Clea v. Mayor of Baltimore

ELDRIDGE, Judge. This is a tort action based upon an unlawful search of the plaintiffs’ home by an officer of the Baltimore City Police Department. The questions before us relate to whether Baltimore City and the Police Department are vicariously liable for the police officer’s conduct, and whether the officer is entitled to public official immunity under the circumstances. I. On January 30, 1985, Police Officer Robert Leonard, along with at least seven other armed police officers, forcibly entered the home of the Isaac Clea family and conducted a search of the entire premises pursuant to a search ⁶⁶⁵ warrant.

Officer Leonard had intended to obtain a warrant to search the residence of Alvin Thomas for narcotics. Officer Leonard’s affidavit in support of his application for a warrant, and consequently the warrant itself, stated that Mr. Thomas resided at 2428 East Chase Street in Baltimore City. Actually, however, Thomas resided at 2428 East Eager Street in Baltimore City. The Clea residence was 2428 East Chase Street.

Chase and Eager Streets are parallel to each other, one block apart. Officer Leonard’s affidavit in support of the search warrant also contained a description of the Thomas residence. The Thomas house was described as a two-story row house, with a white crossbuck storm door, a lamp post in the front yard, and no house numbers. The affidavit stated that Mr. Thomas lived in the basement of the house which his aunt, Ethel Dorman, an elderly woman approximately 96 years of age, rented.

The Clea residence did not entirely match the house described in the affidavit. It did not have a lamp post in front; whether it had house numbers is not clear. Furthermore, Officer Leonard did not limit his search to the basement area of the house; instead, he searched the entire premises. No narcotics or other contraband were found.

It is uncontested that Officer Leonard searched the wrong house. Mr. Clea, his wife Mattie Mae Clea, their daughter Marion Willene, son Mathew Wayne, and granddaughter Chantel Lorraine, brought this action in the Circuit Court for Baltimore City to recover for damages allegedly sustained as a result of the wrongful search. The complaint contained counts based on invasion of privacy, defamation, negligence, and violations of Articles 24 and 26 of the Maryland Declaration of Rights. Named as defendants were the Mayor and City Council of Baltimore, the Baltimore City Police Department, the Police Commissioner of Baltimore City, and Officer Leonard.

The defendants Mayor and City Council, Police Department and Police Commissioner, filed a motion to dismiss, asserting various grounds including immunity. The defend ⁶⁶⁶ ant Leonard moved for summary judgment, claiming that he was entitled to a qualified immunity, based upon the absence of malice. Attached to the motion was an affidavit of Officer Leonard. The plaintiffs opposed the motion, submitting an affidavit by Mattie Mae Clea.

After a hearing and consideration of each side’s affidavits, the circuit court granted the defendants’ motions and entered a judgment for costs in favor of all defendants. The plaintiffs then appealed to the Court of Special Appeals, and, before the case was heard by that court, we issued a writ of certiorari.

II

We shall first deal with the plaintiffs’ assertion of liability on the part of the Mayor and City Council of Baltimore, the Police Department, and the Police Commissioner. The plaintiffs’ action against the defendants other than Officer Leonard has been premised entirely on the theory that the Baltimore City Police Department is, for tort liability purposes, an agency of the Mayor and City Council of Baltimore. The Department, the Commissioner, and the Mayor and City Council have all been regarded as local government entities employing Officer Leonard. Moreover, the plaintiffs have not suggested that the Mayor and City Council, the Police Department, or the Police Commissioner were involved or connected in any way with, or cognizant of, the alleged wrongful conduct. 1 Instead, the plaintiffs seek to hold the City, the Department, and the Commissioner vicariously liable for Officer Leonard’s conduct.

The plaintiffs’ position is that the City of ⁶⁶⁷ Baltimore and its agencies, the Police Department and the Commissioner, together constitute an employer liable under the doctrine of respondeat superior. The plaintiffs rely upon a case dealing with the liability of Prince George’s County for the tortious conduct of officers in the Prince George’s County Police Department. See Bradshaw v. Prince George’s County, 284 Md. 294 , 396 A.2d 255 (1979). See, in addition, Cox v. Prince George’s County, 296 Md. 162 , 460 A.2d 1038 (1983); James v. Prince George’s County, 288 Md. 315 , 418 A.2d 1173 (1980). 2 One difficulty with the plaintiffs’ position, with regard to the counts in their complaint not based on alleged constitutional violations, is that Baltimore City and its departments are entitled to a degree of immunity in tort suits.

