Houghton v. Forrest

EYLER, JAMES R., J. Cheryl Forrest, appellee, filed a tort action in the Circuit Court for Baltimore City against Baltimore City Police Officer Arnold Houghton, appellant, arising out of appellee’s arrest. In her complaint, appellee alleged assault, battery, false arrest, false imprisonment, and violations of Articles 24 and 26 of the Maryland Declaration of Rights. Appellant asserted, inter alia, immunity from liability. The court submitted appellee’s causes of action to a jury by a verdict sheet that required the jury to determine whether appellant had committed each tort and whether he had acted with actual malice in doing so.

The jury found that appellant lacked probable cause to arrest appellee, that he committed all of the torts, and as to each, that he acted with actual malice. 1 The jury awarded compensatory, but not punitive, damages. On appeal, appellant contends that the evidence is legally insufficient to sustain the finding of actual malice. Appellee disagrees and, alternatively, contends that the trial court should not have required her to prove that appellant acted with actual malice, to establish liability, because appellant was not immune from intentional and constitutional torts. Appellant counters by arguing that appellee may not raise the alternative argument on appeal because it was not properly preserved.

We hold that the evidence is legally insufficient to sustain the finding of actual malice. Additionally, we hold that appellee preserved her objection to the trial court’s ruling that appellee had to prove actual malice in order to establish liability. We also hold that appellant does not enjoy immunity ²² from liability, but enforcement of the judgment against him is subject to the Local Government Tort Claims Act (LGTCA), Maryland Code (2006 Repl.Vol.), § 5-507 of the Courts & Judicial Proceedings Article (“C.J.”). Under the LGTCA, appellee’s failure to prove actual malice prevents her from enforcing her judgment against appellant, but the statute permits appellee to collect the amount of the judgment from the Baltimore City Police Department.

Factual Background On May 25, 2005, appellant was in a covert location watching a video monitor. The video monitor showed images produced by several different cameras monitoring an area on Eutaw Street south of Saratoga Street, near Lexington Market. During appellant’s surveillance, he observed a female, wearing a white shirt, buy what he believed were prescription drugs from a seller. Appellant radioed Officer Timothy Williams, a Baltimore City Police Officer, and told him to arrest the seller.

While Officer Williams was moving to arrest the seller, appellant observed the female buyer, wearing a white shirt, hug another female who was dressed in black and carrying a red umbrella. Relying on his training and experience, appellant interpreted this hug as another illegal drug transaction. After observing the hug, appellant switched the view on his monitor to another angle because he wanted to watch Officer Williams arrest the original seller. Following Officer Williams’ arrest of the original seller, appellant returned the view on his monitor to its original location where he had witnessed the hug that he interpreted as a drug transaction.

The female wearing a white shirt was no longer in the view of the camera. A female wearing a dark jacket and carrying a red umbrella was in the view of the camera. According to appellant, he did not realize that this female was not the original female wearing black and carrying a red umbrella who engaged in the hug with the female ²³ wearing white. Actually, this female was appellee, waiting for the bus to take her to work.

According to appellant, he instructed Officer Williams to arrest appellee because he believed that she was the same person who had engaged in a drug transaction with the female wearing white. Officer Williams approached appellee and informed her that she had been videorecorded purchasing illegal drugs. Appellee told Officer Williams that she had not purchased any drugs. Officer Williams searched appellee’s pockets and checked the ground around appellee, but he found no evidence of drugs.

Officer Williams did not see appellee toss, swallow, or destroy any evidence. Nevertheless, Officer Williams detained appellee and transported her to the location of the hug. At that point, Officer Williams advised appellant that appellee did not have any drugs and asked appellant to check the video to verify that appellee was the correct suspect. Appellant and Officer Williams testified that, after a pause, appellant responded by stating that appellee was the correct suspect.

Appellee testified that she heard an unidentified voice— presumably appellant — tell Officer Williams to arrest appellee anyway. Appellant testified that he instructed Officer Williams to arrest appellee despite the lack of drugs because “when people purchase narcotics, especially prescription pills, they usually eat them right away.” In addition, appellant testified that he did not heed appellee’s protests because in his experience “virtually everyone says that they weren’t involved or they didn’t do it. So once I made my identification.... she was going to be arrested based on ... what I thought was going on at the time.” In any event, Officer Williams arrested appellee and took her to Central Booking. Appellee spent the night at Central Booking and was released the next day.

