Branch v. McGeeney

THIEME, Judge. This action arises out of a nine-year-old girl’s unfortunate run-in with Annapolis police officers who were operating under a mistaken understanding of state regulations governing the fingerprinting of juveniles. Appellant Latrice Branch filed the instant eight-count complaint by and through her mother and next friend, Teresa Hurley, in the Circuit Court for Anne Arundel County. The complaint sought damages and declaratory relief against three Annapolis police officers, the City of Annapolis, and Chief of Police Joseph Johnson, in his official capacity.

Count I was a claim pursuant to 42 U.S.C. § 1983 for violations of appellant’s federal constitutional rights, and Count II asserted tort claims for violations of analogous rights under the state constitution. Counts III though VII asserted common law claims for assault, battery, false arrest and imprisonment, malicious prosecution, and intentional infliction of emotional distress, respectively. Count VIII requested a declaratory judgment based on all the foregoing. On cross motions for summary judgment, the lower court granted judgment in favor of all appellees and dismissed the complaint with prejudice.

On the combined constitutional claims, the court ruled that appellant’s rights had not been violated and also that there was no City policy to serve as a predicate to City liability. As to the federal constitutional ³³⁹ claims, the court further ruled that the officers enjoyed qualified immunity from suit. The state common law claim for intentional infliction of emotional distress failed due to the lack of any evidence of extreme and outrageous conduct, and the rest of the claims failed due to the presence of probable cause to arrest. The lower court also found that the officers enjoyed immunity from suit on all the state common law claims.

The questions presented on appeal are as follows: I. Did the lower court err in not granting the appellant’s motion for summary and declaratory judgment against the City of Annapolis?

II

Did the lower court err in granting the defendants’ motions for summary judgment? Facts The State of Maryland amended its regulations pertaining to the collection of both adult and juvenile fingerprints effective 1 October 1994. This amendment contained the following new language: B. Adults who have been arrested shall be fingerprinted on an arrest fingerprint card approved by the Director of the CJIS [Criminal Justice Information System] Central Repository and on an arrest fingerprint card approved by the Director of the Federal Bureau of Investigation. C. A juvenile who has been arrested shall be fingerprinted on the arrest fingerprint card approved by the Director of the CJIS Central Repository.

COMAR 12.15.01.09-1. Also added was a provision defining “arrest” as “the detention of an individual for the purpose of criminal prosecution, for the filing of delinquency petitions, or pursuant to existing charges or delinquency petitions.” CO-MAR 12.15.01.03.B.(1). The purpose for the entire amendment, according to the Statement of Purpose, was to codify existing practices regarding the fingerprinting of adults and “to require that the fingerprints of a juvenile arrested for the commission of a crime or a delinquent act which would be a crime if committed by an adult shall be submitted to the ³⁴⁰ [CJIS] Central Repository.” 21:7 Md. Register 558 (April 1, 1994). In mid-August 1994, Mr. Tom Davis of CJIS met with Ms. Patricia Holland of the Annapolis Police Department’s Central Records Section.

Mr. Davis informed Ms. Holland of the new regulations regarding juvenile fingerprinting, and he gave her a copy of the above amendments from the Maryland Register. The next day, Ms. Holland drafted a Memorandum (hereinafter “the Memorandum”) addressed to “All Sworn Officers, Annapolis Police Department” and designated “For Distribution Week of September 19, 1994.” The Memorandum stated: Effective October 1, 1994, Juvenile’s [sic] who are detained for the purpose of criminal prosecution, or for the filing of delinquent petition, or pursuant to existing charges of delinquent petition are to be fingerprinted on CJIS (State/Green) Cards, as well as Annapolis City Cards. Charges are not to be entered on the cards when they are submitted to the State of Maryland, therefore the FBI does not want to receive cards. For Your Information: The State is collecting cards for the MAFIS Fingerprint Identification System, so that they can more easily identify Juvenile offenders from fingerprints submitted from crime scenes.

