Cunningham v. Baltimore Cnty.

Cunningham, et al. v. Baltimore County, et al., No. 3461, September Term, 2018, Opinion by Graeff, J. COLLATERAL ESTOPPEL – FINAL JUDGMENT – SUPPRESSION RULING Collateral estoppel bars the re-litigation of an issue decided in a prior adjudication if, in addition to other requirements, “there was a final judgment on the merits in the prior adjudication[,]” and “the party against whom the doctrine is asserted had a fair opportunity to be heard on the issue in the prior adjudication.” Clark v. Prince George’s County, 211 Md. App. 548, 581 , cert. denied, 434 Md. 312 (2013). In a prior criminal case against appellant, the circuit court denied his motion to suppress evidence on the basis that the entry into the home to serve an arrest warrant was lawful. Appellant was later acquitted of the criminal charges. In the subsequent civil litigation regarding the same entry, the court found that appellants were collaterally estopped from relitigating the constitutionality of the entry because the issue had been litigated and decided by the criminal court.

Under these circumstances, however, when a defendant is acquitted of criminal charges and there is no ability to seek appellate review of a pretrial suppression ruling, there is no final judgment for collateral estoppel purposes. Accordingly, because appellant had no opportunity to appeal the denial of his motion to suppress in his criminal case, he was not collaterally estopped from challenging the entry in the civil case. Additionally, the other appellants who were not parties to the criminal case did not have a full opportunity to be heard on the issue, and therefore, collateral estoppel did not preclude them from litigating the constitutionality of the initial entry either. 42 U.S.C. § 1983 – MARYLAND DECLARATION OF RIGHTS ARTICLE 26 – SEARCH AND SEIZURE – ENTRY INTO HOME TO SERVE ARREST WARRANT – REASONABLE BELIEF Law enforcement may enter a private home to serve an arrest warrant only when (1) an officer has reason to believe that “the location is the defendant’s residence”; and (2) the police have a reasonable belief that the subject of the warrant is inside the residence. United States v. Hill, 649 F.3d 258, 262 (4th Cir. 2011).

In this context, the “reason to believe” standard does not rise to the level of probable cause, but instead is akin to reasonable suspicion. Here, the officers had previously confirmed that the warrant subject was the lessee at that address on the warrant and that she had two small children. Police knocked on the door and heard noises indicating that someone was coming up to the door and moving things, a brief baby cry, and the sound of someone coughing inside. In the absence of information to the contrary, it was reasonable for the officers to believe that the warrant subject was inside the residence at the time under these circumstances.

Accordingly, the entry was lawful. 42 U.S.C. § 1983 – MARYLAND DECLARATION OF RIGHTS ARTICLES 24 AND 26 – EXCESSIVE FORCE – QUALIFIED IMMUNITY – DISPUTES OF FACT In determining whether a police officer has used excessive force in violation of 42 U.S.C. § 1983 or Articles 24 and 26 of the Maryland Declaration of Rights, we look to “whether the officers’ actions were ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989); Estate of Blair by Blair v. Austin, No. 35, Sept. Term, 2019, 2020 WL 2847516 , at ⁸ (Md. June 2, 2020) (plurality opinion). When the issue of reasonableness of a police officer’s action or the applicability of qualified immunity “turns upon which version of facts one accepts, the jury, not the judge, must determine liability.” King v. State of California, 242 Cal. App. 4th 265, 289 (2015). In this case, where there was a dispute of fact regarding what happened in the moments leading up to when the officer fired the fatal shot, it was for the jury to determine, based on the evidence, what occurred, and whether, in light of its finding, the officer acted reasonably.

Because the jury decided that the officer’s actions were not reasonable in this case, the circuit court erred in usurping the jury’s finding and granting appellees’ judgment notwithstanding the verdict. APPEALBILITY – FINAL JUDGMENT – CONDITIONAL GRANT OF MOTION FOR NEW TRIAL On appellees’ post-trial motion for judgment notwithstanding the verdict, for a new trial and for remittitur of judgment, the circuit court granted judgment to appellees notwithstanding the verdict, and, should that decision not withstand appellate scrutiny, it conditionally granted a new trial because it found the verdict was inconsistent. Under normal circumstances, “an order granting a new trial is not immediately appealable because it is an interlocutory order” that is not “ultimately reviewable” until “appeal is taken from the final judgment.” Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 57 (1992). In contrast, when the order for a new trial is conditioned on the reversal of the grant of judgment notwithstanding the verdict, the judgment is appealable.

JURY VERDICTS – IRRECONCILABLY INCONSISENT VERDICT – MOTION FOR NEW TRIAL The circuit court conditionally granted appellees’ motion for a new of trial on the basis that the verdict sheet was irreconcilably inconsistent because the jury did not apportion the damage award between the state law claims, which were subject to a damages cap pursuant to the Local Government Tort Claims Act (“LGTCA”), and the federal § 1983 claims, which were not subject to any damages cap. As a result, the court concluded that appellees were entitled to a new trial. A jury verdict is irreconcilably inconsistent “[w]here the answer to one of the questions in a special verdict form would require a verdict in favor of the plaintiff and an answer to another would require a verdict in favor of the defendant[.]” S. Mgmt. Corp. v. Taha, 378 Md. 461, 488 (2003) (quoting S&R Inc. v. Nails, 85 Md. App. 570, 590 (1991)).

Under these circumstances, the verdict sheet was not irreconcilably inconsistent, and circuit court abused its discretion in granting a conditional new trial on this basis. Circuit Court for Baltimore County Case No. 03-C-16-009435 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 3461 September Term, 2018 ______________________________________ COREY CUNNINGHAM, et al. v. BALTIMORE COUNTY, MARYLAND, et al. ______________________________________ Meredith, Graeff, Eyler, James R. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Graeff, J. ______________________________________ Filed: July 1, 2020 Chief Judge Matthew J. Fader did Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document not participate in the Court’s decision to is authentic. designate this opinion for publication pursuant Suzanne Johnson 2020-07-01 15:17-04:00 Md. Rule 8-605.1. Suzanne C. Johnson, Clerk On August 1, 2016, two Baltimore County police officers attempted to serve arrest warrants on Korryn Gaines and Kareem Courtney at Ms. Gaines’ apartment.

The warrant for Ms. Gaines was for failure to appear for a misdemeanor trial, and the warrant for Mr. Courtney was for second-degree assault. The officers testified that they repeatedly knocked on the door, and although they heard movement inside, no one opened the door. They ultimately kicked the door open, and when they entered the apartment, they saw Ms. Gaines siting on the floor with a pistol grip shotgun. The officers retreated and called for back-up.

This led to a six-hour stand-off between Ms. Gaines, positioned in the apartment with her five-year-old son Kodi, and multiple law enforcement officers stationed outside the apartment. Kareem Courtney, Ms. Gaines’ fiancé and Karsyn Courtney, the daughter of Mr. Courtney and Ms. Gaines, left when the police arrived. Corporal Royce Ruby testified that, after hours of requests for Ms. Gaines to put down the gun, she moved to the kitchen, raised her shotgun to firing position, and pointed it toward the officers positioned by the doorway. At that point, Corporal Ruby fired a shot that killed Ms. Gaines, and a bullet exited her body and injured Kodi.

