Richardson v. McGriff

762 A.2d 48, 361 Md. 437, 2000 Md. LEXIS 690

• Court: Court of Appeals of Maryland
• Decided: November 15, 2000
• Docket: 142, Sept. Term, 1999
• Status: Published

Opinions

WILNER, Judge.

On the evening of January 12,1996, petitioner and six of his friends broke into a vacant apartment at the Middle Branch Apartment development in Baltimore City and had a party. Someone reported the intrusion to the police, as a result of which Officers McGriff and Catterton responded. They entered the then-darkened apartment and began to search it. We shall describe the ensuing events in greater detail below, but suffice it to say here that petitioner hid in a kitchen closet, that he refused to come out when the police announced their presence and called upon him to do so, that he was holding a vacuum cleaner pipe in his hand, that it was extremely dark in the kitchen, that when Officer Catterton quickly opened the closet and Officer McGriff shined his flashlight inside, McGriff saw what appeared to him to be a man holding a large weapon and lowering it into firing position, and that, in self-defense, he fired at petitioner and severely wounded him.

Petitioner sued Officers McGriff and Catterton, the City of Baltimore, the State of Maryland, and the Police Commissioner of Baltimore in the Circuit Court for Baltimore City, alleging the violation of his rights under Articles 24 and 26 of the Maryland Declaration of Rights and several common law torts. After a winnowing both before and during trial, with which we are no longer concerned, the claims against Officer McGriff for battery, gross negligence, and violation of rights imder Article 26 were submitted to the jury, which returned a verdict in the officer’s favor. Petitioner appealed the judgment entered on those claims, and, in an unreported opinion, the Court of Special Appeals affirmed. We granted certiorari to consider whether (1) the trial court erred in precluding petitioner from introducing evidence of certain Baltimore City police regulations, guidelines, and training procedures pertaining to the use of deadly force, (2) a supplemental instruction to the jury improperly precluded the jury from considering the officer’s actions prior to the opening of the closet door, (3) the court erred in denying petitioner the opportunity to examine a police sergeant concerning police training and reasonable alternatives to Officer McGriff s actions, and (4) the court erred in failing to sustain petitioner’s objection, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the striking of certain African Americans from the jury. Finding no error, we shall affirm the judgment of the Court of Special Appeals.

BACKGROUND

Although the parties disagree on some of the inferences to be drawn from it, most of the evidence presented was not in dispute. We shall recite that evidence as presented and note those few instances where there was a significant dispute.

Petitioner and his friends, all of whom lived in the immediate vicinity, gathered in the apartment around 9:00 in the evening. Although petitioner claimed they entered the apartment to get warm — an objective that could have been achieved had they simply gone to their respective homes-their apparent purpose was to smoke marijuana which, according to petitioner, all save himself proceeded to do. Petitioner was 20; the two youngest members of the group were 13. The group congregated in the kitchen. After about an hour, one of the boys noticed the police outside, and everyone panicked. After turning out the kitchen light, petitioner and three of his friends hid in a folding — door closet, petitioner taking with him a vacuum cleaner pipe with which he had been playing. During his recitation of the event, petitioner never mentioned any shots having been fired from the apartment.

McGriff stated that, about 10:00, he received a call for “several males, that’s the way I heard it, in a vacant apartment, shots fired.”¹ He went to the rear of the building and observed “an open, vacant apartment, which was dark and, you know, the door was ajar.” He did not enter the building at that point, but instead called for “another unit with a flashlight,” and waited for that unit — Officer Catterton — to arrive. McGriff explained that he and Catterton were “side partners” who often responded to calls together, backing each other up, and that they had canvassed many vacant apartments together. Catterton confirmed that he and McGriff were familiar with the apartment development and had, on a number of occasions, discovered vacant apartments there that had been broken into. Catterton said that homeless persons often broke into the vacant apartments, and that the usual procedure in investigating apparent break-ins was to enter the apartment, make certain that no one was there, and ensure that the plumbing was intact. Scrappers, he said, would come in and steal the copper pipes. If everything was in order, they would notify the management that the apartment had been broken into and keep an eye on it for a few days.

The officers first searched an upper apartment and then turned their attention to Apartment T, at the terrace level. McGriff noticed that the door was ajar and that it had signs of forced entry. He said that, at first, he and Catterton thought this was an “average” call that was probably false, but nonetheless required investigation. Catterton said, however, that, even in the vestibule, he could smell the odor of marijuana that seemed to be coming from Apartment T, and he suggested to McGriff that that apartment be checked. Catterton added that his intent was not so much to confront armed individuals as to determine whether there were any victims. It had been his experience that “discharging calls are often followed or lead to the discovery of a victim.”

McGriff said that, upon entering the apartment, he announced their presence.² Catterton said that the odor of marijuana grew as they entered. He also confirmed that they announced their presence. Hearing no response, they began a systematic, room-to-room search, in Cattertoris words, “to ascertain if there was someone secreting themselves or a victim possibly inside of the apartment.” Catterton said that, although the apartment was dark, “it wasn’t so dark that you couldn’t see. There was enough light to navigate by,” noting that some street light entered the apartment through the windows. It was stipulated, however, that, at the time of the shooting, the kitchen was “extremely dark.” Catterton explained that they did not look for light switches because, in his experience, it was better not to change the environment. The eyes, he said, become accustomed to the dark, but when lights are turned on, “you’re blinded temporarily.... If it takes two seconds or ten seconds for your eyes to adjust, it’s detrimental.” At first, McGriff said, they did not even enter the kitchen, but merely “flashlighted” it.³ Seeing nothing, they turned to leave, but then heard a “bump” come from the room. Petitioner confirmed that there was some kind of “boom” before the officers entered the kitchen.

