Johnson v. Clark

EYLER, JAMES R., J. This interlocutory appeal, 1 pursuant to Maryland Rule 8-207, 2 arises out of an order of the Circuit Court for ³⁰⁹ Prince George’s County, denying the motion to quash notice of deposition and/or motion for protective order of former County Executive Jack B. Johnson, appellant, thereby granting Marilyn Clark, Chris Furbush, and Robert White, appellees, the right to depose appellant. On appeal, appellant contends the court abused its discretion in denying his motion. We agree, and shall reverse. Factual Background Because this is an expedited appeal, pursuant to Maryland Rule 8-207(b)(2), 3 the parties have jointly filed an agreed statement of the case, including the essential facts.

Thus, we shall quote directly therefrom for background. We shall supplement the facts with additional information as necessary. The claims in Clark et al. v. Kevin [sic] Washington, et al., CAL08-02332, arise from the January 24, 2007 shooting of Brandon Clark and Robert White by Keith Washington. The January 24, 2007 shooting occurred inside the home of Keith Washington at approximately 7:45 p.m.

Brandon Clark and Robert White were delivering furniture for Mario Furniture to the home of Keith Washington. A series of events transpired in the home that resulted in Keith Washington discharging his firearm five times. Brandon Clark died as a result of his injuries. Robert White survived but was maimed by the three gunshot wounds.

A criminal indictment was filed against Keith Washington. A jury trial was held and Keith Washington was found guilty of involuntary manslaughter, first degree assault and use of a handgun in the commission of a felony or crime of violence. He was sentenced to 45 years. The conviction was upheld by the Maryland Court of Special Appeals and certiorari was denied by the Maryland Court of Appeals. ³¹⁰ On the date of the shooting, Keith Washington was employed as a Prince George’s County Police Officer who had been detailed to the Prince George’s County Department of Homeland Security (hereinafter “DHS”) as a Deputy Director.

Washington was detailed to DHS on or about August 2, 2004 and during his detail assignment was paid by the Police Department, not the DHS. Washington’s supervisor and the only person he reported to at DHS was the Director of DHS, Vernon Herron. Washington’s duties at DHS were primarily administrative, dealing with obtaining funding and grants for the various public safety agencies of Prince George’s County; his duties at DHS did not entail the use of police powers. Washington maintained his police powers in his capacity as a police officer.

Washington was on duty in his capacity at DHS only during normal working hours that ended at 5:00 pm, with the exception of some occasions in which Director Herron would assign some duties such as community relations. DHS does not confer any police powers to its employees, and it is not something that DHS oversees. Neither did DHS oversee Washington’s right to carry a gun, which is done pursuant to requirements of the Prince George’s County Police Department and the Maryland Police Training Commission. Washington was appointed to the position at DHS by then Prince George’s County Executive Jack Johnson.[ 4 ] It is unclear whether Mr. Washington interviewed for the position, whether the position was posted, or whether other applications were submitted for the position.

Mr. Herron had no involvement in the process which led to the hiring of Mr. Washington. Mr. Herron’s only prior knowledge of Mr. Washington was through Mr. Washington’s prior detail as executive protection to the county executive, Jack Johnson.[ 5 ] ³¹¹ Mr. Johnson was responsible for the hiring, screening and promotion of Keith Washington to his position with DHS. While Washington was detailed to DHS, he maintained his police powers and his police issued gun. The gun Keith Washington used on the date of the incident of January 24, 2007, was issued to him by the Prince George’s County Police Department.

After the shooting of January 24, 2007, it was the Police Department, not DHS, that investigated the shooting. As a police officer, Washington’s employment status, including evaluations, retention, promotions, demotions, discipline, suspension of police powers and issuance of police equipment, including firearms, was governed by the police department. Plaintiffs filed their Complaint on January 24, 2008 against the Defendants Prince George’s County, Maryland and Keith Washington. Plaintiffs Complaint pled the following counts against both defendants: Count I, Assault; Count II, Battery; Count III, Intentional Infliction of Emotional Distress; County IV, False Arrest; Count V, False Imprisonment; Count VI, Negligence; Count VII, Fraud; Count VIII, Gross Negligence; Count IX, Negligent Hiring and Retention; Count X, Violations of Maryland Declaration of Rights/State Constitutional Claims; Count XI, Vicarious Liability; Count XII, Negligent Entrustment; Count XIII, Wrongful Death; and Count XIV, Survival Action.

On March 10, 2008, Defendant Prince George’s County, Maryland moved to dismiss and/for partial summary judgment on all Counts, except on Count X, on the basis of the Defendant County’s governmental immunity for non-constitutional torts. Additionally, Defendant County asked for dismissal of any claim of punitive damages against the Defendant County, as punitive damages are not available against governmental entities. On June 6, 2008, a motions hearing was held before Judge Sean Wallace, who granted the County’s motion to dismiss, leaving only one count — Count X — against the County. Count X alleges the following: ³¹² COUNT 10 (Violations of Maryland Declaration of Rights/State Constitutional Claims) 110.