A lawsuit in the Circuit Court for Baltimore County ensued. Rhanda Dormeus (mother of Ms. Gaines), individually and as personal representative of Ms. Gaines’ estate, Mr. Courtney, individually and on behalf of minor child Karsyn Courtney, Corey Cunningham (father of Kodi Gaines), on behalf of minor child Kodi Gaines, and Ryan Gaines (father of Ms. Gaines), appellants, sued Baltimore County, Corporal Ruby, and other law enforcement officers on numerous grounds related to Ms. Gaines’ death. On January 29, 2018, the court granted a motion for summary judgment and dismissed the claims against all defendants except Baltimore County and Corporal Ruby, appellees. On February 16, 2018, after a three-week trial, a jury returned a verdict in favor of appellants, awarding more than $38 million in combined economic and non-economic damages.

Appellees filed a Motion for Judgment Notwithstanding the Verdict, for a New Trial and for Remittitur of Judgment. On February 14, 2019, the circuit court issued an Order and a 75-page Memorandum Opinion that, among other things, granted appellees’ motion for judgment notwithstanding the verdict. In the alternative, the court granted the defendants’ motion for a new trial on the ground that the verdict was defective because it “did not specify the apportionment, if any, of the total jury award between the [s]tate and [f]ederal [c]laims.” The court further found that the non-economic damages awarded were “excessive and shocked the conscience,” and “but for” the other rulings, it “would remit the [jury’s] award.” On appeal, appellants present multiple questions for this Court’s review,1 which we have consolidated and rephrased as follows: 1. Did the circuit court err in granting the motion for summary judgment on the ground that the initial entry into the apartment by the police officers was constitutional? 1 Appellants filed three separate opening briefs, as follows: (1) Ryan Gaines (father of victim Korryn Gaines); (2) Corey Cunningham, on behalf of Kodi Gaines; and (3) the Estate of Korryn Gaines, Rhanda Dormeus (mother of Korryn Gaines), and Kareem Courtney (fiancé of Korryn Gaines) in his personal capacity and as next of kin of Karsyn Courtney.

All three briefs adopt and incorporate the facts, arguments, and requests for relief asserted by the other two. The briefs present a total of eight separate questions presented, which we have consolidated as set forth above. 2 2. Did the circuit court err in finding that appellees’ post-trial motions were timely filed? 3. Did the circuit court err in granting appellees’ Motion for Judgment Notwithstanding the Verdict (“JNOV”) and vacating the damage awards for appellants on the basis that Corporal Ruby was entitled to qualified immunity? 4.

Did the circuit court err in finding that the jury verdict was irreconcilably inconsistent, requiring a new trial if the grant of JNOV was reversed? 5. Did the circuit court err in finding, in the alternative, that remittitur was an appropriate remedy? For the reasons set forth below, we conclude that the court properly granted the motion for summary judgment regarding the initial entry, but it improperly granted the motion for JNOV and, in the alternative, the motion for new trial based on an inconsistent verdict. Accordingly, we shall affirm, in part, and reverse/vacate, in part, the judgments of the circuit court and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND I. August 1, 2016 A. Initial Entry The evidence elicited at trial established that, on August 1, 2016, at approximately 9:00 a.m., Officer John Dowell and Officer Allen Griffin, members of the Baltimore County Police Department, traveled to the Carriage Hill Apartments, 4 Sulky Court, Apartment T-4 to execute arrest warrants for Korryn Gaines and Kareem Courtney. The officers had a bench warrant for Ms. Gaines, age 23, for failing to appear for a misdemeanor 3 trial, and an arrest warrant for Mr. Courtney, her fiancé, age 40, for a second-degree assault resulting from an alleged domestic incident involving Ms. Gaines. Ms. Gaines’ apartment was the address listed on both arrest warrants, although Mr. Courtney did not permanently reside there. Officer Griffin testified that, as part of the normal background check procedure, he had visited the rental office the prior week and discovered that Ms. Gaines was the sole lease holder of the apartment.

He also conducted an MVA records check on Mr. Courtney, which showed that Mr. Courtney resided at a different address. When the officers went to serve the arrest warrants, they were not dressed in uniform, but they had badges on lanyards around their necks that were plainly visible.2 They arrived at the address listed on the warrants and located apartment T-4 on the lower- level of the building. Officer Griffin positioned himself on the knob side of the door, and Officer Dowell positioned himself on the hinge side.3 They briefly listened to determine if they could hear anyone inside. Officer Griffin testified that he knocked on the door.

At first, the officers did not identify themselves as police officers. They heard a cough inside the apartment, but no one answered the door. Officer Griffin remained on the knob side of the door while Officer 2 Officer Griffin testified that he was wearing a blue button-down shirt with “blue jeans, boots, my gun, and a ballistic vest on underneath.” 3 When positioned in the hallway, the “knob side” of the door was the right side of the door and the hinge side was the left. The door opened inwards. 4 Dowell exited the building and went out front to the patio to ensure that no one left the apartment through the sliding glass door.

Officer Griffin continued to knock on the door at a volume that Officer Dowell could hear from his position outside. Officer Griffin heard movement inside that sounded like someone coming up to the door, looking out the peep hole, and then walking away. He also heard other movement, such as “things being picked up and moved around.” After hearing this movement, he identified himself as Baltimore County Police and directed the occupants to open the door. He did not state the police purpose.

Officer Griffin then instructed Officer Dowell to get the key to the apartment from the rental office. Officer Dowell did not want to leave the patio door unattended, so he radioed for a nearby patrolman, Officer Kemmerer, to retrieve the key. While Officer Griffin was waiting for the key, he continued to knock and could hear a child crying inside. Officer Kemmerer then arrived and gave the key to Officer Dowell, who returned to the apartment door to give the key to Officer Griffin.

Officer Griffin unlocked and opened the door, but it only opened approximately four inches because a security chain was fastened on the inside of the door. Through the gap, Officer Griffin could see inside the apartment, and he saw a female sitting on the dining room floor. He testified that he recognized her as the subject of the warrant based on a photo they had of Ms. Gaines. He again identified himself as Baltimore County Police and asked her to open the door.

She did not move or respond to his directions. Officer Griffin then attempted to “put his shoulder into the door” to try to break the chain, but it did not move. Officer Dowell asked Officer Griffin to stand aside so he could 5 kick the door open. Officer Dowell kicked the metal door and the chain sprung open.

Officer Griffin entered the apartment with his handgun drawn but held “low ready,” and Officers Dowell and Kemmerer remained in the hallway. Officer Griffin observed Ms. Gaines seated on the floor pointing a shotgun towards him “[l]ike she was gonna shoot.” She told him to “[g]et out.” Officer Griffin, realizing that he had no good cover in the apartment, retreated back to the hallway yelling “[g]un, gun, gun” and “[t]ake cover” to the other officers. Officers Griffin and Dowell positioned themselves on the knob side of the door and Officer Kemmerer moved to the hinge side of the door. They radioed for back-up from additional law enforcement and “held the door” to make sure Ms. Gaines did not attempt to leave while they waited for reinforcements to arrive.

While Officer Griffin was calling for help, Officer Dowell asked Ms. Gaines to put the gun down. She asked to speak to a supervisor. Officer Dowell testified that Ms. Gaines told him that she “just wanted [them] to leave,” and the warrant was fraudulent. Additional law enforcement arrived shortly thereafter and relieved the officers.

Mr. Courtney testified that he was lying in bed that morning with Ms. Gaines, their daughter Karsyn (age 2), and Ms. Gaines’ son Kodi from a previous relationship. Ms. Gaines got out of bed and went to the bathroom. A few minutes after Ms. Gaines left the bedroom, Mr. Courtney heard the apartment door being kicked in. He testified that he did not hear any knocking, and the officers did not announce themselves as police prior to entering.