Upon hearing the “bump,” McGriff arid Catterton walked inside the kitchen and noted that there was no place, other than the closet, for a person to hide. McGriff obtained the flashlight from Catterton, who moved out of the line of possible fire and put his hand at the top of where the closet door folded, preparing to pull the door open. McGriff got into a position where he would be able to see into the closet when the door was opened, drew his pistol and aimed it at the center mast of the closet. He then announced: “All right. We’re getting ready to open the closet. Police. Come on out.” Although petitioner denied hearing any such warning, Catterton confirmed the second warning, recalling that “we again announced our presence and said, ‘Come out of the closet.’ ” Hearing no response, Catterton pulled the closet door open, and, according to McGriff, “immediately my flashlight struck the light of the object, which I thought was a barrel of a big weapon. And all I saw was a glimmer, and what I perceived as someone coming towards me, and I fired.” He continued, “[a]nd the weapon fell to the ground. I took my right foot and I slid the weapon behind me, and I just stood there covering the closet. I couldn’t speak or nothing. I was just — heart stopped and everything. I was totally afraid.” Catterton said that he did not know whether McGriff was the one who was shot — that he was rigid, his eyes being “as big as paper plates.” McGriff added later:

“[M]y flashlight immediately silhouetted off of the pipe, and I shot. But at the time I didn’t know it was a pipe. It looked, in this position, it looked like somebody was grasping a weapon, and I thought he was getting ready to lower it and fire upon me. And that’s when I shot.”

CONSIDERATION OF ANTECEDENT EVENTS

The first three issues raised by petitioner may be considered together. As part of his contention that Officer McGriff acted negligently and used unnecessary, unreasonable, and excessive force, petitioner urged that McGriff was remiss in entering the apartment late at night, in the dark, facing the prospect of seven armed men, without additional back-up, and that he was also remiss in not turning on the kitchen light before having Catterton open the closet. In support of those positions, he desired to offer into evidence certain guidelines and regulations of the Baltimore City Police Department and the testimony of Sergeant Laron Wilson, and he objected to a supplemental instruction to the jury directing it not to consider whether McGriff should have called for additional back-up or turned on the kitchen lights. The evidence was excluded and the instruction was given. We shall recite the relevant procedural background with respect to each of those matters, but they all hinge on whether it was appropriate for the jury to be allowed, essentially, to second-guess the decisions by Officers McGriff and Catterton to enter and search the apartment alone and to open the closet door without first turning on the kitchen light. The Batson issue, of course, is entirely separate.

To set the stage for the discussion of the first three issues, it is important to keep in mind the context. As to each of the three claims against Officer McGriff — battery, gross negligence, and violation of rights under Article 26 of the Declaration of Rights — the common issue was whether Officer McGriff acted reasonably when the closet door was opened and he saw what he regarded as an armed man about to fire on him. There was no dispute that, by shooting petitioner, McGriff intentionally caused a harmful touching and thus a battery. His defense was self-defense — that the touching was not unlawful-which brought into issue whether the deadly force was reasonable and used only as a last resort. To prove gross negligence, petitioner was required to prove that McGriff s conduct amounted to a reckless and wanton disregard of his rights,⁴ and to establish a violation of his rights under Article 26 — the State counterpart of the Fourth Amendment-petitioner had to show that McGriff did not act with objective reasonableness, from the perspective of a reasonable officer on the scene. Clearly, by shooting petitioner, McGriff effected a “seizure” of him for purposes of Article 26.

To make the requisite showings, petitioner wanted to present to the jury and have the jury determine that (1) the entire confrontation could have been avoided if McGriff and Catter-ton had not entered the apartment in the first place without additional back-up, and (2) McGriff would not have mistaken the unarmed petitioner for an armed person had he turned on the kitchen light before opening the closet. The reasonableness of McGriffs conduct, he contended, had to take into account, and indeed was governed by, this antecedent conduct which, in his view, violated established police procedure. He urges that the evidence sought to be presented established the violation and that the supplemental instruction precluded the jury from considering it.

Police Guidelines and Regulations

Officer McGriff filed a motion in limine to exclude “any evidence relating to any alleged violations of police procedure preceding the arrest of Plaintiff,” on the grounds that (1) such evidence was not probative on the issue of whether McGriff used unreasonable force, and (2) the evidence in question consisted of police “guidelines,” not commands or injunctions, and left a great deal of discretion in the officer. Essentially, the motion was based on lack of relevance. The documentary evidence sought to be excluded consisted of nine pages of single-spaced guidelines issued by the Baltimore City Police Department on the use of deadly force and 13 pages of single-spaced rules and regulations concerning a wide range of police conduct and behavior. Most of the rules and regulations, which cover the entire gamut of police conduct, from being courteous and fulfilling financial obligations, to saluting superi- or officers, to refraining from publicly criticizing public officials, to the circumstances when gambling, drinking, and smoking is not permitted, have no discernible relevance to any issue in the case. Even the guidelines on the use of deadly force include standards dealing with matters wholly inapposite to this case — guidelines on shooting at vehicles, shooting from vehicles, killing dangerous animals, and chasing suspects.

The rules and regulations relating to firearms require police officers to be suitably armed when on duty and, although they place conditions on the use of firearms to prevent the escape of felons and prohibit their use to prevent the escape of misdemeanants, they expressly permit officers to use their firearms in self-defense. The guidelines dealing with deadly force that petitioner particularly stressed provide, in pertinent part, that officers may use deadly force “only as a last resort,” that they “should try to avoid putting themselves in a situation where they have no option but to use deadly force,” that they should “[t]ry to use other less deadly means,” and that they should “[w]ait for [a] sufficient number of officers to handle situation[s] without undue force.” Consistent with the rules and regulations, the guidelines expressly allow the use of firearms in self-defense and state that “[t]he attacked officer is the person who has to evaluate the potential seriousness of the attack and determine an appropriate level of response,” the only caveat being that “[t]he evaluation and response must be reasonable from the perspective of a reasonable police officer similarly situated.”