On December 8, 2006, appellee sued Officer Williams for damages arising from her arrest. 2 On May 24, 2007, appellee added appellant as a defendant. ²⁴ On September 20 and 21, 2007, the case was tried before a jury, on claims of assault, battery, false arrest, false imprisonment, and violations of Articles 24 and 26 of the Maryland Declaration of Rights. At trial, appellant moved for judgment and argued that appellant was protected by immunity, and that appellee could overcome appellant’s immunity only by showing that appellant acted with actual malice. The parties submitted proposed jury instructions to the trial judge just before closing argument. Appellant’s proposed jury instruction number three required appellee to prove that appellant acted with actual malice, with respect to all torts, to overcome appellant’s immunity.

Appellee’s counsel objected to appellant’s proposed jury instruction number three, stating: I have an objection to [defendant’s] three and it’s the same argument that I was makin’ in summary judgment, that I don’t believe that’s the state of the law. The public official immunity, I noticed in his instruction, [Lee v. Cline, 384 Md. 245 , 863 A.2d 297 (2004) ] is not even mentioned in there at all and that’s the case that I believe says that there is no public official immunity for the counts that are left, intentional torts and constitutional torts. The trial judge then read aloud the portions of Lee on which appellee’s counsel relied. Subsequently, the parties argued their positions in detail, after which the following colloquy occurred. [APPELLANT’S COUNSEL]: So, Your Honor, ... three is in?

THE COURT: Yes. Go on. [APPELLEE’S COUNSEL]: I’m sorry. What was your response, Judge? THE COURT: My response was yes. [APPELLEE’S COUNSEL]: My objection is noted.

THE COURT: All right. At this point, counsel and the trial judge discussed various other objections to the jury instructions and verdict sheet. ²⁵ Just prior to the finalization of the jury instructions, the following discussion occurred. [APPELLANT’S COUNSEL]: Your Honor, your, you’ve made your decision with respect to the jury instructions? THE COURT: Yes. [APPELLANT’S COUNSEL]: Okay. THE COURT: You’ll hear them when I give them. [APPELLANT’S COUNSEL]: Will there be an opportunity for objections?

THE COURT: No. No. You had the opportunity. You told me how you felt. You told me what you objected to. You told me what you wanted and I’m going to give them.

The judge then brought the jury into the courtroom. Appellant rested his case, and the judge instructed the jury. After completing the instructions, the judge called counsel to the bench, and the following dialogue transpired. THE COURT: That’s it.

That’s all you asked for; is that right? [APPELLEE’S COUNSEL]: That’s correct. [APPELLANT’S COUNSEL]: Subject to what— THE COURT: Hmm? [APPELLANT’S COUNSEL]: — we’ve already — I think subject to— [APPELLEE’S COUNSEL]: Our objections to the principle— [APPELLANT’S COUNSEL]: Yeah, our objections earlier. THE COURT: What you’re objecting to. [APPELLEE’S COUNSEL]: What we did earlier when we were both objecting to which instructions we didn’t want you to give. THE COURT: I read it the same you ordered. [APPELLEE’S COUNSEL]: Right. That— THE COURT: Oh, okay. [APPELLANT’S COUNSEL]: Some of the things that we didn’t, Your Honor. ²⁶ THE COURT: All right.

Thank you very much. Subsequently, the jury found that appellant committed all torts and acted with actual malice. The jury awarded $180,171.60 in compensatory damages. Appellant moved for judgment notwithstanding the verdict on the ground that the evidence was legally insufficient to sustain the finding of actual malice.

The trial court denied the motion. Appellant filed a notice of appeal on October 30, 2007. Discussion I. Actual Malice 3 Appellant moved for judgment, and post-trial judgment notwithstanding the verdict, on the ground that the evidence was legally insufficient to create a jury question with respect to actual malice. The standard of review when assessing either motion is whether the trial court was legally correct.