Prince George’s County, at the time of the Cox, James, and Bradshaw cases, had waived its immunity for tort actions. Baltimore City, however, has not waived its tort immunity. Consequently, as to many types of ordinary tort actions, including those sounding in negligence, Baltimore City is immune with regard to matters classified as “governmental” and not immune with regard to matters classified as “proprietary.” See, e.g., Tadjer v. Montgomery County, 300 Md. 539, 546-551 , 479 A.2d 1321 (1984); Austin v. City of Baltimore, 286 Md. 51 , 405 A.2d 255 (1979), and cases there cited. 3 Police activity, of the type giving rise to the ⁶⁶⁸ instant case, has been classified as governmental and not proprietary. See Cox v. Prince George’s County, supra, 296 Md. at 166-167 , 460 A.2d 1038 ; Wynkoop v. Hagerstown, 159 Md. 194 , 150 A. 447 (1930).

The plaintiffs, treating the case as if Baltimore City had waived tort immunity, and as if Bradshaw v. Prince George’s County, supra, controlled the liability of Baltimore City and its agencies for Officer Leonard’s torts, have not focussed upon whether, under applicable principles of Maryland law, a municipality or county which has not waived immunity would be vicariously liable for tortious conduct like that alleged in this case. A more fundamental obstacle, however, to the plaintiffs’ theory of recovery against the Mayor and City Council of Baltimore, the Police Department, and the Police Commissioner, concerns the status of the Baltimore City Police Department for purposes of tort liability. By Ch. 367 of the Acts of 1867, the General Assembly of Maryland made the Police Department of Baltimore City a state agency; its officials and officers were designated as state officers. Since that time, this Court has 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 (see, e.g., Cox v. Prince George’s County, supra, 296 Md. at 165-170 , 460 A.2d 1038 ), 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. See, e.g., Green v. Balti ⁶⁶⁹ more, 181 Md. 372 , 30 A.2d 261 (1943); Taxicab Co. v. M. & C.C. of Baltimore, 118 Md. 359 , 84 A. 548 (1912); Sinclair v. Baltimore, 59 Md. 592 (1883); Altvater v. the Mayor and City Council of Baltimore, 31 Md. 462 (1869). See also Austin v. City of Baltimore, supra, 286 Md. at 75-76 , 405 A.2d 255 (concurring and dissenting opinion); Kaufman v. Taxicab Bureau, 236 Md. 476, 479-480 , 204 A.2d 521 (1964), cert. denied, 382 U.S. 849 , 86 S.Ct. 95 , 15 L.Ed.2d 88 (1965); Hector v. Weglein, 558 F.Supp. 194, 197-199 (D.Md.1982).

It is true that, by Ch. 920 of the Acts of 1976, the General Assembly transferred the power to appoint the Baltimore City Police Commissioner from the Governor to the Mayor of Baltimore City. At the same time, however, the General Assembly maintained the express designation of the Baltimore City Police Department as a state rather than a local government agency. See § 16-2(a) of the Code of Public Local Laws of Baltimore City (1980, 1985 Supp.), being § 16-2(a) of Article 4 of the Code of Public Local Laws of Maryland. 4 Furthermore, the General Assembly, and not the Baltimore City Council, has continued to be the legislative body enacting significant legislation governing the Baltimore City Police Department. See, e.g., Ch. 265 of the Acts of 1982.

In light of the cases in this Court holding that the Baltimore City Police Department is a state agency for purposes of respondeat superior liability, and the General Assembly’s continued adherence to the Department’s classification as a state agency, it is clear that the Mayor and City Council of Baltimore would not be liable for Officer Leonard’s alleged tortious conduct. As a matter of Maryland law, Baltimore City was simply not Officer Leonard’s ⁶⁷⁰ employer for tort liability purposes. 5 Apart from any other issues, Baltimore City was entitled to a judgment for this reason. On this ground, we shall affirm the judgment in favor of the Mayor and City Council of Baltimore. Moreover, in determining whether the Baltimore City Police Department and its Commissioner might be liable, under the doctrine of respondeat superior, for Officer Leonard’s tortious conduct, the principles governing the liability of state agencies would be controlling.

The State of Maryland (which was not named as a defendant) is, of course, generally immune from tort liability unless that immunity has been waived. See, e.g., Md.-Nat’l Cap. P. & P. Comm’n v. Kranz, 308 Md. 618, 622 , 521 A.2d 729 (1987), and cases there cited. See also State v. Hogg, 311 Md. 446, 458-465 , 535 A.2d 923 (1988).

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 ⁶⁷¹ 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).