Plaintiffs incorporate by reference the allegations contained in the preceding paragraphs. 111. This is, in part, an action to redress the deprivation under color of statute, ordinance, regulation, custom, or usage of a right, privilege, and immunity are secured to the Plaintiff by the Declaration of Rights of the Constitution of the state of Maryland including but not limited to Articles 2, 19, 24, 26, and arising under the law and statutes of the State of Maryland. 112. During all times mentioned herein, Defendants Washington and Defendant County, separately and in concert, engaged in illegal conduct herein mentioned, to the injury of the Plaintiffs and Brandon Clark and deprived the Plaintiffs and Brandon Clark of their then existing and clearly established rights, privileges, and immunities secured to them by the Declaration of Rights of the Constitution of the State of Maryland, including but not limited to Articles 2, 19, 24, 26, and arising under the laws and statues [sic] of the State of Maryland. 113. Defendants acting under color of law, have subjected the Plaintiffs and Brandon Clark to conduct consisting, of use of unreasonable, unnecessary, and excessive force, and police misconduct and false imprisonment, in denial of rights, privileges, and immunities guaranteed to the Plaintiff by the Constitution of the State of Maryland. 114.

This conduct consists of acts of excessive force, improper supervision, police misconduct, and use of unnecessary and unreasonable force, and the other allegations set forth above which was visited on the Plaintiffs and Brandon Clark by Defendant Washington as a member of the Prince George’s County Police Department and a member of the Prince George’s County Government and agents and employees of Defendant County, acting under ³¹³ color of law. These acts of violence, while carried out under color of law, have no justification or excuse in law, and are instead gratuitous, illegal, improper, objectively unreasonable, and unrelated to any activity in which police officers may appropriately and legally engage in the court protecting persons or property or ensuring civil order. 115. The acts alleged herein violated clearly established constitutional rights of the Plaintiffs and Brandon Clark, were not objectively reasonable, and were done under circumstances in which no reasonable officer would fail to realize, that his or, her conduct was a violation of the Plaintiffs rights. 116. Defendants acted outside the scope of their jurisdiction and without authorization of law, and acted willfully, knowingly, and purposefully with specific intent, to deprive the Plaintiffs of their rights, privileges, and immunities secured to them by the Constitution of the State of Maryland, including, but not limited to, the following: freedom from illegal detention or imprisonment; freedom from the use of excessive of [sic] unreasonable force; freedom from physical abuse, coercion, and intimidation; the right to due process; the right to life; the right to liberty; and the right to property; and freedom for [sic] unreasonable searches and seizures.

All of these rights are secured to the Plaintiffs and Brandon Clark by the provisions of the Declaration of Rights of Constitution of the State of Maryland. 117. The acts alleged herein were intentionally performed, without legal justification or excuse, but with an evil or rancorous motive influenced, by hate, the purpose being to deliberately, and willfully injure the Plaintiffs and Brandon Clark. 118. As a result of the Defendants conduct as set forth above Robert White has suffered and will continue to suffer severe mental anguish, emotional distress, medical and other related expenses and loss of income. ³¹⁴ 119. As a result of the Defendants conduct as set forth above Brandon Clark suffered severe mental anguish, emotional distress, medical and other related expenses and a loss of income.

On February 17, 2009, the County moved for summary judgment on Count X on the grounds that there was no dispute of material fact that Defendant Washington was not acting in the scope of employment at the time of the incident. The motion was denied by the Court. At that same hearing, the Court granted Defendant Washington’s motion to bifurcate any remaining constitutional claims against the County as pled in Count X. The county joined in that motion. The Court granted Defendant Washington’s motion, and trial proceeded against Defendant Washington and against Defendant County as to the question of scope of employment.

The first jury trial in this matter commenced on March 23, 2009 against both Defendants. After four days of evidence, the jury deadlocked, and a mistrial was declared on March 30, 2009. A new trial was scheduled to commence in this matter on January 25, 2010. Prior to the swearing of a jury, Plaintiffs moved to voluntarily dismiss Defendant Washington on the morning of January 25, 2010, which the Court granted.

Trial then proceeded against the remaining Defendant, the County, on January 25, 2010, on the basis of respondeat superior liability only. At the close of Plaintiffs case on January 27, 2010, Defendant County moved for judgment. The motion was granted in favor of the County, with the trial court finding that there was insufficient evidence that Keith Washington was acting within the scope of his duties for the County or under the color of law. The court then instructed the parties to submit memoran-da on the issue of the potential remaining bifurcated claims against the Defendant County in Count X, and as to whether Plaintiffs could proceed directly against the Defendant County for any claim of constitutional torts under the Maryland Declaration of Rights.