In reaction to the “boom” of the door being kicked opened, he jumped out of bed, and went into the hallway. He saw the officers 6 in the doorway, and Ms. Gaines standing by the bathroom. He grabbed his clothing, told the children to remain in the bedroom, and went down the hallway to find out what was going on. When the officers saw him, they told him to put his hands up.

He testified that there were two or three officers in the apartment, two in plain clothes and one in uniform, and they had their guns drawn and pointed at him. Mr. Courtney knew they were police officers and told them not to shoot because there were children in the apartment. The officers directed him and the children, who had followed Mr. Courtney down the hallway, out the apartment door, but Kodi broke away and ran back toward his mother, who was still standing outside the bathroom. When Mr. Courtney turned back to try to grab Kodi, he saw that Ms. Gaines was holding a pistol grip shotgun at her side.4 Mr. Courtney tried to convince Ms. Gaines to let Kodi go with him, but Ms. Gaines did not respond to his request.

When Mr. Courtney tried to tell Ms. Gaines that it was the police and “nothing was going to happen to [her],” she told him “they’re going to kill your dumb ass.” He stated that her behavior was abnormal. Unable to convince Ms. Gaines to leave with Kodi, Mr. Courtney voluntarily exited the apartment with Karsyn as directed by police. Mr. Courtney was handcuffed, placed in a squad car, and later transported to the police station.5 4 Mr. Courtney testified that Ms. Gaines had lawfully purchased the shotgun for safety reasons after a break-in occurred at a previous apartment. He stated, however, that he did not have prior knowledge that it was in the house. 5 Mr. Courtney testified that he was released on his own recognizance at approximately 12:30 a.m. the following morning.

The second-degree assault charge was nolle prossed, but he subsequently was indicted on charges relating to CDS found in the 7 B. The Stand-Off Officer Flaherty, a member of the Baltimore County Police Community Action Team (“CAT”), was the first to arrive on the scene in response to Officer Griffin’s call for assistance. At approximately 9:25 a.m., clad in body armor and armed with his rifle, he went to the apartment door and took up position on the knob side of the door, using the brick wall outside of the apartment as cover.6 Officer Kemmerer also was in the hallway with him. Officer Flaherty was instructed by his sergeant not to shoot unless Ms. Gaines charged. From that position, Officer Flaherty could see Ms. Gaines seated cross-legged with the shotgun pointed towards the door, but not raised.

He remained in that position to watch Ms. Gaines for approximately 45 minutes while waiting for the tactical team to arrive. The officers tried to talk with Ms. Gaines during this period of time, but she refused to leave. The Tactical Team (“TacTeam”) arrived at 9:41 a.m. More than 30 armed officers and “counter snipers” took up positions in and around the apartment building.

Ms. Gaines’ mother, Rhanda Dormeus, who arrived on the scene between 9:30 and 10:00 a.m., informed apartment. (State v. Kareem Courtney, Case No. 03K16004299). As discussed in more detail, infra, Mr. Courtney filed a motion to suppress in the CDS case, challenging the initial entry by Officers Dowell and Griffin. The court denied the motion, and he was acquitted of the drug charges. 6 The hallway area had brick walls that Corporal Ruby testified could not be penetrated by a shotgun round. 8 law enforcement that Ms. Gaines had a history of mental illness.

The TacTeam was aware that Kodi was still with Ms. Gaines in the apartment. By 10:30 a.m., at least four armed TacTeam members were positioned in the small hallway area outside of Ms. Gaines’ doorway.7 The TacTeam parked a large command truck outside the building and set up a command post in a nearby church.8 The TacTeam also occupied the neighboring apartment unit, T-3, which shared a wall with the dining room in T-4. The occupants of apartment T-3 remained in the apartment throughout the encounter despite the officers advising them to leave. The team used this apartment as a “staging area” to sit down or use the bathroom while still remaining in close proximity to Ms. Gaines’ apartment.

There were concerns, however, about shots being fired through the joint wall. The TacTeam members attempted to drill holes in the shared wall to insert a fiberoptic scope to see into Ms. Gaines’ apartment or to create an entry port for explosives to breach the wall if necessary, but the wall was too thick. The Hostage Negotiation Team (“HNT”), which arrived shortly after the TacTeam, was able to establish a “good rapport” with Ms. Gaines, and she and HNT team leader 7 The hallway outside Ms. Gaines’ door was a small L-shaped landing area (estimated 32 square feet) with entrances to apartments T-2, T-3, and T-4. The doors to T- 3 and T-4 are along the same wall on the right as you enter the area by going down a short set of stairs, while the entrance to T-2 is on a perpendicular wall, i.e., straight ahead as you enter the space.

The walls in the hallway area are predominantly made of brick. 8 Members of Ms. Gaines’ family, including her parents, Rhanda Dormeus and Ryan Gaines, arrived on the scene, but they were confined to this make-shift command station for questioning. They cooperated with law enforcement and were not permitted to speak with Ms. Gaines at any time. 9 Detective Stagi spoke frequently throughout the day, even laughing back and forth at certain points. HNT member Sergeant O’Neil testified, however, that Ms. Gaines’ behavior became increasingly irrational and paranoid throughout the day. There were times when she would cut off communications but then start talking again.9 At times she stated that she did not want to hurt anyone, but officers testified that, at other times, she threatened to kill them, making statements like: “I have a gun, you have a gun.

The only difference between you and me is I’m ready to die, and you’re not[.]” Ms. Gaines referred to the officers as “devils” and said that, if they entered the apartment, she would “ha[ve] no problem shooting them and killing them.” Despite repeated attempts at negotiations, she remained barricaded inside with Kodi and refused to put down the shotgun for approximately six hours. The stand-off lasted from approximately 9:30 a.m. to 3:30 p.m. At 1:30 p.m., Major Wilson, the incident commander located in the mobile unit, ordered the power be shut off. On this very hot August day, the power was cut at 2:45 p.m., which turned off the air conditioning.

Corporal Royce Ruby, a 10-year member of the TacTeam, arrived on the scene mid- morning. His sergeant informed him on the drive over that the situation had arisen from officers attempting to serve a warrant, that a female was barricaded inside with a shotgun 9 Ms. Gaines cut off contact with the HNT for the final time 15 minutes before Corporal Ruby’s shot. 10 and a child, and that TacTeam members were already stationed at the two exits (the apartment door and the patio door). Corporal Ruby’s initial role was to organize the TacTeam officers to ensure they could safely set up staging areas and operations and to provide information regarding Ms. Gaines’ movement to other specialized teams on the scene. When he arrived, he “suited up” and entered the apartment building.

His gear included a ballistic helmet, ballistic vest, gloves, front and back rifle plates, a Glock 35, and an M6 rifle. He was met on the landing by Sergeant Neral, who informed him that Ms. Gaines was suffering from mental illness and had not been taking her medication for “possibly a year.” Corporal Ruby approached the apartment door. When he looked inside, he “could see Ms. Gaines in the hallway area between the opening to the kitchen and the dining room area.” She was seated with her legs folded underneath her, “where her butt would be on her feet,” with the shotgun “across her legs pointed at the doorway” where the officers were positioned. She remained in this position “throughout the entire event” and “always kept her hand on [the] shotgun.” Although the weapon was not raised to a firing position, it was always pointed at the door.

