Kane v. Lewis et al

Filing 205

MEMORANDUM. Signed by Judge J. Frederick Motz on 12/20/2013. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANDREW KANE

v.
BRIAN LEWIS, ET AL.

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Civil No. – JFM-08-1157

MEMORANDUM

Defendants have filed a motion to alter or amend the judgment. The motion will be
denied.
There is ample evidence to support the jury’s verdict finding that defendants failed to
properly announce their identity and purpose before entering the apartment in which Andrew
Cornish (plaintiff’s son) was killed. Defendant’s unlawful entry into the apartment was in the
still of the night, based upon suspected use of marijuana. Cornish was known to at least one of
the defendants as a person who had cooperated with the police in the past. Prior to the entry,
defendants had heavily armored themselves, obtained a battering ram, and dressed themselves up
in S.W.A.T. gear. There was more than sufficient evidence from which a jury could conclude
that defendants entered into Cornish’s apartment immediately after knocking on the door and
announcing their presence, not giving Cornish sufficient time to respond.1
One of the very purposes of the knock and announce rule is to protect occupants in the
dwelling to be entered, as well as the police officers who are entering. This purpose is well
established by applicable law, and defendants are charged with knowing it. Therefore, a police

1

I hope it is not relevant, but I note that Cornish was black, and all of the defendants are white.
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officer who enters a dwelling without giving the occupants of the dwelling sufficient time to
respond to his knocking is not entitled to qualified immunity.
Most of the cases relied upon by defendants – namely, those declining to quantify the
time that officers must wait before entering after having announced their presence – arise in the
context of a motion to seize evidence obtained in the ensuing search. They do not involve killing
of an occupant who is approaching the door in response to a knock.
The application of the principle that, unless a “no-knock” warrant has been issued, police
officers executing a search warrant must knock and announce their presence to permit occupants
a reasonable opportunity to respond before entering the premises may vary according to the
circumstances. However, the principle itself – as well as its purposes to protect the safety of the
officers and the occupants – could not be more clearly established. To afford defendants
qualified immunity here would be to ignore the fundamental proposition that we live in a
constitutional democracy where a police officer, as well as every other citizen, is responsible for
his actions. He is not entitled to enter a dwelling without properly announcing his presence and
purpose merely because he wears a badge.2
There was evidence that Cornish was carrying a sheathed knife when he was approaching
the door. There was no finding to that effect, however, contrary to defendants’ suggestion that
Cornish’s own conduct was the proximate cause of his death. At the most, in returning a verdict
in favor of defendant Lewis on the excessive force claim, the jury found that plaintiff had failed
to prove that Cornish was not carrying a knife when he was shot and that the knife had been
planted under him after the shooting. In any event, the occupant of a dwelling might well

2

Of course, as to plaintiff’s state law claim, there is no qualified immunity at all.
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reasonably carry a knife to his front door when there is commotion at the door occurring at 4:30
am.
Defendants contend that the jury’s verdict in favor of defendant Lewis on the excessive
force claim draws into question the verdict in favor of plaintiff against all of the defendants on
the knock and announce claim. Nothing could be further from the truth. The jury may well have
concluded that even if Lewis had acted appropriately when he shot Cornish (or at least was
entitled to qualified immunity in connection with the shooting), the defendants created an
unnecessary risk of harm to Cornish by their violation of the knock and announce rule. Indeed,
as stated above, one of the very purposes of that doctrine is to afford protections to an occupant
of a dwelling.3 An immediate entry into a dwelling after a knock and announce does not serve
that purpose.
Defendants also complain about the amount of the verdict. The award of damages,
however, is a matter that falls clearly within the jury’s province, and there is no reason for the
court to disturb it. Defendants are correct, however, that on plaintiff’s state law claim, the
verdict against the City of Cambridge must be reduced to $200,000. See Md. Code Ann., Cts. &
Jud. Proc. §5-403; Prince George’s County v. Longtin, 419 Md. 450, 484, 19 A.3d 859, 879-80
(2011).
A separate order denying defendant’s motion is being entered herewith.

Date: December 20, 2013

___/s/_____________________
J. Frederick Motz
United States District Judge

3

I note that defendants’ argument might be stronger if the jury had returned a verdict against
defendant Lewis on the excessive force claim. In that event, defendants could contend that it
was not reasonably foreseeable that a police officer would use excessive force against an
occupant.
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