security
room, but rather the episode occurred outside in a hallway at the front
of the store and in plain view of Target's eating area, also located at
the front of the store. Shawn Reeves, who worked with Thomas and
was with him that day, testified that Vitko rough-handled Stewart just
inside the door of Target and kept his hands on Stewart throughout
the episode. Unlike Thomas, however, Reeves claims that Vitko met
the Target employees inside the store and that there the three immedi-

                                  5
ately began to beat an entirely submissive Stewart. Both Thomas and
Reeves produced affidavits (with nearly identical wording) that do not
make clear whether they are describing the incident itself, the video-
tape footage from Target which they had reviewed, or a mixture of
the two. However, both stated that Stewart was beaten in plain view
of many witnesses just in front of the eating area at the front of the
store. The third witness, Edward Hickey, testified at his deposition
that he watched Vitko grab Stewart in the parking lot, jerk him back
and forth, and — still holding him — march Stewart into the Target
store.

    Based on the testimony of these witnesses, Stewart's wife initiated
this suit against the officers, the county, the police department, Tar-
get, and its employees, claiming numerous violations of her hus-
band's rights under federal and state law. At the hearing on the
defendants' motion for summary judgment on their claim of qualified
immunity, the court ruled that a trial was necessary, stating: "I think
we can assume that when people go into Target that they won't come
out dead." J.A. 68.* This appeal followed.

                                   II.

   We review the denial of a motion for summary judgment de novo.
See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988). Where the moving party has identified portions of the
record "which it believes demonstrate the absence of a genuine issue
of material fact," Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986),
the nonmoving party must then come forward with "specific facts
showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e).
In determining whether summary judgment is appropriate, we evalu-
ate "whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). "The inquiry performed is the
threshold inquiry of determining whether there is the need for trial —
____________________________________________________________

   * The district court refused to consider a memorandum submitted by
the plaintiff because it exceeded the page limit set by local rule; how-
ever, the court did consider the affidavits attached by the plaintiff to the
memorandum.

                                    6
whether, in other words, there are any genuine factual issues that
properly can be resolved in favor of either party." Id. at 250.

     Because the defendants claimed qualified immunity as a defense,
we must employ the two-step qualified immunity analysis. See Sau-
cier v. Katz, 533 U.S. 194, 200-01 (2001). First, we must determine
if, "[t]aken in the light most favorable to the party asserting the injury,
. . . the facts alleged show [that] the officer's conduct violated a con-
stitutional right." Saucier, 533 U.S. at 201. If not, our inquiry is at an
end. See id. If so, "then the next step is to ask whether the constitu-
tional right was clearly established in the specific context of the case."
Figg v. Schroeder, 312 F.3d 625, 635 (4th Cir. 2002) (internal quota-
tion marks omitted).

    The Fourth Amendment prohibits unreasonable seizures of citizens
by the police. See Graham v. Connor, 490 U.S. 386, 395 (1989);
Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003). A court deter-
mines whether an officer has used excessive force to effect a seizure
based on a standard of "objective reasonableness." Graham, 490 U.S.
at 399. This evaluation calls for the consideration of the facts "from
the perspective of a reasonable officer on the scene," id. at 396, and
accepts that "police officers are often forced to make split-second
judgments — in circumstances that are tense, uncertain, and rapidly
evolving," id. at 397.
   In this case, the decedent's estate has produced three witnesses
who state that excessive force was used by the officers. The defen-
dants have produced evidence to suggest that officers Vitko, Cham-
bers, Wallace, Pollock, and Rose acted reasonably under the
circumstances with which they were confronted. Normally, these dif-
ferences would require the denial of the officers' motions for sum-
mary judgment. But this is not the normal case; here, the videotaped
footage confirms enough of the officers' testimony and destroys
enough of the supposed eyewitnesses's version to require that judg-
ment be given to the officers.

   Specifically, Stewart relies on the depositions and affidavits of
Reeves, Thomas, and Hickey as evidence that excessive force was
used against the decedent. First, we note that Reeves and Thomas pro-
vided affidavits which are nearly verbatim replicas of one another and