Corporal Ruby testified that, from his position, Ms. Gaines could have fired through the apartment door within a second.10 Additional tactical officers arrived shortly thereafter and took over the role of coordinating personnel. Corporal Ruby relieved one of the officers at the knob side of the 10 Corporal Ruby testified that, according to the Baltimore County use of force policy, he could have used deadly force “the entire time” he was there. 11 door. He testified that he held that position “pretty much all day,” i.e., approximately five hours, with the exception of a 20-minute break for “water and a pack of crackers.”11 Corporal Ruby testified that, although Ms. Gaines was in the same location throughout the incident, she occasionally would stand up to stretch her legs, but she kept the shotgun pointed at the door when she stood. He was aware that Ms. Gaines was messaging and live-streaming on Facebook throughout the day using her cell phone.

On multiple occasions, she would give the phone to Kodi, who would then come closer to the door, but Corporal Ruby was unable to grab him without making any sudden movements. Within approximately 30 seconds, Ms. Gaines would yell for Kodi to come back to her side. Other than these occasions, Kodi was positioned in front of his mother or slightly to her left throughout the day. The stand-off continued until approximately 3:30 p.m., when Ms. Gaines moved to the kitchen.

Mr. Cunningham testified that Kodi told a therapist that his mother was shot when she went to fix him a peanut butter and jelly sandwich in the kitchen. Corporal Ruby testified that Ms. Gaines suddenly moved to the kitchen and raised the shotgun to a firing position pointed towards the officers on the hinge side of the doorway. Corporal Ruby described what happened as follows: [I]t’s right toward the end, almost at the end, and Kodi went into the kitchen. I hadn’t observed it all day.

In my head I’m thinking, 30 seconds, a minute. I said to the team, I said, “This is different, she’s not calling him back. She’s 11 Major Wilson, a superior officer located in the command truck during the stand- off, testified that normal barricades tend to last four to six hours, and after that time, officer fatigue can become a concern. He stated that, because they were approaching the six-hour mark, he had begun to coordinate relief for the officers (including a cooling truck) when the shot was fired. 12 not calling him back.

All day 30 seconds to a minute and he is called back in front of her, this time nothing.” A minute, two minutes, three minutes. Also, I’m getting more movement from her now in this one small period of time than I have all day. She’s standing up, she’s going right back to that seated position, standing up again. Her feet are moving a lot.

I told them, “Something is about to happen. This is different.” Then all at once she moved from the position in the hallway into the entrance to the kitchen from the hallway. Now, when she moved, the barrel stayed pointed at the open door, the barrel never went into the kitchen. Just prior to Ms. Gaines’ move into the kitchen, Corporal Ruby was still on the knob side of the door, Officer Callahan was on the hinge side, Sergeant Stephan, Officer Artson, and Sergeant O’Neil were on or at the top of the nearby hallway steps, and Officer McCampbell, Officer Pierce, and Detective Stagi were just inside the doorway of apartment T-3.

All officers in the brick-lined hallway were armed and wearing body armor designed to stop projectiles such as shotgun rounds. In response to Ms. Gaines’ relocation, Corporal Ruby moved from his long-held position at the knob side of the T-4 apartment door to the opening of apartment T-2, which provided additional stability for his M6 rifle and a direct line of sight to the kitchen. He testified that Ms. Gaines’ change of position into the kitchen gave her a better angle on the officers on the hinge side of the door, so he told those officers to “[t]uck in.” Officer Callahan took a “very, very small step backwards” from the hinge side of the door toward the door of apartment T-3, where the others were located, and he tucked his arms in closer to minimize his profile. The officers in the doorway of apartment T-3, which was only a few feet from the hinge side of Ms. Gaines’ door, also stepped back slightly further inside the foyer of T-3. 13 Officer Callahan testified that he still felt exposed in this revised position but moving any further back would cause him to lose sight of the section of the apartment he was responsible for covering.

Corporal Ruby testified that, although Ms. Gaines would not have a direct shot at Officer Callahan in his new position, his concern was that a bullet would come through the open door, ricochet off the brick walls, and harm officers on the hinge-side of the doorway. Corporal Ruby testified that, when Ms. Gaines moved into the kitchen, her shotgun was “low ready.” Subsequently, however, in a “staggered or incremented” fashion, she raised the shotgun up to the firing position toward the open door where the hinge side officers were positioned. Although Corporal Ruby was the only officer who could see Ms. Gaines, he alerted the other officers that she was aiming the gun at the hallway. Corporal Ruby testified that he told Detective Stagi: “She’s got to put that gun down because I’m seeing it come up.” Detective Stagi then began yelling at her and “begging her” to put the gun down.

Sergeant O’Neil testified that he heard Corporal Ruby say: “She’s raising the gun.” Sergeant Stephan and Officer Callahan also testified that, just prior to the shot, Corporal Ruby announced that Ms. Gaines’ weapon was pointed in the direction of the hallway. Law enforcement notes from the mobile command unit described her behavior in the kitchen as “[h]ighly aggitated” [sic] and that she was “screaming” at the officers that she would shoot. Corporal Ruby testified that, through the scope of his M6 rifle, from his position in the doorway of apartment T-2, he could see only the barrel of the shotgun and the long braids of Ms. Gaines’ hair. Fearing for officer safety, he fired “a head shot,” aiming high 14 to avoid hitting Kodi, who he knew was in the kitchen, although he did not know exactly where.

The shot was taken from Corporal Ruby’s position in the doorway of apartment T- 2, through the open apartment doorway of T-4, through the corner of the kitchen drywall, and it struck Ms. Gaines in the kitchen. After he fired his shot, Corporal Ruby saw Ms. Gaines’ shotgun move and discharge once.12 The team, led by Corporal Ruby, entered the apartment. Corporal Ruby went toward the left entrance of the galley kitchen, the one from the dining room where Ms. Gaines had been throughout the day. Officer Callahan moved to cover the right kitchen entrance, which was next to the living room.

Corporal Ruby testified that he was “about one or two steps” into the room when he heard the sound of the shotgun being reloaded, saw the blast go off, and heard the shotgun being reloaded a second time.13 Corporal Ruby stated that he was then able to see Ms. Gaines, who saw him too and “[brought the] shotgun around,” so he “fired three rounds center mass into Ms. Gaines.” Ms. Gaines then spun around and slumped in a seated position against the cabinet with her hands off the shotgun. Corporal Ruby grabbed the weapon and placed it outside the kitchen doorway on the floor. Meanwhile, Kodi had run from the kitchen toward the living room area, where Officer 12 There was conflicting testimony about whether Ms. Gaines’ first shot was immediate or if there was a pause. Corporal Ruby and Officer McCampbell both testified that Ms. Gaines immediately fired a round after Corporal Ruby’s shot (implying that her hand had been on the trigger with the safety off), but other officers testified that there was a pause of approximately 30 seconds, the team entered the apartment, and then Ms. Gaines fired for the first time. 13 The galley kitchen area had two entrances, one from the dining room (where Ms. Gaines was positioned throughout the day) and a second from the living room. 15 Callahan grabbed him, sat him down in the living room, and then brought him outside for medical attention.

Corporal Ruby’s first shot mortally wounded Ms. Gaines, and it is the only shot at issue on appeal. The bullet entered her back on the left upper side, perforated the left side of her rib cage, her left lung, the thoracic spine, the right lung, the right side of her rib cage, and then exited the right side of her chest. After the bullet struck Ms. Gaines, it ricocheted off the refrigerator and hit Kodi across the cheek. Kodi underwent multiple surgeries to have the bullet fragments removed, and the wound later became infected.14 II.