McGriff argued that, in the context sought to be used by petitioner, these guidelines and regulations were irrelevant and misleading. He suggested that petitioner wanted the jury to determine that McGriff had violated some of those guidelines but urged that petitioner had offered no evidence that any were, in fact, violated. In that regard, he noted that all of the guidelines cited by petitioner were discretionary “and left to the officers’ determination on the scene as the events unfold.” McGriff added that “if the plaintiff could come in here and ... point to a hard and fast rule where you’re supposed to do A, and you’re not supposed to do B, C, or D, that’s one thing. But when he comes in and brings in guidelines, which give a range of things that the police officers are allowed to do ... this is not a violation of a hard and fast rule.”

Noting the statement that deadly force should be used only as a last resort, petitioner urged that he be permitted to elicit from McGriff his acceptance of that proposition and “that he doesn’t just go in, like a cowboy, and shoot first and ask questions later.” There was, of course, no evidence that McGriff did any such thing. Petitioner also said that he wanted to cross-examine McGriff about the admonition to “wait for a- sufficient number of officers to handle situations without undue force.” At no time during the hearing, however, did petitioner suggest that he was prepared to offer any evidence (1) that additional back-up was immediately available, (2) how much back-up would have been reasonable in light of the officers’ previous experience and what they had been told was the situation, (3) whether, given the prospect of there being a victim in the building, it would have been reasonable for the two officers to wait, or (4) how the situation in the kitchen would have played out any differently if additional officers had joined the search of the house. The court granted the motion on relevance grounds, noting that there were no allegations in the complaint that the suit was based on a violation of any police orders, regulations, or guidelines.

Petitioner does not really suggest otherwise. None of the actions pled, and certainly none that were submitted to the jury, were based on the violation of any orders, regulations, or guidelines. Instead, at least as the argument unfolded in this Court, petitioner was seeking to use this material only as a basis for claiming that Officers McGriff and Catterton should not have entered the apartment in the first place, without some undefined additional back-up, or, once there, they should have turned on the kitchen lights. The excluded evidence was thus relevant, if at all, only in those regards.

Testimony by Seryeant Wilson

Sergeant Laron Wilson, Officer McGrifPs immediate supervisor on the night of the event, went to the scene upon the report of the shooting. In a pre-trial deposition, he recalled that in a post-event critique that he had with various squad members, not including McGriff, he pointed out that an alternative would have been to secure the scene and wait for additional officers and a canine unit and that “in light of the fact that it came out as seven people inside the apartment and in light of the fact that it came out shots fired, seven against two is not very good odds.” When asked about his personal experiences in similar situations, Sergeant Wilson said that “[sjometimes I’ve gone forward. It depends on what the specific situation is,” adding that “there’s no general order that specifically covers this.” He continued, in his deposition, that the only relevant general order was that dealing with the use of deadly force and that “Officer McGriff acted in accordance with the general order.”

Sergeant Wilson’s views first surfaced at trial during the testimony of Officer McGriff. Petitioner indicated an intent to ask McGriff on cross-examination whether he agreed with Sergeant Wilson that “odds of seven against two are not good odds.” Wilson had not yet testified, and neither his deposition nor any other report of his was in evidence. The court sustained an objection on the ground of hearsay. Wilson was later called as a fact witness by McGriff. The substance of his testimony was his observation of McGriff, at the scene, as being shaken, and recounting McGriff s statement to him that McGriff thought the vacuum cleaner pipe was a shotgun and “I thought I was done.” Petitioner indicated an intent to cross-examine Sergeant Wilson about the training police officers get with regard to the use of deadly force, and McGriff objected. The court sustained the objection on the dual grounds that such an examination would violate the in limine ruling and that it would exceed the scope of direct examination. Petitioner then asked Wilson whether McGriff s actions were reasonable. In defending against McGriffs objection, petitioner referenced Wilson’s deposition testimony that seven against two is not good odds and that an alternative would have been to secure the scene and await additional units. The court sustained the objection on the ground that the inquiry exceeded the scope of direct examination.

At the conclusion of the defense case-in-chief, which ended with Sergeant Wilson’s brief testimony, petitioner called Wilson as a rebuttal witness and offered to the court that Wilson would testify that police officers are trained to use deadly force only as a last resort and to wait for a sufficient number of officers to handle situations without undue force. He also indicated an intent to question Sergeant Wilson as to whether there were reasonable alternatives “besides entering the building that evening.” The court sustained McGrifPs objection on the dual grounds that the proffered testimony would violate the in limine ruling and was not proper rebuttal, in that it did not purport or serve to rebut any new matter introduced by the defense.

Apart from whether the in limine ruling was correct, which we shall consider below, these evidentiary rulings were valid on the more technical grounds relied upon by the court. Sergeant Wilson’s out-of-court statement, recounted in his deposition, that two against seven is not good odds was not in evidence when petitioner sought to have McGriff confirm it through cross-examination; petitioner was indirectly offering that out-of-court statement for its truth which, under the hearsay rule, he is not permitted to do. The proposed cross-examination of Sergeant Wilson was properly disallowed because it exceeded the scope of direct examination, and that same inquiry was impermissible on rebuttal because it did not tend or purport to rebut any new matter introduced by McGriff. Those calls were within the discretion accorded to a trial court. Smallwood v. State, 320 Md. 300, 307, 577 A.2d 356, 359 (1990); Huffington v. State, 295 Md. 1, 14, 452 A.2d 1211, 1217 (1982).

