                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 11-1800


ALITA LITTLETON, Individually; as the next best friend of
and personal Representative of the Estate of Gregory Boggs,
Jr.; LANAYA BORDEN,

                 Plaintiffs – Appellants,

           v.

JORDAN SWONGER, Officer, in both his official and individual
capacities; PRINCE GEORGE’S COUNTY, MD,

                 Defendants – Appellees,

           and

MELVIN HIGH,

                 Defendant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:07-cv-01409-PJM)


Argued:   October 23, 2012                Decided:     December 28, 2012


Before TRAXLER,    Chief   Judge,   and   WYNN   and    THACKER,   Circuit
Judges.


Affirmed in part, reversed in part, and remanded by unpublished
opinion. Judge Wynn wrote the opinion, in which Chief Judge
Traxler and Judge Thacker joined.
ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER,
Washington, D.C., for Appellants.   Shelley Lynn Johnson, PRINCE
GEORGE'S COUNTY OFFICE OF LAW, Upper Marlboro, Maryland, for
Appellees.   ON BRIEF: Ted J. Williams, Washington, D.C., for
Appellants. M. Andree Green, Acting County Attorney, William A.
Snoddy, Deputy County Attorney, PRINCE GEORGE'S COUNTY OFFICE OF
LAW, Upper Marlboro, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
WYNN, Circuit Judge:

     This    appeal     arises    from       an   incident    in     which    Prince

George’s     County,     Maryland      Police       Officer     Jordan       Swonger

(“Swonger”) fatally shot Gregory Boggs, Jr. (“Boggs”).                       Boggs’s

mother, Alita Littleton (“Littleton”), and Boggs’s girlfriend,

Lanaya Borden (“Borden”), sued Swonger; Chief of Police Melvin

High (“Chief High”); and Prince George’s County.                     The district

court    dismissed     the    claims   against      Chief     High    and    granted

summary judgment for Prince George’s County.                  The claims against

Swonger proceeded to trial in which the jury deadlocked and the

district court declared a mistrial.               Thereafter, Swonger renewed

his motion for summary judgment and the district court granted

it, determining that Swonger had acted reasonably.                       Because a

genuine factual dispute exists about whether it was objectively

reasonable for Swonger to use deadly force, we hold that the

district court erred in granting summary judgment in Swonger’s

favor and remand this case for a retrial on the excessive force

and state law claims.



                                         I.

                                         A.

        After midnight on September 18, 2006, Swonger responded to

a reported assault.          At 1:44 a.m., Swonger radioed in to police

dispatch to say that he had arrived at the scene and had spotted

                                         3
two   people   there,    Boggs   and   Borden.         Less   than   two    minutes

later, Swonger fatally shot Boggs.             Swonger and Borden were the

only eyewitnesses to the shooting, and they gave dramatically

different accounts of the events.

      Borden gave the following testimony at trial: She and Boggs

were standing on the sidewalk when she heard a car door slam and

she noticed Swonger walking towards them with “his gun pointed

out at [them].”         J.A. 198.      Borden “was standing partially in

front of [Boggs,]” with her “right back . . .                        to his left

chest.”     J.A.    405.    Boggs’s     left     arm   was    around      her    neck.

Swonger ordered Borden and Boggs to put their hands up but as

she and Boggs were “attempting to comply,” Appellant’s Br. at 5,

Swonger shot Boggs in the right midline of his chest.                     Boggs hit

the back of Borden’s legs as he fell to the ground.                             Borden

knelt down to help Boggs and did not see anything in his hands.

Borden’s    bloodstained     pants     were    introduced      as    evidence      at

trial.

      In   contrast,     Swonger     testified    that:       when   he    arrived,

Borden was on the ground and Boggs was standing above her with

his hands “either around her throat or holding her shoulders.”