See, e.g., Shabazz v. Bob Evans Farms, Inc., 163 Md.App. 602, 643 , 881 A.2d 1212 (2005). In determining whether the trial court was legally correct, we must view the evidence and the reasonable inferences to be drawn from it in the light most favorable to the party who opposed the motion, and determine whether the facts and circumstances only permit one inference with regard to the issue presented. See, e.g., Impala Platinum Ltd. v. Impala Sales (U.S.A.), 283 Md. 296, 327 , 389 A.2d 887 (1978). Immunity, if otherwise applicable, can be defeated by proving that the actor acted with actual malice, 4 i.e., “the ²⁷ official ‘intentionally performed an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately injure the plaintiff.’ ” 5 Nelson v. Kenny, 121 Md.App. 482, 487 , 710 A.2d 345 (1998) (quoting Davis v. DiPino, 99 Md.App. 282, 290 , 637 A.2d 475 (1994), rev’d on other grounds, 337 Md. 642 , 655 A.2d 401 (1995) (internal quotations and citations omitted)); see also Penhollow v. Board of Comm’rs for Cecil County, 116 Md.App. 265, 294-95 , 695 A.2d 1268 (1997); Williams, 112 Md.App. at 550 , 685 A.2d 884 ; Manders v. Brown, 101 Md. App. 191, 216 , 643 A.2d 931 (1994), cert. denied, 336 Md. 592 , 650 A.2d 238 (1994).

Malice may be inferred from the circumstances. Leese v. Baltimore County, 64 Md.App. 442, 480 , 497 A.2d 159 (1985). Nevertheless, a plaintiff cannot prove malice ²⁸ merely by asserting that an act “was done maliciously, or without just cause, or illegally, or with wanton disregard, or recklessly, or for improper motive.... ” Elliott v. Kupferman, 58 Md.App. 510, 528 , 473 A.2d 960 (1984). Indeed, the plaintiff must present facts that indicate a nefarious motive, ill-will towards the plaintiff, or a history of animosity.

See Nelson, 121 Md App. at 493-95, 710 A.2d 345 (holding that a rational inference of actual malice could be drawn when the officer arrested the plaintiff because the officer was inspired by racial hatred and a desire to harm and humiliate the plaintiff); Town of Port Deposit v. Petetit, 113 Md.App. 401, 418 , 688 A.2d 54 (1997), cert. denied, 346 Md. 27 , 694 A.2d 950 (1997) (holding that a rational inference of actual malice could be drawn when an officer shot at the plaintiffs tires because he was so enraged by the plaintiffs grossly negligent conduct). Green v. Brooks, 125 Md.App. 349 , 725 A.2d 596 (1999) is instructive, with respect to the need to prove ill will or improper motive. In that case, Green’s cousin was apprehended for shoplifting. Id. at 356-57 , 725 A.2d 596 .

Green’s cousin told the arresting officers that he was Green, and provided them with Green’s address. Id. at 356 , 725 A.2d 596 . The court set a trial date. Id. at 357 , 725 A.2d 596 .

However, neither Green nor his cousin appeared at trial. Id. The court issued a bench warrant for Green. Id.

Consequently, police officers arrested Green. Id. at 357-59 , 725 A.2d 596 . Green was incarcerated for five days before the police discovered that he was not the man who committed the shoplifting offense. Id. at 359 , 725 A.2d 596 .

Subsequently, Green sued several members of the police department. Id. at 354-55 , 725 A.2d 596 . The arresting officers moved for summary judgment, asserting immunity and the absence of actual malice. Id. at 360-61 , 725 A.2d 596 .

The trial court granted summary judgment. Id. at 361 , 725 A.2d 596 . This Court affirmed, explaining that there was no evidence that the officers who arrested and detained Green were motivated by a nefarious motive, an ill-will toward Green, or a history of animosity with Green. Id. at 378-80 , 725 A.2d 596 .

Rather, the officers ²⁹ merely failed to take steps to corroborate the information that they had before them. Id. at 379 , 725 A.2d 596 . In the case before us, appellee was arrested and detained after she was mistaken for a suspect, and appellant failed to corroborate that appellee was the correct suspect. As in Green , appellee failed to present evidence giving rise to a reasonable inference that appellant was motivated by a nefarious motive, an ill-will toward appellee, or a history of animosity with appellee.

Rather, the evidence indicates that appellant merely failed to take steps to confirm that appellee was the correct suspect. As at trial, on appeal, appellee relies heavily on Lee v. Cline. Lee, however, illustrates a critical element that is missing from this case. In Lee, the Court of Appeals held that a jury rationally could infer that an officer acted with actual malice because the facts indicated that the officer acted with ill-will toward the plaintiff.

