Baltimore Police Department v. Cherkes

DEBORAH S. EYLER, Judge. This is an interlocutory appeal in a police brutality case brought by Charles Cherkes, the appellee, against the Baltimore City Police Department (“the BCPD”) and former Police Commissioner Thomas Frazier (“the Commissioner”), the appellants, and two officers of the BCPD, in the Circuit Court for Baltimore City. The circuit court granted a motion to dismiss filed by the BCPD and denied a motion to dismiss or for summary judgment filed by the Commissioner. The order granting the BCPD’s motion was not entered on the docket, however, and a docket entry referring to the motion stated, incorrectly, that it had been denied.

About a year later, the BCPD and the Commissioner re-filed their motions on the same grounds and, for the BCPD, one additional ground. This time, the court denied both motions. This appeal followed. We have divided and recast the questions presented by the BCPD and the Commissioner as follows: ²⁹⁴ I. Was the circuit court’s first order granting the BCPD’s motion to dismiss conclusive, so that the court could not subsequently deny its second motion?

II

Did the circuit court err in denying the BCPD’s second motion to dismiss?

III

Did the circuit court err in denying the Commissioner’s second motion to dismiss or for summary judgment? For the following reasons, we answer “no” to question I and “yes” to questions II and III. Accordingly, we shall vacate the pertinent orders of the circuit court and remand the case for judgment to be entered in favor of the appellants. FACTS AND PROCEEDINGS On December 14, 1998, Cherkes filed suit in the Circuit Court for Baltimore City against the Mayor and City Council of Baltimore (the “City”), the BCPD, the Commissioner, and Officers Charles Sparenberg and Robert E. Briscoe, of the BCPD.

His complaint alleged the following facts. On March 1, 1998, at around 5:30 a.m., Cherkes was standing on the sidewalk in front of the Windsor Club on East Fayette Street, in Baltimore City. Officers Sparenberg and Briscoe arrived at the Windsor Club location, purportedly to investigate a citizen’s complaint of a liquor law violation. The officers approached Cherkes from behind, as he was standing on the sidewalk.

One of them said, “Motherfucker, if you touch that door, I’ll arrest your ass.” When Cherkes turned to see what he had done to provoke that statement, one of the officers pushed him and punched him in the face. Both officers tackled Cherkes and threw him against the glass vestibule of the building. The officers then threw Cherkes to the ground and beat him repeatedly about the head and body. More BCPD officers arrived and joined in the beating.

At one point, Officer Briscoe wrapped his handcuffs around his fist and used them to beat Cherkes. The officers continued to beat Cherkes as he was lying on the ground, trying to cover himself. ²⁹⁵ The officers placed Cherkes under arrest, put him in a BCPD vehicle, and transported him to Mercy Medical Center, where they caused him additional injury by dragging him out of the vehicle and dropping him to the pavement from a height of several feet. Officer Briscoe went before a court commissioner and had Cherkes charged with criminal assault on both himself and Officer Sparenberg. Officer Briscoe also charged Cherkes with violating article 2B, section 19-101 of the Baltimore City Code.

According to Cherkes, Officer Briscoe falsely swore in the charging papers that Cherkes had been intoxicated and had endangered the officers’ safety during the encounter. On June 11, 1998, the criminal case against Cherkes was called for trial. The State nolle prossed the assault charges pertaining to Officer Sparenberg, after he failed to appear. The charges respecting Officer Briscoe were tried and Cherkes was acquitted.

According to Cherkes, Officer Briscoe testified falsely about the March 1,1998 incident. Cherkes’s complaint in this case sets forth twenty claims, in twenty separate counts. The following torts are alleged in ten separate counts: battery, assault, false arrest, false imprisonment, malicious prosecution, defamation, intentional infliction of emotional distress, violation of article 24 of the Maryland Declaration of Rights, 1 violation of article 26 of the Maryland Declaration of Rights, 2 and negligent hiring and supervision. The remaining ten counts seek punitive damages on each of ²⁹⁶ those claims.

All of the counts except negligent hiring and supervision are predicated on the acts of the individual police officers, with the liability of the City, the BCPD, and the Commissioner resting on a general allegation that the officers were at all times acting as their agents and employees. The negligent hiring and supervision count alone alleges direct (as opposed to vicarious) liability against the City, the BCPD, and the Commissioner. On January 21, 1999, the City moved to dismiss all counts against it, arguing that as a matter of law the officers were not its agents. Cherkes opposed the City’s motion.