The Jury Instruction

Without objection, the trial court instructed the jury that an officer may use deadly force when the officer has reason to believe that the person is posing a significant threat of death or serious physical injury to the officer .or others and that “[t]he reasonableness or excessiveness of any force is a matter to be determined in light of all of the circumstances as they appeared to the officer at the time.” The court added, again without objection, that reasonableness was to be judged on an objective basis — “whether a reasonable police officer under the same or similar circumstances could have believed that the force used was reasonable.” Those instructions essentially parroted the police guidelines particularly desired by petitioner. Without objection, the court then advised that, in making the determination of reasonableness, the jury “must look at this judgment not by way of hindsight, which is always %a, but rather under the circumstances as they existed at that moment.”

When the jury returned with a question whether, in determining the reasonableness of McGriff s actions, it was restricted “to the circumstances surrounding the instant of the shooting” or could consider “the general circumstances leading up to the shooting (e.g. calling for back-up, lights)” (emphasis added) the court revisited the question. At that point, counsel for petitioner urged that the jury consider “all circumstances,” noting that the jury “may conclude that Officer McGriff should not have entered the apartment building in the first place in light of the fact that he and Officer Catterton were outnumbered and where the severity of the call was at issue.” The court rejected that notion and iterated its determination that the jury was not to base its decision on hindsight but on “the situation that confronted the officer at that moment.” It continued:

“As I said, you don’t use hindsight. You don’t say, well, if they called for more back-up and waited for more back-up, it might have been different. You don’t say, well, if they had put on more light, it might have been different. You don’t analyze it that way. You analyze it that here is the situation, that whatever the light was, the light was.”

Analysis

The principal issue underlying petitioner’s complaint about the in limine ruling and the supplemental instruction is whether, in determining the necessity and objective reasonableness of Officer McGriff s conduct when the closet door was opened by Officer Catterton, the jury should have been permitted to consider whether the officers violated any police guidelines or regulations in entering the apartment without additional back-up and in failing to turn on the kitchen lights. The question is thus one of permissible focus: is the jury limited to considering only the circumstances contemporaneous with the “seizure” — what immediately faced McGriff when the closet was opened — or was it entitled to consider as well the reasonableness of the officer’s antecedent conduct?

The touchstone of the analysis is Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), where the Supreme Court held that an “excessive force” claim against police officers under 42 U.S.C. § 1983 is to be judged under Fourth Amendment jurisprudence, rather than under notions of substantive due process. The inquiry thus focuses on the objective reasonableness of the officer’s conduct. Because, the Court held, the test of reasonableness “is not capable of precise definition or mechanical application,” its proper application “requires careful attention to the facts and circumstances of each particular case.” Id. at 396, 109 S.Ct. at 1872, 104 L.Ed.2d at 455, quoting in part from Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 (1979). In that regard, and with uncanny relevance to this case, the Court concluded that

“[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight____ The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.”

Id. at 396-97, 109 S.Ct. at 1872, 104 L.Ed.2d at 455-56.

That principle, announced in the context of a § 1983 claim for the violation of Federal Constitutional rights, is the appropriate one to apply as well to petitioner’s claim under Article 26 of the Maryland Declaration of Rights and for the common law claims of battery and gross negligence. We have long recognized that Article 26 is in pari materia with the Fourth Amendment and that decisions of the Supreme Court interpreting the Federal right are entitled to great respect in construing the State counterpart. See Gadson v. State, 341 Md. 1, 8 n. 3, 668 A.2d 22, 26 n. 3 (1995); DiPino v. Davis, 354 Md. 18, 43, 729 A.2d 354, 367-68 (1999). In any event, we have adopted essentially the same principle as a matter of State common law. In Boyer v. State, 323 Md. 558, 589, 594 A.2d 121, 136 (1991), we recognized that “[a] police officer’s conduct should be judged not by hindsight but should be viewed in light of how a reasonably prudent officer would respond faced with the same difficult emergency situation.”

In the circumstances of this case, that jurisprudence also controls petitioner’s actions for battery and gross negligence. Self-defense is a defense to the common law tort of battery. Baltimore Transit Co. v. Faulkner, 179 Md. 598, 600, 20 A.2d 485, 487 (1941) (“If an injury was done by a defendant in justifiable self-defense, he can neither be punished criminally nor held responsible for damages in a civil action”). It is therefore the guidepost against which petitioner’s evidentiary and jury instruction claims must be examined.

The extent to which a jury, in an excessive force case, may consider events antecedent to the Constitutional seizure of the plaintiff has arisen in a number of cases, in a number of different contexts. All of the courts look to Graham v. Connor for guidance, but there is some disagreement on how the pronouncements in that case are to be applied. To some extent, the disagreement may be more the product of context and factual predicate than doctrinal split and thus would be consistent with the observation in Graham that the test of reasonableness “is not capable of precise definition or mechanical application” and “requires careful attention to the facts and circumstances of each particular case.” Graham v. Connor, supra, 490 U.S. at 396, 109 S.Ct. at 1872, 104 L.Ed.2d at 455.

The case closest in point is Schulz v. Long, 44 F.3d 643 (8th Cir.1995), where the police were called by the parents of the plaintiff, a paranoid schizophrenic with a history of hospitalizations for mental health treatment, to deal with aberrant behavior by the plaintiff. When the two officers arrived at the parents’ home, the plaintiff was in the basement, where he had erected a barricade. The officers stood at the landing of the basement steps and spoke with the plaintiff, attempting to convince him to go to the hospital. At some point, the plaintiff picked up and, for a while, held on to, a hatchet which, when he laid it down, the police were able to seize. That caused the plaintiff to become incensed, and he began throwing bricks at the officers. When that assault ceased, one officer attempted to get over the barricade to subdue the plaintiff, believing that the plaintiff then posed a threat to their safety. Unfortunately, the officer became entangled in the barricade. The plaintiff, in the meanwhile, obtained a double-bladed axe and began advancing on the officer, holding the axe with both hands in a cocked position. The other officer, with gun drawn, ordered the plaintiff to drop the axe, and when the plaintiff continued his advance and was within six to eight feet of the trapped officer, his partner fired.

