Callahan v. Bowers

DAVIS, Judge. Steven Bowers, an employee of the Giant Food Store, was shot and killed while working on November 19, 1996, by Charles Thomas, a suspected shoplifter in the store on Sinclair Lane in Baltimore City. Subsequently, appellees Deborah Bowers, as personal representative of the estate of Steven Bowers and his surviving wife, as well as his surviving children, sued appellant Terrence Callahan in the Circuit Court for Baltimore City for negligence in his capacity as a security guard on duty at the store. On May 14, 1999, appellant filed for summary judgment, claiming an entitlement to qualified public immunity in his capacity as a special police officer, commissioned, pursuant to Md. Code, art. 41 (1997 Repl.

Vol, 1999 Supp.), § 4-901 et seq. A hearing was held on appellant’s motion on June 25, 1999. An opinion was issued by the court on June 29, 1999, in which the judge found that special police officers are not entitled to qualified public official immunity and denied appellant’s motion for summary judgment. Subsequently, appellant filed this appeal and presents us with the following questions, which we rephrase: I. Did the trial court err as a matter of law in denying appellant qualified public immunity in his capacity as a special police officer?

II

Did the trial court err in suggesting gross negligence as an alternative basis to deny appellant summary judgment? ¹⁶⁸ We answer question one in the affirmative; we decline to answer appellant’s second question. Accordingly, we shall reverse the judgment of the circuit court. FACTUAL BACKGROUND The events giving rise to this appeal occurred on November 19, 1996, at the Giant Food Store on Sinclair Lane in Baltimore City. At approximately 3:00 a.m., appellant, who was the security guard, apprehended and detained Thomas on suspicion of shoplifting.

Upon being seized, several items thought to be from the store fell from beneath Thomas’s coat, in addition to a plastic bag containing a white substance. Appellant escorted Thomas to the manager’s office, searched him, and instructed another employee to call the police. Thomas was not handcuffed or restrained and he attempted to escape the office through a ceiling tile. Appellant pulled Thomas down by his legs, pulled out his gun, pointed it to Thomas’s back, and instructed him to lay on the ground.

After Thomas refused to comply, what occurred next is in dispute. Appel-lees state that appellant placed his gun in its holster but did not secure it. Appellant does not concede that fact. The parties do agree that it was at that time that Thomas struck appellant in the face, and again tried to escape through the ceiling.

Appellant again pulled Thomas down by his legs and attempted to strike Thomas with a chair, at which time Thomas approached appellant and obtained control of the gun. He then shot appellant in the side and proceeded to escape from the office. In the course of fleeing the store, Thomas fatally shot Steven Bowers, a stock clerk. Subsequently, on February 8, 1999, appellees brought a wrongful death action in the Circuit Court for Baltimore City against appellant alleging negligence.

Appellant filed a motion for summary judgment, claiming immunity due to his status as a special police officer and, on June 25, 1999, a hearing was held on the motion. On June 29, 1999, the circuit court found that appellant was not entitled to public official immunity and, accordingly, denied his motion for summary judgment. From that order, appellant timely filed this appeal. ¹⁶⁹ DISCUSSION I Preliminarily, appellant’s brief includes argument that this appeal from the court’s summary judgment ruling qualifies under the collateral order doctrine. Appellees concede this point and we concur that the decision below satisfies the four requirements of a final appealable judgment as articulated in Harris v. Harris, 310 Md. 310, 316 , 529 A.2d 356 (1987)(quoting Public Service Comm’n v. Patuxent Valley, 300 Md. 200, 206 , 477 A.2d 759 (1984)).

The order in this case: 1) conclusively determined as a matter of law that appellant did not qualify for qualified immunity, 2) resolved an important issue because if appellant is entitled to immunity, he may be entitled to forego trial, 3) decided the issue of immunity, which is separate from the underlying claim of negligence, and 4) concerned an issue that is effectively unreviewable on appeal. Id. We, therefore, will proceed to evaluate the primary substantive issue appellant raises. Appellant contends that the circuit court erred in deciding that he is not subject to public official immunity in his capacity as a special police officer.

He explains that a special police officer has been deemed by the courts of Maryland to possess police powers and is considered under the law to be a peace officer. Huger v. State, 285 Md. 347, 352 , 402 A.2d 880 (1979). Because special police officers perform the functions of police officers within their approved jurisdictions, appellant argues that they, too, are entitled to a qualified public immunity. Appellees, on the other hand, assert that, because special police officers function solely in the interest of their employers, they are not public officials and, therefore, do not qualify for immunity.