On March 5, 1999, the motion was granted and the City was dismissed, without prejudice. In the meantime, on February 17,1999, the BCPD moved to dismiss all counts against it on the ground that it has no existence separate from the State of Maryland and therefore lacks capacity to be sued. At the same time, the Commissioner filed a motion to dismiss or for summary judgment for failure to state a claim for which relief may be granted and on the grounds of sovereign immunity and public official immunity. Cherkes filed oppositions to these motions.

He then amended his complaint, by interlineation, to add the State of Maryland (the “State”) as a defendant. Discovery ensued and then was stayed for a period of time pending rulings on the outstanding motions. On September 15, 1999, the circuit court (Cannon, J.) issued two orders, one granting the BCPD’s motion to dismiss and the other denying the Commissioner’s motion to dismiss or for summary judgment. The order denying the Commissioner’s motion was docketed on September 24, 1999, and was mailed to the parties.

For reasons that are not clear, the order granting the BCPD’s motion to dismiss was not docketed and appears not to have been mailed to the parties. Also for reasons that are not clear, the computer-generated docket sheet stated, incorrectly, that the BCPD’s motion was denied. ²⁹⁷ Discovery resumed. The scheduled May 9, 2000 trial date was postponed at the joint request of the parties, and trial was reset for September 18, 2000. On June 29, 2000, the following three motions were filed: 1) a motion to dismiss by the State on the ground of sovereign immunity; 2) a second motion to dismiss by the BCPD, on the same ground raised in its first motion and also on the ground of sovereign immunity; and 3) a second motion to dismiss or for summary judgment by the Commissioner, on the same grounds raised in his first motion.

Cherkes filed oppositions to these motions. On July 27, 2000, the circuit court (Cave, J., specially assigned), issued two orders. The first granted the State’s motion to dismiss “as not responsible for the Baltimore City Police.” The second denied the BCPD’s motion, citing the Local Government Tort Claims Act. Both orders were docketed on July 31, 2000.

On August 8, 2000, the circuit court (Berger, J.) issued an order denying the Commissioner’s motion to dismiss or for summary judgment. That order was docketed on August 9, 2000. 3 The BCPD and the Commissioner filed notices of appeal within thirty days of the docketing of the orders pertaining to their respective motions. On December 18, 2000, the day the record was transmitted from the circuit court to this Court, Judge Cannon’s September 15, 1999 order granting the BCPD’s motion to dismiss was entered on the docket. DISCUSSION The procedural posture of this case is such that before reaching the merits of the appellants’ contentions, we first shall address the issue of subject matter jurisdiction.

Section 12-301 of the Courts and Judicial Proceedings Article of Md.Code (1998 Repl.Vol., 2000 Supp.) (“CJ”) provides, in pertinent part: ²⁹⁸ Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. “Thus, it is well settled that, to be appealable, an order or judgment ordinarily must be final.” Jackson v. State, 358 Md. 259, 266 , 747 A.2d 1199 (2000) (citations omitted). The Court of Appeals has “ ‘long recognized, however, a narrow class of orders, referred to as collateral orders, which are offshoots of the principal litigation in which they are issued and which are immediately appealable as “final judgments” without regard to the posture of the case.’ ” State v. Jett, 316 Md. 248, 251 , 558 A.2d 385 (1989) (quoting Harris v. David S. Harris, P.A., 310 Md. 310, 315 , 529 A.2d 356 (1987)). Collateral orders of this sort are treated as final under the “collateral order doctrine,” which was first recognized by the United States Supreme Court in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545-47 , 69 S.Ct. 1221, 1225-26 , 93 L.Ed. 1528 (1949).

For an order to be appealable under that doctrine it must: (1) conclusively determine the disputed question, (2) resolve an important issue, (3) be completely separate from the merits of the action, and (4) be effectively unreviewable on appeal from a final judgment. Nelson v. Kenny, 121 Md.App. 482, 485 , 710 A.2d 345 (1998) (citing Jett, 316 Md. at 251 , 558 A.2d 385 ; Bunting v. State, 312 Md. 472, 477 , 540 A.2d 805 (1988); Harris v. Harris, 310 Md. 310, 316 , 529 A.2d 356 (1987)). In Nelson v. Kenny, supra, 121 Md.App. 482 , 710 A.2d 345 , we discussed the applicability of the collateral order doctrine to appeals of rulings respecting immunities: Absolute immunity ... is a time-bound right that fits precisely the framework of the collateral order doctrine: it is an important issue separate and apart from the merits of the case that is effectively unreviewable on appeal from a ²⁹⁹ final judgment because taking the case to a final judgment will destroy the right____ When the immunity claimed is a qualified immunity, not an absolute immunity, however, application of the collateral order doctrine is not as clear-cut, for two reasons. First, it may not be possible to determine whether the defendant is entitled to qualified immunity without resolving disputes of fact that go to the merits of the case.