J.A. 334–35.       Upon noticing Swonger, Boggs began walking Borden

in the direction of a car parked nearby.                      Swonger moved to

position himself between the couple and the car, ordering them

to stop, sit, and put their hands up.                  Swonger could not see

                                        4
Boggs’s       right    hand      because    Borden     was       standing       in     front   of

Boggs, when Swonger saw Boggs push Borden down, reach behind

himself into his waistband with his right hand, and pull out an

object.        Believing Boggs had a weapon, Swonger fired at him.

Swonger went up to Boggs’s body and brushed a wallet out of his

right hand.           An evidence technician recovered a wallet from the

scene.

                                              B.

        On    May     29,   2007,        Littleton,    individually              and    as     the

administrator          of   Boggs’s        estate,    and        Borden     (“Plaintiffs”)

brought this action against Prince George’s County, Chief High,

and    Swonger,       asserting:     (I)     claims    under       Maryland’s          Survival

Act;    (II)     claims     under    Maryland’s       Wrongful           Death    Act;       (III)

excessive force/police brutality; (IV) assault and battery; (V)

claims under 42 U.S.C. § 1983 for violations of the Fourth and

Fifth        Amendments     to     the     U.S.    Constitution;           (VI)        negligent

training and supervision; (VII) intentional/negligent infliction

of emotional distress; and (VIII) violations of Articles 24 and

26 of the Maryland Declaration of Rights.

       After Chief High successfully moved to dismiss all claims

against       him,     Prince     George’s        County     and    Swonger          moved     for

summary       judgment,     asserting       that:     Swonger       was    protected          from

liability        by     qualified        immunity;         his     use     of        force     was

reasonable; and any unreasonable use of force was not the policy

                                              5
of Prince George’s County.             The district court granted summary

judgment     for    Prince    George’s    County    on    all    counts    and   for

Swonger      on     the      assault     and     battery        count     and    the
                                                                    1
intentional/negligent infliction count as to Borden.

       Following a trial on the remaining claims against Swonger,

the jury deadlocked and the district court declared a mistrial.

Thereafter,       Swonger    renewed   his     motion    for   summary    judgment,

which the district court granted, dismissing all claims against

him.       Plaintiffs appeal the initial and post-trial grants of

summary judgment in favor of Swonger and Prince George’s County,

contending that there is a genuine issue of material fact as to

whether it was objectively reasonable under the circumstances

for Swonger to use deadly force against Boggs.



                                         II.

       We review the district court’s grant of summary judgment de

novo.      PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119

(4th Cir. 2011).          Summary judgment is appropriate when “there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.”                       Fed. R. Civ. P.

56(a).      A court reviewing a motion for summary judgment is not


       1
        Negligent infliction of emotional distress is not a
cognizable claim under Maryland law. E.g., Abrams v. City of
Rockville, 596 A.2d 116, 118 (Md. Ct. Spec. App. 1991).


                                          6
“to weigh the evidence, to count how many affidavits favor the

plaintiff and how many oppose him, or to disregard stories that

seem hard to believe.”           Gray v. Spillman, 925 F.2d 90, 95 (4th

Cir. 1991) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249

(1986)).       Instead, courts must view the evidence in the light

most favorable to the nonmoving party, drawing all reasonable

inferences in her favor, Liberty Lobby, 477 U.S. at 255, and

grant summary judgment only “[i]f the nonmovant’s evidence fails

to   put   a   material   fact    in   dispute   or    is   not   significantly

probative,” Gray, 925 F.2d at 95 (citing Liberty Lobby, 477 U.S.

at 249–50).



                                       III.

                                        A.

       Under Counts III and V, Littleton asserted that Swonger

used   unconstitutionally        excessive    force.        A   claim   that    an

officer used excessive force during an apprehension or arrest is

“analyzed under the Fourth Amendment and its ‘reasonableness’

standard”—that is, the use of force is not excessive if the

officer’s      actions    are     “objectively    reasonable”       under      the

circumstances.      Graham v. Connor, 490 U.S. 386, 395–97 (1989).

