Peyton Ham will get another day in court.
This morning, the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., threw out a lower court’s summary judgment in favor of Joseph Azzari, a Maryland State Police officer who shot and killed 16-year-old Ham in Leonardtown, Md., in April 2021. The ruling, which came via a 2-1 vote of the judges on the appeals court panel, sends Boyle v. Azzari, the wrongful death lawsuit filed by Ham’s mother against the officer, back to the U.S. District Court in Maryland. And Ham’s family, which had been denied access to key records from the initial investigation of the killing before the case was thrown out, including even a full autopsy report, will now finally be entitled to discovery.
Ham had called 911 on himself during what his mother, Kristee Boyle, described as a mental health crisis. Azzari said he began firing almost immediately upon showing up on the scene when Ham pointed what turned out to be a toy gun at him. A small pocket knife belonging to Ham with a 2.5-inch blade was also found on the scene. No video of the shooting exists, because Azzari was not wearing a body cam and did not activate the dash cam on his SUV during the encounter. Audio tape from a nearby security cam shows that after an initial round of 11 shots, some of which had hit Ham in the arm and shoulder, Azzari waited around one minute before firing four more shots into Ham’s neck and torso, killing him. A photo taken by a neighbor 47 seconds before he was killed shows Ham on his knees in a gravel driveway, with lots of blood running down his right side, and Azzari standing over and behind him within an arm’s length.
Several months after Ham’s death, three witnesses told Defector that Azzari’s kill shots came while the teen was on his knees and posing no threat to the trooper.
“Peyton was murdered in my driveway,” said Michelle Mills, a neighbor.
The only official investigation ever conducted into the killing came from Azzari’s colleagues within the Maryland State Police. Three days before Ham was killed, the state legislature in Annapolis passed a package of legal reforms to prevent such obvious conflicts of interest in police-involved deaths; such cases are now turned over to a unit within the state attorney general’s office known as the Independent Investigations Division. But the law didn’t kick in until months after Azzari unloaded his 9mm service weapon on the teen.
Azzari was identified as “the victim” throughout the report filed by state police investigators. Richard Fritz, the prosecutor for St. Mary’s County, Md., cited only information provided by state police, and Azzari’s assertion that he was in “fear for his life” when he killed Ham, while announcing in November 2021 that no criminal charges would be filed against the officer and the case was closed.
Boyle filed a civil suit in federal court in April 2022, alleging Azzari violated her son’s constitutional rights while killing him. Her complaint pointed out key discrepancies between Azzari’s own, varied versions of what took place the day her son died and eyewitness accounts and information from police reports. Azzari had claimed at one point that he killed Ham while the teen was “moving in to attack” him. No evidence or witness has yet come out to support that account.
But in January 2023, Judge George Hazel of the U.S. District Court for the District of Maryland decided the case in Azzari's favor. While delivering a summary judgment, Judge Hazel wrote that it is "not material" whether Ham posed an actual threat to the cop. Azzari's "belief that [Ham] was dangerous" was sufficient under federal law to justify his use of deadly force, according to Hazel.
The family appealed Hazel’s ruling to the Fourth Circuit. At a May 10 hearing in Richmond, Boyle's attorney, Christopher Longmore, argued that his side had been wrongfully deprived of public records such as the autopsy report, the trooper's training records and personnel file, and also prevented from ever deposing Azzari under oath, all of which could allow them to make their case for wrongful death.
Maryland Assistant Attorney General Phillip Pickus, representing Azzari, argued during the hearing that the so-called “qualified immunity” clause allowed his client and all law enforcement officers to use deadly force against anybody they were afraid of. Pickus went so far as to tell the appellate court that Supreme Court rulings set the precedent that Azzari could legally shoot a “5-year-old,” so long as the kindergartner-aged kid scared him.
The majority of the appeals panel, however, sided with Longmore. Citing the 1986 case, Celotex Corp. v. Catrett, Judge Roger Gregory wrote in the opinion released today that “[s]ummary judgment should only be granted ‘after adequate time for discovery.’”
Also from Judge Gregory:
Here, the district court was aware that Boyle did not have an opportunity to obtain necessary evidence to oppose Azzari’s motion which he filed before the parties engaged in any discovery. She explicitly informed the court of the importance of discovery to her case and indicated that she had been denied access to Ham’s autopsy report, a critical piece of evidence, at least three times before the court decided the motion. Seeking the opportunity to depose Azzari about what occurred, she also highlighted conflicting statements from Azzari about Ham’s movements immediately before he was fatally shot. (“I had discharged my weapon as the subject grasped a knife, attempting to stand up.”) ... (“He stood up with the knife in his hand and took a step towards me.”). The district court was therefore well aware of the insufficiency of the summary judgment record and should have allowed time for discovery before assessing Azzari’s motion … These accounts of the moments immediately preceding the use of force, the core issue in every excessive force case, directly conflict.
The appeals panel further found fault with Judge Hazel’s conclusion “that Azzari’s belief” that Ham was dangerous “was enough to justify his use of deadly force.”
"In sum, the district court erred in denying Boyle’s motion for discovery because it was on notice that Boyle did not have an opportunity to obtain evidence necessary to oppose Azzari’s motion for summary judgment,” reads the opinion. “It also erred in concluding that the autopsy report could not create a triable issue of fact. To the contrary, discovery of evidence regarding Ham’s position, state, and distance from Azzari at the time Azzari fired the fatal shots could create a material dispute of fact regarding whether Azzari reasonably used force at that time.”
In his dissenting opinion, Judge David A. Faber made it clear he bought Pickus’s qualified immunity argument with no qualifications. Judge Faber referenced the gargantuan hurdle plaintiffs have to overcome in civil suits against cops, specifically supporting the lower court’s assertion that according to the law it didn’t matter whether Ham “remained on his knees” when Azzari killed him.
“Reasonableness under the Fourth Amendment ‘is evaluated from the perspective of the officer on the scene, not through the more leisurely lens of hindsight,’” Faber wrote, citing the 2007 case, Abney v. Coe. “[N]o amount of discovery will overcome the lack of clearly established law that would have put Azzari on notice that his actions violated the Fourth Amendment.”
Boyle told Defector that she’s thrilled by the appeals court’s verdict, and though no hearing dates have yet been set for the case, the family and Longmore are “planning to move forward to discovery and start the process all over again.”
“This outcome represents a crucial legal milestone that will not only seek justice for our beloved Peyton,” she said, “but also paves the way for setting official case precedent to aid others who have been unjustly affected by similar circumstances.”