Finally, in the Maryland Tort Claims Act, first adopted by Ch. 298 of the Acts of 1981, the General Assembly has waived the State’s immunity in tort actions subject to specified exclusions and limitations. See Maryland Code (1984, 1987 Cum.Supp.), §§ 12-101 through 12-110 of the State Government Article. 6 None of the matters outlined above has been argued, raised, or even mentioned by the plaintiffs at any stage of this litigation. The issue of the Police Department’s and the Commissioner’s liability or non-liability, as state agencies, for Officer Leonard’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. See, e.g., State v. Rivenbark, 311 Md. 147, 160 , 533 A.2d 271 (1987); Foster, Evans and Huffington v. State, 305 Md. 306, 315 , 503 A.2d 1326 , cert. denied, 478 U.S. 1010 , 1023, 106 S.Ct. 3310, 3315 , 92 L.Ed.2d 722 , ⁶⁷² 723, 745 (1986), and cases there cited. For this reason, we shall not disturb the judgment in favor of the Police Department and the Commissioner.

III

Next, we shall address the non-constitutional tort counts against Officer Leonard. These are negligence, defamation, and invasion of privacy counts, as to which the plaintiffs have not claimed a violation of their constitutional rights. In Maryland, a limited category of governmental personnel, including police officers, are entitled under certain circumstances to qualified immunity from tort liability for their negligent conduct. The principle was recently delineated for this Court by Judge J. Dudley Digges in James v. Prince George’s County, supra, 288 Md. at 323-324 , 418 A.2d 1173 , as follows (emphasis in original): “Before a governmental representative in this State is relieved of liability for his negligent acts, it must be determined that the following independent factors simultaneously exist: (1) the individual actor, whose alleged negligent conduct is at issue, is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties.

E.g., Duncan v. Koustenis, 260 Md. 98, 104 , 271 A.2d 547, 550 (1970); State, Use, Clark v. Ferling, 220 Md. 109, 113-14 , 151 A.2d 137, 139-40 (1959); Cocking v. Wade, 87 Md. 529, 541 , 40 A. 104, 106 (1898); Macy v. Heverin, 44 Md.App. 358, 361 , 408 A.2d 1067, 1069 (1979); accord, Schoonfield v. Mayor & City Council of Baltimore, 399 F.Supp. 1068, 1088 (D.Md.1975), aff'd, 544 F.2d 515 (4th Cir.1976); 2 F. Harper & F. James, The Law of Torts § 29.10, at 1638-39 (1956); W. Prosser, Handbook of the Law of Torts § 132, at 988-90 (4th ed. 1971); Restatement (Second) of Torts § 895D (1979); Bermann, Integrating Governmental and Officer Tort Liability, 77 Col.L.Rev. 1175, 1178-79 ⁶⁷³ (1977). Once it is established that the individual is a public official and the tort was committed while performing a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the individual involved is free from liability. See, e.g., Bradshaw v. Prince George’s County, supra, 284 Md. at 302-04, 396 A.2d at 260-61; Robinson v. Bd. of County Comm’rs, 262 Md. 342, 346-47 , 278 A.2d 71, 74 (1971). The rationale underlying this grant of immunity ‘is that a public purpose is served by protecting officials when the act is an exercise of their discretion.’ Bradshaw v. Prince George’s County, supra, 284 Md. at 304, 396 A.2d at 261.” See, in addition, Ashburn v. Anne Arundel County, 306 Md. 617, 621-622 , 510 A.2d 1078 (1986); Cox v. Prince George’s County, supra, 296 Md. at 169 , 460 A.2d 1038 (“a police officer does not enjoy this immunity if he commits an intentional tort or acts with malice”).

It is undisputed in this case that Officer Leonard was a public official and that his tortious conduct occurred while he was performing discretionary acts in furtherance of his official duties. It is further conceded by the plaintiffs that the non-constitutional torts here alleged are all ones falling within the scope of the immunity if Officer Leonard acted without malice. The plaintiffs’ contention regarding these non-constitutional counts is that there was a triable issue as to whether Officer Leonard acted with malice. Thus, accepting the plaintiffs’ concessions, the only question before us on this branch of the case is whether the trial court erred in concluding that, in light of the affidavits of Officer Leonard and Mattie Mae Clea, there was no showing of malice.

Officer Leonard’s affidavit, in support of his motion for summary judgment, stated that the estranged wife of Alvin Thomas had given him the address of 2428 E. Chase Street. Officer Leonard’s affidavit, in pertinent part, was as follows: ⁶⁷⁴ “5. Emma Thomas also reported to the affiant that Alvin Thomas was dealing in drugs and gave to Officer Olin Barber a cellophane bag containing a white powder and that there was contained in a black suit of Alvin Thomas located in the basement where her husband was living, similar cellophane bags containing white powder. The address given to your affiant of Alvin Thomas was 2428 E.' Chase Street, that he lived in the basement at that address, and that he was living with his aunt, described as Ethel Dorman, and further described as an elderly woman, approximately 96 years of age. “6.