Id. at 267-70, 863 A.2d 297 . Specifically, the officer pulled over a luxury car driven by a plaintiff who was African-American; requested to search the plaintiffs car when there was no basis for the search; told the plaintiff that he did not need permission to search the car when the plaintiff refused to consent to the search; insisted on obtaining a canine unit despite the fact that there was no evidence of drugs or other violations of law, and the plaintiff did not have a criminal history; “yelled” at the plaintiff to remain in his car; detained the plaintiff for twice the amount of time than he should have detained him; and referred to the plaintiff as an uncooperative suspect. Id. at 269-70 , 863 A.2d 297 . In so holding, the Court pointed out that “intent and motive are critical to the question of malice.” Id. at 269 , 863 A.2d 297 .

The evidence permitted an inference that the arresting officer was motivated by ill-will and improper motive because he prolonged the stop as a result of the plaintiffs refusal to consent to a search, requested a search without a basis, advised the plaintiff that he could search the vehicle without the plaintiffs permission, called a canine unit, yelled at the ³⁰ plaintiff, and labeled the plaintiff uncooperative. Id. at 270 , 863 A.2d 297 . In the case before us, there is no evidence from which a jury could draw a rational inference that appellant intended to hurt appellee, or acted with any type of ill-will toward appellee. Appellee asserts that appellant instructed Officer Williams to arrest her knowing that she was not the correct suspect.

Appellee failed to provide any evidence, however, that appellant in fact knew that he had requested the wrong person to be arrested, as distinguished from a belief that appellee was the suspect. Appellant testified that, at some point prior to trial, he viewed the surveillance videodisc and, based on that review, admitted that he had made a mistake when he confused appellee with the suspect, at the time of arrest. The videodisc was admitted into evidence and shown to the jury. Appellee argues that viewing the videodisc could lead a jury to believe that appellant knew that he had caused the wrong person to be arrested, tried to find the correct person, and when he could not do so, gave false information to Officer Williams to include in a statement of probable cause.

This Court has viewed the videodisc, and we conclude that it does not permit such an inference. The disc depicts what reasonably could be interpreted as drug transactions. Appellant misidentified one of the participants. Moreover, there is no evidence that appellant knowingly gave false information to Officer Williams to include in a statement of probable cause.

Accordingly, we hold that the evidence is legally insufficient to sustain a finding of actual malice.

II

Preservation Appellee argues that, even if the evidence is legally insufficient to sustain the finding of actual malice, the judgment should be affirmed because appellant does not enjoy immunity, in the absence of malice. Appellant argues that this Court should not address this issue because appellee failed to object to the trial court’s jury instruction on immunity after the instruction was given. ³¹ Maryland Rule 2-520(e) requires that objections to jury instructions be made “on the record promptly after the court instructs the jury.... ” The purpose of the rule is “to enable the trial court to correct any inadvertent error or omission in the [instructions], as well as to limit the review on appeal to those errors which are brought to the trial Court’s attention.” Fisher v. Baltimore Transit Co., 184 Md. 399, 402 , 41 A.2d 297 (1945). Generally, objections under this rule must be precise because the trial judge must know the exact nature and grounds of the objection to correct the instructions. Hoffman v. Stamper, 385 Md. 1, 39-40 , 867 A.2d 276 (2005).

However, counsel need not make a precise objection after the instructions are read to the jury when “the ground for objection is apparent from the record and the circumstances[,] ... such that a renewal of the objection after the court instructs the jury would be futile or useless.” Gore v. State, 309 Md. 203, 208-09 , 522 A.2d 1338 (1987); Sergeant Co. v. Pickett, 283 Md. 284, 288-89 , 388 A.2d 543 (1978). Indeed, substantial compliance with Rule 2-520(e) is sufficient. Forrest v. P & L Real Estate Inv. Co., 134 Md.App. 371, 408 , 759 A.2d 1187 (2000); Gore, 309 Md. at 209 , 522 A.2d 1338 ; Moats v. Ashburn, 60 Md.App. 487, 492 , 483 A.2d 791 (1984) (citing Bennett v. State, 230 Md. 562, 569 , 188 A.2d 142 (1963)).

