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PG County officer evades liability for now-unconstitutional act

Shooting was not clearly unconstitutional in 2012, says 4th Circuit


Prince George’s County Police Officer Brendan Gill’s confrontation with Damon Wilson occurred Oct. 7, 2012 after the officer responded to a 911 dispatcher’s call that a man had broken into his ex-girlfriend’s apartment and assaulted her. (Maximilian Franz / The Daily Record)

If the allegations are true, a Prince George’s County police officer violated a suspected violent criminal’s constitutional rights in 2012 by shooting the armed, but non-threatening man while making an arrest, a federal appeals court ruled Monday.

But the officer, Brendan Gill, would be immune from liability for shooting Damon Wilson because such excessive force was not clearly unconstitutional six years ago, the 4th U.S. Circuit Court of Appeals added in its published 3-0 decision.

The 4th Circuit said its rulings and those of the Maryland Court of Appeals had not made it clear by 2012 that an officer could resort to lethal force only to repel a deadly threat. At that time, an officer confronted by an armed and suspected violent criminal could reasonably fire shots in making an arrest even if the person made no clearly threatening motion toward him or her, the 4th Circuit added.

“Accordingly, we hold that in October 2012, it was not clearly established that an officer would violate a suspect’s Fourth Amendment right to be free from excessive force by shooting a person who: (1) was suspected of having committed a burglary and battery; (2) was standing about 20 feet from the officer holding a knife, inflicting harm on himself and stumbling, but not threatening others or making sudden movements; and (3) was refusing to obey the officer’s repeated commands to drop the knife at the time he was shot,” Judge Barbara M. Keenan wrote for the court.

“We emphasize, however, that as of the date this opinion issues (June 18), law enforcement officers are now on notice that such conduct constitutes excessive force in violation of the Fourth Amendment,” Keenan added.

Neither Wilson’s attorney George Harper nor Prince George’s County Attorney Jared M. McCarthy, whose office represented Gill and the county, returned telephone messages Tuesday seeking comment on the court’s decision.

Harper is with the Law Offices of George Harper in Upper Marlboro.

Gill’s confrontation with Wilson occurred Oct. 7, 2012 after the officer responded to a 911 dispatcher’s call that a man had broken into his ex-girlfriend’s apartment and assaulted her. When the woman pointed to Wilson as her attacker, Gill told her to get back into her apartment and approached Wilson, who pulled something shiny from his pocket, according to papers filed with the 4th Circuit.

Gill drew his service weapon and told Wilson 10 to 15 times to drop the object.

Wilson, however, began poking himself with the knife while advancing toward Gill, who fired five times from a distance of about 15 feet, striking him multiple times. Gill then rolled Wilson away from the knife and began performing cardio-pulmonary resuscitation, according to the papers.

Wilson recovered and sued Gill and his employer, Prince George’s County, in U.S. District Court in Greenbelt alleging excessive force.

The U.S. District Court dismissed Gill’s claim, saying the shooting was objectively reasonable and thus not excessive force in violation of Wilson’s Fourth Amendment rights.

The 4th Circuit vacated that ruling, holding that the shooting was unconstitutional but not clearly so in October 2012. Thus, Gill, and by extension Prince George’s County, had qualified immunity from suit, the 4th Circuit said.

The 4th Circuit remanded the case to district court for a determination as to whether Gill is immune from liability under Wilson’s claims under Maryland law, including battery.

Chief Judge Roger L. Gregory and Judge Henry F. Floyd joined Barbara M. Keenan’s opinion in Damon Wilson v. Brendan Gill et al., No. 17-1856.

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