Arrington v. Moore

Lowe, J., delivered the opinion of the Court. We are asked to determine at what point the exercise of authority by a presiding officer at a public meeting may cause him to become civilly liable. We must also determine when an arresting officer may be so exposed to liability. The community in which the circumstances giving rise to this case occurred carries the delightful name of “Seat Pleasant.” To the Mayor, Henry T. Arrington, the seat occupied by him, while chairing the town meeting in question was anything but that.

Meetings of the Mayor and Council of Seat Pleasant are held bimonthly. Alternate meetings are open to public attendance and participation. All of the meetings are presided over by the Mayor. Suit was filed in the Circuit Court for Prince George’s County by Charles Edward Moore, the Town Manager, against Mayor Arrington, as well as Chief of Police Roy Burke and Deputy Charles L. Owens, for assault, battery and false arrest.

The testimony at trial revealed the heated political divisiveness within the community which led to the incident at bar. This divisiveness was exemplified by the meeting of the Mayor and Council preceding the one at issue. After persistent interruptions, the Mayor abruptly adjourned that meeting, and then seemingly felt it necessary to draw a pistol when going to his car in an adjacent parking lot in the presence of some protesting townspeople. At the next meeting after the pistol wielding incident, ⁴⁵⁰ held on August 16, 1973, there was expected even greater and more vociferous public participation.

The anticipated public participation was viewed with some trepidation because a printed “flyer” entitled “SEAT PLEASANT MURDERERS” had been disseminated exhorting townspeople to attend the August 16th meeting. Among other charges made by the flyer (which we attach as Appendix No. 1) was that of governmental overspending including “ . .. full-time pay of a part-time manager.” The meeting room was thus prepared for substantial attendance by the public and news media. Chief of Police Burke was alerted by the Mayor to have a sufficient number of officers present to maintain order. A total of seven (including himself) was present, most of whom were inconspicuously clothed.

The testimony in the case indicated that the Mayor had generally conducted meetings “with some parliamentary procedure” although he deviated from “parliamentary procedure and Robert’s Rules ... to allow people an opportunity ... to voice their opinions.” In short, it appears that the meetings were generally informal, with the degree of procedural adherence dictated by the circumstances of the particular meeting. The air was so charged with political cordite at the meeting of August 16, 1973, that as a precaution, in addition to added police security provided, a section of law was prefatorily read to the assembled throng. The Mayor described the preparations. “We opened the meeting by reading a section of the Code, the Annotated Code of the State of Maryland, which indicated that it was a violation of the law to disrupt a public meeting. After having read that, I stated to the public that the meeting would be held with dignity and decorum, that everyone would be allowed to speak, that we had no intentions of suppressing anyone’s opinions.

But that it would be done in an orderly fashion, and that I would attempt to recognize people in the order in which their hands were raised.” ⁴⁵¹ A Councilman Gallion was then recognized by the Mayor and he took the floor to denounce the political flyer that had been publicly circulated. In doing so he read from the flyer, and when he reached that portion critical of the town manager, appellee Moore rose from his seat to the right rear of the Mayor 1 and approached him. The testimony differs as to his manner of seeking the Mayor’s attention, but Moore clearly stated his purpose in doing so. “BY MR. HOULON: Q. What if anything next did you do after you got up?

A. I walked where I could make sure he would hear me. Q. Am I standing approximately where you were? A. I’d say back a bit. About two feet, probably.

Q. Here? A. Right, and then — Q. Then what did you do? Tell me. A. I put my hand on the table.

Q. Your hand? A. Right. That is a habit of mine, of talking with my hand and doing things. I wanted to make darned sure that he heard what I had to say.

Q. What did you say? A. ‘Am I a part-time manager?’ Q. And in what tone of voice did you use? A. The same as I just said now. ‘Am I a part-time manager?’ Q. How many times did you say it, if any? A. I asked him that five times.

Q. Five times? ⁴⁵² A. Yes. Five times, but on three times he said, ‘Take a seat, Mr. Moore,’ and on the fourth time he said, ‘Get him out of here.’ Q. When he said, ‘Get him out of here,’ could you tell who he was speaking to? A. No. I couldn’t. But I assumed that he meant Chief Burke because he came in the space between you and the man, now, between the two of us.

