Cunningham ex rel Gaines v. Baltimore Cnty.

Corey Cunningham, on behalf of Kodi Gaines, a minor v. Baltimore County, Maryland, et al., No. 9, September Term, 2023. WAIVER – APPELLATE PRESERVATION A party that receives an adverse ruling from a trial court must appeal that ruling to properly preserve their claim. Generally, when an aggrieved party fails to appeal a claim, that claim is lost and that party is precluded from pursuing it. However, in specific circumstances, when a trial court enters a ruling disposing of all claims and the Appellate Court reverses in toto, reviving those claims, they are resurrected regardless of whether the claim was properly preserved.

QUALIFIED IMMUNITY – FOURTEENTH AMENDMENT Corporal Ruby is entitled to qualified immunity to Kodi’s excessive force claim brought pursuant to the Substantive Due Process Clause of the Fourteenth Amendment. Qualified immunity is proper unless the law “clearly established” that Corporal Ruby violated Kodi’s Fourteenth Amendment rights when he ended an armed standoff with Ms. Gaines at her apartment (with Kodi present) by shooting Ms. Gaines. Because the law was not clearly established at the time, qualified immunity is proper. Circuit Court for Baltimore County Case No. 03-C-16-009435 Argued: December 4, 2023 IN THE SUPREME COURT OF MARYLAND No. 9 September Term, 2023 COREY CUNNINGHAM, ON BEHALF OF KODI GAINES, A MINOR v. BALTIMORE COUNTY, MARYLAND, ET AL.

Fader, C.J., Watts, * Hotten, Booth, Biran, Gould, Eaves, JJ. PER CURIAM Watts, J., dissents. Hotten, J., concurs and dissents. Filed: June 25, 2024 Pursuant to the Maryland Uniform Electronic Legal *Hotten, J., participated in the hearing of the case Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. and in the conference in regard to its decision as an active judge.

She participated in the adoption of the 2025.02.25 opinion as a senior judge, specially assigned. 13:30:13 -05'00' Gregory Hilton, Clerk This appeal comes to us in a challenging posture with a long and tortured procedural history. At the center of the current appeal is petitioner Corey Cunningham’s claim on behalf of his minor child, Kodi Gaines,1 for a violation of Kodi’s right to substantive due process under the Fourteenth Amendment to the United States Constitution, brought pursuant to 42 U.S.C. § 1983 (the “Substantive Due Process Claim”2). Although central now, the parties and the trial court treated that claim as something ranging between a side issue and a non-issue in the lead-up to trial, during the trial itself, and in post-trial motions practice. As a result, Kodi’s Substantive Due Process Claim was not identified to the jury, the jury was not instructed on the standards applicable to that claim, the jury was not specifically asked to reach a verdict on that claim (as distinct from Kodi’s claims under the Fourth Amendment to the United States Constitution), and the claim was addressed only briefly and partially in motions for judgment at and following trial.

That treatment continued in the first appeal, in which the parties—and, as a result, the Appellate Court of Maryland—treated Kodi’s Substantive Due Process Claim as a non-issue. Along the way, the parties’ statements and arguments about Kodi’s Substantive Due Process Claim have often appeared as ships passing in the night, failing to engage on the same terms and resulting in substantial confusion, even in hindsight. 1 For clarity and ease of reference, we will refer to Mr. Cunningham, acting on behalf of his son Kodi Gaines, as “Kodi,” and to his arguments and positions in this case as those of Kodi. 2 For clarity and ease of reference, we will refer to Kodi’s Substantive Due Process Claim in the singular. Although the claim is made in Counts VII and X of the complaint, it is treated as a single excessive force claim. 1 The circuit court rendered the judgment currently on review in favor of the respondents, Baltimore County and Corporal Royce Ruby, the defendants below (the “Defendants”). The court found that the evidence at trial could not sustain a verdict on Kodi’s Substantive Due Process Claim.

Without ruling on sufficiency, the Appellate Court affirmed on two different, independent grounds: (1) that Kodi had waived his Substantive Due Process Claim by not pursuing that claim during the first round of appellate proceedings; and (2) that qualified immunity barred Kodi’s Substantive Due Process Claim. We disagree with the Appellate Court’s decision on waiver but agree that under the standard established by the United States Supreme Court, qualified immunity precludes Kodi’s Substantive Due Process Claim. Accordingly, we will affirm. BACKGROUND A. Legal Framework We begin by identifying the basic legal framework applicable to excessive force claims as they pertain to innocent bystanders.

We do so because the seeming failure of all parties to understand that framework at the trial stage—or if they understood it, the failure to articulate it—is behind much of the confusion that has ensued. As explained in Graham v. Connor, “claim[s] that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other ‘seizure’ of [the] person . . . are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard, rather than under a substantive due process standard.” 490 U.S. 386, 388 (1989). Thus, any claim of excessive force by the subject of a seizure—including 2 a seizure by a shooting—is analyzed as a Fourth Amendment claim.3 Id. And although the Fourth Amendment originally applied only to the United States government, the protections of that amendment were subsequently incorporated as against the states through the Due Process Clause of the Fourteenth Amendment.

Mapp v. Ohio, 367 U.S. 643, 654-56 (1961). The protections of the Fourth Amendment—either independently or through the Fourteenth Amendment’s Due Process Clause—do not, however, extend to bystanders who claim harm from the use of excessive force by a law enforcement officer that was intended for someone else. That is because a “[v]iolation of the Fourth Amendment requires an intentional acquisition of physical control.” Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989). In other words, a Fourth Amendment excessive force claim is available only to a person who an officer intentionally seizes.

Id. at 596-97 . However, some courts have recognized that a bystander who lacks the ability to bring a claim under the Fourth Amendment may be able to pursue an excessive force claim directly under the substantive component of the Fourteenth Amendment’s Due Process Clause.4 See Rucker v. Harford Cnty., 946 F.2d 278, 281 (4th Cir. 1991) (“the substantive 3 The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. 4 The Due Process Clause contains both procedural and substantive protections. “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause 3 protections of the due process clause may” “extend to unintentionally injured bystanders” (internal quotations omitted)). Such claims, if recognized, would not be subject to the “objectively reasonable” test applied to Fourth Amendment excessive force claims, but to the more demanding “shocks the conscience” standard applicable to substantive due process claims.

See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998) (recognizing the shocks the conscience standard). The Due Process Clause of the Fourteenth Amendment thus plays a different role in each type of excessive force claim. For claims brought by the object of a seizure under the substantive protections of the Fourth Amendment, the Due Process Clause of the Fourteenth Amendment is the vehicle by which such protections are applied to the states. Graham, 490 U.S. at 388, 394-95 .

Such claims against state actors are still subject to the Fourth Amendment substantive standard, even though they flow through the vehicle of the Fourteenth Amendment. In contrast, with respect to claims brought by innocent bystanders, the Due Process Clause of the Fourteenth Amendment is the source of whatever of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “Procedural due process ensures that individuals are not subject to arbitrary governmental deprivation of their liberty and property interests by requiring that litigants ‘receive notice, and an opportunity to be heard.’” Johnson v. Md. Dep’t of Health, 470 Md. 648, 686 (2020) (quoting Pickett v. Sears, Roebuck & Co., 365 Md. 67, 81 (2001)). Substantive due process, by contrast, refers “to the principle that there are certain liberties protected by the due process clauses [of Article 24 and the United States Constitution] from legislative restrictions, regardless of the procedures provided, unless those restrictions are narrowly tailored to satisfy an important government interest.” Id. (alteration in original) (quoting Allmond v. Dep’t of Health & Mental Hygiene, 448 Md. 592, 609-10 (2016)). 4 substantive protections may exist under the federal Constitution.5 Such claims are pure Fourteenth Amendment claims, subject to the Fourteenth Amendment standard.