In that circumstance, the issue of qualified immunity is not “collateral,” within the meaning of the collateral order doctrine: “When ... resolution of the immunity defense depends upon disputed factual issues, or upon mixed questions of fact and law, an immediate appeal will not lie, and review of the qualified immunity determination will have to await the trial court’s resolution of the factual questions.” ... Only when a qualified immunity defense can be decided without delving into and resolving disputed facts is an interlocutory order denying summary judgment sufficiently separate from the merits of the case to qualify as a collateral order.... Second, even if the issue is truly collateral, the defense of qualified immunity may not be effectively unreviewable on appeal from a final judgment because it may not be tantamount to a right not to be tried. Id. at 486-87 , 710 A.2d 345 (citations omitted) (quoting Port Deposit v. Petetit, 113 Md.App. 401, 414 , 688 A.2d 54 (1997)).

The collateral order doctrine permits immediate appellate review of a denial of a motion to dismiss that prevents the State or a State agency from avoiding trial based on governmental immunity. Bradley v. Fisher, 113 Md.App. 603, 611 , 688 A.2d 527 (1997) (citing State v. Hogg, 311 Md. 446, 456-57 , 535 A.2d 923 (1988)). In contrast, “public official immunity is qualified, not absolute. It may be defeated by proof of malice, i.e. affirmative evidence that the official intentionally performed an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately injure the plaintiff.” Nelson, 121 Md.App. at 487 , 710 A.2d 345 (citations and internal quotation marks omitted). ³⁰⁰ Whether a defendant possesses a qualified immunity is ultimately an issue of law for the court to determine.

To the extent that it depends on the resolution of disputed facts, however, some of those disputes — the existence of gross negligence or malice, for example — may be for the trier of fact to resolve; others — whether the defendant is a public official and, if so, whether the duty he was performing was discretionary or ministerial — will be for the court. Town of Port Deposit, 113 Md.App. at 414-15 , 688 A.2d 54 (citation and internal quotation marks omitted). Accordingly, even though the orders appealed from in the case sub judice are interlocutory, and not subject to appeal under CJ § 12-301, they are appealable under the collateral order doctrine so as to permit us to address whether Cherkes’s claims are barred by sovereign immunity — an absolute immunity. Insofar as the Commissioner relies on public official immunity — a qualified immunity — the interlocutory order denying his motion to dismiss or for summary judgment is appealable only if the immunity question is not bound up in resolution of disputed, material facts.

I The BCPD contends that Judge Cannon’s September 15, 1999 order granting its first motion to dismiss controlled the outcome of the claims against it, particularly given that the order was docketed after Judge Cave’s July 27, 2000 order denying its second motion to dismiss. It contends, therefore, that the court, through Judge Cave, erred in denying its second motion to dismiss. “As a general principle, one judge of a trial court ruling on a matter is not bound by a prior ruling in the same case by another judge of the court; the second judge, in his discretion, may ordinarily consider the matter de novo.” State v. Frazier, 298 Md. 422, 449 , 470 A.2d 1269 (1984) (citations omitted). “While the trial judges may choose to respect a prior ruling in a case, they are not required to do so.” Ralkey v. Minnesota Mining & Mfg. Co., 63 Md.App. 515, 522-23 , 492 ³⁰¹ A.2d 1358 (1985) (citation omitted); see also Placido v. Citizens Bank & Trust Co., 38 Md.App. 33, 45 , 379 A.2d 773 (1977) (“ ‘There is no decision or statute which requires one nisi prius judge to accept as final and conclusive the decisions on the law before trial of another judge or court.’ ”) (quoting National Liberty Ins. Co. of Am. v. Thrall, 181 Md. 19, 23 , 27 A.2d 353 (1942)).

Under Md. Rule 2-602(a), a circuit court has full revisory power over interlocutory orders: Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action: (1) is not a final judgment; (2) does not terminate the action as to any of the claims or any of the parties; and (3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties. (Emphasis added.) See Quartertime Video & Vending Corp. v. Hanna, 321 Md. 59, 66 , 580 A.2d 1073 (1990). “[A]ll judgments are subject to revision in a multi-claim or multiparty suit until the claims of all the parties against each other have been disposed of, absent both an express determination that there is no just reason for delay and an express direction for the entry of judgment.” Associated Realty Co. v. Kimmelman, 19 Md.App. 368, 374 , 311 A.2d 464 (1973) (discussing former Md. Rule 605(a), the predecessor to Md. Rule 2-602(a)). In essence, the BCPD asserts that the “law of the case” doctrine precluded Judge Cave from reconsidering Judge Cannon’s decision to grant the BCPD’s motion to dismiss. The “law of the case” doctrine “provides that a legal rule or decision between the same parties in the same case ³⁰² controls in subsequent proceedings between them” and that “a ruling by the trial court remains binding until an appellate court reverses or modifies it.” Ralkey, 63 Md.App. at 520 , 492 A.2d 1358 (citation and internal quotation marks omitted).

