United States District Court, D. Nevada
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
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
following facts are undisputed., 
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.
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.)
decided to attempt to locate the suspect, driving in a patrol
car. (ECF No. 35-1 at 9.) 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.)
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. (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.
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
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.)
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.
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.)
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.)
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.) Gwynn was allowed to proceed with the
single Fourth Amendment excessive force claim against
Sherwood. (Id. at 4, 6.)