Section 1983 of Article 42 of the United States Code is the statutory vehicle that enables plaintiffs to pursue federal constitutional claims against state actors in certain circumstances.6 Thus, excessive force claims brought against state officials pursuant to the United States Constitution are brought as § 1983 claims whether brought by the object of a seizure under the Fourth Amendment (through the Fourteenth Amendment) or by a bystander under the Fourteenth Amendment itself. 5 Although Kodi brought claims under both the federal and state constitutions, his current appeal focuses solely on his claims under the United States Constitution. We presume that is because his Maryland constitutional claims, unlike his federal claims, are subject to the monetary limit on the State’s waiver of sovereign immunity under the Maryland Tort Claims Act, Lee v. Cline, 384 Md. 245 , 266 n.4 (2004), and he is already entitled to recover the maximum available pursuant to that waiver because he prevailed on his battery claim, which is not before us. As a result, we do not have occasion to consider here either: (1) the proper standard for a bystander liability excessive force claim under the Maryland Constitution and Declaration of Rights; or (2) whether any form of immunity would apply to such a claim. 6 42 U.S.C. § 1983 provides, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.] 5 B. Factual Background7 The factual background to this appeal comes from the tragic events of August 16, 2016, when a six-hour standoff between Baltimore County police officers and Korryn Gaines ended with Corporal Royce Ruby shooting and killing Ms. Gaines. Two of the bullets that struck Ms. Gaines subsequently hit and injured Kodi Gaines, Ms. Gaines’s son who was then five years old.

On the morning of the shooting, officers attempted to serve arrest warrants on Ms. Gaines and Kareem Courtney at Ms. Gaines’s residence in Baltimore County. Cunningham v. Baltimore Cnty., 246 Md. App. 630, 640 (2020) (“Cunningham I”). The warrant for Ms. Gaines was for a misdemeanor offense. The officers heard movement inside the apartment, but nobody opened the door when they knocked.

Id. at 641 . After kicking the apartment door open, officers entered the apartment and saw Ms. Gaines seated on the floor with a pistol grip shotgun in her hands. Id. The officers left the apartment and called for back-up.

Id. A hostage negotiation team and a SWAT unit, including Corporal Ruby, were called in, and they took protected positions outside the apartment. A six-hour standoff between Ms. Gaines and the officers ensued. Id.

During the standoff, officers were told that Ms. Gaines had a history of mental illness and that she had been off her medication. Id. at 646-47 . Officers testified that Ms. Gaines acted erratically, sometimes negotiating with officers, at other times threatening them and cutting off contact. Id. at 648-49 , 690 n.41.

Ms. Gaines’s boyfriend 7 We set forth the facts in the light most favorable to Kodi. See Yates v. Terry, 817 F.3d 877, 884 (4th Cir. 2016). 6 attempted to persuade her to allow Kodi to leave the apartment during the standoff, but Ms. Gaines did not respond, and instead instructed Kodi to stay close to her, which he did.8 Id. at 646-49. Through most of the standoff, Ms. Gaines remained in the same location within the apartment, occasionally standing up to stretch her legs while keeping the shotgun pointed at the door. Id. at 650.

Approximately six hours after the standoff began, Ms. Gaines moved to the kitchen, within sight of Corporal Ruby and still in possession of the shotgun.9 Id. According to Corporal Ruby, he observed Ms. Gaines raise her shotgun into a firing position and aim toward the hinge side of the front door, from which she could have hit officers stationed on the other side. Id. at 650-52. Kodi contends that other evidence contradicts that claim.

Among other things, he points out that Corporal Ruby testified that all he could see through his scope were Ms. Gaines’s braids and the barrel of the gun, and that other witnesses testified that more of her body would have been visible had she been aiming the gun as Corporal Ruby contended. Id. at 692-93. Resolving this discrepancy in 8 When the officers arrived, there were at least four people in the apartment: Ms. Gaines, Kodi, Mr. Courtney, and a daughter of Mr. Courtney and Ms. Gaines. Cunningham I, 246 Md. App. at 641 .

Upon the arrival of the back-up officers, Mr. Courtney left the apartment with the daughter. Id. 9 The record does not disclose why Ms. Gaines went into the kitchen. At trial, Mr. Cunningham, Kodi’s father, testified that Kodi had told a therapist that Ms. Gaines was shot when she went to make him a sandwich in the kitchen. Cunningham I, 246 Md. App. at 650 .

The record does not otherwise provide support for that or any other specific theory about why Ms. Gaines was in the kitchen. For purposes of our qualified immunity analysis, we accept Mr. Cunningham’s testimony as true. 7 Kodi’s favor, although Ms. Gaines may have raised her shotgun, she was not aiming it directly toward officers stationed on the other side of the front door. Corporal Ruby, who was by that time “hot” and “frustrated[,]” testified that he fired “a head shot,” aiming high to avoid hitting Kodi, who he knew was somewhere in the kitchen. Id. at 652 .

The shot passed through the corner of the kitchen drywall, struck Ms. Gaines in her upper back, ricocheted off the refrigerator, and hit Kodi across the cheek. Id. at 652-53 . At some point between one and 30 seconds later, Ms. Gaines fired her shotgun. Id. at 653 n.12.

Corporal Ruby led a team of officers into the apartment, when he heard the shotgun go off and being reloaded. Id. at 653 . When he came into the kitchen and saw Ms. Gaines begin to turn the shotgun toward him, Corporal Ruby fired three more rounds into Ms. Gaines. Id.

Ms. Gaines died from the gunshot wounds. Id. Kodi underwent multiple surgeries to remove bullet fragments from his face, id. at 653-54 , and required multiple reconstructive surgeries on his elbow, id. at 654 n.14. C. Procedural Background As our resolution of the first issue in this appeal turns on the procedural background of the case, we discuss that background in some detail. 1.

The Complaint Although the only dispute remaining in this case concerns Kodi’s Substantive Due Process Claim against Corporal Ruby, it originally involved many other parties and claims. In their third amended complaint, plaintiffs Rhanda Dormeus, individually and as personal representative of the estate of Ms. Gaines; Ryan Gaines, Sr., as father of Ms. Gaines; Mr. Courtney, individually and as next of kin to his minor child; and Mr. Cunningham, as 8 father, guardian, and next friend of Kodi (collectively, “Plaintiffs”), filed suit against defendants Baltimore County, Corporal Ruby, and four other officers. Among the twelve counts asserted were wrongful death and a survival action (Counts I and II); claims under Articles 10, 24, 26, and 40 of the Maryland Declaration of Rights based on violations of the Plaintiffs’ rights to freedom of speech and press, freedom from unreasonable searches and seizures, freedom from excessive force, and equal protection of the law (Counts III, IV, V, and VI); claims under 42 U.S.C. § 1983 for violations of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution based on violations of the Plaintiffs’ rights to freedom of speech and press, freedom from unreasonable searches and seizures, freedom from excessive force, and equal protection of the law (Counts VII, VIII, IX, and X); and claims for common law battery (Count XI) and negligence (Count XII). Of particular relevance here are Counts VII and X, both of which alleged § 1983 claims for violating the Plaintiffs’ federal civil rights.