We begin our discussion with an explication of the authority of a special police. A special police officer is not a private security guard. While a special police officer may be employed as a private security guard, he or she is separate and distinct, and the State entrusts him or her with certain ¹⁷⁰ powers not available to a regular private security guard. The Court of Appeals has said, “The statutory powers and duties of a ‘special policeman’ [or policewoman] readily distinguish him [or her] from a ‘security guard’ or a ‘private guard.’ ” Huger, 285 Md. at 353 , 402 A.2d 880 .

The Governor is authorized to appoint special police officers who receive a commission designating the property the commission covers or other purpose for which the commission is issued. Art. 41, § 4-901. Those who may apply for a special police commission include: 1) any State or agency thereof with a property interest in this State, 2) any municipal county or governmental body of the State with a property interest to protect, 3) any college, university, or public school system with an interest to protect its property or its students, and 4) “any firm, corporation, partnership, sole proprietorship, or other entity existing and functioning for a legitimate and legal business purpose, in order to protect its business property.” Art. 41, § 4-904 (1997 Repl.Vol.). Additionally, the statute governing special police officers confers upon them the following powers and duties: Each person appointed under this subtitle as a special police officer is charged with the protection and preservation of peace and good order on the property described in the application for the commission.

The officer has the powers to arrest persons who trespass or commit offenses thereon. The officer has, and may exercise, the powers of a police officer upon the property described in the application for the commission and may exercise these powers in any county or city of the State in connection with the care, custody, and protection of other property of the requesting authority or other property, real or personal, for which it has assumed an obligation to maintain or protect. [[Image here]] The officer may exercise this power only upon the property of the officer’s employer as described in the application for the commission unless the officer is in active pursuit of an individual for the purpose of immediate apprehension.... ¹⁷¹ Art. 41 § 4-905 (emphasis added). We recently considered whether a police officer had qualified immunity while working as a security guard, Lovelace v. Anderson, 126 Md.App. 667 , 730 A.2d 774 , cert. granted, 355 Md. 610 , 735 A.2d 1105 (1999); however, no cases have directly addressed whether a special police officer is entitled to qualified immunity by virtue of his or her status as a special police officer. In Huger , the Court of Appeals addressed a challenge to the validity of a special police officer’s signature on a criminal charging document.

Huger was arrested, pursuant to a statement of charges sworn out by the special police officer who worked for Giant Food Store and had apprehended Huger after witnessing him shoplifting some delicatessen meat. The Court upheld the validity of the officer’s signature on the statement of charges and, in doing so, conducted an analysis of the powers of special police officers. Huger, 285 Md. at 349-52 , 402 A.2d 880 . A peace officer was defined as “a person charged with the duty ‘to enforce and preserve the public peace,____’ ” Id. at 352 , 402 A.2d 880 (quoting Black’s Law Dictionary (4th ed.

Rev. 1968)). The Court concluded that, “[s]ince a special policeman [or policewoman] may exercise to the full the powers of a police officer in the circumstances here, he [or she] also is a peace officer.” Id. We concluded in Gray v. State, 38 Md.App. 343, 347 , 380 A.2d 1071 (1977), cert. denied, 282 Md. 732 (1978), that the statute expressly provides special police officers with “the powers of a police officer.” That power is limited to “any place in the State (i.e., away from particular property described in the application) but only ‘in connection with the care, custody, and protection of other property ... for which (the employer) has assumed an obligation to maintain or protect.’ ” Id. (quoting Art. 41, § 4-905).

We pointed out in Gray , that it is not the police power itself that is limited, but only when the special police can enforce it. Id. In other words, special police have full police powers in their respective jurisdiction. We further explained that, when enforcing the criminal law, the duties of these special police officers are the same as police officers.

Id. at 348 , 380 A.2d 1071 . After ¹⁷² conducting an evaluation of previous cases construing the special police officer statute, 1 we concluded that these officers possess “a dual identity, being primarily State officers but also agents of their sponsor/employer.” Id. It is clear from the analyses in Huger and Gray that special police officers are deemed to have the full power of a law enforcement officer when they are within their jurisdictions, as defined in the statute. Appellant reasons, therefore, that he is a public