                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-1981


DWAYNE SWANN,

                Plaintiff - Appellant,

           v.

CITY OF RICHMOND, VIRGINIA, The; JAMES EARL WILSON, Officer,
In his individual capacity; KEVIN PAUL HATHAWAY, Officer, In
his individual capacity; MICHAEL SEAN MOCELLO, Officer, In
his individual capacity,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   Robert E. Payne, Senior
District Judge. (3:06-cv-00069-REP)


Argued:   October 30, 2008                 Decided:   January 27, 2009


Before WILLIAMS, Chief Judge, and NIEMEYER and KING, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Timothy Dezso Greszler, COVINGTON & BURLING, Washington,
D.C., for Appellant.   Charles Franklin Midkiff, MIDKIFF, MUNCIE
& ROSS, P.C., Richmond, Virginia, for Appellees. ON BRIEF: John
E. Hall, Joshua D. Wolson, M. Ryan Calo, COVINGTON & BURLING,
Washington, D.C.; Steven D. Benjamin, Betty Layne DesPortes,
BENJAMIN & DESPORTES, P.C., Richmond, Virginia, for Appellant.
Robert S. Reverski, Jr., MIDKIFF, MUNCIE & ROSS, P.C., Richmond,
Virginia, for Appellee Michael Sean Mocello, Officer; William J.
Owen, III, OWEN & OWENS, P.L.C., Richmond, Virginia, for
Appellee James Earl Wilson, Officer; William J. Hoppe, CITY
ATTORNEY’S OFFICE FOR THE CITY OF RICHMOND, Richmond, Virginia,
for Appellee City of Richmond; David P. Corrigan, Jeremy D.
Capps, HARMAN, CLAYTOR, CORRIGAN & WELLMAN, P.C., Glen Allen,
Virginia, for Appellee Kevin Paul Hathaway, Officer.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Dwayne Swann was shot five times by Richmond City police

officers      during     an     encounter        in    the    Hillside     Court     area    of

Richmond, Virginia, on February 3, 2004.                        Alleging the excessive

use of force, Swann commenced this action against three officers

and the City of Richmond under 42 U.S.C. § 1983 and Virginia

common law.        The district court granted the defendants’ motions

for summary judgment, concluding that the officers either did

not seize Swann in the constitutional sense or that they acted

objectively reasonably in the circumstances, or both.                                   On the

common law claims, the court concluded that the officers acted

objectively       reasonably         and    in       their     own     self-defense.        We

affirm.


                                                 I

       At approximately midnight on the evening of February 3,

2004, Richmond police officers traveled to Hillside Court, a

well-known       high    crime       and    drug       trafficking        area,    to    serve

warrants.        Observing a group of individuals standing outside one

of the buildings there, the officers decided to approach.                                    As

they   did,      the    group    broke      and       Swann    began    running      from   the

officers.        One of the lead officers relayed over the radio to

the    other     officers       to   be    careful       and    to     watch   for    weapons

because     he    had    observed          Swann      move     his     hands   towards      his


                                                 3
waistband as he ran and discard something.      Swann led several

officers, including Detectives Hathaway and Wilson on a foot

chase to a white Altima where Taiquan Byrd was sitting in the

passenger seat.   Swann got into the back seat and began making

movements from his waist to the floorboard.     Detective Mocello

arrived on the scene shortly thereafter and took a position near

the left rear door of the Altima.    Detective Hathaway positioned

himself in the center front of the car and Wilson, at the center

right of the car, ordering Swann and Byrd to raise their hands,

to stop moving, and to exit the vehicle.   Swann and Byrd ignored

the orders.

     Instead, at Swann’s prompting, Byrd moved into the driver’s

seat, started the car, and drove the vehicle toward Detectives

Wilson and Hathaway, knocking Wilson to the ground.       Hathaway

and Wilson both fired their weapons at Byrd.   When Mocello heard

the shots, he believed that they had come from inside the car,

principally based on his earlier observations of Swann’s furtive

movements, the warnings given by other officers that Swann might

be armed, and the fact that a bullet exited the rear window of

the car.   After firing at Byrd for the purpose of keeping him

from hitting Hathaway, Mocello proceeded to fire at Swann, who

he thought was the likely shooter.   The car subsequently crashed

into a tractor-trailer across the street, and Byrd and Swann

were both apprehended.