In Count VII, the Plaintiffs sued the Defendants for violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments due to “force that was clearly excessive to the need, and [that] was objectively and subjectively unreasonable.” The count further alleged that the Plaintiffs’ rights were violated because the Defendants acted “in a way that was so reckless and/or irresponsible as to be shocking to the consci[ence].” Notably, Count VII referenced the Fourteenth Amendment in two ways, as among the amendments providing “rights, privileges, and immunities” to the Plaintiffs and as the mechanism through which the substantive protections of other amendments are incorporated against the states. In Count X, Ms. Gaines’s estate and Kodi 9 sued the Defendants for violating the First, Fourth, and Fourteenth Amendments, including their “right under the Fourth Amendment to be secure in their person from unreasonable seizure through excessive force” and their “right under the Fourteenth Amendment to bodily integrity and to be free from excessive force by law enforcement.” The Plaintiffs averred that the Defendants’ use of force was “objectively unreasonable,” was “malicious and/or involved reckless, callous, and deliberate indifference,” and was accomplished “by means of objectively unreasonable, excessive and consci[ence-]shocking physical force[.]” 2. Motion for Summary Judgment Before trial, the Defendants filed a motion for summary judgment in which they argued that there was no dispute as to the facts and they were entitled to judgment as a matter of law. Notably, the Defendants argued that under Graham v. Connor, 490 U.S. 386 (1989), all excessive force claims must be analyzed under the Fourth Amendment’s “reasonableness” standard, rather than the Fourteenth Amendment’s substantive due process standard.

Applying the Fourth Amendment standard, the Defendants argued that Corporal Ruby’s actions were objectively reasonable and that he was entitled to judgment as a matter of law. Alternatively, the Defendants argued that Corporal Ruby was entitled to qualified immunity on the excessive force claims “because his actions did not violate a clearly established constitutional right.” The Defendants also argued that Corporal Ruby was entitled to judgment with respect to Kodi’s claims because Fourth Amendment excessive force claims may be made only by the person intended to be seized and so Kodi, who was 10 not the intended object of the shooting, had no claim for excessive force against Corporal Ruby. In opposing the Defendants’ motion, Kodi argued, among other things, that the motion was necessarily only for partial summary judgment, even though it purported to address all of the Plaintiffs’ claims, because the “Defendants have set forth no law or relevant facts related to any of Plaintiffs’ Fourteenth Amendment Claims.” Kodi argued that the Defendants’ failure to address his Fourteenth Amendment claims at all meant that the court could not rule on them, and they would necessarily survive summary judgment. Although Kodi did not use the phrase “substantive due process” in his summary judgment filings, these arguments plainly referred to his Substantive Due Process Claim.

Kodi further argued that “the use of deadly force against Korryn Gaines and excessive force against Kodi Gaines violated their federal constitutional rights under the Fourth and Fourteenth Amendments,” and that the officers were not entitled to qualified immunity.10 After a hearing, the circuit court granted in part and denied in part the Defendants’ motion. Siding with the Defendants’ view of the applicable legal framework, the court determined that Corporal Ruby’s actions would be addressed under the Fourth Amendment’s objective reasonableness standard and, therefore, the Defendants’ failure to separately address the Fourteenth Amendment was not “persuasive.” On the merits, as relevant here, the court denied the Defendants’ motion as to Counts VII and X. In its ruling, 10 Although Kodi stated in his summary judgment brief that the Fourteenth Amendment’s Due Process Clause “includes both procedural and substantive components,” he identified only the components of a claim for procedural due process. 11 the court mentioned neither substantive due process nor the Defendants’ argument that Kodi lacked a Fourth Amendment claim because he was not the object of a seizure. The case proceeded to trial. 3. Motions for Judgment at Trial and Jury Instructions At the close of the Plaintiffs’ case, the Defendants moved for judgment.

Addressing the Plaintiffs’ excessive force claims as Fourth Amendment claims, the Defendants argued: (1) that Corporal Ruby was entitled to qualified immunity “because he was acting as an officer in his position under the law making a decision which he is allowed to make”; and (2) that Kodi was not the intended object of the seizure and that the Defendants could not be liable to Kodi as a bystander. In response, Kodi argued that it was up to the jury to decide whether the officers were in danger when Corporal Ruby acted and whether his actions were objectively reasonable. Alternatively, Kodi argued that Corporal Ruby was not entitled to qualified immunity because the officer used excessive force in violation of both the Fourth and Fourteenth Amendments. Kodi contended that he could proceed under both constitutional provisions.

He argued that “under the [Fourteenth] Amendment and the [Fourth] Amendment, Kodi can proceed because the law is clear that anyone who is injured by the police if the force was excessive can proceed under the [Fourth] Amendment, and if not, the [Fourteenth] Amendment.” The court denied the motion for judgment as to the § 1983 claims, stating that whether the officers were in danger from Corporal Ruby’s perspective was a fact to be left up to the jury. 12 At the close of all the evidence, the Defendants renewed their motion for judgment. The Defendants continued to argue that the Fourth Amendment’s objectively reasonable test applied to Corporal Ruby’s actions and that Corporal Ruby was entitled to qualified immunity on any Fourth Amendment excessive force claim. The court again denied the Defendants’ motion. When discussing the § 1983 jury instructions, the circuit court stated that it would include an instruction on the Fourth Amendment.

Kodi requested that the court reference both the Fourth and Fourteenth Amendments. When the court refused and articulated its view that the Fourteenth Amendment was just the vehicle by which the Fourth Amendment’s protections applied in this case rather than an independent source of protection, Kodi pressed the issue and again asked that the instruction also mention the Fourteenth Amendment. When the court refused again, Kodi asked the court to replace the specific reference to the Fourth Amendment with a generic reference to the “U.S. Constitution.” The court ultimately agreed to reference just “the amendments to the United States Constitution,” without identifying either the Fourth or the Fourteenth Amendments. Relatedly, Kodi initially argued that the verdict sheet should reference both amendments.

When Kodi subsequently requested that the court modify the sheet to remove references to either amendment, the court agreed. Without referencing any federal constitutional amendment by number, the jury instructions discussed only the Fourth Amendment’s objectively reasonable standard for 13 the excessive force claims.11 The jury instructions did not identify the “shocks the conscience” standard applicable to Fourteenth Amendment substantive due process claims, nor did any party or the court suggest that they should. 11 As relevant here, the jury instructions on excessive force read: The Maryland Declaration of Rights and the Fourth Amendment to the United States Constitution protect persons from being subjected to excessive force. Every person has the right not to be subjected to excessive or unreasonable force. In determining whether the force used was excessive, you should consider: the need for application of force; the relationship between the need and the amount of force that was used; the extent of the injury inflicted; and whether a reasonable officer on the scene, without the benefit of hindsight, would have used that much force under similar circumstances.

You must decide whether the officer’s actions were reasonable in light of the facts and circumstances confronting the officer. The reasonableness of [the] police officer’s actions must be judged objectively from the perspective of a reasonable police officer in the position of the police officer at the time. Factors that should be considered in determining reasonableness include what the officer believed at the time of the incident. 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 uncertain.

Therefore, in examining Plaintiff’s claims, you should look at the situation from the perspective of the police officer on the scene, taking into consideration all the circumstances that you find to have existed at the time as the police officer knew them. However, you do not have to determine whether the police officer had less intrusive alternatives available, for the police officer Defendant need only to have acted within that range of conduct identified as reasonable. As the finders of fact in this case, when considering whether the actions of the police officer were reasonable or unreasonable and excessive, you should consider all of the testimony and evidence in the case, and it is your task to decide the facts of the case where there are competing or disputed renditions of the facts. 14 The jury returned a plaintiffs’ verdict on all counts. The first question on the verdict sheet asked whether Corporal Ruby’s first shot was “objectively reasonable”—i.e., the Fourth Amendment standard for excessive force—to which the jury answered no.12 The jury then answered yes to each of a series of questions asking whether the Defendants violated the rights of Ms. Gaines and Kodi under the Maryland Declaration of Rights and 42 U.S.C. § 1983 (without specifying any particular constitutional amendment), and whether they committed a battery against Ms. Gaines and Kodi.

