Andrew Kane v. Brian Lewis , 483 F. App'x 816 ( 2012 )

UNPUBLISHED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Dismissed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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