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Gwynn v. Sherwood

United States District Court, D. Nevada

January 6, 2020

JAMAL GWYNN, Plaintiff,



         I. SUMMARY

         In this case, brought under 42 U.S.C. § 1983, pro se Plaintiff Jamal Gwynn maintains a single Fourth Amendment excessive force claim against Defendant Patrick Sherwood. (ECF No. 3 at 4.) Sherwood has moved for summary judgment on the claim (“Motion”) (ECF No. 35). For the reasons stated below, the Court will grant the Motion.[1]


         The following facts are undisputed.[2], [3]

         This case arises from events which occurred on the night of May 6, 2016. (ECF No. 35-3 at 3.) That night, at approximately 10:30 p.m., Kierra Jemison arrived home after running errands with her three children and parked in her garage. (Id.) A man, later /// identified as Gwynn, approached her car door and told her to get out. (Id.) In shock, she responded “What[?]” (Id.) Gwynn then cocked his gun and told her repeatedly to “get out of the car.” (Id.) Jemison told her children to get out of the car. (Id. at 3-4.) She too exited the car with her hands up and rushed inside her home with her children. (Id.) Gwynn took the car. (Id. at 4.) Because Jemison did not feel safe at home she immediately ran to her neighbor's house with her children and called the police. (Id.) Jemison's neighbor had seen the car leave but assumed Jemison had been driving. (Id.)

         The Las Vegas Metropolitan Police Department's (“LVMPD”) Northwest Area Command responded to Jemison's call. (ECF No. 35-1 at 9.) Officer James LaRosa arrived on scene and began interviewing Jemison. (Id.; id. at 11.) Sherwood then arrived. (Id. at 9.) Sherwood asked Jemison for a description of the suspect and the direction he traveled. (ECF No. 35-4 (grand jury transcript) at 27; ECF No. 35-6 at 8.) Jemison reported that Gwynn had stolen her white 2016 Chevrolet Malibu. (ECF No. 35-4 at 28.) While the officers interviewed Jemison, Jemison's neighbor brought Jemison's son over to speak with the officers. (Id. at 29; ECF No. 35-6 at 9.) Jemison's son provided a description of the suspect-"a black male adult wearing a black baseball cap, black shorts and a black shirt.” (ECF No. 35-6 at 9.) Jemison, her son, and the neighbor agreed that Gwynn drove southbound. (Id.)

         Sherwood decided to attempt to locate the suspect, driving in a patrol car. (ECF No. 35-1 at 9.)[4] As Sherwood searched for Jemison's car, Onstar-a vehicle communication system intended for emergencies-informed LVMPD dispatch that the car's global positioning system (GPS) indicated that the car was at an apartment complex nearby. (Id.) OnStar engaged the ignition block on Jemison's car and activated the lights and horn. (Id.) Sherwood had noticed the car moments before and alerted dispatch. (ECF No. 35-6 at 9.) He made a U-turn to enter the apartment complex and ultimately observed the car rolling backwards. (Id.) Sherwood was not aware that OnStar had disabled the car, but believed Gwynn had. (Id.; id. at 11.) Sherwood entered the apartment's gate after other persons entered the apartment gate code. (Id. at 9; ECF No. 35-1 at 9; ECF No. 35-5 at 4.) Both Sherwood and the other vehicle entered the apartment complex. (ECF No. 35-1 at 9; ECF No. 35-5 at 4; ECF No. 35-5 at 1 (Exh. D.) at 00:43-00:57.)

         Sherwood parked his patrol car a few feet from the stolen car, but left it running. (ECF No. 35-6 at 10; ECF No. 35-1 at 9; ECF No. 35-5 at 1 (Exh. D.) 00:59-01:03.) As Sherwood exited his vehicle, he saw Gwynn, who matched the description of the suspect, exiting the Malibu. (Id.) Sherwood drew his service weapon because of the information that Gwynn was carrying a weapon and identified himself as police.[5] (Id.) He ordered Gwynn to get on the ground. (Id.) Gwynn raised his hand as if he was about to comply, but then ran away. (ECF No. 35-5 at 1 (Exh. D.) 01:03-01:15.) As Gwynn was exiting the car, Sherwood had heard the sound of metal hitting the ground and thought it was from shell casings hitting the ground. (ECF No. 35-6 at 10.) Sherwood also saw a firearm in Gwynn's hand. (Id.; ECF No. 35-1 at 9.) Gwynn ignored Sherwood's repeated orders to get on the ground and to drop the gun. (ECF No. 35-6 at 10.) Instead, Gwynn ran toward the apartment complex. (Id.) Sherwood pursued him. (Id.)