As was normal practice, this Memorandum was approved by Ms. Holland’s supervisor, Captain John Wright, prior to dissemination. Captain Wright also communicated orally with Mr. Davis before the Memorandum was released. The Memorandum was posted for all sworn officers to review, and copies were distributed to all officers through their shift commanders. Among the officers informed were appellees, Officer Joseph E. McGeeney, Jr., Corporal Joseph Graver, and Officer Adam Koch.

This Memorandum somehow became imbued with a meaning that is not apparent from its text and which was not intended by the COMAR amendments. Officer McGeeney, Corporal Graver, and Officer Koch each testified that he understood the Memorandum to embody a new policy that all ³⁴¹ juveniles arrested by the police must be transported to the station house for fingerprinting, even if the arresting officer would otherwise have released the particular juvenile into the custody of his or her parents at the scene. All the officers also stated that they had been aurally informed of this alteration in standard procedures by their shift commander concurrent to the dissemination of the Memorandum. Such an interpretation of the Memorandum is in conflict with its actual words, because in the context of juvenile procedure, “detention” is (or should be) commonly understood to refer to the placement of children in “physically restricting facilities,” Md. Code Ann., Cts. & Jud.

Proc. § 3-801 (m), and should not be confused with a mere arrest not involving a detention. Ms. Holland testified that, at the time she drafted the Memorandum, she too was under the impression that the COMAR amendments embodied a change in police procedures regarding the transporting of juveniles to the station house. She implicated Mr. Davis from CJIS as the source of her misconception. In fact, when at a later date Mr. Davis clarified that the COMAR amendments did not require such a change in procedures, Ms. Holland expressed her surprise in a memorandum to Captain Wright, memorializing the fact that “we were both surprise[d] that [Mr. Davis] had changed his statements, regarding the juvenile fingerprinting.” What little can be gleaned from the portions of Captain Wright’s deposition included in the record extract indicates that his understanding of the new COMAR amendments was roughly the same as that held by Ms. Holland and the three officers.

Mr. Davis was apparently not deposed. It thus appears that an aurally-transmitted, erroneous policy shadowed the State’s official, written fingerprinting policy as it worked its way through the chain of command in the Annapolis Police Department. There is no evidence in the record that any other police departments in the state labored under any similar misconception. The erroneous “shadow policy” also appears to contravene Maryland law.

Under Md.Code Ann., Cts. & Jud. Proc. § 3-814(b) (1995 RepLVol.), a child must be released to his or her ³⁴² parents “with all reasonable speed,” upon the parents’ written promise to bring the child to court when requested. The only-exception to this rule occurs if the child is in need of shelter care or if further detention “appears required by § 3-815.” That section requires detention only if the child needs protection from his or her environment, if the child is likely to flee, or if there is no parent or guardian to whose custody the child may be released. About a month after the release of Ms. Holland’s memorandum, police were called to the Betsy Court Apartments in Annapolis, where appellant had been playing a children’s game with three of her friends.

The four children were throwing acorns against the side of an apartment building next to a wooded area, trying to see who could hit the highest brick on the wall or land an acorn on the roof. One of the residents on that side of the building, Ms. Patricia Simms, became annoyed by the acorns striking her window. She told the children more than once to stop, but they continued their play. Ms. Simms then had one of her neighbors call the 911 emergency dispatch service.

Corporal Gruver and Officer McGeeney arrived on the scene separately and went to Ms. Simms’s apartment to investigate. While in the apartment, both officers heard the sounds of objects striking the exterior of Ms. Simms’s window, and Corporal Gruver actually observed appellant throw an object against the window. Ms. Simms told the officers that she wanted to press charges against appellant. The officers testified that they had no discretion to refuse Ms. Simms’s demand, and appellant has not contended otherwise.

The two officers took down the details of Ms. Simms’s complaint. Officer Koch arrived on the scene and met the other two officers as they were preparing to leave Ms. Simms’s apartment. The three officers then left through the front door of the building with the intention of finding appellant and issuing a juvenile citation to her for destruction of property. Officer McGeeney and Corporal Gruver went around one side of the ³⁴³ building while Officer Koch took a longer route around the other side.