The plaintiff sued the officers under § 1983 and complained on appeal about the granting of a motion in limine excluding evidence that (1) the officers, by their own actions, created the need to use force, (2) they should have responded in a different manner, such as waiting for a SWAT team, and (3) they should have used a lesser degree of force. The trial court excluded the evidence, as the court did in this case, on the ground that it was irrelevant to whether any seizure of the plaintiff was unreasonable, and the appellate court found no error. As to the evidence questioning whether the officers had, themselves, created the need for deadly force, the court, quoting from Graham, made clear that reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 hindsight. The Graham Court’s use of language such as “at the moment” and “split-second judgment” were “strong indicia that the reasonableness inquiry extends only to those facts known to the officer at the precise moment the officers effectuate the seizure.” Schulz, supra, 44 F.3d at 648. Similarly, responding to the complaint that the officers should have proceeded differently and used lesser force, the court noted that the Fourth Amendment “does not allow this type of ‘Monday morning quarterback’ approach because it only requires that the seizure fall within a range of objective reasonableness.” Id. at 649. The court held:

“The Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but instead whether the seizure actually effectuated falls within a range of conduct which is objectively ‘reasonable’ under the Fourth Amendment. Alternative measures which 20/20 hindsight reveal to be less intrusive (or more prudent), such as waiting for a supervisor or the SWAT team, are simply not relevant to the reasonableness inquiry.”

Id.

The U.S. Courts of Appeal for the Second, Fourth, Sixth, Seventh, Ninth, and Tenth Circuits have reached similar conclusions, as have appellate courts in South Dakota and Washington. In Greenidge v. Ruffin, 927 F.2d 789 (4th Cir.1991), a police officer working on the vice squad observed a woman believed by her to be a prostitute enter a car and, on further surveillance, witnessed an unlawful sex act being committed in the car. The officer opened the car door, identified herself, and ordered the passengers to place their hands in view. When neither complied, she drew her weapon and repeated the order. At that point, the male passenger reached behind the seat for a long cylindrical object, which the officer believed to be a shotgun, and she shot the man. The object was, in fact, a wooden nightstick. The passenger sued under § 1983, and, on appeal from an unfavorable judgment, complained about the exclusion of evidence that the officer’s failure to employ back-up and to use a flashlight violated police procedure. As here, he urged that the excluded evidence was probative of the reasonableness inquiry as it showed that the officer recklessly created the dangerous situation.

The Fourth Circuit court read Graham as contradicting the plaintiffs claim that, in determining reasonableness, “the chain of events ought to be traced backward to the officer’s misconduct of failing to comply with the standard police procedures for night-time prostitution arrests,” concluding instead that “events which occurred before Officer Ruffin opened the car door and identified herself to the passengers are not probative of the reasonableness of Ruffin’s decision to fire the shot,” that those events “are not relevant and are inadmissible.” Id. at 792. The court adopted the then-existing view of the Seventh Circuit court that liability under an objective reasonableness standard must be determined exclusively upon an examination and weighing of the information that the officer possessed immediately prior to and at the moment she fired the shot, citing Ford v. Childers, 855 F.2d 1271 (7th Cir.1988) and Sherrod v. Berry, 856 F.2d 802 (7th Cir.1988) (en banc). See also Elliott v. Leavitt, 99 F.3d 640 (4th Cir.1996), cert. denied, 521 U.S. 1120, 117 S.Ct. 2512, 138 L.Ed.2d 1015 (1997), confirming Greenidge.

The Court of Appeals for the Second Circuit affirmed the rejection of evidence in support of a hindsight analysis in Salim v. Proulx, 93 F.3d 86 (2d Cir.1996). The officer, while attempting to arrest a 14-year-old juvenile delinquent who had escaped from a training facility, was attacked by a group of the delinquent’s friends and family. As the officer and the delinquent tussled on the ground, the delinquent removed the officer’s weapon and was holding the barrel. Fearful that the youth would gain control of the gun, the officer fired, killing the child. Rejecting the plaintiffs complaint that the officer created the situation in which the use of deadly force became necessary by violating various police procedures, such as failing to carry a radio or call for back-up and failing to disengage when attacked by the friends and family members, the court held that the officer’s actions leading up to the shooting were “irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force” and that the reasonableness inquiry “depends only upon the officer’s knowledge of circumstances immediately prior to and at the moment he decided to employ deadly force.”

In Scott v. Henrich, 39 F.3d 912 (9th Cir.1994), cert. denied, 515 U.S. 1159, 115 S.Ct. 2612, 132 L.Ed.2d 855 (1995), officers, responding to a report of shots being fired at a motel, banged on the door of the appropriate unit and announced their presence. When the door opened, the officers saw a man holding a gun, which he pointed at them. One of the officers fired and killed the man. On appeal from a summary judgment for the officers, the plaintiff contended that, under police guidelines, the officers should not have attempted to seize the plaintiff immediately but instead should have developed a tactical plan, called for assistance, and tried to get him to surrender. The Ninth Circuit court rejected the argument and concluded that those kinds of guidelines were irrelevant.

See also Dickerson v. McClellan, 101 F.3d 1151, 1162 (6th Cir.1996) (“in reviewing plaintiffs excessive force claim, we limit the scope of our inquiry to the moments preceding the shooting”); Plakas v. Drinski, 19 F.3d 1143 (7th Cir.), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 34 (1994) (limiting the reasonableness inquiry to the moments force was used); Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir.1993) (“the issue is whether the government official violated the Constitution or federal law, not whether he violated the policies of a state agency”); Bella v.. Chamberlain, 24 F.3d 1251, 1256 (10th Cir.), cert. denied, 513 U.S. 1109, 115 S.Ct. 898, 130 L.Ed.2d 783 (1994) (“we scrutinize only the seizure itself, not the events leading to the seizure, for reasonableness under the Fourth Amendment”); Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir.1995) (“if the preceding events are merely negligent or if they are attenuated by time or intervening events, then they are not to be considered in an excessive force case”); Yellowback v. City of Sioux Falls, 600 N.W.2d 554, 559-60 (S.D.1999) (no error in excluding police manual regarding use of force and handling of mentally unstable persons to establish availability of alternative strategies); Estate of Lee ex rel. Lee v. City of Spokane, 101 Wash.App. 158, 2 P.3d 979, 985 (2000) (rejecting plaintiffs argument that “excessive force may be found where police conduct preceding the use of force is unreasonable and, thereby, creates the situation requiring deadly force”).