         While chasing Gwynn, Sherwood could no longer see a gun in his hand. (Id.) Sherwood nonetheless thought Gwynn still had the gun because he could see Gwynn's hand moving near his waist area. (Id.) Sherwood explains that he believed he needed to apprehend Gwynn because he believed he was still armed, and he was heading towards a populated area. (Id.) He was concerned that citizens could be harmed in the complex if a “gun battle” ensued. (Id. at 11.) Indeed, the individuals who had entered the complex following Sherwood remained in the immediate vicinity. (See, e.g., ECF No. 35-5 at 13, 20 (witness explaining that Gwynn was running “towards us” and that Sherwood said “Stay here, don't go anywhere”).)

         At some point during the chase, Gwynn fell to the ground. (ECF No. 35-5 at 13; ECF No. 35-6 at 11; ECF No. 35-2 at 11.) In his complaint (ECF Nos. 1-1, 4), Gwynn claims he surrendered to Sherwood and that he ran again after Sherwood unnecessarily kicked him in the ribs, groin and head. (ECF No. 1-1 at 4.) Sherwood and an eyewitness ("Witness 1") indicate that Gwynn tripped. (ECF No. 35-6 at 11; ECF No. 35-2 at 11.) Sherwood explained that believing Gwynn was still armed, he kicked him in the head to keep him from accessing the gun he believed he had in his waist and to prevent further incident. (ECF No. 35-6 at 11.) However, within a few seconds Gwynn jumped up and started running further into more populated area. (Id.) Another witness ("Witness 2") thought Gwynn was running towards him and his companion-Witness 1-and pulled out a pocketknife to try and protect himself. (ECF No. 35-5 at 9-10; 20-21; ECF No. 35-2 at 10.) Gwynn ultimately ran into Sherwood's patrol car. (ECF No. 35-5 at 16-17; ECF No. 35-6 at 11; ECF No. 1-1 at 4; ECF No. 35-5 at 1 (Exh. D.) 01:53-01:58.)

         About five seconds past between when Gwynn got into Sherwood's car and when Sherwood shot at Gwynn. (ECF No. 35-5 at 1 (Exh. D.) 01:53-01:58; see also ECF No. 35-6 (sentencing memo from Gwynn's ultimate prosecution provides that Sherwood shot Gwynn "almost immediately" upon Gwynn entering the patrol car).) Nonetheless, Sherwood details that Gwynn began pulling on a shotgun that was mounted near the driver seat as soon as he entered the patrol car. (ECF No. 35-6 at 11.) Witness 2 explained that he heard Sherwood yelling "Don't do it. Don't do it" and "Get out of the car." (35-5 at 17; ECF No. 35-2 at 10.) Gwynn ignored Sherwood's commands. (ECF No. 35-6 at 12.) Sherwood claims that he then watched Gwynn reach into the front passenger seat where he believed there was a backup handgun when Gwynn raised his hand toward Sherwood and pointed an object at him. (Id.) Sherwood notes that, at this point, thinking his life and the lives of others in the area were in danger, Sherwood shot Gwynn multiple times. (Id.)[6], [7]

         After shooting Gwynn Sherwood ordered him to exit the patrol car. (ECF No. 35-6 at 12.) Sherwood claims that Gwynn did not exit, but instead said “Fuck you, ” and rapidly reversed the car. (Id.) Video evidence shows that the patrol car remained still for approximately 37 seconds after Sherwood shot Gwynn and before Gwynn began to reverse. (ECF No. 35-5 at 1 (Exh. D.) 01:57-02:35.) Gwynn then turned the car around and drove toward Sherwood. (Id. at 02:35-02:43; ECF No. 35-6 at 12.) Both Sherwood and Witness 2 thought Gwynn was trying to hit Sherwood with the car. (Id.; ECF No. 35-3 at 19-20, 22.) Sherwood shot at the car again multiple times, but Gwynn drove off, ramming the car through the exit gates and leaving the apartment complex. (ECF No. 35-5 at 1 (Exh. D.) at 02:40-02:54; ECF No. 35-6 at 12; ECF No. 35-5 at 20.)

         Gwynn was ultimately apprehended with the assistance of LVMPD's air unit and taken to the hospital. (ECF No. 35-1 at 9.) Gwynn's medical examination revealed that he sustained a gun graze wound to his left shoulder and two gunshot entry wounds to his left chest just below the left nipple. (Id. at 11.) He also had two fractured ribs, a fractured sternum, and bruised lungs. (Id.) Gwynn later pleaded guilty to one count of robbery with use of a deadly weapon under NRS §§ 200.380, 193.165, and one count of battery with use of a deadly weapon, in violation of NRS § 200.481. (ECF No. 35-5 at 24.)

         Gwynn filed this lawsuit against LVMPD and Sherwood in March 2018. (ECF Nos. 1, 3, 4.) LVMPD was dismissed from the case. (ECF No. 3 at 6.)[8] Gwynn was allowed to proceed with the single Fourth Amendment excessive force claim against Sherwood. (Id. at 4, 6.)

         III. ...

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