Littleton also asserted that Swonger violated Articles 24 and 26

of the Maryland Declaration of Rights (Count VIII).                      Because

Articles 24 and 26 are construed in pari materia with the Fourth

                                        7
and Fourteenth Amendments of the U.S. Constitution, the district

court assessed Littleton’s state constitutional claims under the

same objective reasonableness standard.                                Carter v. State, 788

A.2d 646, 652 (Md. 2002) (Article 26); Dua v. Comcast Cable of

Md., Inc., 805 A.2d 1061, 1070 (Md. 2002) (Article 24); Muse v.

State, 807 A.2d 113, 117 n.7 (Md. Ct. Spec. App. 2002) (Article

26).

       The   district     court       determined            “as    a    matter    of   law     that

Swonger’s      decision        to     use        deadly           force    was     objectively

reasonable      under     the       circumstances            and        that   Boggs’      Fourth

Amendment right was not violated.”                        Littleton v. Prince George's

Cnty., Md., 797 F. Supp. 2d 648, 657 (D. Md. 2011).                                      Further,

the    district    court       held       that       even    if     Swonger      had     violated

Boggs’s      constitutional         rights,          he   was      entitled      to    qualified

immunity. 2

       Under the doctrine of qualified immunity, a law enforcement

officer      performing    a    discretionary               function      is     shielded      from

liability for civil damages unless his conduct (1) violated a

constitutional      right,          and     (2)       “it     would       be     clear    to    an

objectively reasonable officer that his conduct violated that

right.”       Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002).


       2
       As the district court noted, qualified immunity was not a
defense to Littleton’s claims under the Maryland Constitution.
See, e.g., Okwa v. Harper, 757 A.2d 118, 140 (Md. 2000).


                                                 8
The    district      court    determined      that    it    was    reasonable     for   an

officer in Swonger’s position to “have believed that Boggs posed

a serious deadly threat” warranting the use of deadly force to

protect himself or Borden.             Littleton, 797 F. Supp. 2d at 658.

       Because the district court concluded that Swonger’s conduct

was objectively reasonable under the circumstances, the court

ruled that Plaintiffs’ state law claims also failed.                           Littleton

had brought claims under Maryland’s Survival Act and Wrongful

Death Act (Counts I and II), both of which required establishing
                                                  3
that Swonger’s conduct was wrongful.                   The district court stated

that because Swonger’s use of force was reasonable, “Littleton

[could not] show that Swonger [had] committed a wrongful act

that       would    entitle    her    to     recover       for    wrongful    death     or

survivorship.”        Littleton, 797 F. Supp. 2d at 658.

       Regarding Littleton’s assault and battery claim (Count IV)

and Borden’s intentional infliction of emotional distress claim

(Count      VII),    Maryland    law       provides    that       “a   law   enforcement

officer is not liable for assault and battery or other tortious

conduct      performed       during   the     course       of    his   official   duties

       3
       The Survival Act permits the personal representative of an
estate to bring an action that the decedent could have brought
“against a tort-feasor for a wrong which resulted in the death
of the decedent.” Md. Code Ann., Est. & Trusts § 7-401(y)
(emphasis added). The Wrongful Death Act permits an individual
to bring an action against a person “whose wrongful acts caused
the death of another.” Md. Code Ann., Cts. & Jud. Proc. § 3-
902(a) (emphasis added).


                                             9
unless he acted with actual malice toward the plaintiff, i.e.

with ill will, improper motivation or evil purpose.”                               Goehring

v. United States, 870 F. Supp. 106, 108 (D. Md. 1994) (internal

quotations     omitted).            Further,         to      establish       intentional

infliction of emotional distress, a plaintiff must show that the

defendant    intentionally         or    recklessly         engaged    in    extreme     or

outrageous     conduct      that        caused      severe     emotional       distress.

Valderrama v. Honeywell Tech. Solutions, Inc., 473 F. Supp. 2d

658, 666 n.20 (D. Md. 2007).                  The district court concluded that

because    Swonger’s     conduct        was    objectively         reasonable,      it   was

neither malicious nor outrageous.