Specifically, the Court asked whether: ³¹⁵ [T]he claim could still go forward under a Declaration of Rights, under the theory that the governmental action of entrusting Mr. Washington with a handgun exposes the County to liability in this case, even if, as I have found, there is no evidence that Mr. Washington in using it was exercising governmental acts or in the scope of his employment. On or about March 11, 2010, Defendant County filed its Second Motion for Summary Judgment, moving for summary judgment as to Count X, the sole remaining count. On May 2, 2010, a hearing was held on this motion, with the court denying the motion pending additional discovery. On or about August 12, 2010, Plaintiffs issued a Notice of Deposition for, inter alia, Jack Johnson, County Executive for Prince George’s County, Maryland.

Plaintiffs seek to depose Johnson as to what action, if any, did Prince George’s County take to address the known violent and psychological issues of Keith Washington during his employment with the County, and proffered the following topics to be addressed at Johnson’s deposition: Knowledge of Keith Washington; Knowledge of Keith Washington’s work history; Knowledge of Keith Washington’s mental history; Knowledge of any and all worker’s compensation claims filed by Washington; Knowledge of civil lawsuits filed against Keith Washington; Knowledge of complaints by fellow police officers against Keith Washington; Knowledge of job performance by Keith Washington; Knowledge of promotion of Keith Washington; Knowledge of reprimands of Keith Washington; Knowledge of suspensions of Keith Washington; Knowledge of recognitions of Keith Washington; Knowledge of recommendations for Keith Washington; ³¹⁶ Knowledge of actions taken in response to any complaints; Knowledge of actions taken in response to the filing of any civil lawsuits; Knowledge of Keith Washington’s police powers ever being suspended or otherwise acted upon; Knowledge of Keith Washington’s handgun ever being removed from his possession; Knowledge of actions taken to investigate allegations of misconduct; Knowledge of discipline of any type taken against Keith Washington or any individual associated with Keith Washington; Knowledge of any training provided to Keith Washington; Knowledge of any discussions had with Keith Washington regarding issues germane to this case; Knowledge of any discussions with any other individuals regarding Keith Washington; Knowledge of actions taken to avoid further complaints against Keith Washington; Knowledge of letters, memos, pres releases, etc. written regarding Keith Washington; Knowledge of assessments of Keith Washington and his performance as a police officer; Knowledge of assessments of Keith Washington’s mental fitness; Knowledge of assessments of Keith Washington’s fitness to continue as a member of the Prince George’s County Police Department; Knowledge of interactions with Keith Washington and member of the public; Knowledge of Keith Washington’s criminal arrest history; Knowledge of Keith Washington’s job performance; Knowledge of any periodic assessments of Keith Washington’s psychological fitness; ³¹⁷ Knowledge of any periodic assessments of Keith Washington’s fitness to carry a gun; Knowledge of Keith Washington’s fitness to execute police powers. On August 19, 2010, Jack Johnson filed a Motion to Quash and/or for Protective Order, seeking relief that Plaintiffs be precluded from deposing him. On or about November 10, 2010, Johnson’s Motion for Protective Order was denied. On November 17, 2010, Johnson filed a Notice of Appeal.

In addition to the foregoing, the following facts are relevant. In addition to the notice of deposition of Johnson, appellees also issued a notice of deposition for Roberto Hylton, Prince George’s County Chief of Police, as well as Vernon Herron, Director, Prince George’s County Department of Homeland Security. All three notices were included as part of the motion to quash. With respect to Chief Hylton, the motion asserted that, pursuant to an affidavit of Chief Hylton’s, Chief Hylton had no personal knowledge of the allegations that served as the basis for Count 10.

Specifically, Chief Hylton testified to the following in his affidavit: (1) he did not become Chief until September 1, 2008; 6 thus, (2) prior to the January 24, 2007 shooting involving Keith Washington, he did not have authority to retain or dismiss Washington as a police officer; he was never an immediate supervisor of Washington; he did not perform any supervisory or fitness for duty evaluations of Washington; he was not involved in the evaluation of any workers’ compensation claim of Washington; he was not involved in the issuance of Washington’s police issued gun; he was not involved in investigating any complaints or discipline against Washington; and, he had no personal knowledge of a violent history or propensity of Washington to abuse police powers. On those bases, the court granted the motion to quash as to Chief Hylton. ³¹⁸ With respect to Vernon Herron, the motion asserted that Herron had been previously deposed on December 19, 2008, prior to the matter being bifurcated, and therefore, “the deposition was not limited.” At that deposition, Herron was instructed not to answer certain questions; specifically the following transpired, as included in the motion to quash: [Appellees’ counsel]: Do you know if Mr. Washington was qualified to be the Deputy Director of Department of Homeland Security? [County Attorney]: Objection. And I’m going to propose a — I’m going to instruct the deponent not to answer that on the issue of privilege, getting into personnel matters and executive deliberative privilege. [Appellees’ counsel]: And just so I understand, Counsel, is it your understanding that the decision to even hire an individual is protected under the personnel? [County Attorney]: The reasoning — my position would be the reasoning. If I understand your question correctly, you know, why was he hired, that sort of thing, that’s where I’m going to start posing privileges, objections. [Appellees’ counsel]: Okay, I just want to know if anyone had any appreciation for Mr. Washington’s qualifications prior to his hiring.

