Guerra v. Montgomery County MD , 118 F. App'x 673 ( 2004 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 03-2148
    ERNESTO ACEVEDO GUERRA,
    Plaintiff - Appellant,
    versus
    MONTGOMERY COUNTY, MARYLAND; RICHARD HARRIS,
    Defendants - Appellees.
    Appeal from the United States District Court for the District of
    Maryland, at Greenbelt. Richard D. Bennett, District Judge. (CA-
    02-1995-RDB)
    Argued:   October 29, 2004                 Decided:   December 7, 2004
    Before WILKINSON, MICHAEL, and KING, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    ARGUED: Jonathan Christian Dailey, DAILEY & ASSOCIATES, CHTD.,
    Washington, D.C., for Appellant. Sharon Veronica Burrell, COUNTY
    ATTORNEY’S OFFICE FOR THE COUNTY OF MONTGOMERY, Rockville,
    Maryland, for Appellees.    ON BRIEF: Charles W. Thompson, Jr.,
    County Attorney, Patricia P. Via, Associate County Attorney,
    Rockville, Maryland, for Appellees.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Ernesto Acevedo Guerra sued Montgomery County, Maryland,
    and Officer Richard Harris in his official capacity asserting,
    among other things, Section 1983 claims premised on the violation
    of his constitutional rights.      The complaint alleges that Guerra’s
    rights   under   the   Fourth   Amendment   were   violated   when   Harris
    unintentionally shot him in the face during a so-called “dynamic
    extraction” while the stolen vehicle driven by Guerra was stopped
    at an intersection.      The district court granted the defendants’
    motion for summary judgment on Guerra’s Section 1983 claims on the
    basis that no underlying federal constitutional violation had
    occurred.     We affirm the district court’s order, but we do so on
    the alternative basis that Guerra has not raised an issue of
    material fact with respect to the county’s failure to provide
    adequate training to its police officers.
    I.
    We state the facts in the light most favorable to Guerra,
    the non-prevailing party in the summary judgment proceedings.           See
    EEOC v. Stowe-Pharr Mills, Inc., 
    216 F.3d 373
    , 375 (4th Cir. 2000).
    On the afternoon of January 31, 2002, Officer Harris was on duty as
    an undercover auto theft detective along with other plainclothes
    officers of the Central Auto Theft Team of the Montgomery County
    Police Department.       The officers located a stolen Honda Civic
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    parked in a Silver Spring apartment complex and began surveillance
    of the vehicle.      Eventually, Detective Thomas Reich saw Guerra
    enter the Honda and drive away.         The detective radioed this
    information to the other officers, who proceeded to follow the
    Honda in several unmarked police cars.      Before long, when Guerra
    had to stop for a red light at an intersection, the officers
    decided to confront him using the dynamic extraction technique. In
    Montgomery County, dynamic extraction involves the positioning of
    unmarked police cars in such a way as to block a suspect’s vehicle
    and prevent its movement.       Plainclothes officers then quickly
    approach the suspect and physically remove him from or order him
    out of the vehicle.     It is unclear how the decision was made to
    confront Guerra by using dynamic extraction at a busy intersection.
    As Guerra pulled up to the intersection in the stolen
    Honda,   Officer   Harris   stopped   his   car   immediately   behind.
    Detective Michael Chaconas pulled his car into the median along the
    driver’s side of the Honda. Sergeant Michael Sugrue positioned his
    car in front of the civilian vehicle that was directly in front of
    the Honda.   Several other civilian vehicles were in the traffic
    lane next to the Honda’s passenger’s side. Officer Harris then got
    out of his car with his gun drawn and approached the driver’s side
    door of the Honda.     In the course of his approach, Harris struck
    the Honda’s rear quarter panel with his hand, advised Guerra that
    he was a police officer, and ordered Guerra to raise his hands.
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    Guerra released his hands from the steering wheel and raised them,
    which Harris considered an act of compliance.                  Harris continued
    toward the driver’s side door with his firearm in a downward
    position.    As he approached, Harris raised his firearm from the
    downward position and pointed it in Guerra’s general direction. As
    Harris reached to open the door, his weapon discharged. The bullet
    shattered the driver’s side window and struck Guerra in the face.
    All   parties     agree    that     Harris   did     not    pull    the    trigger
    intentionally.
    Guerra filed a complaint against Montgomery County and
    Officer Harris in his official capacity in the United States
    District Court for the District of Maryland on June 13, 2002.