This doctrine, however, “does not apply between courts of coordinate jurisdiction before entry of a final judgment.” Id. at 521 , 492 A.2d 1358 (discussing Placido, 38 Md.App. at 45 , 379 A.2d 773 ); see also Warfel v. Brady, 95 Md.App. 1, 6-7 , 619 A.2d 171 (1993) (citations omitted). Therefore, the “law of the case” doctrine did not control in the case sub judice. Notwithstanding Judge Cannon’s decision granting the BCPD’s first motion to dismiss, Judge Cave had the authority to consider and make rulings on the issues raised in the BCPD’s second motion to dismiss, including the issues decided by Judge Cannon. Even after Judge Cannon granted its first motion to dismiss, the BCPD remained a party to the case and would so remain until the entry of a final judgment adjudicating all of Cherkes’s claims.

See Waters v. United States Fid. & Guar. Co., 328 Md. 700, 707-08 , 616 A.2d 884 (1992) (citations omitted). The granting of the BCPD’s first motion to dismiss did not resolve all of the claims in the action, e.g., Cherkes’s claims against Officers Briscoe and Sparenberg, and against the Commissioner. Under Md. Rule 2-602(a)(3), therefore, the circuit court retained full revisory power over Judge Cannon’s September 15,1999 order.

When Judge Cave decided the BCPD’s second motion to dismiss, Judge Cannon’s September 15, 1999 order was in the record (although undocketed and erroneously referenced in the docket entries). In effect, therefore, Judge Cave reconsidered the question of whether the BCPD was entitled to have the claims against it dismissed, as a matter of law, and by his July 27, 2000 order revised Judge Cannon’s September 15, 1999 order addressing that question. This was within Judge Cave’s discretion to do. It is inconsequential that the clerk of the circuit court corrected the docket entry regarding Judge Cannon’s September 15, 1999 order after docketing Judge Cave’s July 27, 2000 ³⁰³ order.

The BCPD acknowledges that, before December 14, 2000, “the docket entries erroneously seemed to indicate that the BCPD’s [first motion to dismiss] had been denied.” As a result, the amendment of the docket entries on December 14, 2000 was nothing more than a correction of a clerical error and had no bearing on the decision of the circuit court. II The BCPD’s next contention is two-pronged. First, it argues that the circuit court failed to properly apply the doctrine of State sovereign immunity and therefore erred in denying its motion to dismiss. Second, and alternatively, it argues that it should have been dismissed from the case because it has no existence as a legal entity capable of being sued.

Assuming the BCPD is a suable entity, we conclude that it was protected against all of Cherkes’s claims by State sovereign immunity, as a matter of law. For the reasons we shall explain, the only potential liability of the BCPD with respect to the claims asserted in this case is for non-payment of a judgment entered against the individual police officer defendants, under the Local Government Tort Claims Act. Because no such judgment has been entered, and none of the claims asserted against the BCPD concern that possible eventuality, we agree with the BCPD that the circuit court erred in denying its motion to dismiss. By Chapter 367 of the 1867 Laws of Maryland, the General Assembly made the BCPD a State agency, and designated its officials and officers as State officers.

Clea v. Mayor of Baltimore, 312 Md. 662, 668 , 541 A.2d 1303 (1988). That enactment appears today in section 16-2(a) of the Public Local Laws of Baltimore City, which states, “The Police Department of Baltimore City is hereby constituted and established as an agency and instrumentality of the State of Maryland.” See also City of Baltimore v. Silver, 263 Md. 439, 450 , 283 A.2d 788 (1971); cf. Ashton v. Brown, 339 Md. 70 , 104 n. 18, 660 A.2d 447 (1995) (noting that “[t]he Baltimore City Police ³⁰⁴ Department, for purposes of Maryland law, is a state agency” (citation omitted)). In Clea v. Mayor of Baltimore, supra, 312 Md. 662 , 541 A.2d 1303 , the Court of Appeals discussed the BCPD’s status as a State agency in the context of an action in which it, one of its officers, the City of Baltimore, and the Commissioner were sued for damages for common law torts and State constitutional torts allegedly committed by the officer. The plaintiff claimed the officer had conducted an illegal search of his house, and that the City, the BCPD, and the Commissioner were acting jointly as the officer’s employer, and therefore were vicariously liable for his tortious acts.