Procedural History On September 13, 2016, Rhanda Dormeus (on behalf of Ms. Gaines’ estate, and in her individual capacity as Ms. Gaines’ mother), Kareem Courtney (on behalf of his minor child Karsyn Courtney), Corey Cunningham (on behalf of his minor child Kodi Gaines), and Ryan Gaines (Ms. Gaines’ father) filed a complaint in the Circuit Court for Baltimore County against Corporal Ruby and Baltimore County alleging wrongful death, a survival action, and violation of rights under the Maryland Declaration of Rights. The complaint was amended on September 21, 2016, to add two additional claims. It was amended a second time on October 11, 2016, to add Officers Dowell and Griffin as defendants. On 14 One of Corporal Ruby’s subsequent rounds also ricocheted and hit Kodi in the back of his elbow, which also required multiple reconstructive surgeries.

There was extensive trial testimony about the physical and mental trauma that Kodi suffered as a result of this incident. 16 November 14, 2016, it was amended a third time to add two more defendants (Captain Latchaw and Major Wilson), to include additional claims, and to add Mr. Courtney as a plaintiff in his individual capacity.15 The third amended complaint listed the following claims against the various defendants: Count I Wrongful Death pursuant to Md. Code Ann. Cts. & Jud. Pro. § 3-904(a) (Against all Defendants) Count II Survival Action (Against all Defendants) Count III Violation of Maryland Declaration of Rights Articles 10, 24, 26 and 40 (Against all Defendants)[16] Count IV Maryland Constitution—Deprivation of Medical Treatment (Against Baltimore County and Corporal Royce Ruby) Count V Violation of Maryland Constitution—Bystander Liability (Against all Defendants) Count VI Violation of Maryland Constitution—Illegal Entry (Against Officers Griffin and Dowell) Count VII Civil Rights Claim pursuant to 42 U.S.C. § 1983 alleging search of Ms. Gaines apartment, excessive force as to Kodi Gaines and Korryn Gaines, and failing to provide medical 15 Major Wilson and Captain Latchaw, superior officers at the scene of the stand- off, were added for their role in the alleged suppression of speech after they ordered a request for Facebook to shut down Ms. Gaines’ social media account during the stand-off because she was live-streaming the incident. This claim was dismissed at the summary judgment stage and is not an issue on appeal. 16 The Maryland Declaration of Rights Articles 10 and 40 establish certain freedom of speech rights, Article 24 establishes due process rights, and Article 26 addresses warrantless searches and seizures. Md. Const.

Decl. of Rights, art. 10, 24, 26, 40. 17 attention (Against all Defendants personally and individually)[17] Count VIII Peace Officer Liability pursuant 42 U.S.C. § 1983 (Against Corporal Royce Ruby) Count IX Municipal Liability pursuant to 42 U.S.C. § 1983 (Against Corporal Royce Ruby and Baltimore County) (Monell[18] claim) Count X Excessive Force and Violation of Freedom of Speech in Violation of the First, Fourth and Fourteenth Amendments (Against all Defendants personally and individually) Count XI Battery (Against Corporal Royce Ruby) Count XII Negligence (Kodi Gaines against All Defendants) On December 22, 2017, as discussed in further detail, infra, the defendants filed a motion for summary judgment arguing that there was no dispute as to the facts and that 17 42 U.S.C § 1983 states, in 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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. Notably, § 1983 does not create substantive rights, but instead, it provides “a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 , 749 n.9 (1999) (Souter, J., concurring in part) (quoting Baker v. McCollan, 443 U.S. 137, 140 , 144 n.3 (1979)). 18 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). 18 they were entitled to judgment as a matter of law. On January 29, 2018, the circuit court granted the motion as it pertained to all defendants for counts IV, VI and IX, and it dismissed the counts against all defendants except Corporal Ruby and Baltimore County for counts I, II, III, V, VII, X, and XII.

The motion for summary judgment was denied as to counts VIII and XI, which had been brought against only Corporal Ruby. The trial against Corporal Ruby and Baltimore County began on January 30, 2018, and it lasted for three weeks. More than 25 witnesses testified regarding the events that occurred on August 1, 2016, including the parties, medical professionals, ballistics and crime scene experts, family of Ms. Gaines, and other law enforcement officers on the scene. Dr. Tyrone Powers, appellants’ use of force expert, testified that Corporal Ruby’s use of force was “excessive and unnecessary,” and in violation of the department’s policy because there was not an immediate threat of death or serious bodily injury at the time Corporal Ruby took the first shot.

In support, Dr. Powers noted that Corporal Ruby did not state in his initial report that he was in imminent danger, but instead, he wrote that he was concerned for the officers on the hinge side of the door. Other officers, however, indicated that no one was at the hinge side of the door. Dr. Powers also noted that Corporal Ruby said that all he saw was the shotgun barrel and braids from Ms. Gaines’ hair, but other witnesses, including appellees’ expert, Mr. Key, testified that, if she had been pointing the gun at the hinge side of the door, her hands and another part of her body would have been exposed. Accordingly, based on Corporal Ruby’s testimony, that meant that Ms. Gaines could not have been pointing the gun at the hinge side of the door, and therefore, no one was subject to an imminent threat of death or 19 serious bodily injury when the shot was taken.

Dr. Powers testified that there was no rush to bring this situation to an immediate end, and based on his conclusion that there was no threat of death or serious bodily injury to the officers, the situation was “inconsistent” with the use of deadly force. Dr. Powers also relied on the autopsy report to support his conclusion that Ms. Gaines was behind the wall and not pointing the shotgun toward the hinge side of the door. He stated that the fact that Ms. Gaines was shot in the back was consistent with the theory that she was not pointing the shotgun at the door. Dr. Powers disputed Corporal Ruby’s testimony that he saw her raise the shotgun toward the hinge.

He initially stated that he was not commenting on Corporal Ruby’s credibility, and Corporal Ruby may have seen the shotgun raise up, but he subsequently stated that it was not his belief that Ms. Gaines was raising her weapon. In any event, he testified that the shotgun was not pointed toward the hinge “nor was it putting any officer in immediate threat of danger or serious bodily harm.” Creo Brady, Ms. Gaines’ cousin, testified that he spoke with Corporal Ruby right after the incident. He testified that Corporal Ruby told him his justification for the shot was because he was “hot” and “frustrated.” Charles Key, appellees’ expert in the use of force, police training, policy and procedures, firearms, incident reconstruction, crime scene analysis and ballistics, testified that Corporal Ruby’s use of force was objectively reasonable and consistent with accepted standards of police policy and training because the raised shotgun presented an immediate deadly threat given the circumstances. He testified that, if Corporal Ruby reasonably 20 believed that Ms. Gaines was raising the shotgun, he would have had “no choice but to use lethal force to resolve it.” That Kodi was injured did not change the analysis of whether the shot was reasonable because Corporal Ruby made reasonable efforts to prevent injury to Kodi.

Mr. Key testified that, for Ms. Gaines to have been pointing the shotgun at the hinge side of the door, her hands would have been exposed beyond the kitchen wall. Counsel suggested that this was inconsistent with Corporal Ruby’s testimony that he could only see Ms. Gaines’ braids and the barrel of the shotgun. Mr. Key stated, however, that an officer in Corporal Ruby’s situation would be trained to look at the weapon and not at her hands when she was holding the weapon. Mr. Key also testified that, based on the trajectory of the bullet as it entered and exited her body, she could have been aiming the shotgun at the door.