This, indeed, is the only sensible approach, especially in the circumstances of this case. The jury had before it uncontra-dicted evidence that Officers Catterton and McGriff regarded this as a routine call, much like many they had received and investigated in the past. When McGriff arrived at the scene, he did not enter the building alone; he called and waited for back-up. His information was that there were “several” men in the building; Catterton was told that there was “a group” of juveniles. The report that shots had been fired caused concern that there may be a victim lying helpless in the building — a concern borne out by Catterton’s previous experience. This was not, in other words, a situation where, as now argued, they expected to confront seven armed men. There was no evidence of that in the record. The jury might, perhaps, question the immediate decision by Officer McGriff to fire his gun when the closet door was opened, but it would have been sheer hindsight speculation to find that it was unreasonable, by reason of any police guideline or regulation cited by petitioner, for the two officers to enter the building and search it.⁵ On this record, the admonition in the guidelines to “[w]ait for [a] sufficient number of officers to handle situation[s] without undue force” and Sergeant Wilson’s post hoc critique had utterly no relevance; nor, through an expansive jury instruction, could the jury be allowed to speculate that Officers McGriff and Catterton should not have entered the building. They clearly were where they had a right to be, doing what they had a right to do.

A similar circumstance exists with respect to the lights. Officer Catterton explained why they did not turn on the lights: if they turned on the lights, they would be temporarily blinded. The jury did not have to believe that explanation, but there was no evidence to the contrary. No evidence was even offered, much less admitted, of any directive in the guidelines or regulations calling for officers to turn on the lights in that situation.

Apart from the lack of a proper evidentiary record in this case to permit the jury to consider these antecedent circumstances, we need to consider where such an approach would lead. McGriff was, in fact, in the building. The lights were not turned on. Whether either of those circumstances in hindsight could be regarded as negligent or imprudent, they existed and, at the crucial moment, could not be changed. At the moment Catterton opened the closet door and McGriff saw what appeared to him to be an armed man lowering his weapon to firing position, what was he to d,o? Under petitioner’s approach, McGriff would have been, at that split-second moment, faced with the impossible choice of either defending himself and, in so doing, risking liability for any harm inflicted on petitioner because of past events or decisions that were then uncorrectable, or taking no defensive action and putting his life in immediate and mortal danger in order to save his pocketbook. The law cannot reasonably put officers in that situation.

The dissent relies upon Deering v. Reich, 183 F.3d 645 (7th Cir.), cert. denied, 528 U.S. 1021, 120 S.Ct. 532, 145 L.Ed.2d 412 (1999), St. Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir.1995), cert. denied, 518 U.S. 1017, 116 S.Ct. 2548, 135 L.Ed.2d 1068 (1996), Abraham v. Raso, 183 F.3d 279 (3d Cir.1999), and, to some extent Brower v. Inyo County, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) to urge a different approach. Brower, in our view, is wholly inapposite. Although Deering comes close to supporting petitioner’s position, the other cases are, to a large extent, distinguishable, but, as with Deering, to the extent that they differ from the approach of the other Federal and State courts, we reject them as unsound and not in keeping with the holdings and pronouncements of Graham v. Connor.

Brower v. Inyo County arose from a 20-mile high-speed police chase. In an effort to stop the fleeing vehicle (and its occupant), the police set up a most unusual and dangerous roadblock. They placed an 18-wheel truck completely across the road, behind a curve, and aimed headlights from a police cruiser in such a way as to blind the driver on his approach. The driver was killed when he crashed into the truck, and his heirs sued the county, alleging excessive force in executing a seizure. The only issue before the Supreme Court was whether there had, in fact, been a seizure — the Ninth Circuit Court of Appeals had dismissed the action on the ground that there had been no seizure — and, in addressing that issue, the Court necessarily looked to all of the circumstances of the roadblock, not just the fact that it existed. The holding was that it is “enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.” Id. at 599, 109 S.Ct. at 1382, 103 L.Ed.2d at 637. Inferentially,. of course, that required some inquiry into the antecedent circumstances and intent of the police in establishing the roadblock. Here, there is no dispute that petitioner was seized when shot by Officer McGriff; the question is whether the seizure was reasonable, a matter not addressed in Brower,⁶

In St. Hilaire, the decedent was killed by police officers in the execution of a search warrant. The police had reason to believe that St. Hilaire was armed and dangerous, and they devised a scheme to approach him when he left his place of work, with a uniformed officer known to St. Hilaire in the lead. The scheme went awry when St. Hilaire was able to leave the building and get into his car before the officers could approach. Instead of the uniformed officer being in the lead, an officer in plain clothes ran toward the car brandishing a gun. There was a dispute of fact whether he or any of the other officers identified themselves. As, in the court’s words, St. Hilaire “looked up and saw a stranger dressed in jeans and a t-shirt, approach his open car passenger window, pointing a .357 magnum revolver toward him,” his eyes widened and he reached for his own gun, at which point he was shot in the neck and eventually died. His widow sued under § 1983, alleging, among other things, excessive force. The trial court granted summary judgment to the defendants, which the appellate court affirmed.

