THOMAS S. SHERWOOD, SR., in his individual capacity v. State of Maryland

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1477
THOMAS S. SHERWOOD, SR., in his individual capacity, and as
father and Personal Representative of the Estate of Thomas
S. Sherwood, Jr., the deceased; BEVERLY ANNE SHERWOOD, in
her individual capacity and as mother of Thomas S.
Sherwood, Jr., the deceased,
Plaintiffs - Appellants,
v.
STATE OF MARYLAND; MARYLAND DEPARTMENT OF NATURAL RESOURCES;
HUBERT F. BROHAWN, a Police Officer for the State of
Maryland Department of Natural Resources, and in his
individual capacity,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge.
(1:07-cv-01331-AMD)
Argued: September 22, 2009 Decided: November 4, 2009
Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Margaret B. SEYMOUR, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Mark Robert Millstein, Baltimore, Maryland; David
Michael Silbiger, Baltimore, Maryland, for Appellants. Paul J.
Cucuzzella, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,

-- 1 of 7 --

Annapolis, Maryland, for Appellees. ON BRIEF: Douglas F.
Gansler, Attorney General of Maryland, Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
- 2 -

-- 2 of 7 --

PER CURIAM:
Following the deadly shooting of their son, Thomas
Sherwood, Jr. (Sherwood), by Hubert Brohawn (Officer Brohawn), a
law enforcement officer with the Maryland Department of Natural
Resources (the DNR), Thomas (Sr.) and Beverly Sherwood (the
Sherwoods) brought this action pursuant to 42 U.S.C. § 1983 and
Maryland state law against Officer Brohawn, the State of
Maryland, and the DNR. The district court granted summary
judgment to Officer Brohawn on the only viable federal claim,
the § 1983 excessive force claim against Officer Brohawn, and
declined to exercise supplemental jurisdiction over the state
law claims, dismissing them without prejudice. The Sherwoods
appeal, and we affirm.
I
Shortly before 11:00 a.m. on July 31, 2006, Officer Brohawn
observed Sherwood driving a motor vehicle near Bellevue,
Maryland. From his past contacts with Sherwood, Officer Brohawn
suspected that Sherwood was driving with a suspended license,
and Officer Brohawn so confirmed through phone calls to the
Talbot County Sheriff’s Office and the DNR Police Communications
Center.
As Officer Brohawn was traveling in the opposite direction
of Sherwood, Officer Brohawn had difficulty effectuating a
- 3 -

-- 3 of 7 --

traffic stop. After parking his vehicle in several roadside
locations, Officer Brohawn was unsuccessful in locating
Sherwood. As a result, Officer Brohawn proceeded to the wharf
where he knew Sherwood lived.
Officer Brohawn arrived at the wharf and proceeded down the
dock toward Sherwood’s boat. As Officer Brohawn approached,
Sherwood exited the boat’s cabin with a beer can in his hand,
stepped onto the dock, and walked toward Officer Brohawn.
Officer Brohawn told Sherwood he was taking him to the Maryland
District Court Commissioner, but Sherwood responded that he was
not going anywhere, and walked away from Officer Brohawn and
back onto his boat.
Sherwood promptly untied two lines from the boat’s stern
cleats, put the boat in gear, started to move the boat forward
from the dock, looked at Officer Brohawn, and spoke in a
sarcastic tone, “now what are you going to do?” (J.A. 983).
Officer Brohawn, who was then standing near the edge of the dock
from where Sherwood had pulled the boat away, informed Sherwood
that he intended to “just come . . . get you.” (J.A. 987).
As Sherwood’s boat was pulling forward from the dock,
Officer Brohawn picked up the boat’s starboard stern line and
then the port stern line, which were both lying in the water
from having been untied and released by Sherwood from the boat’s
stern cleats, and placed the lines upon the dock. In response,
- 4 -

