Ernesto Acevedo Guerra v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 375 4th Cir. 2000 . On the afternoon of…

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

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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

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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

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