With respect to the fatal shot, Corporal Ruby testified that he fired “because there was no choice anymore,” and Ms. Gaines’ “shotgun was raised up into a firing position.” He stated that the new angle she achieved from the kitchen to the officers in the hallway would have been “devastating to those officers in the entire inside area and myself.” His concern was that Ms. Gaines would shoot through the apartment doorway and the bullet would ricochet in the brick hallway, potentially harming any of the officers positioned there. On cross-examination, counsel noted that Corporal Ruby had not mentioned a concern for ricocheting rounds in his initial statements or deposition. Corporal Ruby agreed that he did not mention potential ricocheting in these statements. Counsel stated 21 that, despite Corporal Ruby’s testimony that he took the shot because he feared for officer safety, Officer Artson, Sergeant Stephan, Officer O’Neil, and others testified during their depositions that they were safe in their positions just prior to Corporal Ruby’s shot.19 Corporal Ruby responded that the officers in the hallway area were not safe, and they were all in danger of serious injury or death.

At the end of appellants’ case, appellees made a motion for judgment, arguing, inter alia, that Corporal Ruby was entitled to qualified immunity because it was objectively reasonable for him to fire the initial shot. The circuit court denied the motion, in part because “whether Officer Callahan was in danger from Corporal Ruby’s perspective is a fact that has to be left to the jury.” At the close of all the evidence, appellees renewed their motion for judgment. After hearing argument, the court again denied the motion, stating as follows: The Court is not persuaded that qualified immunity applies for this reason, it’s an issue of fact. As pointed out in the Plaintiffs’ – the Defense seems to suggest that the trier of fact, the jury, is duty bound to accept what Officer Ruby testified to, and that’s just not the way it is.

There’s been evidence in this case that the Plaintiff could argue that in spite of Officer Ruby’s 19 Officer Artson testified at his deposition that he was not in danger on the staircase. At trial, however, he clarified that he was referring to danger from direct line of fire, and that he felt he was in danger from potential ricocheting bullets. Sergeant Stephan testified at his deposition that he did not move from his location when Corporal Ruby directed the officers to “get back” because he felt he was “safe.” At trial, he testified that he did not move because he felt he was “protected from direct fire.” Officer O’Neil testified at his deposition that that the hallway outside the apartment was a “safe location.” At trial, however, he testified that it was the “safest possible” location. Officer Callahan’s deposition testimony was that he felt safe after he “tucked in” by the door.

In response to being confronted with this testimony at trial, he stated that the question was asked within the context of whether he was standing, sitting, or kneeling, and he answered that he felt safe standing. He testified at trial that he “absolutely” did not feel safe from Ms. Gaines in his position at the time the shot was fired. 22 testimony – Corporal Ruby’s testimony, that she was not aiming the gun at the hinge side of the door. So that is a question of fact that must be determined by this jury. On February 16, 2018, after three hours of deliberation, the jury returned a verdict in favor of appellants and awarded more than $38 million in combined economic and non- economic damages.

The completed verdict sheet provided as follows: 1. Do you find by a preponderance of the evidence that the first shot taken by Corporal Royce Ruby on August 1, 2016 was objectively reasonable? Yes __________ No X * * * 2. Do you find by a preponderance of the evidence that the Defendants violated Korryn Gaines’ rights under the Maryland Declaration of Rights?

Yes X No __________ 3. Do you find by a preponderance of the evidence that the Defendants violated Korryn Gaines’ rights under 42 USC 1983? Yes X No __________ 4. Do you find by a preponderance of the evidence that the Defendants committed a battery on Korryn Gaines?

Yes X No __________ 5. Do you find by a preponderance of the evidence that the Defendants violated Kodi Gaines’ rights under the Maryland Declaration of Rights? Yes X No __________ 6. Do you find by a preponderance of the evidence that the Defendants violated Kodi Gaines’ rights under 42 USC 1983?

Yes X No __________ 23 7. Do you find by a preponderance of the evidence that the Defendants committed a battery on Kodi Gaines? Yes X No __________ (If you answered yes any of questions 2, 3, 4, 5, 6, or 7, proceed to determine the monetary damage if any you reward to) Kodi Gaines A. For past medical expenses $23,542.29 B. Non-economic damages $32,850,000.00 8. In what amount, if any, do you award monetary damages to: Ryan Gaines A. Non-economic Damages $300,000.00 9.

In what amount, if any, do you award monetary damages to: Karsyn Courtney A. Non-economic Damages $4,525,216.32 10. In what amount do you award monetary damages to: Rhanda Dormeus A. Economic Damages $7,000 (funeral expenses) B. Non-economic Damages $300,000.00 11. In what amount, if any, do you award monetary damages to: Estate of Korryn Gaines A. Economic Damages $50,000.00 B. Non-economic Damages $250,000.00 12. Do you award punitive damages under the Maryland Declaration of Rights?

Yes __________ No X 24 13. Do you award punitive damages under 42 USC 1983? Yes __________ No X On March 12, 2018, as discussed in further detail, infra, appellees filed post-trial motions, including a motion for judgment notwithstanding the verdict, remittitur of the verdict, new trial, and a request for the court to exercise revisory power over the judgment. Appellants filed opposition motions on the merits and moved to strike them as untimely.

At a hearing held on July 2, 2018, the circuit court rejected appellants’ motion to strike, and following arguments by counsel, it held the post-trial motions sub curia. On February 14, 2019, the circuit court issued a Memorandum Opinion and Order (“Opinion” or “Order”) granting appellees’ motion for judgment notwithstanding the verdict (“JNOV”) on the basis that Corporal Ruby was entitled to qualified immunity as a matter of law. Accordingly, the complaint against Corporal Ruby was dismissed. The court also dismissed all counts against Baltimore County, dismissed Count V (bystander liability), and vacated the funeral costs awarded to Ms. Dormeus.

In the alternative, the court ruled that, if the JNOV ruling was reversed on appeal to this Court, a new trial was necessary due to a defective verdict. The court made several additional rulings, which will be discussed, infra, as relevant to this appeal. This appeal followed. 25 DISCUSSION I. Motion for Summary Judgment Appellants’ first contention is that the circuit court erred in granting summary judgment on the counts against Officers Dowell and Griffin relating to the initial entry into Ms. Gaines’ apartment. Appellees contend that the circuit court properly granted the motion for summary judgment.

A. Proceedings Below On December 22, 2017, Officers Dowell and Griffin filed a motion for summary judgment asserting, among other things, that they were entitled to judgment as a matter of law on the claims relating to their initial entry into Ms. Gaines’ apartment. Specifically, they argued that Counts VI, alleging a violation of the Maryland Constitution based on an illegal entry, and Court VII, alleging a civil rights violation pursuant to 42 U.S.C. § 1983 on the same ground, were barred by collateral estoppel because Mr. Courtney had unsuccessfully challenged the legality of the search at the suppression hearing in the criminal case against him. In support of this argument, the officers attached to their motion a transcript of the suppression hearing in the prior criminal case. See Imbraguglio v. Great Atlantic & Pacific Tea Co., Inc., 358 Md. 194 , 207–08 (2000) (In ruling on a motion for summary judgment, 26 court may consider transcript of former testimony.).20 The criminal case was based on evidence found during the execution of a search warrant of the apartment after Ms. Gaines’ death, based on Ms. Gaines’ assault of the police officers.