In other words, an objection is preserved for appellate review even if the objection is not raised after the jury instructions are given, as long as it is “crystal clear” that there is an ongoing objection to the instruction. See Sims v. State, 319 Md. 540, 549 , 573 A.2d 1317 (1990). Two contrasting cases adequately illustrate what constitutes “substantial compliance” with Rule 2-520(e). In Haney v. Gregory, 177 Md.App. 504, 509, 520 , 936 A.2d 388 (2007), this Court held that the plaintiffs objection to one of the defendant’s instructions was preserved when the plaintiff objected to the instruction at a conference on the jury instructions, but failed to object to the instruction after the trial judge gave the instruction to the jury.

See also Corbin v. State, 94 Md.App. 21 , 27 n. 2, 614 A.2d 1329 (1992) (holding that defendant’s objection to a jury instruction was preserved ³² when defendant made the objection at the close of evidence and just before the trial judge instructed the jury, but failed to renew the objection after the trial judge instructed the jury). The Court reasoned that nothing transpired at or after the conference on instructions that would have lead anyone to believe that the plaintiff conceded his objection. Haney, 177 Md.App. at 520 , 936 A.2d 388 . Conversely, in Sims , the Court held that defendant’s objection was not preserved when it was “difficult, if not impossible, to determine whether defense counsel acquiesced in the judge’s determination that [defendant’s objection was improper,] or ... whether ... counsel decided to abandon the [objection] as a matter of sound trial tactics[,] or ... whether he intended to persist in his [objection].” 319 Md. at 549 , 573 A.2d 1317 ; see also Black v. Leatherwood Motor Coach Corp., 92 Md.App. 27 , 34 n. 4, 606 A.2d 295 (1992) (applying Sims in a civil context), cert. denied, 327 Md. 626 , 612 A.2d 257 (1992).

These two cases indicate that an objection to a jury instruction is preserved, despite the lack of an objection following the delivery of the instruction, as long as the objecting party substantially complies with Rule 2-520(e) by making it crystal clear that he has not conceded his objection to the jury instructions. An examination of the transcript reveals that appellee substantially complied with Rule 2-520(e) because he made his objection to the trial court’s immunity instruction crystal clear. Appellee espoused his position at various times during the trial, including during the discussion of jury instructions. The trial judge clearly ruled against appellee, gave the immunity instruction with respect to the need for actual malice, and included the question on the verdict sheet.

The trial judge made it clear that any further objection would be futile and useless when he informed the parties that they would not have an opportunity to object to the instructions after the instructions were read to the jury. Furthermore, as in Haney , nothing transpired between the initial argument over the jury instructions and the actual reading of the jury instructions that would lead anyone to believe that appellee conceded his objection. 177 Md.App. at 520 , 936 A.2d 388 . After the trial ³³ judge read the instructions to the jury, appellee made it crystal clear that he did not concede his initial objection when he asked the trial judge whether the instructions were subject to “[o]ur objections on principle.” In fact, appellant also confirmed that appellee’s objection still existed when he asked the trial judge whether the instructions were subject to “our objections earlier” (emphasis added). Therefore, the transcript reveals that it was crystal clear to everyone that appellee never conceded his objection to the trial court’s immunity instruction and question on the verdict sheet.

Consequently, we conclude that appellee substantially complied with Rule 2-520(e) and properly preserved for appellate review his objection to the trial court’s immunity instruction and question on the verdict sheet.

III

Source of Immunity It is difficult to determine whether the trial court applied common law or statutory immunity, and if statutory, which statute. The potentially applicable sources of immunity are common law public official immunity, statutory immunity for officials of municipal corporations, statutory immunity for officials of special taxing districts, the MTCA, and the LGTCA. The lack of clarity in the record is inconsequential because the application of governmental immunity involves the interpretation and application of Maryland statutory and case law, meaning that we conduct a de novo review. Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175 (2006).

A. Common Law Public Official Immunity In order for common law public official immunity to apply (1) the actor must be a public official, and not a mere government employee or agent; (2) the conduct must have occurred while the actor was performing discretionary, and not ministerial, acts; and (3) the actor must have performed the relevant acts within the scope of his official duties. James v. Prince George’s County, 288 Md. 315, 323 , 418 A.2d 1173 (1980). Common law public official immunity does not apply if the official acted with actual malice. Leese , 64 Md.App. at ³⁴ 479-81, 497 A.2d 159 .

In