The plaintiffs joint employer theory was premised on the BCPD being an agency of the City of Baltimore. The circuit court dismissed the claims against the City, the BCPD, and the Commissioner, on the ground of immunity, and granted summary judgment in favor of the officer. The Court of Appeals affirmed the judgment on appeal. 4 It held that the BCPD is a State agency, not an agency of the City; accordingly, the City could not have respondeat superior liability for the acts of the officer, and the joint employer theory advanced by the plaintiff was without basis in the law. The Court explained that ever since the 1867 enactment that created the BCPD as a State agency, the Court had consistently held that Baltimore City should not be regarded as the employer of members of the Baltimore City Police Department for purposes of tort liability.

Unlike other municipal or county police departments which are agencies of the municipality or county ..., the Baltimore City Police Department is a state agency. Thus, as a matter of Maryland law, no liability ordinarily attaches to Baltimore City under the doctrine of respondeat superior for the torts of Baltimore City police officers acting within the scope of their employment. ³⁰⁵ Id. at 668, 541 A.2d 1303 (citations omitted). The Court further stated, with respect to the claims against the BCPD and the Commissioner: [I]n determining whether the Baltimore City Police Department and its Commissioner might be liable, under the doctrine of respondeat superior, for [the police officer’s] tortious conduct, the principles governing the liability of state agencies would be controlling. Id. at 670 , 541 A.2d 1303 (citations omitted).

The Court did not go on to apply those principles to the claims against the BCPD and the Commissioner, however, because the issue had not been preserved for review: The issue of the Police Department’s and the Commissioner’s liability or non-liability, as state agencies, for [the individual police officer’s] conduct has never been raised in this case. The pertinent principles, considerations, and authorities have been entirely overlooked. Absent any briefing or argument whatsoever concerning the issue, we decline to decide it. Id. at 671 , 541 A.2d 1303 (citations omitted)(emphasis in original).

The common law doctrine of State sovereign immunity is a guiding principle governing State agency liability for tort damages. The principle holds that, except and to the extent that common law State sovereign immunity has been waived by statute or by necessary implication, it exists. Condon v. State of Md.—University of Md., 332 Md. 481, 492 , 632 A.2d 753 (1993) (citations omitted). “ ‘Under the doctrine of sovereign immunity, neither a contract nor a tort action may be maintained against the State unless specific legislative consent has been given and funds (or the means to raise them) are available to satisfy the judgment.’ ” Catterton v. Coale, 84 Md.App. 337, 345-46 , 579 A.2d 781 (1990) (quoting Department of Natural Resources v. Welsh, 308 Md. 54, 58-59 , 521 A.2d 313 (1986)). State sovereign immunity, unlike the immunity of counties, municipalities, and local governmental agencies, is ³⁰⁶ “total.” O & B, Inc. v. Maryland-National Capital Park & Planning Comm’n, 279 Md. 459, 462 , 369 A.2d 553 (1977).

This total immunity protects the State not only from damage actions for ordinary torts but also from such actions for State constitutional torts. In Ritchie v. Donnelly, 324 Md. 344 , 597 A.2d 432 (1991), the Court so stated, and explained the underlying reason for the total immunity of the State from liability for State constitutional torts as follows: The theory that, in the absence of a statute, the State itself cannot be held liable in damages for acts which are unconstitutional rests on public policy and a theoretical notion of the “State.” ... In Dunne v. State, [ 162 Md. 274, 284-85 , 159 A. 751 (1932)], the Court reaffirmed the principle, saying: “The ‘State’ spoken of in this rule [of sovereign immunity] ‘itself is an ideal person, intangible, invisible, immutable,’ ” which can “ ‘act only by law, [and] whatever it does say and do must be lawful.’ ” 324 Md. at 369 , 597 A.2d 432 . See State v. Meade, 101 Md.App. 512, 522-23 , 647 A.2d 830 (1994)(noting that in Ritchie v. Donnelly, supra, 324 Md. 344 , 597 A.2d 432 , and Clea v. Mayor of Baltimore, supra, 312 Md. 662 , 541 A.2d 1303 , “the Court [of Appeals] confirmed that a common law action for damages will lie for violations of articles 24 and 26 [of the Maryland Declaration of Rights], ... but that, absent legislation consenting to suit, the doctrine of sovereign immunity precludes an action for damages against the State.”).