During the course of the search, the officers saw heroin capsules in plain view, and Mr. Courtney was charged with, among other things, possession and distribution of narcotics. Mr. Courtney filed a motion to suppress this evidence, arguing that the search warrant was tainted by the initial illegal entry. At the hearing on the motion, Officer Griffin testified that he had arrest warrants for Ms. Gaines and Mr. Courtney.21 Officer Griffin confirmed that Ms. Gaines was the sole lessee of the apartment. When he and Officer Dowell went to serve the warrants, he repeatedly knocked on the door, identified himself as the police, and heard someone coughing inside.

Both Officers Dowell and Griffin testified that, when serving arrest warrants, they usually do not immediately announce that they have a warrant because people will not answer the door. Officer Griffin testified that he did tell Ms. Gaines and Mr. Courtney that he was there to serve arrest warrants at some point, but he said “it wasn’t at the beginning” when he was knocking, and it may have been after the door was breached. 20 There is no challenge here to the propriety of attaching this transcript or the court’s consideration of it. 21 Officer Griffin testified, as indicated, that the warrant for Ms. Gaines was due to a failure to appear for trial, and the warrant for Mr. Courtney was for a second-degree assault on Ms. Gaines, who advised the police that Mr. Courtney lived with her. Counsel for Mr. Courtney did not, for the purposes of the motion, dispute that he lived at the apartment. 27 As Officer Griffin continued to knock, he heard “movement inside the apartment,” such as “shuffling of feet” and someone “walking to the door and then walking away.” He also stated that he heard a baby cry, a short cry that lasted only a few seconds. He knew from the warrant that Ms. Gaines had two small children, and he expected that someone would be in the house with the baby.

Officer Griffin testified that he believed that Ms. Gaines and/or Mr. Courtney were inside the apartment. The circuit court denied the motion to suppress, noting that an arrest warrant authorizes entry into the home of the subject of the warrant if the officers have reasonable suspicion that the subject of the warrant is in the home. The court noted that there was no dispute that the parties resided together in the home with their child. After the police knocked on the door, they heard shuffling of feet, indicating that someone was there, and they heard a cough and a child cry out.

There was no reason to believe that whoever was there was not one of the subjects of the warrant. Based on the totality of the circumstances, the court found that the police had reasonable suspicion that one or both of the subjects of the arrest warrants were in the home. The officers argued in their motion for summary judgment that, based on the ruling in the criminal case finding that the initial entry was constitutional, appellants were estopped from contesting the constitutionality of the initial entry a second time. Appellants argued that collateral estoppel was inapplicable with respect to the initial entry by Officers Griffin and Dowell for two reasons.

First, they asserted that the denial of Mr. Courtney’s suppression motion was not essential to the judgment in his criminal case, where he 28 ultimately was acquitted of the drug charges.22 Second, they argued that, with respect to the appellants other than Mr. Courtney, they were not parties to the criminal case, and therefore, the initial entry had not previously been litigated with respect to Korryn Gaines, Kodi Gaines, and Karsyn Courtney. Appellants further argued that, although the officers had not discussed the merits of the initial entry in their motion for summary judgment, their position was that the initial entry was illegal. They relied on United States v. Hill, 649 F.3d 258 , 266–67 (4th Cir. 2011), which they asserted stood for the proposition that, to have a reason to believe a suspect is in the home to enter a home to execute an arrest warrant, the police cannot rely solely on an unidentified noise coming from the apartment. Appellants argued that the entry was illegal because the police entered the apartment without (a) a search warrant, (b) knocking and announcing their presence, or (c) a reasonable belief that Ms. Gaines and Mr. Courtney were home.23 On January 29, 2018, the day before trial was scheduled to begin, the circuit court granted the motion for summary judgment.

The court stated that the legality of the entry into Ms. Gaines’ apartment was fully litigated in Mr. Courtney’s criminal case, and that 22 The State also charged Mr. Courtney in connection with the gun in the apartment, but it nolle prossed those charges. 23 In the motion, appellants asserted that they disputed the facts set forth in the officers’ motion, specifically, that Officer Griffin repeatedly knocked on the door and identified himself as police prior to kicking in the door. Appellants stated that Mr. Courtney asserted in his deposition, which was attached to the motion, that he was woken up by a loud “boom” of the front door being kicked open, and that Ms. Gaines “had just come from the bathroom when she had heard it.” 29 court found it was lawful. Although Ms. Gaines was not a party to that litigation, the court stated that the legality of the entry was addressed by the court in the criminal case. The circuit court in this case agreed that, under the circumstances here, where the officers had an address on the warrant and verified the warrant with the apartment rental office, they had more than “just mere noises” inside the house, and the officers had a reasonable belief that the subjects of the warrant were home.

As a result, the court granted the motion with respect to the entry, stating: Count 6, Maryland constitutional unlawful search and seizure, that’s granted. This Court does not find that there was an unlawful search and seizure. That matter has been litigated as -- as previously explained. Count 7, civil rights under 42 [USC] 1983 as to all Defendants, including the search and seizure of the apartment, excessive force as to Ms. Gaines, as well as Kodi Gaines, failing to provide medical attention, it’s granted to everyone except Corporal Ruby and Baltimore County as to the excessive force.

As to the suggestion that there’s no legal search and seizure of the apartment, that is granted.[24] B. Parties’ Contentions Appellants contend that the court erred in granting the motion for summary judgment in favor of Officers Griffin and Dowell. They assert that their claim that the entry was unconstitutional was not barred by collateral estoppel based on the contrary 24 The court then granted summary judgment on the other claims, with the exception of Counts I, II, III, V, VII, VIII, X, XI, XII relating to Corporal Ruby and Baltimore County. The court subsequently dismissed the County on Counts VII and X. 30 finding in Mr. Courtney’s state criminal prosecution. They also argue that, based on Hill, 649 F.3d at 266–67, the entry was unlawful, asserting that “the fact that Griffin knocked on the door and heard ‘people moving closer to the door, like people moving around inside’ is of no consequence and does not establish an objectively reasonable belief that the targets of his arrest warrants were present inside.” (Internal citation omitted.) Appellants request that this Court reverse the order granting summary judgment with respect to Officers Griffin and Dowell and remand that issue for a trial on the merits.25 Appellees contend that the circuit court properly granted the motion for summary judgment.

They do not address the issue of collateral estoppel, but they assert that, under the circumstances, the officers reasonably could have concluded that Ms. Gaines and/or Mr. Courtney were in the apartment. In any event, they argue that, because it was not “clearly established” under Fourth Amendment case law that Officers Griffin and Dowell could not enter Ms. Gaines’ apartment to serve the arrest warrants, they are entitled to qualified immunity for the entry. Additionally, they assert that the sounds of the child 25 Appellants state that Mr. Courtney disputed the officers’ testimony that they knocked and announced their presence, presumably relying on Mr. Courtney’s deposition testimony that the police did not knock and announce and that he was not aware they were at the door until he heard the sound of the door being kicked in from the back bedroom. They do not, however, specifically argue, or cite any cases to support an argument, that the court erred in granting summary judgment on this ground.

See James v. City of Detroit, 430 F.Supp.3d 285 , 293 (E.D. Mich. 2019) (Defendants correctly asserted that “an occupant’s inability to hear a knock does not create a fact question as to whether one occurred.”). Rather, appellants focus their argument on the assertion that the entry was unlawful because the police did not have a reasonable belief that Ms. Gaines and Mr. Courtney were inside. Our focus will be limited to that issue as well. 31 crying within the apartment provided exigent circumstances, which allowed the officers to enter the apartment. C. Standard of Review Md. Rule 2-501(f) addresses summary judgment, and it provides, in pertinent part: The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.