                                    7
which do not distinguish clearly between what the men saw when
they reviewed the videotape and what they actually saw in person.
Nevertheless, what the video shows does not support the version of
Reeves and Thomas that the fight between Stewart and Vitko took
place in the public area at the front of the store. Admittedly the video
does not cover the exact spot at the front of the store pinpointed by
Reeves and Thomas, but it does cover the rest of the public area at
the doors and to within a few feet of where Reeves and Thomas say
this all happened. Specifically the video shows people coming in and
going out of the front doors in an area right next to where Reeves and
Thomas say this fight was going on between a police officer and a
civilian involving the use of pepper spray and blows with a police
baton. But the video shows customers walking normally to and fro,
pulling out shopping carts, and going on about their business with not
one person ever looking in the direction of the alleged public fight.
Likewise, employees move through without so much as pausing or,
for that matter, hastening past the scene. No one lingers and looks in
the direction of the alleged incident. Nor does anyone rush past. From
this, the only reasonable inference that can be drawn from the video-
tape is that nothing unusual is going on where these witnesses claim
it did, much less a beating of a person by the police. Simply put, the
videotape, marked by an uninterrupted clock time stamp, plainly con-
tradicts their assertion, and no reasonable juror could credit the testi-
mony of these witnesses. See Sylvia Dev. Corp. v. Calvert County,
Md., 48 F.3d 810, 818 (4th Cir. 1995) (explaining that while the party
opposing summary judgment is entitled to the benefit of inferences
that can be drawn from the evidence, "[p]ermissible inferences must
still be within the range of reasonable probability" and that "[w]hether
an inference is reasonable cannot be decided in a vacuum; it must be
considered in light of the competing inferences to the contrary" (inter-
nal quotation marks omitted)).

    When challenged at the hearing on the summary judgment motion
as to why the videotape was inconsistent with his witnesses' testi-
mony, counsel for Stewart replied that "the tape is `lying.'" J.A. 58.
Counsel for Stewart, however, has not offered any evidence to sug-
gest exactly how the videotape is "lying" and we see no basis to
indulge in speculation ourselves. See D'Amico v. City of New York,
132 F.3d 145, 149 (2d Cir. 1998) ("The non-moving party may not
rely on mere conclusory allegations nor speculation, but instead must

                                   8
offer some hard evidence showing that its version of the events is not
wholly fanciful."). In our view, no reasonable jury could credit an
unsupported suggestion that onlookers were somehow edited out of
the videotape. See Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998)
(affirming grant of summary judgment because the plaintiff's "con-
clusory statements, without specific evidentiary support," were insuf-
ficient to create a genuine issue of fact); Beale v. Hardy, 769 F.2d
213, 214 (4th Cir. 1985) (explaining that the party opposing summary
judgment "cannot create a genuine issue of material fact through mere
speculation or the building of one inference upon another").

    Second, the deposition testimony advanced by Reeves, Thomas,
and Hickey is flatly contradicted by the video, which plainly shows
that, contrary to what Reeves, Thomas, and Hickey allege, Officer
Vitko was not pushing, grabbing, or jerking Stewart as the two men
reentered Target. The tape also makes plain that, unlike the scene
Reeves and Thomas have described, no one administered a beating to
Stewart in front of the shopping carts at the front entrance. In his
deposition, Thomas emphasized that Stewart never entered the secur-
ity office, but was brutalized outside in plain view of many witnesses
by officer Vitko and the Target employees. The objective evidence in
the record, however, shows otherwise. In particular, there was uncon-
tradicted evidence that traces of Stewart's blood were found in the
security room, as was Vitko's citation book, and the PGC police dis-
patcher was told during the incident by an obviously panicking Vitko
that he was struggling with Stewart inside the office. In light of this
evidence, we cannot conclude that Thomas's affidavit creates a genu-
ine issue of fact. See Sylvia Dev. Corp., 48 F.3d at 818 (explaining
that "[w]hether an inference is reasonable cannot be decided in a vac-
uum; it must be considered in light of the competing inferences to the
contrary" (internal quotation marks omitted)).

   The affidavits and deposition testimony of Reeves, Thomas, and
Hickey simply do not raise a genuine issue of material fact as to the
existence of a constitutional violation since the only evidence that
could reasonably be believed was that produced by the defendants.
The defendants' evidence is consistent with the videotape, the audi-
otape, and all of the physical evidence found at the scene. The video-
tape makes plain that Vitko and Stewart reentered the store without
any physical coercion. Physical evidence, radio communications

                                  9
between the officers and police dispatchers, and the testimony of the
other eyewitnesses indicate that the Target security room was the site
of the struggle between Stewart and the PGC officers and that the
officers on site used reasonable force under the circumstances.

                                  III.

   In short, the officers were entitled to qualified immunity from
Stewart's section 1983 claim because she cannot prove the violation
of a constitutional right. We therefore reverse the district court's order
denying summary judgment and we remand with instructions to enter
judgment for the defendants on Stewart's section 1983 claims.
Accordingly, the judgment of the district court is reversed and the
case is remanded for proceedings consistent with this opinion.

                                         REVERSED AND REMANDED

                                   10