See also Samuels v. Tschechtelin, 135 Md.App. 483, 522 , 763 A.2d 209 (2000) (“Absent legislative waiver, the doctrine of sovereign immunity precludes a damages action against the State for alleged violations of Article 24 [of the Maryland Declaration of Rights].” (citations omitted)). “State agencies have normally been treated as if they were the State of Maryland for purposes of immunity, so that they enjoy the same immunity from ordinary tort and contract suits which the State enjoys.” Board of Educ. v. Town of Riverdale, 320 Md. 384, 389 , 578 A.2d 207 (1990) (citing Maryland-Nat’l Capital Park & Planning Comm’n v. Kranz, 308 Md. 618 , 622, 521 A.2d 729 (1987); Austin v. City of Baltimore, 286 ³⁰⁷ Md. 51, 58, 405 A.2d 255 (1979)); see also Maryland State Highway Admin. v. Kim, 353 Md. 313, 333 , 726 A.2d 238 (1999) (citing Godwin v. County Comm’rs, 256 Md. 326, 334 , 260 A.2d 295 (1970)). This is the case because “State agencies exist merely as the State’s hands or instruments to execute [the State’s] will.... Indeed, ‘to hold [State agencies] responsible for negligence would be the same as holding the sovereign power answerable to its action.’ ” Town of Port Deposit, 113 Md.App. at 418-19 , 688 A.2d 54 (quoting Town of Riverdale, 320 Md. at 388-89 , 578 A.2d 207 (citations omitted)). Whether sovereign immunity protects a State agency — as distinguished from the State — against liability for state constitutional torts is not quite so clear.

In Clea, supra, 312 Md. at 670-71, 541 A.2d 1303 , after commenting that the liability of the BCPD and the Commissioner would be governed by principles of State agency liability, the Court remarked: The State of Maryland ... is, of course, generally immune from tort liability unless that immunity has been waived.... In ordinary tort actions for damages, state agencies are also shielded by the State’s sovereign immunity unless that immunity has been waived. Md.-Nat’l Cap. P. & P. Comm’n v. Kranz, supra, 308 Md. at 622 , 521 A.2d 729 .

With regard to the liability or non-liability of state agencies or the heads of state agencies for constitutional violations, see, e.g., Dep’t of Natural Resources v. Welsh, 308 Md. 54, 60-65 , 521 A.2d 313 (1986), and cases there discussed; Walker v. Acting Director, 284 Md. 357, 364 , 396 A.2d 262 (1979); Davis v. State, 183 Md. 385, 388-393 , 37 A.2d 880 (1944); Dunne v. State, 162 Md. 274, 288 , 159 A. 751 , appeal dismissed, 287 U.S. 564 , 53 S.Ct. 23 , 77 L.Ed. 497 (1932); Weyler v. Gibson, 110 Md. 636 , 73 A. 261 (1909). Thus, the Court seems to have suggested that while State agencies enjoy sovereign immunity in “ordinary tort actions for damages,” that might not be the case with respect to State constitutional violations. The cases cited by the Court in Clea do not involve damage actions based on State constitutional torts, however; so the ³⁰⁸ outcomes of those cases, to the extent they do not recognize State agency sovereign immunity, are explained by the need for an effective remedy to redress a particular constitutional violation (including but not limited to taking of property without just compensation). In Weyler v. Gibson, supra, 110 Md. 636 , 73 A. 261 , the Court of Appeals held that the doctrine of sovereign immunity did not protect the State from an ejectment action to remedy an unconstitutional taking of property.

There, the directors of the Maryland Penitentiary took possession of a street and abutting properties and used the land to build a new wing for the penitentiary. The directors did not condemn or otherwise acquire the title to the bed of the street. The owners of the street brought an ejectment action against the warden. Judgment was entered for the owners against the warden.

On appeal, the Court of Appeals affirmed, holding that the landowners could pursue an action for ejectment against the warden. 5 The Court explained: [The] immunity of the State from suit rests upon grounds of public policy, and is too firmly fixed in our law to be questioned. But it would be strange indeed, in the face of the solemn constitutional guarantees, which place private property among the fundamental and indestructible rights of the citizen, if this principle could be extended and applied so as to preclude him from prosecuting an action of ejectment against a State Official unjustly and -wrongfully withholding property, by the mere fact that he was holding it for the State and State uses. It is easy to see the abuses to which a doctrine like that would lead. That such is not the law has been conclusively settled....

Id. at 654 , 73 A. 261 . In Walker v. Acting Director, supra, 284 Md. at 363-64 , 396 A.2d 262 , the Court made reference to a landowner’s ability to pursue an action for ejectment, as ³⁰⁹ recognized in Weyler , when it rejected a landowner’s claim that the State owed him prejudgment interest for its possession of his land before the conclusion of condemnation proceedings. In Davis v. State, supra, 183 Md. at 393 , 37 A.2d 880 , the Court observed that “an officer of the State acting under color of his official authority may be enjoined from enforcing a State law claimed to be repugnant to the State or Federal Constitution, even though such injunction may cause the State law to remain inoperative until the constitutional question is judicially determined.” In Dunne v. State, supra, 162 Md. at 288 , 159 A. 751 , the Court held that sovereign immunity does not protect a State agency in an action alleging the taking of property contrary to the mode prescribed by law, because any such act is not the act of the State, but an unlawful usurpation by the individual who effected the taking. Finally, in Department of Natural Resources v. Welsh, supra, 308 Md. 54 , 521 A.2d 313 , the State Department of Natural Resources instituted condemnation proceedings for a certain parcel of land in Allegany County.