      In sum, for each of Plaintiffs’ claims against Swonger, the

district     court      granted         summary        judgment       based        on    its

determination that there was no genuine issue of material fact

as   to   whether    Swonger’s     use        of   deadly    force    was    objectively

reasonable.     Therefore, the issue central to this appeal, and

the question we now turn to, is whether the district erred in

determining    that    no   genuine       issue      of     fact    exists    as    to   the

objective reasonableness of Swonger’s use of deadly force.

                                              B.

      To determine whether a genuine issue of fact exists as to

whether     Swonger’s       use     of        deadly      force      was     objectively

reasonable,     we     must       consider          the     circumstances           Swonger

confronted at the time of the shooting as described by the only

                                              10
two eyewitnesses at trial—Swonger and Borden.                      See Graham, 490

U.S. at 397.

     In his testimony, Swonger stated that he believed Boggs was

reaching for a weapon.           “A police officer may use deadly force

when the officer has sound reason to believe that a suspect

poses    a   threat    of    serious   physical        harm   to     the    officer          or

others.”     Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996)

(citing Tennessee v. Garner, 471 U.S. 1 (1985)).                           We evaluate

the facts “from the perspective of a reasonable officer on the

scene,” Waterman v. Batton, 393 F.3d 471, 477 (4th Cir. 2005),

recognizing     that    “police     officers      are    often     forced        to        make

split-second         judgments—in      circumstances          that         are        tense,

uncertain,     and    rapidly    evolving,”       Graham,      490    U.S.       at        397.

Determining     the    reasonableness      of     an    officer’s      use       of    force

“requires careful attention to the facts and circumstances of

each particular case, including the severity of the crime at

issue,   whether      the    suspect   poses    an     immediate      threat          to    the

safety of the officers or others, and whether he is actively

resisting     arrest    or    attempting     to      evade    arrest       by    flight.”

Graham, 490 U.S. at 396 (citing Garner, 471 U.S. at 8–9).

     Here, the district court concluded that Swonger’s use of

deadly force was objectively reasonable because Swonger thought

“that Boggs was reaching for a weapon and he reasonably feared

Boggs could inflict serious physical harm on him or on Borden.”

                                        11
Littleton, 797 F. Supp. 2d at 656–57.                           In the motion proceeding

before trial, the district court acknowledged that Borden gave a

very different account of the events, stating, “I can understand

that small discrepancies as the Anderson case points out always

would permit the officer’s testimony to prevail, but here the

divergence        is   radical.          I   mean,         if    [Borden’s          version    is]

believed,     this       officer    totally          unprovoked      .    .     .    shot     these

people.”      J.A. 175.            After hearing the trial testimony, the

district     court       concluded       that    because         Borden    “was       not     in   a

position    to     see    what     was   visible          to    Swonger,”       her    testimony

“d[id] not create a genuine issue of material fact as to whether

Swonger     had    a   reasonable        basis       to    believe       that       Boggs   had    a

weapon and was going to use it.”                      Littleton, 797 F. Supp. 2d at

656.    In light of the discrepancies between Borden’s testimony

and Swonger’s testimony, we cannot agree.

       In   Anderson       v.    Russell,       this       Court     stated         that    “minor

discrepancies in testimony do not create a material issue of

fact in an excessive force claim, particularly when . . . the

witness views the event from a worse vantage point than that of

the officers.”           247 F.3d 125, 130–31 (4th Cir. 2001).                              Unlike

Anderson,     however,      the     testimony         offered       here      by     Borden,       if

believed by a jury, established that Borden’s vantage point was

irrelevant to at least two significant discrepancies between her

and Swonger’s testimonies: (1) whether Boggs pushed Borden down

                                                12
as he reached behind himself; and (2) whether Boggs repeatedly

ignored Swonger’s commands and appeared to be trying to escape.