The jury awarded Kodi more than $23,000 in past medical expenses and nearly $33 million in non-economic damages. The jury made separate awards of damages to each of the other four plaintiffs, ranging from $307,000 to over $4.5 million. The jury declined to award punitive damages against the Defendants under either the Maryland Declaration of Rights or § 1983. The verdict sheet did not ask the jury whether Corporal Ruby’s conduct shocked the conscience of the jurors, nor did any party or the court suggest that it should.

The court further instructed the jury that the three elements required to establish a § 1983 claim were: (1) that the acts were committed under color of state law; (2) that the law enforcement officer who committed the acts “intentionally or recklessly deprived the Plaintiff of a federal right”; and (3) “that the Defendant’s acts were a proximate cause of injuries sustained by the Plaintiff.” With respect to the second element, the court further explained that “[a]n act is intentional if it is done voluntarily and deliberately and not because of mistake, accident, negligence, or other innocent reason,” and that “[a]n act is reckless if done in conscious disregard of its known probable consequences.” 12 The verdict sheet instructed the jury to stop and not proceed further if the jurors found that Corporal Ruby’s first shot was objectively reasonable. 15 4. Post-Trial Motions The Defendants filed post-trial motions, including motions for judgment notwithstanding the verdict (“JNOV”), for a new trial, for remittitur, and for the court to exercise revisory power over the judgment. The Defendants argued, among other things, that Corporal Ruby’s first shot was objectively reasonable and, therefore, that he was entitled to judgment as a matter of law on any excessive force claim. Alternatively, the Defendants argued that Corporal Ruby was entitled to qualified immunity because he did not violate clearly established law.

In addition, the Defendants argued that there was no violation of Kodi’s rights under § 1983 because there can be no Fourth Amendment claim by an innocent bystander who is not the intended object of a seizure and it was “undisputed that Kodi was not the intended target of the shooting[.]” In his opposition, in addition to defending his verdict under the Fourth Amendment, Kodi contended that he had properly pled and proceeded on his Substantive Due Process Claim, which the Defendants had again ignored. Kodi asserted that he had “consistently maintained that [he] can proceed and was proceeding on his § 1983 claims under the Fourteenth Amendment as an independent basis from the Fourth Amendment at the time of trial.” Kodi further argued that under the decision of the United States Court of Appeals for the Fourth Circuit in Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991), an innocent bystander can bring a substantive due process claim under the Fourteenth Amendment if the person was physically injured, regardless of whether the injury was intended. Kodi claimed that his reliance on the Fourteenth Amendment was proper and that the court properly instructed the jury on what Kodi needed to prove to prevail on his 16 § 1983 claim under both the Fourth and Fourteenth Amendments. He noted that the Defendants had failed to object to the jury instructions regarding the § 1983 claim, and, regardless, caselaw required a finding only that Corporal Ruby had acted recklessly or irresponsibly to support Kodi’s Substantive Due Process Claim, which he argued was covered by the jury instructions.

Because evidence presented at trial supported a finding that Corporal Ruby’s actions were reckless, Kodi argued that the evidence was sufficient to sustain the verdict based on the Fourteenth Amendment. In argument on the post-trial motions, the Defendants addressed Kodi’s contention that he had presented a Fourteenth Amendment claim in addition to a Fourth Amendment claim in three ways. First, the Defendants repeated their prior argument that the exclusive analytical framework applicable to an excessive force claim is the objectively reasonable standard under the Fourth Amendment, not the Fourteenth Amendment “shocks the conscience” standard. Second, the Defendants argued that Kodi did not have a Substantive Due Process Claim regardless “because substantive due process protects against agents of the State acting irrationally and arbitrarily,” and there was “no evidence in this case that the actions of Corporal Ruby in any way would amount to being so brutal and inhumane as to shock the conscience of the judicial court.” Third, the Defendants contended that Kodi’s Substantive Due Process Claim “just do[es]n’t appear” in the complaint.

In an opinion that exclusively employed a Fourth Amendment framework to review the Plaintiffs’ § 1983 claims, the circuit court granted the Defendants’ JNOV motion on 17 the basis that Corporal Ruby was entitled to qualified immunity.13 The circuit court did not address either: (1) Kodi’s Substantive Due Process Claim, including the Defendants’ contention that it was not supported by the evidence; or (2) the Defendants’ contention that Kodi had no Fourth Amendment claim because he was not the intended object of the seizure. The Plaintiffs appealed. At this point, it is worth pausing to summarize a few important points as of the time the first appeal was taken. First, for our purposes here, the operative complaint adequately provided notice that Kodi was proceeding on a substantive due process claim.

Counts VII and X of the complaint plainly identified the Due Process Clause of the Fourteenth Amendment as a substantive basis for the Plaintiffs’ claims and alleged that the Defendants’ conduct shocked the conscience. Any complaints about the adequacy of the allegations to support Kodi’s Substantive Due Process Claim should have been addressed in motions practice before trial. Second, although adequately pled, none of the parties focused to any great extent on the Substantive Due Process Claim before the first appeal. The Defendants consistently took, and the court consistently accepted, the position that Kodi did not have a Substantive Due Process Claim.

Kodi raised the claim several times—including in opposing summary judgment, in opposing the Defendants’ motion for judgment at trial, and in opposing the Defendants’ JNOV motion—although never in great detail. Perhaps believing that he had 13 The circuit court also found that if the JNOV ruling were reversed on appeal, a new trial was necessary due to a defective verdict. In Cunningham I, the Appellate Court reversed on that issue. 246 Md. App. 630, 700-02 (2020). 18 a viable Fourth Amendment claim that was subject to a more permissive legal standard, it seems that Kodi was content to focus primarily on the Fourth Amendment. Third, as a result, the jury was never presented with the appropriate standard applicable to Kodi’s Substantive Due Process Claim—whether the conduct “shocks the conscience,” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)—and was never asked whether Corporal Ruby’s conduct met that standard.

Thus, the jury never found that Corporal Ruby violated Kodi’s substantive due process rights. Fourth, although the circuit court never analyzed or ruled expressly on the viability of Kodi’s Substantive Due Process Claim, it entered judgment for the Defendants on all counts, including the § 1983 count. That necessarily had the effect of resolving Kodi’s Substantive Due Process Claim in favor of the Defendants. This last point will be particularly critical to our waiver analysis. 5.

Cunningham I Before the Appellate Court, the Plaintiffs argued, among other things, that the circuit court erred in granting the Defendants’ motion for JNOV based on qualified immunity. Cunningham I, 246 Md. App. at 679 . The Appellate Court affirmed in part, reversed/vacated in part, and remanded for further proceedings. Id. at 706 .

In relevant part, the parties’ arguments and the Appellate Court’s opinion focused exclusively on the Fourth Amendment standard applicable to excessive force claims. As relevant here, the Appellate Court held “that the [circuit] court erred in granting the motion for JNOV, with the exception of its ruling dismissing the § 1983 claims against the County.” Id. The Appellate Court rejected the circuit court’s conclusion that Corporal 19 Ruby did not violate clearly established Fourth Amendment law and so was entitled to qualified immunity. Id. at 694.

Instead, the court held that there were material factual disputes concerning whether Corporal Ruby acted in an objectively reasonable manner in firing the first shot. Id. Consequently, the Appellate Court held that the circuit court erred in invalidating the jury’s finding that Corporal Ruby did not act reasonably. Id.

The Appellate Court therefore reversed the grant of JNOV with respect to the claims against Corporal Ruby and remanded for further proceedings. Id. at 706. Two other aspects of the Appellate Court’s decision in Cunningham I are particularly notable for our purposes. First, the court stated in a footnote that Kodi argued “that the Fourth and Fourteenth Amendment claims regarding Kodi are not properly before this Court because they were not addressed in the circuit court’s opinion.” Id. at 689 n.38.