One of the landowners did not receive notice of the proceedings and subsequently brought an action to quiet title. The Department raised the defense of sovereign immunity. The trial court ruled that sovereign immunity did not protect the Department against an action to quiet title. The Court of Appeals affirmed, observing: The Department further argues that Weyler should be distinguished on the grounds that (1) the defendant in Weyler was an individual rather than an agency and (2) the suit was one for ejectment rather than one to quiet title.

On the first point, [the landowner] correctly notes that actions have been permitted against State officials where the same action could not have been brought against the sovereign.... Accordingly, in the context of the facts presented by this case, where it is alleged that a State agency and its officials have taken private property without just compensation, we ³¹⁰ hold that an action to quiet title may properly be brought against the public officials or the State agency. Id. at 64-65, 521 A.2d 313 . The lesson that emerges from these cases is that when the remedy that is necessary to vindicate or protect a State constitutional right is equitable in nature, requiring a declaration of rights or injunctive relief against a State agency, or seeking a form of remedy other than damages, sovereign immunity does not protect the agency from suit.

As the Court in Weyler v. Gibson recognized, if it were otherwise, a citizen would have no means to prevent or stop a State agency from violating his constitutional rights. That analysis does not apply, however, when the action against the State agency is one at law, for damages. Accordingly, while the cases cited in Clea provide a basis for distinguishing actions for declarative, injunctive, or other equitable relief against the State from such actions against State agencies for purposes of sovereign immunity, they do not provide a basis to distinguish the State from State agencies with regard to claims for damage actions based on State constitutional torts. We return then to the question of the BCPD’s status for purposes of immunity from liability for damages in tort.

As stated above, in Clea , while the Court held that the BCPD is a State agency and therefore the City of Baltimore could not have respondeat superior liability for the torts of BCPD officers, it did not discuss the application of the doctrine of State sovereign immunity to the BCPD, because the parties had failed to raise, much less brief, the issue. The Court emphasized the longstanding designation of the BCPD as a State agency, however, and went on to point out that when the General Assembly transferred the power to appoint the Commissioner from the Governor to the Mayor of Baltimore in 1976, it kept the denomination of the BCPD as a “state rather than a local government agency[.]” Clea, 312 Md. at 669 , 541 A.2d 1303 (emphasis in original). The Court also observed that “the General Assembly, and not the Baltimore City Council, ha[d] continued to be the legislative body enacting ³¹¹ significant legislation governing the Baltimore City Police Department.” Id. Article 16 of the Code of Public Local Laws of Baltimore City, entitled “Police Department,” is a comprehensive set of local laws passed by the General Assembly that creates the BCPD and governs its operation.

It “constitute^ and established]” the BCPD as an “agency and instrumentality of the State of Maryland” (§ 16 — 2(a)); describes its duties, both inside and outside the City limits (§ 16-2(a) and (b)); enumerates the powers and duties of its officers (§ 16-3); establishes the office of the Police Commissioner (and of the Acting Commissioner)(§§ 16-4 and 16-6); defines the Commissioner’s duties (§ 16-7); and prescribes the means for his appointment and removal (§ 16-5). While conferring on the Mayor of Baltimore the power to appoint the Commissioner, it directs what considerations the Mayor shall make in exercising that power (§ 16-5(a)). Article 16 further governs the means by which the Commissioner shall prepare a budget, and provides that the budget shall be considered by the City Board of Estimates, as is the case with other municipal agencies, but with certain provisos, and makes special provisions concerning the number of members of the department and their compensation, including payment for witness fees and overtime (§ 16-8). It goes on to spell out comprehensive provisions governing labor relations and collective bargaining (§ 16-8A); establishing disciplinary and grievance procedures for officers (§§ 16-11 and 16-12); authorizing the Commissioner to pay funds for legal defense costs for officers in civil and criminal cases, with the approval of the Attorney General (§ 16-13); and providing that the Administrative Procedure Act applies to disciplinary hearings and any appeals therefrom to the courts, including this Court, and that the Police Commissioner shall be an aggrieved party in any appeal from an adverse ruling of the Circuit Court for Baltimore City (§ 16-ll(e)).