Now, if the instruction is that that is part of the deliberative process, then that’s the instruction. [County Attorney]: I’ll allow Mr. Herron to answer whether he knows if anyone has. The question — I’m sorry. Can you repeat it one more time? [Appellees’ counsel]: Do you know if anything was done to understand Mr. Washington’s qualifications or lack thereof prior to his appointment as Deputy Director of the Department of Homeland Security? [County Attorney]: And I’ll just pose the objection. And Mr. Herron can answer whether he knows or whether he doesn’t know. [Mr. Herron]: I do not know. ❖ * * ³¹⁹ [Appellees’ counsel]: Did you ever give any consideration to the public’s safety when sending Mr. Washington to meet with the public in his role as Deputy Director of Department of Homeland Security? [County Attorney]: Objection. [Mr. Herron]: Did I ever give any consideration— [Appellees’ counsel]: Yes sir. [Mr. Herron]: — to the public’s safety? [Appellees’ counsel]: Yes, sir. [Mr. Herron]: That was never an issue with me.

He did speaking engagements. He represented me at graduations. I had no concern about the public’s safety during those types of events. No sir. [Appellees’ counsel]: If you had had concern about public safety, would you have reconsidered sending Mr. Washington to do events on your behalf? [Mr. Washington’s counsel]: Objection. [County attorney]: Objection.

Let me just ponder this a second. Objection. And I’m going to instruct the client not to answer. I think it’s getting beyond facts testified that have even been testified to and that have even come out through discovery.

And I’ll just leave it at that. [Appellees’ counsel]: Did you have an understanding why Mr. Johnson appointed Mr. Washington to be your deputy? [Mr. Washington’s counsel]: Objection. [County Attorney]: Objection. Objection. And I’ll allow the deponent to answer whether he had an understanding or not. [Mr. Herron]: I’m sorry. Could you repeat the question? [Appellees’ counsel]: Sure. [Appellees’ counsel]: Did you have an understanding through conversations with Mr. Johnson why he appointed Keith Washington to be your deputy director? [Mr. Herron]: I did. [Appellees’ counsel]: And what was your understanding? ³²⁰ [County Attorney]: Objection.

And I’ll instruct the deponent not to answer an issue of privilege. According to the motion to quash, because appellees had already had an opportunity to depose Herron, they should not be allowed to again, and moreover, the Morgan doctrine applied, as the issues related to Washington’s role at DHS were “not relevant and essential to the basis of Count 10,” i.e., Washington’s “retention as a police officer and entrustment of a police issued gun.” The court denied the motion “to the extent that [Herron] does need to answer those questions that were asked at [the] deposition and he was not permitted to answer. The court stated the following: I don’t think Morgan stands for the proposition that because you’re a high-ranking official, you don’t have to answer any questions. He willingly submitted to a deposition.

This is a unique case where we’re talking about — Morgan talked about the litigation-related burdens that would be on those high-ranking officials if they had to be deposed in all these other cases and every kind of case. This is a rare case where the allegation is, and I think there’s not a lot of dispute as to at least part of it, that Mr. Johnson was, knew, knew Mr. Washington, that they were good friends and that Mr. Johnson intervened on his behalf or advocated for him. And, I guess, he didn’t really had [sic] to advocate. He was the decision maker.

He intervened on his behalf in personnel decisions. And the inquiries into that, I think, are legitimate and not covered within the scope of the Morgan case or, and they’re not the kind that by ordering in this case would open up the flood gates for the Public Safety Director and/or the County Executive to have to show up at all depositions in all cases of excessive police force. This is a unique case, given the facts, and so I’m going to deny it. So I’m going to deny it as to Her[r]on with the, now, this isn’t free reign to open a whole another deposition.

He willingly submitted to one. But the questions that were asked and, obviously, any legitimate follow-up to those, but ³²¹ the questions on those areas that were asked and for Mr. Johnson, you know, all the questions relating to his knowledge of Mr. Washington, their involvement, their connections, and what, if anything, he did with regard to Washington’s employment. We presume that Herron was again deposed in accordance with the court’s order, but any supplemental responses do not appear to have been made part of the record. From appellees’ opposition to appellant’s motion to quash and/or for protective order, which provides, in part, that the appellees were “seeking to learn what the County did since at least 1995 to ‘investigate, discipline and take