       Regarding the first discrepancy, Swonger testified that he

shot Boggs when he saw Boggs lower his center of gravity and—“in

one    motion”—push     Borden       to    the    ground     and   reach       behind    his

(Boggs’s) back.        J.A. 349.          According to Swonger, when he fired

at Boggs, Borden was “well on her way to the ground . . . below

[Boggs’s] waist level, on her way to the ground off to the

side.”    J.A. 350–51.

       In contrast, Borden testified that Boggs never pushed her

and that she was standing in front of Boggs when Swonger shot

him.     Clearly, Borden did not need to see Boggs to know whether

he pushed her down.           But the district court deemed this dispute

about     whether      Borden    was       pushed      immaterial,       stating        that

“[w]hether Borden was pushed to the ground or whether she was

still    standing      in    front    of    Boggs,     she     still    was     not     in   a

position to see what was visible to Swonger right before he

discharged his weapon.”          Littleton, 797 F. Supp. 2d at 656.

       Although     Borden’s    testimony         does   not    directly        contradict

Swonger’s       assertion     that     Boggs      reached      behind        himself,    her

account conflicts with the entirety of what Swonger allegedly

saw     Boggs    do.        Swonger       had    not   received        any     information

suggesting Boggs was armed, such as observing a bulge at Boggs’s

waistline.       Moreover, Boggs had not verbally threatened Swonger.

                                            13
Rather,    the   threat       Swonger    perceived       was    based     on    Boggs’s

physical conduct—the motion of lowering his center of gravity,

pushing    Borden   down,      and   reaching     behind       himself.        Borden’s

testimony    puts   in    dispute       whether       Boggs    ever     assumed       this

allegedly threatening posture.

     Furthermore,       the    district       court     incorrectly       discredited

Borden’s testimony about whether she was standing in front of

Boggs.      Specifically, the district court found that Borden’s

statement about “her position at the time the shot was fired

[was]    inconsistent     with    forensic     evidence,        which    showed       that

Boggs was hit in the midline of his right chest.                          If, as she

said, Borden was standing in front of Boggs, the likelihood is

that she and not Boggs would have been hit.”                     Id.    The district

court’s    assessment     of     Borden’s     testimony        conflicts       with    the

record.     Borden testified that she was “standing partially in

front of [Boggs]”—that her “right back was to his left chest”—

not that she was standing directly in front of Boggs.                      J.A. 405.

Furthermore, physical evidence supports Borden’s version, i.e.,

that she was standing in front of Boggs when he was shot:                              his

blood stained the back of her pants.

     Second, Borden’s testimony conflicts with Swonger’s account

of the events leading up to the shooting.                       The district court

emphasized that, according to Swonger, when he arrived he saw

“two people engaged in a violent encounter.”                     Littleton, 797 F.

                                         14
Supp.    2d    at   652.     When     Boggs       noticed    Swonger,       Boggs    picked

Borden    up    and   attempted       to   drag     her    to    a   nearby   car.         Id.

Swonger testified that he ordered Boggs to put Borden down and

show his hands, but that Boggs ignored him and kept moving away.

According to Borden, she and Boggs were standing and talking

when    Swonger     got    out   of   his    car,     and   they      did   not     move    as

Swonger       approached.        Even      assuming       that   Swonger      observed       a

tussle before he got out of his car, Borden’s testimony calls

into question whether Boggs repeatedly ignored Swonger’s verbal

commands and casts doubt on whether the atmosphere was volatile.

Based on Borden’s version, a jury reasonably could find that

Boggs did not appear to be violent, resisting, or attempting to

flee in the moments leading up to the shooting.

       In sum, the trial record reveals disputed facts material to

whether a reasonable officer in Swonger’s position would have

perceived that Boggs posed a “threat of serious physical harm”

justifying Swonger’s use of deadly force.                        See Elliott, 99 F.3d

at 642.        Accordingly, we hold that the district court erred in

granting summary judgment for Swonger.