In addition, Article 16 creates a special fund for payment of disability, retirement, and pension payments, as well as pay ³¹² ments for widows, and directs the City in certain circumstances to make appropriations for the fund. (§§ 16-19 through 16-39). Finally, it establishes a Civilian Review Board to hear complaints against police officers respecting abusive language, harassment, and use of excessive force, and prescribes the composition of the board and the procedure for the making and resolution of complaints. (§§ 16-41 through 16-54).

By contrast, the Baltimore City Charter, by which the powers, structure, and functions of the City government are defined, makes no mention of the BCPD, a police department, or any police force. 6 Indeed, the sole reference to the Commissioner is by way of limitation of the City’s powers. In Article II of the Charter, the express powers provision, the Mayor and City Council of Baltimore have the authority to exercise the police power within the limits of Baltimore City, to the same extent as the State has or could exercise that power, “provided, however, that no ordinance of the City or act of any municipal officer shall conflict, impede, obstruct, hinder or interfere with the powers of the Police Commissioner.” Baltimore City Charter, Art. II, section 27. The only other reference to police or the Commissioner in the Baltimore City Charter is in respect to the police pension fund. Id. at section 26.

The BCPD is entirely a creature of the General Assembly, as Article 16 of the Code of Public Local Laws of Baltimore City makes plain. The Court of Appeals’s observation in Clea , in 1988, that the General Assembly, not the Baltimore City Council, is the legislative body that enacts significant legislation directing the structure and functions of the BCPD, is as true today as it was 13 years ago. See, e.g. Chpt. 290, 2000 Laws of Maryland (concerning Civilian Review Board); Chapt. 552, 1997 Laws of Maryland (adding to section 16-16A(g) ³¹³ through (p) provisions concerning the issuance of citations for civil violations); Chapt. 354, 1995 Laws of Maryland (repealing and reenacting with amendments provisions of section 16-27 regarding certain pension benefits for widows).

In O A B, Inc. v. Maryland-National Capital Park & Planning Comm’n, supra, 279 Md. 459 , 369 A.2d 553 , the Court of Appeals said: There is no single test for determining whether a governmental body is an agency of the state for purposes of sovereign immunity. Rather, it is necessary to examine the relationship between the state and the governmental entity to determine its status as either a state agency or a county or municipal agency. Id. at 462, 369 A.2d 553 (citations omitted); see also Katz v. Washington Suburban Sanitary Comm’n, 284 Md. 503, 510 , 397 A.2d 1027 (1979). The creation of the BCPD as a State agency in 1867, the General Assembly’s express statement, in section 16-2(a) of the Public Local Laws of Baltimore City, that the BCPD is as an “agency and instrumentality” of the State, the comprehensive statutory scheme enacted by the General Assembly governing every aspect of the BCPD, and the deference to that scheme accorded by the City of Baltimore in its Charter, compel the conclusion that the BCPD exists as an agency of the State, and therefore enjoys the common law sovereign immunity from tort liability of a State agency.

The holding in Clea “raised the specter” that the General Assembly had waived the BCPD’s State sovereign immunity in the Maryland Tort Claims Act (“MTCA”), Md.Code (1984, 1999 Repl.Vol., 2000 Supp.), sections 12-101 et seq. of the State Government Article (“SG”). State v. Meade, 101 Md.App. at 523 , 647 A.2d 830 . The MTCA expressly waives the State’s sovereign immunity and makes it subject to liability “as to a tort action in a court in the State” up to “$200,000 to a single claimant for injuries arising from a single incident or occur ³¹⁴ rence” involving “State personnel.” SG § 12-104(a). 7 In 1989, the General Assembly addressed the concern that the BCPD’s sovereign immunity had been waived by amending the definition of “State personnel” in SG section 12-101 (a) of the MTCA so as to exclude BCPD officers from its scope. In Meade , we explained that “[t]he 1989 legislation, as enacted, was clearly effective to reinstitute the State’s sovereign immunity for conduct committed by Baltimore City police officers.” 101 Md.App. at 524 , 647 A.2d 830 .

As we already have observed, while the common law sovereign immunity of the State and its agencies for tort liability is “total,” the common law governmental immunity of local governments, municipalities, and their agencies is limited. See Town of Riverdale, 320 Md. at 389 , 578 A.2d 207 (“It is true that [local governments] are instrumentalities of the State, created by the State to carry out some of the State’s governmental functions. Nevertheless, under Maryland law, they have consistently been treated differently from State agencies and the State itself for purposes of immunity from suit.”). Those local governmental bodies have common law governmental immunity only for acts that are governmental, and not for private or proprietary acts, and they do not have immunity from liability for State constitutional torts.

DiPino v. Davis, 354 Md. 18, 51-52 , 729 A.2d 354 (1999) (“[A]s a matter of