                               4
       During the encounter, Hathaway fired three shots; Wilson,

two; and Mocello, four.                  Byrd was hit once, and Swann was hit

five   times.         No    gun    was    found       inside    the    car,   but     several

individually-wrapped drug packages were found on the floorboard.

       Swann       commenced      this        action     against      Hathaway,       Wilson,

Mocello, and the City of Richmond, alleging the use of excessive

force,      in    violation       of   his     constitutional         rights.       He     also

alleged      state     law     claims      for       assault,    battery,       intentional

infliction of emotional distress, and gross negligence.

       On    the     motions      of     the    defendants,          the   district      court

granted      summary       judgment      in    favor     of    the    defendants      on    all

claims.      Swann v. City of Richmond, 498 F. Supp. 2d 847 (E.D.

Va. 2007).

       As    to     Swann’s       claim        against    Detective        Hathaway,        the

district court concluded that Swann was unable to demonstrate

that Hathaway had intended to shoot Swann or that he actually

shot him.        The court also noted that even if Hathaway had seized

Swann (in a constitutional sense) by shooting him, Hathaway had

acted in an objectively reasonable manner, intending to “protect

himself from a vehicle that was being driven towards him and

another officer.”           Id. at 865.

       As to Swann’s claim against Detective Wilson, again the

court concluded that Swann was unable to demonstrate that Wilson

had intended to shoot Swann or that he actually shot him.                                   The

                                                 5
court also concluded that even if Wilson had seized Swann (in a

constitutional sense) by shooting him, Wilson had acted in an

objectively        reasonable          manner.         He     was      faced          with        an

accelerating vehicle coming directly at him and bullets flying,

forcing     him    to    “make    a    split-second         decision       about       his       own

protection and the protection of his fellow officers.”                                  Id. at

873.     The district court noted that “it is settled that courts

cannot      ‘second-guess        the    split-second        judgment       of     a     trained

police    officer       merely    because      that   judgment       turns        out       to    be

mistaken,     particularly        where       inaction      could    have    resulted             in

death or serious injury to the officer and others.’”                              Id. at 855

(quoting McLenagan v. Karnes, 27 F.3d 1002, 1007-08 (4th Cir.

1994)).

       As to Swann’s claim against Detective Mocello, the district

court concluded that Mocello acted objectively reasonably in the

circumstances.          Based on Swann’s furtive movements, his refusal

to comply with officers’ orders, and the firing of guns, with

one    bullet     exiting      through    the     back      windshield       of       the    car,

Mocello perceived that Swann was shooting at him.                            The district

court held that Mocello acted objectively reasonably in choosing

to shoot back.          The district court noted that Mocello was “faced

with   an    impossible        choice”    and     “pausing     to    reflect          upon       his

options      could      have   cost     him    his    life.”         Id.    at     869,          870

(internal       quotation        marks     omitted).           The     district             court

                                              6
concluded that “[w]hile hindsight may now show that Swann did

not present any actual threat of harm to Detective Mocello from

a gun, Detective Mocello was not afforded the luxury of armchair

reflection to decide how to respond to the perceived threat.”

Id. at 869 (internal quotation marks omitted); see also Graham

v. Connor, 490 U.S. 386, 396 (1989) (“The ‘reasonableness’ of a

particular use of force must be judged from the perspective of a

reasonable    officer   on   the   scene,   rather   than   with     the   20/20

vision of hindsight”).

      On Swann’s claims against the officers for state common law

assault, battery, intentional infliction of emotional distress,

and   gross   negligence,    the   court    concluded   that   the    officers

acted in an objectively reasonable manner in the circumstances

and in their own self-defense.

      Finally, on Swann’s claim against the City of Richmond, the

court granted summary judgment in favor of the City based on its

grant of summary judgment in favor of the individual officers.

The court noted that “there can be no municipal liability in the

absence of a claim of a constitutional violation by one of the

individual defendants.”       Swann v. City of Richmond, No. 3:06-cv-

00069 (E.D. Va. Aug. 23, 2007).

      From the district court’s judgment, dated August 23, 2007,

Swann filed this appeal.



                                      7
                                    II

       Having had the benefit of the parties’ briefs and their

oral   argument   and   having   thoroughly   reviewed   the   record,   we

conclude that the district court correctly granted the motions

for summary judgment in favor of the defendants as to all of

Swann’s claims.     Accordingly, we affirm on the reasoning of the

district court’s careful and thorough opinion in this case.



                                                                 AFFIRMED




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