                                            IV.

       Finally, we turn to the district court’s grant of summary

judgment for Prince George’s County.                      Plaintiffs asserted that

Prince George’s County was liable for Swonger’s alleged assault

                                             15
and   battery      (Count      IV).      Maryland         counties      are    immune      from

claims seeking to impose liability for the intentional torts of

county employees committed while the employee was acting within

the scope of his employment.                      Gray-Hopkins v. Prince George’s

Cnty., Md., 309 F.3d 224, 234 (4th Cir. 2002).                              Because Swonger

was   on    duty      and   responding       to     dispatch      at   the    time    of    the

shooting, there is no question that he was acting within the

scope      of   his    employment     as     a      Prince   George’s        County    police

officer.           Accordingly,         we        uphold     the       district       court’s

determination         that     Prince       George’s       County      was    immune       from

Plaintiffs’ assault and battery claim.

      Plaintiffs        also      alleged    that        Prince    George’s     County      was

liable for Swonger’s use of excessive force in violation of the

federal constitution under Section 1983 (Count III).                             A county’s

liability       under       Section     1983        is   limited       to    constitutional

violations       caused      by   “official         policy   or    custom.”       Lytle      v.

Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (citations omitted).

Policy or custom can be

      written ordinances and regulations, . . . affirmative
      decisions of individual policymaking officials, . . .
      omissions on the part of policymaking officials that
      manifest deliberate indifference to the rights of
      citizens, . . . [and] practice[s] [] so persistent and
      widespread . . . as to constitute a custom or usage
      with the force of law.




                                               16
Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (internal

quotations       and    citations       omitted).             Similarly,         Plaintiffs

alleged that the Prince George’s County was liable for negligent

training and supervision (Count VI).                         Establishing a county’s

supervisory liability under Section 1983 requires showing that

the     county    had        actual    or     constructive         knowledge       that    a

subordinate’s conduct posed “a pervasive and unreasonable risk

of constitutional injury to citizens like the plaintiff.”                               Shaw

v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal quotations

and citations omitted).

       Here, Plaintiffs failed to offer any evidence of a county

policy or custom, deficient training, or knowledge that Swonger

engaged in conduct that posed a risk of constitutional injury.

Rather, Plaintiffs merely made general assertions about Prince

George’s County’s failure to train and supervise.                              See J.A. 85,

171.     Accordingly, the district court did not err in granting

summary      judgment    for     Prince       George’s       County       on    Plaintiffs’

federal constitutional and negligent training claims.

       In Count VIII, Plaintiffs asserted Prince George’s County

was liable for Swonger’s alleged state constitutional violation

under    a   theory     of    respondeat      superior.           Under    Maryland     law,

governmental      entities       do   not     enjoy     immunity      from      “respondeat

superior      liability        for    civil        damages    resulting         from    State

Constitutional         violations       committed            by   their        agents     and

                                              17
employees within the scope of the employment.”                      DiPino v. Davis,

729 A.2d 354, 372 (Md. 1999). Because we reverse the district

court’s grant of summary judgment for Swonger on Plaintiffs’

state     constitutional          claim,   we     concordantly        find     that     the

district court erred in granting summary judgment for Prince

George’s County on this claim.



                                           V.

       Whether      Plaintiffs      will   ultimately         prevail      upon     retrial

remains      an    open   question.        But    at   this      stage   of    the    legal

process, the record indicates a genuine dispute exists regarding

the reasonableness of Swonger’s conduct.                      That dispute is for a

jury    to    decide,       not    a   trial      court     on    summary      judgment.

Therefore, we hold that the district court erred in granting

summary judgment in Swonger’s favor and remand this case for a

trial    of       Plaintiffs’     excessive      force    and      state      law    claims

against      Swonger      and   respondeat       superior     state      constitutional

claim against Prince George’s County.

                                                                    AFFIRMED IN PART,
                                                                    REVERSED IN PART,
                                                                         AND REMANDED




                                           18