The affiant personally went to the scene of 2428 E. Chase Street to observe its characteristics and noticed that it was a two-story row home with a white crossbuck door on the front. “7. The affiant then met with Emma Thomas at the police station in order to prepare an affidavit for a search and seizure warrant of 2428 E. Chase Street. He gave the description of the home as he had personally observed it to Emma Thomas and she acknowledged that the information given, namely a two-story row home with a white crossbuck front door met the description of the premises where her husband was residing. Your affiant also inquired of Emma Thomas of any other occupants of that location to which she replied, that the aforementioned elderly woman would be on the premises. “8.

The affiant also obtained from Emma Thomas a description of her husband, Alvin Thomas, in order to include that information in the affidavit. The affidavit was prepared and shown to Emma Thomas and read by her. She was then taken to the Honorable James Bundy, District Court of Maryland for Baltimore City, where Emma Thomas acknowledged that the information contained in the affidavit was true and correct. The affidavit contained the address of 2428 E. Chase Street.

That premises then became the subject of execution of the search and seizure warrant. ⁶⁷⁵ “9. At all times, your affiant acted and relied upon the information contained in this affidavit, had no personal motive or other reason to conduct the search and seizure of the premises of plaintiffs, other than in the performance of his duties as a police officer for the Baltimore City Police Department. He had had no contact previously with the plaintiffs and harbored no illwill toward them.” In his earlier affidavit accompanying his application for a search warrant, Officer Leonard had also stated that he was informed that Thomas’s residence at 2428 E. Chase Street had a lamp post in front of the house. The affidavit of Mattie Mae Clea, which was the only document relied upon in the plaintiffs’ response to Officer Leonard’s motion for summary judgment, was in its entirety as follows: “MATTIE MAE CLEA, one of the Plaintiffs in the above-captioned case, first being duly sworn, says: “1.

That she is an adult citizen of the State of Maryland, is competent to be a witness, and that the facts submitted in this Affidavit are based upon her personal knowledge. “2. That she is and was at the time of the incident described in the Complaint an owner and occupant of the property known as 2428 East Chase Street in Baltimore City, Maryland. “8. That no one has ever rented the property from her and her husband, and that she does not know of any persons named Ethel Dorman, or Alvin Thomas. “4. That there is at the present time no lamp post in front of her house, nor has there ever been one there to her knowledge. “5.

That at the time of the search of her home, eight (8) or more armed police officers entered the premises, and searched every room in the house, including the main floor and the upstairs floor, as well as the basement. In the course of their search of upstairs rooms, the police officers entered the bedroom of Plaintiff Marion Willene ⁶⁷⁶ Clea, her daughter, while her daughter was asleep in the bed in that room.” Both in the trial court and in this Court, the plaintiffs’ argument, that there was actual malice, has focussed on the absence of the lamp post from the Clea residence and the scope of the search. The plaintiffs seize upon the statement in Officer Leonard’s affidavit supporting the search warrant application that he was informed that Thomas’s residence at 2428 E. Chase Street had a lamp post in front, and upon the statement in Leonard’s affidavit supporting the summary judgment motion that the officer “personally went to the scene of 2428 E. Chase Street to observe its characteristics____” The plaintiffs then point to the affidavit of Mattie Mae Clea, in which she stated that the Clea house at 2428 E. Chase Street had no lamp post in front. From this, the plaintiffs assert (appellants’ brief p. 10): “The Officer had been given a descriptive fact, i.e. the existence of the lamp post right in front of the house, which he obviously could not have personally observed since it was not present.” The plaintiffs then conclude (ibid.): “He knew at that time, in fact, that the information given to him by the informant Emma Thomas was not correct.

Execution by the Police Officer, Defendant Robert Leonard, of a Search Warrant which was based on information he knew to be incorrect, constituted deliberate and intentional performance of an illegal act____ This clearly demonstrates ‘malice’ as defined in Maryland law____” The plaintiffs go on to argue that this conclusion is supported by the fact that the affidavit supporting the search warrant stated that Mr. Thomas lived in the basement of 2428 E. Chase Street, whereas Officer Leonard and the other officers searched the entire Clea house at 2428 E. Chase Street. In our view, the conclusion drawn by the plaintiffs, from the absence of a lamp post and the area searched, is strained. According to Officer Leonard, the suspect’s estranged wife gave him the Chase Street address. Except as to the absence of a lamp post, the Clea house essentially matched the house described by the informant.

It is unreasonable to infer that Officer Leonard acted maliciously ⁶⁷⁷ simply because the house searched differed in one minor respect from the house intended to be searched. The plaintiffs take the position that, whenever there is some minor discrepancy between the description given an officer of a place to be searched and the way that place actually appears, it is reasonable to infer that the officer must have