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Guidelines on Use of Deadly Force Not Relevant in Victim’s Lawsuit

A man who was shot in the stomach while hiding in the closet of a vacant apartment is not entitled to damages from the police officer who shot him, a divided Court of Appeals affirmed yesterday.In a petition supported by the Maryland Trial Lawyers Association, Taurrance Richardson had argued that the trial judge erred by excluding evidence of police guidelines on avoiding the use of deadly force, which he claimed supported his civil suit against Baltimore City Police Officer Horace McGriff.The lower court had found the guidelines were not relevant. Four judges on the state’s top court agreed, saying the question was whether the officer acted reasonably at the moment he shot Richardson in the darkened kitchen, believing a vacuum cleaner pipe was a gun.Richardson “was seeking to use this material only as a basis for claiming that Officers McGriff and Catterton should not have entered the apartment in the first place, without some undefined additional back-up, or, once there, they should have turned on the kitchen lights,” Judge Alan M. Wilner wrote for the majority. “The excluded evidence was thus relevant, if at all, only in those regards.”Key to the majority’s opinion was its decision that the relevant time frame is the moment at which the officer must decide whether to use deadly force, not the circumstances that lead up to that moment.However, three judges dissented on that issue and on the admissibility of the police department’s procedures.“I think it impractical to confine the ‘totality of the circumstances’ to a particular period of time,” Judge Glenn T. Harrell Jr. wrote for himself in a concurrence and dissent joined by Judge John C. Eldridge. (Chief Judge Robert M. Bell joined in most of Harrell’s concurrence and dissent and also wrote a separate dissent.) As for the relevance of police procedures, “[t]his court frequently has considered police procedures and guidelines in determining whether police activity was reasonable under given circumstances,” Harrell wrote. McGriff had argued that the 4th U.S. Circuit Court of Appeals has found police procedures inadmissible per se.Bump in the darkRichardson and six of his friends broke into a vacant unit at the Middle Branch Apartment development in Baltimore in January 1996. Someone reported the break-in to police. McGriff recalled the dispatcher reporting “several men” and “shots fired.”He waited for back-up, identified in the opinion as Officer Catterton. The two entered the apartment, smelled marijuana and looked for victims with their flashlights but saw no one, according to yesterday’s opinion. They were starting to leave when they heard something go “bump” in the kitchen closet.

[IMGCAP(2)]“Clearly, [Richardson] is entitled to a decision on the merits of this issue.”-Chief Judge Robert M. Bell, Dissenting

The officers said they announced their presence and intent to open the closet and that McGriff stood with his gun aimed at the center panel of the door while Catterton pulled the door open. McGriff shot Richardson after mistaking a vacuum cleaner pipe for a gun.Richardson initially sued the city, the police department and both officers. The other defendants were winnowed out prior to and during trial, leaving the case against McGriff the only one to go to the jury.The jury found him not liable. The Court of Special Appeals affirmed in an unreported opinion, leading to yesterday’s 4-2-1 decision by the Court of Appeals.Batson challengeHarrell and Eldridge concurred with the majority on one point: they agreed that McGriff had waived his right to raise a Batson challenge to the racial makeup of the jury because he failed to object until after the jury was seated. In addition, Harrell and Eldridge would have found that Richardson’s claim for gross negligence was barred by public official immunity — an issue the majority never reached.Bell filed a separate dissent on those two issues, especially the “disposal of [Richardson’s] Batson challenge … on a procedural and purely technical ground,” the chief judge wrote. “[T]his Court granted certiorari to review that issue, among others,” Bell wrote. “Clearly, [Richardson] is entitled to a decision on the merits of this issue.”<table width=”100%” border=”0″ cellspacing=”0″ cellpadding=”0″

WHAT THE COURT HELD

[IMGCAP(1)]Case: Richardson v. McGriff, CA No. 142, Sept. Term 1999. Reported. Opinion by Wilner, J; Concurrence and dissent by Harrell, J.; dissent by Bell, C.J. Filed Nov. 15, 2000.Issue: In a victim’s civil suit against the police officer who shot him, did the lower court properly exclude evidence of police guidelines on use of deadly force and instruct the jury as to the time frame for determining the reasonableness of the officer’s actions≠ Holding: Yes; judgment affirmed. The petitioner sought to use the guidelines to establish that the officer’s actions leading up to the shooting had not been reasonable. But the guidelines were not relevant, since the time frame for determining whether deadly force was justified is the moment of the officer’s decision.Counsel: Edward H. Kerman for appellant; Karen D. Amos for appellee. RecordFax #0-1115-21 (96 pages)