Officer McGeeney and Corporal Gruver reached the rear of the building first, and they encountered appellant as she was attempting to re-enter the building through a rear door. They told her they were going to have to place her under arrest. All three officers gave substantially identical testimony regarding how this incident would have been handled according to procedures in place before 1 October 1994. Appellant would have been briefly arrested, and the officers would have charged her by issuing her a citation.

She would then have been released into the custody of her parent, or parents, at the scene. All three officers also testified that, as a result of the new policy effective 1 October 1994, they believed they were required to transport appellant to the police station for fingerprinting and that they no longer had any discretion to release her into the custody of her parent. Standard operating procedures require that any time an officer transports an individual, whether adult or juvenile, to the police station in a squad car, that individual must be handcuffed. Corporal Gruver testified that officers have some amount of discretion over the timing and manner of handcuffing in these situations, and it was his intention to wait until appellant was placed in the squad car before handcuffing her.

He also would have cuffed her hands in front of her. Corporal Gruver and Officer McGeeney began walking appellant back up the sidewalk toward the parking lot. She was between the two officers, and each officer had one hand on each side of appellant, holding her either by her arm or her sleeve. Appellant testified that one of the officers told her she was “going to jail.” While they were walking, appellant’s mother approached at a very brisk pace and in an understandably excited state.

She protested the arrest and removal of her child and demanded her release. Accompanying appellant’s mother were two other men, described by Corporal Gruver as “large” and “agitated.” When Corporal Gruver saw the three approaching, he told Officer McGeeney to put hand ³⁴⁴ cuffs on appellant. He explained that his reasons for ordering appellant handcuffed were for her own protection, given that he intended to retain custody over her. At that point, as I said, I was afraid we were going to have a physical confrontation.

And I was standing next to a girl, a young child, and, quite frankly, I was worried about her safety. If we had gotten into a tussle with her mother and the two friends, she would have been in the middle. She could have gotten hurt. She could have taken an active part.

All I needed was to have a nine or ten or whatever age she was grab ahold of my asp or gun and get involved and have to use force on her. I don’t want that. I wanted that child out of the picture for her safety. And at that point I told McGeeney to cuff the child.

And I told him that to take her out of the picture to keep her from getting involved in any problems we were going to have. That’s why we cuffed her there. Officer McGeeney obeyed, cuffing appellant’s hands behind her back. Appellant testified that she was made to kneel during the handcuffing.

Appellant was escorted to the police car and placed inside it. She was crying. A crowd began to gather. Appellant’s mother demanded appellant’s release.

Corporal Graver explained to appellant’s mother and to others present that a new policy required the officers to transport appellant to the police station for fingerprinting. Appellant’s mother attempted to speak with appellant, but the officers did not permit her to do so. According to appellant’s mother, Corporal Graver repeatedly told her and appellant to “shut up.” Appellant’s mother also claimed that one of those two officers, although she could not say which one, had made a disparaging remark about the “coloreds” present. Corporal Graver grew concerned over the size and manner of the crowd, and he doubted that appellant’s fingerprints were worth the risk of a confrontation.

He radioed his sergeant and asked for special permission to release appellant into her mother’s custody. Permission was granted. There ³⁴⁵ was some dispute as to how long appellant was kept inside the police car, but the longest duration supported by appellant’s citations to the record extract is twenty-five minutes. She was neither transported to the police station nor fingerprinted.

Officer McGeeney let appellant out of the car, took the handcuffs off her, brought her inside her mother’s home, and issued her a juvenile citation. He also explained to them that the new fingerprinting policy had necessitated placing appellant in the police car. Officer McGeeney then exited the building and left the scene soon after. Officer Koch’s role in this matter was extremely limited.

He had taken the longer route around the apartment building, and when he rounded the end of the building he saw that appellant had already been handcuffed and a crowd had already gathered. He never touched appellant and served a purely back-up role. He was the last of the officers to arrive at the scene and the first to leave it. Corporal Gruver remained some time longer, and he continued explaining to concerned neighbors the reasons behind the officers’ actions!