Because no one else raised Kodi’s Substantive Due Process Claim, and Kodi expressly told the Appellate Court that the claim was not before it on appeal, that court quite reasonably never addressed or considered that claim. Second, the Appellate Court pointed out in another footnote that it was confining its entire Fourth Amendment analysis—the only federal constitutional analysis in which it engaged—to the claims related to Ms. Gaines “because . . . Fourth Amendment rights are personal and cannot be vicariously asserted by the family.” Id. at 690 n.39. Thus, the court observed, the Defendants were correct that Kodi “was an innocent bystander who was not ‘seized’ within the meaning of the Fourth Amendment” and had no claim under that amendment.

Id. Other than in those two footnotes and in relaying the procedural 20 background of the case, the Appellate Court’s opinion did not address Kodi’s § 1983 claims. 6. Proceedings on Remand The Appellate Court remanded the case “to the circuit court for consideration of remaining issues relating to damages. Those issues include, but are not limited to, the damages cap and remittitur.” Id. at 706.

In explaining the scope of its remand, the intermediate appellate court stated that the circuit court could “address the applicability of the damages cap, and if it determines that the verdict remains as it is, an amount that the court found to be excessive, it can address the issue whether a remittitur or new trial is warranted.” Id. at 704. On remand, the circuit court treated the Appellate Court’s use of the phrase “if it determines that the verdict remains as it is” as a recognition that other issues relevant to whether the verdict should remain as it was could still be addressed. One of those issues turned out to be whether the Defendants had a right to argue that Kodi had no Fourth or Fourteenth Amendment claims under § 1983.14 The Defendants continued to argue that Kodi lacked a viable Substantive Due Process Claim. They also argued that (1) even if Kodi had such a claim, Corporal Ruby would be entitled to qualified 14 On remand, Kodi initially argued that the Appellate Court’s decision, which had focused only on the claims related to Ms. Gaines, had not undermined the validity of his judgment, which he argued should stand under both the Fourth and Fourteenth Amendments notwithstanding the deficiency the Appellate Court had identified in his Fourth Amendment claim.

Kodi based that argument on his contention that the Appellate Court had completely reinstated his entire § 1983 claim, which was premised on the Fourth and Fourteenth Amendments, and that the Defendants had waived any argument distinguishing between those amendments. As discussed below, Kodi eventually retreated from that position. 21 immunity, and (2) any Substantive Due Process Claim would fail because the facts of this case were not “a brutal and inhumane abuse of power shocking the consci[ence].” Among other things, the Defendants argued that Corporal Ruby was entitled to qualified immunity on the Substantive Due Process Claim because the law was not clearly established that he violated Kodi’s substantive due process rights. Further, addressing the absence of an objection on their part to the jury instructions for failing to adequately cover a substantive due process claim, they argued that there was never any such claim on which such an instruction was needed. In response, Kodi eventually acquiesced to the fact that he did not have a Fourth Amendment claim.

However, he contended that he pled and argued a Fourteenth Amendment Substantive Due Process Claim. Indeed, Kodi argued that the Appellate Court’s ruling had the necessary effect of upholding the jury’s verdict on his Substantive Due Process Claim. Kodi reasoned that because the Appellate Court did not disturb the jury’s verdict in his favor on his § 1983 claim, while simultaneously observing that he could not rely on the Fourth Amendment, the court must have found that claim supported by the Fourteenth Amendment. To the extent there was any error in proceeding at trial applying only the Fourth Amendment standard, Kodi argued the error was invited because the Defendants had argued, and the court had accepted over Kodi’s objection, that only the Fourth Amendment standard applied to Kodi’s claims.

Kodi acknowledged that the verdict sheet did not differentiate between the amendments and that the jury instructions referenced only the Fourth Amendment’s objective reasonableness standard, but argued that it was the 22 Defendants’ obligation to ask for a different instruction if they thought one was required. He claimed the Defendants had waived that issue by not challenging the adequacy of the jury instructions at trial. Finally, Kodi argued that the Defendants had waived a qualified immunity defense with respect to the Substantive Due Process Claim by failing to raise it previously.15 After a hearing, the circuit court issued a written opinion again entering judgment for the Defendants.16 The court explained that, in its initial JNOV ruling, its determination that Corporal Ruby was entitled to qualified immunity obviated the need to decide whether Kodi might otherwise have a claim under either the Fourth Amendment or the Fourteenth Amendment. The circuit court interpreted the Appellate Court’s decision in Cunningham I as taking qualified immunity entirely off the table,17 thus requiring it to decide, for the first time, the nature and viability of Kodi’s claim. 15 Kodi pointed out that the Defendants had “raised qualified immunity arguments five (5) times previously . . . .

However, Defendants never raised a qualified immunity argument against Kodi Gaines’ Fourteenth Amendment claim.” Kodi acknowledged that this failure was likely attributable to the Defendants’ “false impression that Kodi Gaines’ 42 U.S.C. § 1983 claim had to be decided under the Fourth Amendment objectively reasonable standard,” but argued that it was nonetheless waived. Although Kodi made this waiver argument before the circuit court, he has abandoned it on appeal by not raising it in either the Appellate Court of Maryland or in this Court. 16 By the time the court ruled on remand, all plaintiffs other than Kodi had settled with the Defendants. 17 As discussed below, the Appellate Court did not understand its opinion in Cunningham I to have resolved any issues concerning Kodi’s claims, which it understood had not been adjudicated in the circuit court’s original JNOV decision. See Cunningham I, 246 Md. App. at 689 n.38. The circuit court, believing its initial JNOV decision had adjudicated Kodi’s claims as well as those of Ms. Gaines—at least in part because it treated 23 The court concluded as a matter of law that Kodi did not have a viable § 1983 claim under either amendment.

First, consistent with the Appellate Court’s decision, and as Kodi had by then conceded, the circuit court held that Kodi had no Fourth Amendment claim because he was not the intended object of the seizure. Second, the court held that Kodi had no Substantive Due Process Claim because (1) his injuries were unintentional, (2) mere negligence cannot support a Fourteenth Amendment claim, and (3) the facts elicited at trial did not meet the shocks the conscience standard. Kodi appealed once more. 7. Cunningham II Before the Appellate Court for a second time, Kodi argued that the circuit court erred in entering judgment for the Defendants on his Substantive Due Process Claim.

Among other things, he argued that in concluding that the evidence presented at trial did not meet the Fourteenth Amendment’s shocks the conscience standard, the court improperly relied on Corporal Ruby’s testimony about the shooting and did not recognize competing evidence that created a dispute of fact that was for the jury to resolve. Cunningham v. Baltimore Cnty., No. 378, Sept. Term, 2022, 2023 WL 2806063 , at ¹² (Md. App. Ct. April 6, 2023) (“Cunningham II”). The Defendants argued that Kodi had waived his Substantive Due Process Claim for two reasons: (1) because he had not raised that claim in Cunningham I; and (2) because those claims as being subject to the same standard and so resolved under the same qualified immunity analysis—treated the Appellate Court’s decision as definitively resolving the qualified immunity analysis as to Kodi as well as Ms. Gaines. In our view, although the circuit court’s analysis in its original JNOV decision focused exclusively on the claims related to Ms. Gaines, it applied that analysis to Kodi’s claims as well, and the judgment the circuit court entered necessarily encompassed Kodi’s claims. 24 the jury instructions covered § 1983 claims only under the Fourth Amendment, and there was no jury finding of a violation of Kodi’s Fourteenth Amendment rights.