And he put his hand on my chest, so I pushed him back.” It is undisputed that Chief Burke came forward, placed himself between appellee and Mayor Arrington, and put his hands on appellee’s chest: “Q; When Chief Burke came up to you, he put his hand on you? A. Both hands, yes. Q: Tell the jury what happened next. A. Well, I did not mean to disobey the law at all, but for me to ask a question where I’m being accused of being a part-time manager, which is wrong, and then not to receive an answer but to be told — but to hear him say, ‘Get him out of here,’ deep- in my own heart I felt I should get an answer then.

So I waited. And Chief Burke pushed me and by being an ex-Army man, I immediately, my hand came up to defend myself. And we had a bit of a shuffle there until all of a sudden one officer grabbed my hand. And then the Chief had the other hand and all of a sudden I felt an arm around my neck.” Mr. Moore testified that he not only knew the Chief, but that they were on good terms, although the manager’s own description of the “shuffle” belies that relationship. “Q. And tell the jury what you did to the police officer?

How you resisted? Tell them what you did to him. You took his coat, what did you do? ⁴⁵³ A. Pulled it over his head. Q. You pulled the coat over his head?

What did you do to him then? A. Just held him until I was choked. Q. Didn’t he go down? A. He went down on one knee.

Q. Your hands were on him when he went down? A. I couldn’t turn him loose because I had him there. Q. Okay. You had him.

And you had his coat over his head and you had him down on one knee? Is that correct? A. I didn’t have it — him down. He went down on one knee.

Q. He went down on one knee, but you had your hands on him? A. I didn’t push him down.” Notwithstanding the fact that Councilman Gallion had not yielded the floor, nor had the Mayor (whom he acknowledged was Chairman of the meeting) recognized him, Town Manager Moore felt that the time was appropriate to demand an answer to his question from the Mayor. “Q. You knew what the law was, that you were not to disrupt the meeting? It had been read out and you heard it well. Then why did you go over and insist that at that time before the television cameras and before everybody else, and while the Councilman was on the floor, why did you insist then that he was going to have to answer you then?

A. Because I felt that that was the time I should have been answered. Without disrupting the meeting.” Even when the police chief intervened, Manager Moore ⁴⁵⁴ continued to insist that he had a right to be heard at that moment. “Q. Well, what were you doing when the police officer was moving you back? Didn’t you just — did you move back out of the way? Or did you resist it?

A. Has it ever occurred to you that I was top man? I shouldn’t have been manhandled by a police chief? Q. He just had his hand on your chest? A. With the instructions to, ‘Get him out of here.’ Q. Then you persisted, didn’t you?

You figured you were the Town Manager? A. I figured I knew I was.” Deputy Owens and another „ officer, seeing their Chief apparently overcome, subdued the manager, first by an arm lock around the neck from behind, then with handcuffs, after which he was removed from the building. The news media duly recorded these events and a film taken by a television station was shown the jury. In addition, two sets of photographs were admitted as evidence, one set introduced by appellants and the other by appellee.

We have appended them as Appendices No. 2 and 3 respectively. After consulting the State’s Attorney of Prince George’s County, Chief Burke and Deputy Owens charged Mr. Moore with violation of Md. Code, Art. 27, § 577A (2) — refusing to leave a public building upon request. After some postponement, the case was submitted to the District Court Judge, by agreement, solely upon the viewing of the televised film clip. Mr. Moore was found not guilty.

His legal fees and other costs totalled $1150.00. Thereafter, Mr. Moore sued the Mayor, the Chief of Police and Deputy Owens for assault and battery, false arrest, and libel, praying $3,000,000 on each count. This appeal is from a verdict of $4500 awarded Moore as compensatory damages for assault and battery and false arrest. ⁴⁵⁵ Several issues are raised on appeal relating to the immunity of public officers, sufficiency of the evidence, and the propriety of the judge’s supplemental damage instructions. We find it necessary to address only the immunity issue.

Immunity of Public Officers The protection of public officers from liability for actions taken as part of their official duties is recognized in Maryland. As the Court of Appeals has stated: “In Maryland governmental immunity is extended to all nonmalicious acts of public officials as opposed to public employees when acting in a discretionary as opposed to ministerial capacity.” (Emphasis partially added). Duncan v. Koustenis, 260 Md. 98, 104 . Therefore, no liability may be imposed against appellants if they were public officers acting in a discretionary capacity, and their actions were without malice towards Moore.