The principal issue at the appellate level was whether the officers enjoyed immunity against the § 1983 claim. The plaintiff made two arguments: (1) that no reasonable officer could believe that the law allowed him to surprise a suspect on a dead-run, in plain clothes, with gun drawn, at close range, and without identifying himself as a police officer, when executing a warrant, and (2) that there was a genuine dispute whether the shooter, Detective Gunter, reasonably believed that he was acting in self-defense when he shot St. Hilaire. The second claim the appellate court dismissed summarily as being without merit. As to the first, the trial court had found immunity on the basis that St. Hilaire’s Fourth Amendment rights did not attach until the moment of seizure, which was when he was shot, and that there was no obligation on the part of the police to avoid creating circumstances where the use of deadly force becomes necessary.

The appellate court rejected the defendants’ assertion that their actions need to be examined for reasonableness only at the moment of the shooting. Following its earlier decision in Hegarty v. Somerset County, 53 F.3d 1367 (1st Cir.1995), the court determined that it could consider all of the surrounding circumstances. It is important to note that the “surrounding” circumstances at issue were those immediately preceding the actual shooting, not, as here, discretionary guidelines dealing generally with the use of deadly force. It is also worth noting that the court expressly rejected the notion that the police have some affirmative duty to reduce the risk of violence, observing that such a contention “creates a risk that the ‘duty’ is so broadly defined that it gives inadequate notice of what would violate the duty.” St. Hilaire, supra, 71 F.3d at 27. The court ultimately concluded that the officers did not violate any clearly established law and that “[t]he judgment Detective Gunter made in that split second was at the very least reasonable, and it is not the role of the court to second-guess the decision.” Id. at 28.

Abraham v. Raso also arose from a summary judgment. Abraham, a suspected shop-lifter, was shot by Raso as he attempted to leave the mall parking lot in his car. Raso claimed that she acted in self-defense, in that, while she was standing in front of the car ordering Abraham to stop, he attempted to run over her. There was some evidence that she deliberately placed herself in front of the car; there was other evidence that she was not in front of the car at all but instead shot Abraham from the side. The trial court granted the summary judgment without regard to the self-defense claim on the ground that Raso’s action was objectively reasonable because, in attempting to flee, Abraham posed an immediate threat of physical harm to the public. The appellate court determined that there were genuine disputes of material fact bearing on whether Abraham posed such a threat, and, in the course of that analysis, concluded that it could not limit its examination to the very moment when Abraham was struck by the bullet and thus seized. Rather, it held that “all of the events transpiring during the officers’ pursuit of Abraham can be considered in evaluating the reasonableness of Raso’s shooting.” Abraham v. Raso, 183 F.3d at 292. The court noted, however:

“We are not saying, of course, that all preceding events are equally important, or even of any importance. Some events may have too attenuated a connection to the officer’s use of force. But what makes these prior events of no consequence are ordinary ideas of causation, not doctrine about when the seizure occurred.”

Id. As in St. Hilaire, the circumstances at issue were contemporaneous with the seizure.

In Deering, the victim, an elderly man with some history of emotional problems, backed his vehicle into a motorcycle, tipping the cycle. The damage was minor and the cycle owner offered to settle for the cost of the gasoline that leaked from the cycle, but Deering refused and so was charged with misdemeanor property damage. When he failed to appear in court for his initial appearance, a bench warrant was issued. Later that night, three armed deputy sheriffs wearing bulletproof vests drove to Deering’s farmhouse, which was in a rural area in a different county, stealthily approached it, peered inside and saw that Deering was sleeping, and knocked on the door. When Deering awoke and asked who was there, the sheriffs identified themselves. Deering then picked up his shotgun, went into the yard, and fired at one of the officers. After ordering Deering to put the gun down, another sheriff fired 11 shots at him, killing him. Deering’s personal representative sued the sheriffs under § 1983. The actions against two of the officers were dismissed; the jury found in favor of the third, and the Seventh Circuit Court of Appeals affirmed.

The broad issue considered by the appellate court was whether the jury could consider “the totality of the circumstances” in determining whether the sheriff’s actions were reasonable, and the court held that the jury not only could, but effectively did, consider those circumstances. The more precise issue was “what circumstances” the jury could consider— whether they extended beyond the precise moment when Deering fired his weapon and would include “the fact that the deputies decided to serve the warrant in the middle of the night on an elderly man living alone in a rural farmhouse.” Deering, supra, 183 F.3d at 650. The case law, the court noted, including some of its own,⁷ pointed to the fact that what was relevant was what the deputy knew at the time about Deering, including the warrant, the crime allegedly committed by Deering, and the deputy’s perception of danger. The jury had heard evidence about the incident with the motorcycle (“which would allow them to understand that the deputies were not looking for a serial murderer when they went to the farmhouse”), about how the deputies approached the farmhouse, how dark it was, and about Deering’s response. They were, in the court’s view, “allowed to hear sufficient information about the situation” and “had a sufficient basis on which to evaluate Reich’s response to Deering’s firing the shot.” Id. at 652. It is of particular interest that the court found no error in the jury instructions, including an instruction that the deputies “did not need to use ‘all feasible alternatives’ to avoid the situation which developed.” Id. The appellate court, quoting from one of its earlier decisions, Plakas v. Drinski, supra, 19 F.3d 1143, 1148, iterated that “[tjhere is no precedent in this Circuit (or any other) which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used.” Id. at 652-53.

Deering did hold that the officer’s knowledge of antecedent circumstances was relevant in determining the reasonableness of his actions. The dissent seizes upon a single statement by the Deering court that “[t]he totality of the circumstances cannot be limited to the precise moment when Deering discharged his weapon.” Id. at 649. That statement needs to be read in context, however. The point that the court was making was that “what Deputy Reich knew at the time — about Deering, his crime, and the warrant, and his perception of the danger he and the other deputies were in — was relevant to the evaluation of the reasonableness of his conduct.” Id. at 652. Read in that context, the determination that the totality of the circumstances must take account of the full knowledge possessed by the officers is not remarkable, and it certainly cannot be taken as a broad authority for plaintiffs to invite 2%o hindsight second-guessing. The antecedent events at issue in Deering were the circumstances that led the sheriffs to confront Deering — not some police guidelines dealing in general fashion with avoiding the need for deadly force whenever possible. As in Deering, there was no transgression of the underlying principle here. The jury was informed of all relevant antecedent events leading up to the shooting — how the officers came to be there and what they did upon entering the building. What the jury was not allowed to do was second-guess, in hindsight, the officers’ decision to enter and search the apartment without additional back-up and without turning on the kitchen light.