Id. The Defendants further argued that even if the substantive due process arguments were not waived: (1) the circuit court correctly determined that the evidence presented at trial did not meet the shocks the conscience standard as a matter of law; and (2) Corporal Ruby would have qualified immunity against any claim for excessive force. Id. With respect to the Defendants’ reliance on the jury instructions, the Appellate Court agreed with the Defendants that the instruction on excessive force discussed only the Fourth Amendment’s reasonableness standard and did not cover the Fourteenth Amendment’s shocks the conscience standard.

Id. at ¹²-15. But the Appellate Court agreed with Kodi that the Defendants had waived their right to argue that the jury was improperly instructed by not objecting to the instructions at trial. Id. at ¹⁶. The Appellate Court agreed with the Defendants, however, that Kodi had waived his Substantive Due Process Claim.

Id. at ¹⁶. As a preliminary matter, the Appellate Court observed that the issue presented in Cunningham I was “whether Corporal Ruby was entitled to qualified immunity with respect to a violation of Ms. Gaines’ and Kodi’s Fourth Amendment rights.”18 Id. at ¹¹. The Appellate Court explained that the circuit court had 18 In footnote 38 of Cunningham I, the Appellate Court stated that Kodi had argued that neither his Fourth nor Fourteenth Amendment claims were properly before that court “because they were not addressed in the circuit court’s opinion.” 246 Md. App. at 689 n.38. That may have been a reference to Kodi’s reply brief in Cunningham I, in which he took the position that neither the Defendants nor the circuit court had acknowledged the distinction between his Fourth and Fourteenth Amendment claims at any point and, therefore, any “discussion . . . concerning the distinction between the Fourth and Fourteenth 25 treated all of the § 1983 claims as excessive force claims under the Fourth Amendment and that all parties had presented the claims that way on appeal, with Kodi expressly stating that his Substantive Due Process Claim was not part of that appeal.

Id. Therefore, according to the Appellate Court, the limited issue in Cunningham I was whether the circuit court erred in finding that Corporal Ruby was entitled to qualified immunity on the Fourth Amendment claims. Id. at ¹¹-12. The problem for Kodi, according to the Appellate Court, was that although the circuit court’s JNOV ruling was based exclusively on a Fourth Amendment analysis, the court entered judgment for the Defendants with respect to the entirety of Kodi’s § 1983 claims.

Id. at ¹⁷. The result of the JNOV ruling was therefore to dismiss all claims against the Defendants, including the Substantive Due Process Claim. Id. As a result, to preserve that claim, it was incumbent on Kodi to challenge the circuit court’s entry of judgment on it during the first appeal.

Id. at ¹⁷-18. By failing to do so, Kodi waived the claim and was not entitled to “a second bite at the apple to raise [the Substantive Due Process C]laim in the present appeal.” Id. at ¹⁸. Amendment claims of Kodi Gaines . . . is not before th[e Appellate] Court.” Although Kodi argued there that the distinction between his Fourth and Fourteenth Amendment claims was not properly before the Appellate Court, we have not found anywhere in which he took the position that his Fourth Amendment claim itself was not before the Appellate Court in Cunningham I. Regardless, before the Appellate Court in Cunningham II, Kodi took the position that although his Fourth Amendment claim had been before that court in Cunningham I, his Substantive Due Process Claim had not been. The Appellate Court agreed.

See Cunningham II, 2023 WL 2806063 , at ¹¹. 26 The Appellate Court held, in the alternative, that even if Kodi had not waived his Substantive Due Process Claim, Corporal Ruby would be entitled to qualified immunity on that claim because Kodi had not shown that, at the time of the shooting, “there was clearly established law that Corporal Ruby’s conduct violated Kodi’s substantive due process right as a bystander.”19 Id. at ¹⁹ . The Appellate Court found no precedent from 19 The Appellate Court observed in its opinion that Kodi, “even now, . . . is not vigorously pursuing a substantive due process claim on the merits.” Cunningham II, 2023 WL 2806063 , at ¹⁸. As proof of that, the Appellate Court discussed Kodi’s lack of engagement with the Defendants’ argument for qualified immunity. Id.

The Appellate Court noted particularly that when qualified immunity was raised at oral argument in that court, Kodi’s counsel “stated ‘that ship has sailed,’ arguing that this Court addressed this issue in Cunningham I.” Id. To the contrary, the Appellate Court stated, it had not addressed the Substantive Due Process Claim at all in Cunningham I, including with respect to qualified immunity. Id. In light of the different understandings of the parties, the circuit court, and the Appellate Court concerning what was resolved in Cunningham I and what was before the circuit court on remand after that decision, we interpret Kodi’s appellate arguments on this issue differently.

As we previously discussed, the circuit court believed that its initial ruling on qualified immunity addressed the entirety of Kodi’s § 1983 claim, without regard to the particular constitutional provision(s) underlying that claim, and that the Appellate Court’s opinion in Cunningham I had rejected qualified immunity as to the entirety of Kodi’s § 1983 claim. As a result, the circuit court’s ruling on remand did not address qualified immunity at all. That ruling did, however, address Kodi’s Substantive Due Process Claim, ruling that the evidence at trial was insufficient to support that claim. In his appellate briefing in Cunningham II, Kodi addressed the circuit court’s ruling on the sufficiency of the evidence for his Substantive Due Process Claim on the merits, arguing at some length that the court erred in focusing only on certain evidence and ignoring other evidence that, according to Kodi, supported his claim.

The Defendants also focused their appellate briefing primarily on the circuit court’s ruling on the merits, although they did argue in the alternative that the Appellate Court should find that Corporal Ruby was entitled to qualified immunity. It was in that context that Kodi answered that the “ship ha[d] sailed” on the Defendants’ qualified immunity claim. Cunningham II, 2023 WL 2806063 , at ¹⁸. 27 any relevant court “establishing that a police officer, who unintentionally shoots and injures an innocent bystander under circumstances similar to this case violates the bystander’s Fourteenth Amendment substantive due process rights.” Id. Accordingly, the Appellate Court determined that even if Kodi had not waived his Substantive Due Process Claim, the court would have rejected that claim based on qualified immunity.

Id. DISCUSSION I. WAIVER Although we agree with most of the Appellate Court’s waiver analysis, we disagree with the final step of that analysis and its outcome. First, we agree with the Appellate Court that even though the circuit court’s ruling on the JNOV motion did not mention Kodi’s Substantive Due Process Claim, or provide any reason for rejecting it, the necessary effect of the circuit court’s entry of judgment for the Defendants on Kodi’s § 1983 claims was to enter judgment on the entirety of those counts, including his Substantive Due Process Claim. Second, we agree with the Appellate Court that if Kodi wanted to preserve his Substantive Due Process Claim, it was incumbent upon him to challenge the circuit court’s entry of judgment encompassing that claim as part of the first appeal.

See Offutt v. Montgomery Cnty. Bd. of Ed., 285 Md. 557 , 564 n.4 (1979) (explaining that a party As it turns out, of course, the Appellate Court believed that qualified immunity on the Fourteenth Amendment claim was still a live issue that had not been resolved by its opinion in Cunningham I. In sum, although we agree that Kodi failed to engage on the issue of qualified immunity before the Appellate Court, based on his position that the issue had already been definitively resolved in his favor, we do not agree that he failed to engage in arguments about the merits of his Substantive Due Process Claim. 28 aggrieved by the trial court’s judgment may take an appeal). Had the Appellate Court affirmed the circuit court in Cunningham I, with or without any discussion of the Substantive Due Process Claim, it is beyond question that the affirmance would have applied to the entire § 1983 claim. And had the Appellate Court reversed the circuit court in Cunningham I only with respect to Kodi’s claim against Corporal Ruby under the Fourth Amendment, it is similarly beyond question that Kodi would not have been able to resurrect his Substantive Due Process Claim.