Corporal Gruver was both the first of the three officers to arrive at the Betsy Apartments and the last officer to leave, and police records indicate that he was on the scene for a total of thirty-two minutes. This incident apparently brought some much-needed attention to the divergence that had occurred between the policy contained in the COMAR amendments and the aurally-transmitted “shadow policy” of transporting and fingerprinting all juveniles arrested. Mr. Davis provided clarification that the COMAR amendments were not intended to alter the circumstances under which juveniles were to be transported to a police station. Within a month, the Memorandum was officially rescinded.

Analysis I. City policy Appellant first claims that the lower court erred in granting summary judgment in favor of the City and the ³⁴⁶ Police Chief on the issue of whether the officers’ actions were attributable to any City policy. While municipalities can be sued for damages under § 1983, they are only liable for their own constitutional violations, and cannot be held liable under a theory of respondeat superior. Monell v. Department of Soc. Servs., 436 U.S. 658, 690-91 , 98 S.Ct. 2018, 2035-36 , 56 L.Ed.2d 611 (1978).

Therefore, even if the three officers violated appellant’s federal constitutional rights, the City of Annapolis will not be liable therefor unless the officers acted pursuant to a City policy. The claims against Chief of Police Johnson require no separate consideration, because he was sued in his official capacity, which is analytically the same as a suit against the City. Kentucky v. Graham, 473 U.S. 159, 165 , 105 S.Ct. 3099, 3105 , 87 L.Ed.2d 114 (1985). We point out, however, that the presence or absence of a City policy will have no practical effect on appellant’s claims against the City and the Chief for analogous violations of the State constitution, because respondeat superior is available in tort actions based on State constitutional rights.

Town of Port Deposit v. Petetit, 113 Md.App. 401, 423 , 688 A.2d 54 (1997). When confronted with the question of whether a particular policy may fairly be attributed to a municipality, a court must “identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue.” Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 737 , 109 S.Ct. 2702, 2724 , 105 L.Ed.2d 598 (1989).

Only policies adopted by such officials and bodies can fairly be said to be municipal policy. The identification of municipal policymakers is purely a matter of state law. McMillian v. Monroe County, Alabama, 520 U.S. 781 , -, 117 S.Ct. 1734, 1737 , 138 L.Ed.2d 1 (1997). There is no evidence in the record of any official higher than Captain Wright having any knowledge of either the Memorandum drafted by Ms. Holland or the mistaken interpretation of COMAR that shadowed the Memorandum.

The ³⁴⁷ City concedes that Chief of Police Johnson possesses final policymaking authority for the City on matters concerning the custody of juveniles, but appellant has not drawn our attention to any legal authority indicating that Captain Wright has any final policymaking authority for the City of Annapolis at all. Instead, appellant argues that Captain Wright had final decision-making authority with regard to Ms. Holland’s Memorandum and similar matters. The Supreme Court has instructed, however, that these two types of discretionary authority are not the same, for if “the mere exercise of discretion by an employee \i.e., final decision-making authority] could give rise to a constitutional violation [by a municipality], the result would be indistinguishable from respondeat superi- or.” City of St. Louis v. Praprotnik, 485 U.S. 112, 126 , 108 S.Ct. 915, 926 , 99 L.Ed.2d 107 (1988). Furthermore, it does not appear that the policy in question even falls within the realm of decision-making authority granted by the City to Captain Wright.

The Memorandum he approved repeats substantially verbatim the fingerprinting procedures mandated by the COMAR amendments, but it says nothing whatsoever regarding the custody, release, or transportation of juveniles. Captain Wright was in charge of the police Technical Services Division, which included Ms. Holland’s department, Central Records. Although by all accounts Captain Wright had some decision-making authority over the City’s fingerprinting and reporting procedures, there is nothing in the record to indicate that he had any decision-making authority regarding the custody, release, and transportation of juveniles. Even if Captain Wright were to shoulder some of the blame for the dissemination of the “shadow policy” (and we do not mean to say that he does), that would not make the “shadow policy” a City policy, for the simple reason that Captain Wright has no final authority whatsoever over such matters.