For these reasons, we hold that the trial court did not err in excluding the evidence subject to the in limine ruling, in excluding the evidence sought to be extracted from Sergeant Wilson, or in giving the supplemental instruction.

THE BATSON ISSUE

Jury selection commenced on the morning of Friday, May 1, 1998 and was concluded that afternoon, after a lunch break. The voir dire and selection proceeding were not recorded. The transcript records only the following:

“AFTERNOON SESSION

(Prospective jurors present in courtroom upon resuming) THE COURT: Good afternoon, ladies and gentlemen.

THE JURORS: Good afternoon, Your Honor.

(Voir dire examination of the prospective jurors continued).

THE COURT: Madam Clerk, you may swear the jury in at this time, please.

(A jury was selected, sworn and duly impaneled).”

At that point, the court excused those prospective jurors not selected and called counsel to the bench, where an unrecorded conference ensued. Following that conference, the court excused the jurors until Monday morning. After the jurors left, the court recounted that, at the unrecorded bench conference, counsel for petitioner “indicated that he wanted to raise a Batson challenge at this time.” The court then heard petitioner’s objection to the striking by McGriff of five African-American jurors. The court found from the mere striking of those jurors, leaving a jury with one African-American and five non-African-American jurors, that petitioner had presented a prima facie showing “that would require defense counsel to justify each of their strikes.” Defense counsel then proceeded to give a facially race-neutral reason for each of those strikes, following which the court found that McGriff had a valid basis for each of the five peremptory challenges under review.

Petitioner complains that the court erred in sustaining the peremptory challenges. The problem is that he waited too long to register his objection. In Stanley v. State, 313 Md. 50, 69, 542 A.2d 1267, 1276 (1988), we concluded that “[a] Batson objection is timely if the defendant makes it no later than when the last juror has been seated and before the jury has been sworn.” Requiring such an objection to be made before the jury is sworn is permissible. See Ford v. Georgia, 498 U.S. 411, 422, 423, 111 S.Ct. 850, 857, 112 L.Ed.2d 935, 948-49 (1991), declaring the requirement that any Batson claim be raised before the administration of the oath to the jurors to be “a sensible rule” and holding that “a state court may adopt a general rule that a Batson claim is untimely if it is raised for the first time -... after the jury is sworn.” The Federal courts have consistently held that a Batson objection is waived if not made during the voir dire process, and some have specified that the objection must be made before the venire is excused. See Morning v. Zapata Protein (USA), Inc., 128 F.3d 213, 215-16 (4th Cir.1997) (upholding the trial court’s dismissal of appellant’s Batson challenge because appellant raised the challenge after the venire was excused); U.S. v. Maseratti, 1 F.3d 330, 335 (5th Cir.1993) (“To be timely, the Batson objection must be made before the venire is dismissed and before the trial commences”); U.S. v. Parham, 16 F.3d 844, 847 (8th Cir.1994) (“[A] Batson objection must be made at the latest before the venire is dismissed and before the trial commences”); Government of Virgin Islands v. Forte, 806 F.2d 73, 75-76 (3d Cir.1986) (holding that, because the defendant failed to make any objection at the close of voir dire, he “waived” his Batson claim); see also Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir.1991) (“Batson objections must occur as soon as possible, preferably before the jury is sworn”); U.S. v. Chandler, 996 F.2d 1073, 1102 (11th Cir.1993) (noting that “[a]n objection is timely if it is made during voir dire”).

Because petitioner’s Batson claim was not made timely, it has been waived.

JUDGMENT AFFIRMED, WITH COSTS.

ELDRIDGE and HARRELL, JJ., concur in part and dissent in part; BELL, C.J., dissents.

1 . McGriff admitted that the bulletin may have said "seven” males, but that he heard "several” rather than "seven.” Catterton recalled the message as "a group of black male juveniles inside the vacant dwelling discharging firearms. That’s exactly how the dispatcher put it to me.”

2 . Petitioner denied hearing any announcement by the police of their presence or any direction for persons in the apartment to reveal themselves. He also claimed that the apartment door was unlocked when he and his friends entered. Those two matters were in dispute.

3 . Officer Catterton testified that the flashlight was an 18,000 candle power halogen flashlight. Officer McGriff agreed that the flashlight was powerful enough to illuminate the kitchen wall from a distance of ten feet.

4 . In light of our conclusion regarding the issue framed, we need not consider whether Officer McGriff would enjoy public official immunity even if the jury had properly found him grossly negligent.

5 . At oral argument in this Court, counsel for petitioner conceded that the officers had a right to be in the building. Although that concession could be taken as negating the contention that the officers should have waited for additional back-up, we shall not decide the issue on the basis of such a concession, because the issue is one of law and is too important to be side-stepped in that manner.

6 . The Brower Court remanded the case for precisely that determination. See Brower v. Inyo County, 884 F.2d 1316 (9th Cir.1989).

7 . See Carter v. Buscher, 973 F.2d 1328 (7th Cir.1992); Jaffee v. Redmond, 51 F.3d 1346 (7th Cir.1995), aff'd on other grounds, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996); Tom v. Voida, 963 F.2d 952 (7th Cir.1992); Plakas v. Drinski, 19 F.3d 1143 (7th Cir.1994), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 34 (1994).