Third, we agree with the Appellate Court that Kodi’s failure to argue that the circuit court erred in entering judgment against him on his Substantive Due Process Claim in briefing in the first appeal waived his right to have the Appellate Court address that claim and precludes him from arguing in any subsequent appeal that the court’s original JNOV ruling on that claim was incorrect. See Fidelity-Baltimore Nat’l Bank & Tr. Co. v. John Hancock Mut. Life Ins.

Co., 217 Md. 367, 371-72 (1958) (stating that it “is the well- established law of this state that litigants cannot try their cases piecemeal. . . . [T]hey cannot, on the subsequent appeal of the same case raise any question that could have been presented in the previous appeal on the then state of the record, as it existed in the court of original jurisdiction.”). Had the Appellate Court’s judgment in Cunningham I failed to revive the Substantive Due Process Claim or failed to reject the reasoning on which the circuit court had resolved that claim against Kodi in the original JNOV ruling, Kodi would have had no right to object and no legitimate contention that the claim survived. Nevertheless, we do not find Kodi’s current claims to be precluded by waiver for two reasons. First, the Appellate Court’s judgment in Cunningham I revived Kodi’s 29 Substantive Due Process Claim.

The Appellate Court’s decision, much like the circuit court’s decision before it, did not discuss the Substantive Due Process Claim in any way. Nonetheless, in “revers[ing] the grant of JNOV with respect to the claims against Corporal Ruby,” without identifying any carveout, the Appellate Court necessarily included the Substantive Due Process Claim in its judgment. Cunningham I, 246 Md. at 706. The Appellate Court’s opinion in Cunningham I, by its plain terms, revived all of the claims against Corporal Ruby that had been rejected by the circuit court’s grant of the JNOV motion.

Thus, in the same way and to the same extent that the circuit court’s grant of the JNOV motion necessarily rejected Kodi’s Substantive Due Process Claim, the Appellate Court’s blanket reversal of the grant of that JNOV motion (with respect to the claims against Corporal Ruby) necessarily revived Kodi’s Substantive Due Process Claim. Kodi did not have a right to have the Appellate Court revive his Substantive Due Process Claim, but the court did so anyway.20 20 As we have discussed, Kodi adequately pled his Substantive Due Process Claim in the complaint, and although that claim was not a primary focus of his arguments until remand, he never abandoned it. However, Kodi failed to request that the jury be instructed on the law applicable to his Substantive Due Process Claim. As a result, when the jury was asked to rule on whether the Defendants violated Kodi’s rights under 42 U.S.C. § 1983 , the jury was never informed of the standard required to make such a finding with respect to a substantive due process claim.

Before the Appellate Court in Cunningham II, one of the grounds on which the Defendants challenged the verdict was the failure of the circuit court to instruct the jury on the standard applicable to Kodi’s Substantive Due Process Claim. But the Appellate Court ruled against the Defendants on that issue, and the Defendants have abandoned it before this Court. As a result, we do not have occasion here to determine the effect of Kodi’s failure to ask the circuit court to instruct the jury on the standard for the Substantive Due Process Claim and the resulting lack of a jury determination that Kodi satisfied that standard. 30 Second, the argument Kodi failed to make in the first appeal, and so forever waived the right to make in subsequent appeals, is not the same argument he is pursuing here. In the first appeal, the circuit court had entered judgment on Kodi’s Substantive Due Process Claim based on a Fourth Amendment-centered qualified immunity analysis, without testing the evidentiary sufficiency of that claim.

Kodi lost the right to challenge that qualified immunity decision by failing to argue against it. Then, on remand, the circuit court ruled, for the first time, on whether the evidence was sufficient to support the verdict, finding that it was not. Because the circuit court did not rule on the sufficiency of the evidence to support Kodi’s Substantive Due Process Claim until its decision on remand from Cunningham I, Kodi was not barred from challenging that decision before the Appellate Court in Cunningham II. Accordingly, based on the unique and convoluted procedural history of this case, the Appellate Court erred in Cunningham II in holding that Kodi was precluded from pursuing his Substantive Due Process Claim on remand and in this appeal.

II

QUALIFIED IMMUNITY The alternative ground on which the Appellate Court affirmed the circuit court on remand was that Corporal Ruby was entitled to qualified immunity on Kodi’s Substantive Due Process Claim. Cunningham II, 2023 WL 2806063 , at ¹⁹. We agree with the Appellate Court that under the governing standard provided by the United States Supreme Court, Corporal Ruby is entitled to qualified immunity on Kodi’s Substantive Due Process 31 Claim.21 The facts of the accidental shooting of Kodi are tragic and heartbreaking. However, at the time of the shooting, no decision from any appellate court in the country— much less a controlling decision or “a robust consensus of persuasive authority,” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)—had held that an officer who took action similar to that of Corporal Ruby violated the Fourteenth Amendment.

Accordingly, we cannot conclude that the law at the time “clearly established” that Corporal Ruby violated Kodi’s Fourteenth Amendment rights when he ended an armed standoff with Ms. Gaines at her apartment by shooting Ms. Gaines with Kodi present. A full qualified immunity analysis would normally proceed in two steps. First, we would assess Kodi’s underlying argument that the shooting violated his substantive right to due process under the Fourteenth Amendment, taking the evidence at trial in the light 21 Our dissenting colleagues contend that the Defendants waived and/or failed to preserve for appellate review their argument that Corporal Ruby is entitled to qualified immunity with respect to Kodi’s Substantive Due Process Claim. See Dissenting Op. of Watts, J. at 4-8; Dissenting Op. of Hotten, J. at 2-3 n.2.

However, Kodi himself has waived any argument that the Defendants waived or failed to preserve their argument concerning qualified immunity. As noted above, see footnote 15 supra, on remand in the circuit court Kodi argued that the Defendants had waived a challenge to the Substantive Due Process Claim based on qualified immunity. However, in the Appellate Court of Maryland in Cunningham II, Kodi abandoned that claim of waiver. Nor did Kodi raise any issue concerning waiver or preservation in his petition for certiorari or make any such arguments in his briefing or in oral argument to this Court.

We conclude that Kodi made the strategic decision not to raise any threshold claim of waiver or lack of preservation on the part of the Defendants in this Court. In these circumstances, we decline to consider on our own initiative whether the Defendants waived or failed to preserve for appellate review their argument that Corporal Ruby is entitled to qualified immunity on Kodi’s Substantive Due Process Claim. See, e.g., Madrid v. State, 474 Md. 273, 322 (2021) (declining State’s invitation to consider non-preservation issues because the State did not file a cross-petition for certiorari and did not raise the issues in the Appellate Court); State v. Williams, 392 Md. 194 , 227 n.11 (2006) (“By not himself contesting the issue and its waiver ... in a cross- petition, the respondent has not preserved the issue of waiver[.]”). 32 most favorable to him. Yates v. Terry, 817 F.3d 877, 884 (4th Cir. 2016).

Second, if we determined that there was a violation, we would then assess whether qualified immunity was nevertheless warranted because it was not “clearly established” at the time that the shot violated Kodi’s rights. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). The two steps need not be taken in order, although doing so is “sometimes beneficial[.]” Camreta v. Greene, 563 U.S. 692, 707 (2011). Rather, courts have discretion to invert the order and to address only one step or the other, depending on the circumstances.

Pearson, 555 U.S. at 236 . There are also times when it can be better to proceed out of order, such as when “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Rivera-Corraliza v. Morales, 794 F.3d 208, 215 (1st Cir. 2015) (providing examples). Here, we will only undertake the second step of the analysis. We hold that it was not clearly established that Corporal Ruby would violate Kodi’s right to substantive due process under the Fourteenth Amendment when Corporal Ruby shot Ms. Gaines.