Appellant argues that several deponents who were designated to testify on behalf of the City referred to the “shadow policy” as “a new policy,” which, according to appellant, constitutes an admission that official City policy was at issue. We ³⁴⁸ need say nothing more than that the identification of final policymaking authority is a question of state law rather than a question of testimonial fact, McMillian, supra, and appellant has not provided any legal support for her contention that Captain Wright has any authority with regard to the “policy” actually at issue here. We find that no official policy of the City of Annapolis is at issue in this case and, consequently, the City (and the Chief of Police) cannot be held hable for any alleged violations of appellant’s federal constitutional rights.

II

Claims of legal error regarding constitutional rights A. Excessive force and immunity Appellant has asserted that there are various genuine issues of material fact that should have precluded the lower court from granting summary judgment in favor of appellees. Summary judgment is not appropriate where there are genuine disputes of material fact. White v. Friel, 210 Md. 274, 285 , 123 A.2d 303 (1956). A material fact is one the resolution of which will somehow affect the outcome of the case.

Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8 , 327 A.2d 502 (1974). The disputes referred to by appellant are allegedly relevant to three separate issues, which appellant attempts to address in a single argument. The first issue is whether the officers’ use of force was reasonable. The reasonableness of the officers’ use of force is material to appellant’s constitutional claims of excessive force.

The standards for such a claim are the same under both the federal Fourth Amendment and Articles 24 and 26 of the Maryland Declaration of Rights. Williams v. Prince George’s County, 112 Md.App. 526, 547 , 685 A.2d 884 (1996). The test for whether police officers have used excessive force is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 , 109 S.Ct. 1865, 1872 , 104 L.Ed.2d 443 (1989). The Supreme Court has explained that intent is not relevant to this test: “An officer’s evil intentions will not make a Fourth Amendment ³⁴⁹ violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” Id.

The objective test is modified, however, by the need to step into the officer’s shoes: The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer in the scene, rather than with the 20/20 vision of hindsight.... With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” Johnson v. Glick, 481 F.2d [1028,] 1033 [ (1973) (Friendly, J.) ], violates the Fourth Amendment. 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 1871 (other citations omitted).

The second issue raised is whether the officers harbored malice. This is a subjective inquiry, material to the officers’ immunity for the state common law claims. Under Md.Code Ann., Cts. & Jud. Proc. § 5-321(b)(l), the officers are immune from these claims if the officers acted “without malice.” This type of malice has been defined as “an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff.” Port Deposit, 113 Md.App. at 416 , 688 A.2d 54 .

In their briefs to this Court, the officers have not contended that they have immunity from the state constitutional law claims under § 5-321(b)(l). The third issue is whether the officers knew or reasonably should have known that their actions violated a “clearly established” constitutional right. This issue is relevant to the officers’ claims of qualified immunity from suit for violations of the federal constitution, as no such immunity exists for violations of such “clearly established” rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982).

To be clearly established, “[tjhe contours of the ³⁵⁰ right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987). Some of appellant’s claims of factual dispute fail for lack of evidentiary support. These include claims that appellant suffered any physical injury, that she sought treatment of a psychiatrist for severe mental distress, and that the officers told members of the crowd besides appellant and her mother to “shut up.” Either appellant has failed to cite to any portion of record extract in support of the allegation or the pages cited contain no such evidence. Other claims of factual dispute are simply meritless.

Appellant claims that the court erroneously determined that appellant had engaged in disorderly conduct, but the court had merely determined that the officers possessed probable cause to arrest appellant for disorderly conduct, and appellant has not shown a dispute of fact as to probable cause. Appellant also cites portions of the record for the proposition that the officers were “abusive,” but this is a conclusory characterization and does not present a factual issue. As for appellant’s legitimate claims of factual disputes, the evidence read in a light most favorable to appellant demonstrates the following: • appellant did not try to run away; • appellant did not struggle; • the officers were not in fear of appellant; • only one officer saw appellant throw only one object; • the officers made no attempt to locate appellant’s mother; • the officers refused to let appellant’s mother speak with appellant; and • the officers told appellant and her mother to “shut up.” Reading all of the