    Guerra   alleges    that     Harris,    by   using    excessive      force,     and
    Montgomery County, by failing to train its officers adequately,
    violated his Fourth Amendment (and other constitutional) rights.
    Guerra seeks relief under 
    42 U.S.C. § 1983
     and state law.                      Upon
    completion of discovery, the defendants moved for summary judgment
    on all claims.     The district court granted the motion in part and
    dismissed Guerra’s Section 1983 claims with prejudice.                    The court
    declined to exercise pendent jurisdiction over the state law claims
    and dismissed them without prejudice.
    The district court concluded that Guerra’s Section 1983
    claims   failed    for    several   reasons.       The     court   construed    the
    complaint to allege that Harris violated Guerra’s Fourth Amendment
    4
    rights by simultaneously approaching the Honda with his weapon
    drawn and attempting to open the driver’s side door. Because there
    was probable cause to stop the car, the court said, it was both
    reasonable and lawful for Harris to approach the Honda with his
    weapon drawn. Moreover, the court concluded that no constitutional
    violation occurred as Harris approached the car because Guerra
    suffered no injury until the gun discharged.    The district court
    presumably believed that the shooting itself did not violate the
    Fourth Amendment because it was accidental.   This appeal followed.
    II.
    To prevail on his federal claim, Guerra must show that
    (1) an underlying constitutional violation (2) resulted from a
    Montgomery County policy or custom.    See Monell v. Dep’t of Soc.
    Servs., 
    436 U.S. 658
    , 690-91 (1978).    The use of excessive force
    violates the Fourth Amendment’s protection against unreasonable
    seizures. See Jenkins v. Averett, 
    424 F.2d 1228
    , 1231-32 (4th Cir.
    1970).   And, a county’s failure to adequately train its officers
    can be so egregious as to warrant a finding that it amounts to a
    policy or custom for which the county should be held responsible.
    See City of Canton v. Harris, 
    489 U.S. 378
    , 389-90 (1989).   As we
    will explain, Guerra has not raised an issue of material fact with
    respect to his assertion that a county practice of inadequate
    training led to a constitutional violation.     We affirm on this
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    alternative basis, even though it was not addressed by the district
    court.   See Ostrzenski v. Seigel, 
    177 F.3d 245
    , 253 (4th Cir. 1999)
    (noting that we may affirm on any ground supported by the record,
    even if it is not one relied on by the district court).
    As an initial matter, Guerra does not allege a pattern of
    unconstitutional police conduct so pervasive as to imply actual or
    constructive    knowledge   on    the   part   of    Montgomery    County
    policymakers.   Rather, on the basis of a single shooting incident,
    he argues that the county’s police training programs for proper
    trigger finger placement and the use of dynamic extraction are
    constitutionally deficient and reflect such deliberate indifference
    to the risk of injury that the deficiencies themselves may be
    properly considered county policy or custom.        Guerra relies on the
    statements of a single expert witness to support his claim of
    deficient training.
    With respect to training on trigger finger placement, the
    expert concedes that Harris received a certain amount of training
    on this subject and that this training even included some exercises
    designed to approximate high-stress situations.           The fact that
    Harris may have deviated from his training is insufficient to
    render   Montgomery   County’s   training   programs   involving   proper
    trigger finger placement constitutionally inadequate as a general
    proposition.    Ultimately, the expert believes Harris did not
    receive enough high-stress training on trigger finger placement.
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    Under City of Canton, 
    489 U.S. at 390-91
    , however, the fact that
    more or better training could have been instituted is not enough by
    itself to establish a claim for deliberate indifference.
    With respect to training in dynamic extraction vehicle
    takedowns, Guerra’s expert also concedes that Harris received some
    training in this area.   The expert nevertheless maintains that the
    county’s training plan for this procedure is fundamentally flawed.
    Yet, the expert acknowledges that he is generally unfamiliar with
    undercover auto theft units and their use of the dynamic extraction
    technique.   As a result, his statements do not create an issue of
    material fact about the inadequacy of Montgomery County’s program
    for training its undercover auto theft detectives in the use of
    dynamic extraction.   Specifically, the expert’s statements cannot
    sustain the proposition that training deficiencies represent county
    policy or custom because any such deficiencies are not sufficient
    to establish the necessary deliberate indifference.
    For these reasons, we affirm the judgment of the district
    court.
    AFFIRMED
    7