-- 4 of 7 --

Sherwood put the boat in reverse and walked away from the
controls to the rear exterior of the boat’s cabin, where he
grabbed a tire jack (which weighed about six pounds), which was
then leaning against the exterior wall of the cabin.
With tire jack in hand and the boat in reverse, Sherwood
walked back towards the starboard stern of the boat and exited
the boat onto the dock, leaving the running boat pinned up
against the dock. Sherwood, who had a history of threatening
police officers with weapons, then made a couple “quick, like
running steps” in Officer Brohawn’s direction, (J.A. 1008-09),
took another skip step, said to Officer Brohawn, “you goddamn
mother f***er. . . . I’m tired of your sh**,” (J.A. 1011), and
then slid his hands down the shaft of the tire jack and placed
his hands together as he prepared to swing the tire jack.
From a position of about eight feet in front of Officer
Brohawn, the left-handed Sherwood took a left-handed baseball
batter’s swing at Officer Brohawn with the tire jack level with
Officer Brohawn’s head, and then an immediate back swing in the
reverse direction. During the first swing, the end of the tire
jack, which had attached to it the tire jack’s steel ratchet
mechanism, passed in front of Officer Brohawn’s head. During
the back swing, Officer Brohawn, who had retreated slightly
between the two swings, ducked as the end of the tire jack
passed directly over his exposed head. Officer Brohawn, who
- 5 -

-- 5 of 7 --

attempted unsuccessfully during the swings of the tire jack to
grab with his left hand his pepper spray, recalls that at the
instant of the back swing he was afraid that he “was going to
feel [the tire jack] crushing down on [him].” (J.A. 1039).
Following the back swing, Officer Brohawn immediately told
Sherwood to drop the tire jack. He then drew his service
weapon, extended his arms towards Sherwood, and instructed
Sherwood a second time to drop the tire jack. Instead of
dropping the tire jack, Sherwood attempted to swing the tire
jack a third time. As Sherwood attempted the third swing,
Officer Brohawn discharged his weapon three times in rapid
succession. The bullets from the three gunshots entered
Sherwood’s body as Sherwood rotated in a clockwise position in
front of Officer Brohawn, much like a left-handed batter might
rotate as he executes a baseball swing. As a result of these
gunshot wounds, Sherwood died. His blood alcohol level at the
time of his death was .11.
The Sherwoods brought this action pursuant to 42 U.S.C.
§ 1983 and Maryland state law against Officer Brohawn, the State
of Maryland, and the DNR. The district court granted summary
judgment to Officer Brohawn on the only viable federal claim,
the § 1983 excessive force claim against Officer Brohawn, and
- 6 -

-- 6 of 7 --

- 7 -
declined to exercise supplemental jurisdiction over the state
law claims, dismissing the state law claims without prejudice.1
II
The Sherwoods maintain that the district court erred in
granting summary judgment to Officer Brohawn, contending that
the evidence in the record could support a finding that Officer
Brohawn used excessive force in shooting Sherwood. Having had
the benefit of oral argument and the parties’ briefs, and after
careful consideration of the record and applicable law, we
conclude that the district court correctly concluded that
Officer Brohawn did not use excessive force in shooting Sherwood
as a matter of law. Accordingly, we affirm on the reasoning of
the district court. See Sherwood v. State of Maryland, Civil
No. 07-1331 (D. Md. April 7, 2008).2
AFFIRMED
1 The § 1983 claims against the State of Maryland and the
DNR were dismissed on Eleventh Amendment immunity grounds, and
the Sherwoods understandably do not challenge this ruling on
appeal.
2 The Sherwoods also contend that, with regard to their
§ 1983 claim against Officer Brohawn, they are entitled to a
presumption, based on the spoliation of evidence, that Officer
Brohawn was intoxicated and/or under the influence of a mind
altering substance at the time of the shooting. This contention
lacks merit for the simple reason that Officer Brohawn had
nothing to do with the alleged spoliation.

-- 7 of 7 --