The Court of Appeals has described the standard of review for a grant of summary judgment, as follows: On review of an order granting summary judgment, our analysis “begins with the determination [of] whether a genuine dispute of material fact exists; only in the absence of such a dispute will we review questions of law.” D’Aoust v. Diamond, 424 Md. 549, 574 , 36 A.3d 941, 955 (2012) (quoting Appiah v. Hall, 416 Md. 533, 546 , 7 A.3d 536, 544 (2010)); O’Connor v. Balt. Cnty., 382 Md. 102, 110 , 854 A.2d 1191, 1196 (2004). If no genuine dispute of material fact exists, this Court determines “whether the Circuit Court correctly entered summary judgment as a matter of law.” Anderson v. Council of Unit Owners of the Gables on Tuckerman Condo., 404 Md. 560, 571 , 948 A.2d 11, 18 (2008) (citations omitted). Thus, “[t]he standard of review of a trial court’s grant of a motion for summary judgment on the law is de novo, that is, whether the trial court’s legal conclusions were legally correct.” D’Aoust, 424 Md. at 574 , 36 A.3d at 955 .

Koste v. Town of Oxford, 431 Md. 14 , 24–25 (2013). This Court’s review is limited to the factual record that was before the court pre-trial, when summary judgment was granted. Miller v. Bay City Prop. Owners Ass’n, Inc., 393 Md. 620, 623 (2006) (quoting PaineWebber Inc. v. East, 363 Md. 408, 413 (2001)) (“An appellate court reviewing a 32 summary judgment examines the same information from the record and determines the same issues of law as the trial court.”).

D. Analysis 1. Collateral Estoppel The circuit court found that appellants were collaterally estopped from relitigating the issue relating to the constitutionality of the initial entry based on the finding of the court in Mr. Courtney’s criminal case. As explained below, we disagree. Collateral estoppel, also known as issue preclusion, bars the re-litigation of an issue decided in a prior adjudication if that issue was (1) “identical to the issue to be decided in the present action”; (2) “there was a final judgment on the merits in the prior adjudication”; (3) “the party against whom the doctrine is asserted was a party to the prior adjudication or was in privity with a party to the prior adjudication”; and (4) “the party against whom the doctrine is asserted had a fair opportunity to be heard on the issue in the prior adjudication.” Clark v. Prince George’s County, 211 Md. App. 548, 581 , cert. denied, 434 Md. 312 (2013).

Collateral estoppel applies in both criminal and civil cases. Cook v. State, 281 Md. 665, 668 , cert. denied, 439 U.S. 839 (1978). Here, there is no dispute that the first and third requirements were satisfied with respect to Mr. Courtney. The challenge to the initial entry by Officers Griffin and Dowell was identical in both Mr. Courtney’s criminal case and the present case, and Mr. Courtney was a party in the prior criminal case. 33 Appellants argue, however, that collateral estoppel does not bar relitigation of the issue relating to the constitutionality of the initial entry because they did not have a fair opportunity to litigate the claim, relying solely on Prosise v. Haring, 667 F.2d 1133 (4th Cir. 1981), aff’d, 462 U.S. 306 (1983).

In Prosise, 667 F.2d at 1137 , the court noted the general proposition that collateral estoppel might apply to defeat a § 1983 constitutional claim because the dispositive issue had previously been decided in a prior criminal action. The court held, however, that Prosise’s state court guilty plea regarding controlled dangerous substances (“CDS”) found in his home did not have preclusive effect on his subsequent § 1983 claim alleging an illegal search and seizure because his Fourth Amendment claim was not actually litigated in the criminal action. Id. at 1138, 1140–41. The United States Supreme Court affirmed this ruling, noting that the legality of the search was not actually litigated in the criminal proceeding, and indeed, no issue was “actually litigated” because Prosise declined to contest his guilt.

Prosise, 462 U.S. at 316 . Here, by contrast, Mr. Courtney’s contention regarding the initial entry into the apartment was actually litigated, and the criminal court found that it was lawful. In this situation, where the issue of the entry was actually litigated, appellants’ reliance on Prosise is misplaced. Mr. Courtney’s criminal case, however, resulted in an acquittal of the CDS charges.

Because Mr. Courtney was acquitted, he could not seek appellate review of the suppression ruling. When a defendant is acquitted of criminal charges and there is no ability to seek appellate review of a pretrial suppression ruling, the suppression ruling is not sufficiently final to be used against the defendant for collateral estoppel purposes. See Johnson v. 34 Watkins, 101 F.3d 792 , 795–96 (2d Cir. 1996) (“[F]acts determined in pretrial suppression hearing cannot be given preclusive effect against a defendant subsequently acquitted of charges” because the defendant lacks “an opportunity to obtain review of an issue decided against him.”);26 People v. Howard, 152 A.D.2d 325, 329 (N.Y. App. Div. 1989) (Suppression ruling is not sufficiently final for collateral estoppel purposes when the defendant is acquitted and cannot seek appellate review of the ruling.); see also Cook, 281 Md. at 674–75 (Order suppressing evidence at trial terminating in mistrial was not sufficiently final to preclude State from litigating issue at subsequent trial based on collateral estoppel, noting that a ruling should not be treated as final where the party against whom preclusion is sought did not have the opportunity to have the issue decided by an appellate court.); Glover v. Hunsicker, 604 F.Supp. 665, 666 (E.D. Pa. 1985) (quoting Jones v. Saunders, 422 F.Supp. 1054, 1055 (E.D. Pa. 1976)) (An acquitted defendant is not barred from litigating a violation of constitutional rights based on a prior order denying a motion to suppress because that “would deprive a plaintiff of an opportunity for a definitive determination of important federal rights for the vindication of which the Civil Rights Act [was] specifically designed[.]”). Because Mr. Courtney did not have the opportunity to appeal the denial of the motion to suppress based on the entry to the home, there was no judgment sufficiently final to preclude him from relitigating the issue in his civil suit.

Moreover, appellants other than 26 As indicated, other charges involving the gun were nolle prossed. A nolle pros does not result in a final judgment with regard to collateral estoppel. Butler v. State, 91 Md. App. 515, 538 (1992), aff’d, 335 Md. 238 (1994). 35 Mr. Courtney were not parties to the criminal case that the State brought against Mr. Courtney, and for that additional reason, they did not have a full opportunity to be heard on the issue. Accordingly, the circuit court erred in finding that collateral estoppel precluded appellants from litigating the constitutionality of the initial entry. 2.

Propriety of the Entry On the merits, appellants contend that the circuit court erred in granting the motion for summary judgment filed by Officers Griffin and Dowell. They assert that the initial entry was unconstitutional under the Fourth Amendment and the Maryland Constitution “because the officers neither established an objectively reasonable belief nor probable cause that either [Ms.] Gaines or [Mr.] Courtney were present inside when they obtained the keys from the rental office and warrantlessly kicked in the front door.”27 They argue that the officers’ testimony regarding “signs of life” in the apartment may have established that someone was in the apartment, but it did not establish a reasonable belief that Ms. Gaines or Mr. Courtney was inside.28 27 The entry occurred when the officers first opened the door using the key to unlock it. 28 Although appellants assert that there were disputes of fact preventing summary judgment, none of those facts are relevant to the issue on appeal, i.e., whether the officers possessed a reasonable belief that the couple was home prior to the entry. Appellants did not contest at the summary judgment motion that the police