The tests to be applied in determining whether one is a “public officer” so as to be protected by governmental immunity were summarized in Duncan, supra: “There are many Maryland cases dealing with the delineation of the public official concept and the following tests have been set forth: ‘[I]s he required to take an official oath; is he issued a commission; is a bond required; is the position called an office; is the position one of dignity and importance; does the public servant exercise in his own right some of the sovereign powers of government for the benefit of the public; does he have a fixed tenure?’ Gary v. Board of Trustees, 223 Md. 446, 449 , 165 A. 2d 475 (1960).” 260 Md. at 105 . The appellants in this case are unquestionably public officials. Appellant Arrington was the elected Mayor of Seat Pleasant and was vested with the duty to carry out the governmental functions of that municipal corporation. See ⁴⁵⁶ Walker v. D’Alesandro, 212 Md. 163, 170 .

Appellants Burke and Owens were Chief and Deputy Chief of Police, respectively, and it is clear that policemen are public officials. Robinson v. Bd. of County Comm’rs, 262 Md. 342, 347 ; Harris v. Baltimore, 151 Md. 11 . We must then determine, viewing the evidence in the light most favorable to appellee, 1) whether the appellants were acting within their discretionary capacities arid 2) whether there was evidence that their conduct was motivated by actual malice, so as to remove their actions from the protection of governmental immunity. 2 Discretionary Capacities The evidence adduced clearly indicated that the Mayor of Seat Pleasant was the presiding officer at all the meetings of the Common Council. See also Public Local Laws of Prince George’s County, § 68-12.

Inherent in that responsibility is the authority to maintain order. McQuillin, in his treatise, The Law of Municipal Corporations, states that “[i]t is always the duty of the presiding officer [at council meetings] to enforce the law or rules applicable to the body, keep order, and follow the course of the proceedings.” § 13.21 (3d ed. by Jerome H. Dray). A case based upon remarkably similar facts was decided in 1837 by the Supreme Court of New York in Parsons & Hall v. Brainard, 17 Wend. 522 . There, Parsons, the justice of the peace, was presiding, with two other justices, at a town meeting at which Brainard was elected to the office of “hog-howard.” 3 Brainard thereupon nominated Parsons as “hog-howard’s waiter,” producing “noise, laughter and ⁴⁵⁷ confusion.” Parsons then directed the constable in attendance, Hall, to remove Brainard from the meeting.

Brainard subsequently sued Parsons and Hall for assault, battery and false imprisonment and Parsons and Hall appealed from the judgment of a jury holding them liable to Brainard. The Court reversed the judgment below, stating: “By the statute, the justices are to preside at the town meeting, and see that the same is orderly and regularly conducted. . . . They have full authority to maintain regularity and order, and to enforce obedience to their lawful commands. . . . The case called for a prompt exercise of their authority, and I can perceive no objection in principle to the manner in which it was exercised. . . . [T]he means of maintaining order are left to the discretion of the presiding officers.” At 523-524.

See also Doggett v. Hooper, 27 N.E.2d 737 (Mass.) wherein the Supreme Court of Massachusetts upheld the right of the moderator at a town meeting to order the removal of one who persists in disorderly behavior. In short, it would be absurd to say that an official charged with the responsibility of presiding over a public body has no discretion or implied authority to maintain the order and dignity becoming that body. Cf. Williams and Fulwood v. Director, 276 Md. 272, 304 ; Restivo v. Princeton Constr.

Co., 223 Md. 516, 525 . The evidence indicated that Mayor Arrington sought to conduct the meetings formally enough to maintain respect for the dignity of the Common Council and himself as Mayor, but informally enough to comport with the atmosphere of a relatively small community. He denied that those in attendance at public meetings were ever allowed to speak out without being formally recognized. “Q. . . . How many meetings had you conducted of the Council prior to this one?

A. I had conducted all the meetings, sir. Q. Did you run them as Mr. Somerville and Mrs. ⁴⁵⁸ Radivo and Mrs. Jones and Mr. Moore testified, sometimes under formal rules and sometimes under whatever rules you preferred? A. No, sir. I did not.

Q. You always ran them according to Robert’s Rules of Order? A. No, sir. I did not. Q. You always ran them pursuant to the set of parliamentary procedure rules?

A. I always ran them with some parliamentary procedure and the deviation from parliamentary procedure and Robert’s Rules was to allow people an opportunity as I explained earlier to voice their opinions. In fact, there have been times when both the lady who testified and Mr. Somerville have had something they wanted to get off their chest and I have allowed them five to ten minutes to take the floor and let them steam off. This is a policy we have had in the town. There have been people who have come to the meetings and completely