Accordingly, Corporal Ruby is entitled to qualified immunity.22 Qualified immunity protects officers who operate in “the sometimes hazy border between excessive and acceptable force”—shielding officers from suit in this gray area, 22 Admittedly, it is sometimes difficult to separate the two-step process. For instance, it “may be difficult to decide whether a right is clearly established without deciding precisely what the existing constitutional right happens to be.” Lyons v. City of Xenia, 417 F.3d 565, 581 (6th Cir. 2005) (Sutton, J., concurring). Additionally, “[i]n some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all.” Pearson, 555 U.S. at 236 . To be clear, however, we do not attempt to analyze the first part of the test for qualified immunity here. 33 even when their use of force is later held to violate a constitutional protection.

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (cleaned up). Thus, officers are entitled to qualified immunity unless the unlawfulness of their conduct as to a particular constitutional right was “clearly established” at the time. Wesby, 583 U.S. at 63 . To satisfy this standard, the law must have been “sufficiently clear” such that “every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731 , 741 (2011) (cleaned up).

This is a high bar, and it typically requires either controlling authority or “a robust consensus . . . of persuasive authority” that gives officers sufficiently specific notice that their conduct violated a particular right. Wesby, 583 U.S. at 63 (internal quotations omitted). Accordingly, the Supreme Court concluded that officers were entitled to qualified immunity where there was only a “hazy legal backdrop[,]” Mullenix v. Luna, 577 U.S. 7, 14 (2015), as well as where there was no specific precedent finding a violation under similar circumstances and a violation was not otherwise “obvious.” Wesby, 583 U.S. at 65 . “Clearly established” does not mean that there must be a case with precisely matching facts or that found a violation in the same specific context. Yates v. Terry, 817 F.3d 877, 887 (4th Cir. 2016); see also Williams v. Strickland, 917 F.3d 763, 770 (4th Cir. 2019) (“In some cases, government officials can be expected to know that if X is illegal, then Y is also illegal, despite factual differences between the two.”).

Nevertheless, the robust consensus of authority at least must have “placed the . . . constitutional question beyond debate” in the circumstances confronted by the officer. Kisela v. Hughes, 584 U.S. 100, 104 (2018). Mere general guidance in the law is not enough because it does not help 34 officials answer the “crucial question” of whether they “acted reasonably in the particular circumstances[.]” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014). Indeed, specificity in the law is “especially important” in circumstances where police officers—as opposed to other officials—must confront and apply “relevant legal doctrine” in the field.

See Mullenix, 577 U.S. at 12 (explaining, in the Fourth Amendment context, the particular importance of specificity because “it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation”). Under these principles, to determine whether Corporal Ruby’s conduct was “clearly established” as unlawful under the Fourteenth Amendment, it is also necessary to consider the requirements of that constitutional standard. As previously explained, bystanders like Kodi, who are not the intended targets of police action, are not protected by the Fourth Amendment and its “objective reasonableness” standard when they are harmed by allegedly excessive police force. See Brower v. Cnty. of Inyo, 489 U.S. 593, 596-97 (1989); Rucker v. Harford Cnty., 946 F.2d 278, 281 (4th Cir. 1991).

Instead, their constitutional protection stems from the due process protections of the Fourteenth Amendment—a different source with a higher threshold. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). In a constitutional sense, these protections are only “residual[.]” Rucker, 946 F.2d at 281 . That is, these safeguards serve as a safety net, affording protection only where no other constitutional amendment supplies the analysis.

See Lewis, 523 U.S. at 842-43 . The Supreme Court has “always been reluctant to expand the concept of substantive due process,” resulting in these residual protections redressing “only the most egregious official conduct[.]” Id. at 842, 846 (internal quotation marks and citations omitted). 35 Police action that injures a bystander will not violate substantive due process rights under the Fourteenth Amendment unless it “amount[s] to a brutal and inhumane abuse of official power literally shocking to the conscience.” Rucker, 946 F.2d at 281 (internal quotation marks and citation omitted). Conduct that is merely “disturbing and lacking in judgment” will fall short, Temkin v. Frederick Cnty. Comm’rs, 945 F.2d 716, 723 (4th Cir. 1991), as will conduct that is merely negligent, Rucker, 946 F.2d at 282 .

Indeed, although it is “possible” that sufficiently “reckless and irresponsible” actions like “shooting into a crowd at close range” could rise to the level of a Fourteenth Amendment violation, see Rucker, 946 F.2d at 282 (speculating about the possibility in dicta), the parties have cited no case decided by the time of the shooting here that had reached such a conclusion. Thus, put in the correct Fourteenth Amendment terms, the relevant inquiry here is whether it was clearly established that Corporal Ruby’s decision to shoot at Ms. Gaines was a brutal and inhumane abuse of official power with respect to Kodi that shocks the conscience. See Mullenix, 577 U.S. at 13 ; Rucker, 946 F.2d at 281 . The difficulty of that standard—and the differences between it and Fourth Amendment “objective reasonableness” cases—forecasts the qualified immunity result here.

The relevant cases generally fall into a few different categories, none of which would put an officer in Corporal Ruby’s position on notice that their conduct would violate Kodi’s Fourteenth Amendment rights.23 23 There are also cases that do not fall neatly into distinct categories, but that nevertheless emphasize the difficulty of making out a violation of substantive due process. For instance, in one extreme example, an officer did not violate a bystander’s Fourteenth 36 First, several cases involved traffic accidents and high-speed police chases, often determining that officers did not violate bystanders’ Fourteenth Amendment rights. See, e.g., Lewis, 523 U.S. at 855 (no violation when officer in pursuit of a motorcycle drove approximately 100 miles per hour in a residential neighborhood and accidentally crashed into the passenger on the motorcycle); Temkin, 945 F.2d at 718, 723 (no violation when officer in pursuit drove approximately 60 miles per hour down a narrow road and crashed into a bystander’s car); Rucker, 946 F.2d at 281-82 (no violation where officers in pursuit fired upon the tires of a vehicle driven by a fleeing suspect and accidentally shot a bystander when, among other things, officers did not know the bystander was in the line of fire). Because the circumstances in these cases were so different from the situation facing Corporal Ruby, these cases would have provided little practical guidance to Corporal Ruby about whether his shot would violate Kodi’s rights.

Simply put, it would be difficult for officers in Corporal Ruby’s position to glean any guiding standards from these cases, except possibly in the most general sense. High-speed pursuits present different considerations from armed standoffs and hostage situations, and, moreover, these cases found no Fourteenth Amendment violations. Indeed, the facts of one case did not even “approach” such a violation. Rucker, 946 F.2d at 281 .

Thus, these cases would not put Amendment rights when he instructed the bystander to assist with a suspect who was struggling with the officer over the officer’s firearm—even when the officer subsequently fled into the bushes, leaving the bystander behind to be shot by the suspect. This was the case because the officer did not “inten[d] to harm” the bystander. Radecki v. Barela, 146 F.3d 1227, 1228, 1232 (10th Cir. 1998). 37 Corporal Ruby on sufficient notice that shooting at Ms. Gaines would violate Kodi’s substantive due process rights. Second, several cases involved shootouts with suspects.

These cases are a somewhat better fit for Corporal Ruby’s situation, because officers involved in shootouts have little or “no opportunity to ponder or debate their reaction” to armed suspects. See Claybrook v. Birchwell, 199 F.3d 350, 359-60 (6th Cir. 2000) (noting that such situations can be “rapidly evolving, fluid, and dangerous predicament[s] [that] preclude[] the luxury of calm and reflective