Lee v. Cline

ADKINS, Judge. In this tort case involving an allegedly unconstitutional “second stop,” we encounter one of the Gordian knots of Maryland governmental immunity law—whether, under the Maryland Tort Claims Act, a police officer classified as State personnel has a qualified immunity defense against a constitutional tort claim alleging a violation of the Maryland Declaration of Rights. Frederick County Deputy Sheriff Gary Cline, 1 appellee, stopped Keith A. Lee, appellant, because Lee’s front license ⁴⁵ plate was missing. After Lee produced the plate, and explained that it had been damaged that morning in a car wash, Cline asked Lee for consent to search his car.

Lee refused. Cline asked dispatch to send a canine unit, which eventually arrived and scanned Lee’s vehicle without an alert. Cline wrote two warning citations, which he delivered after the scan. Claiming racial profiling, retaliation, and an unjustified detention, Lee, who is African American, sued Cline for violating his constitutional rights under the Maryland Declaration of Rights.

On summary judgment, the Circuit Court for Frederick County ruled, inter alia, that Cline had qualified immunity for his constitutional torts. Citing Court of Appeals decisions, Lee argues that Cline does not have qualified immunity for constitutional torts. Citing broad statutory language, Cline argues that he does. We shall hold that, based on the Maryland Tort Claims Act, police officers classified as State personnel do have qualified immunity from liability for their constitutional torts.

FACTS AND LEGAL PROCEEDINGS The Stop On March 12, 1994, Keith Lee left his Frederick home to run some errands and then get in a few hours of work at the financial services company where he was a vice president. Dressed in jeans and a sweater, he drove his black BMW to the bank, the car wash, and the dry cleaners. As he returned to his car from an errand, he noticed that his front license plate was missing. He immediately returned to the car wash, where he found the tag.

Because it was mangled, he could not reattach it. Instead, he placed it on the floor directly behind his seat. Lee was driving on Route 355 when he saw a marked police car with its lights flashing, two cars behind him. The car between Lee and the cruiser pulled over, but the cruiser went ⁴⁶ around it, then deactivated its lights.

After another mile, the cruiser lights reactivated, and Lee pulled over into a driveway off of the heavily traveled thoroughfare. Frederick County Deputy Sheriff Gary Cline came to Lee’s window and asked for his driver’s license and vehicle registration. Lee retrieved his wallet from the center console and mistakenly handed Cline a credit card instead of his license. Cline asked for the license and Lee gave it to him.

Lee then sifted through the papers in his glove compartment and found the registration. As he presented it to Cline, Lee asked why he had been pulled over. Cline replied that his front license plate was missing, whereupon Lee explained that it had come off in the car wash. Lee immediately presented the damaged tag to Cline.

Cline then said that on these types of stops in Frederick County, he liked to search vehicles for illegal narcotics and weapons. He asked Lee if he would consent to a search of his car. Lee responded that Cline did not have probable cause or reason to suspect that he was transporting any illegal items, and that he would not consent to a search. Cline retorted, “I don’t need your permission to search the car.

I can get dogs in here and search it without your permission.” Lee maintained his refusal to a consensual search, and Cline returned to his cruiser with Lee’s license and registration. While Lee was waiting in his car, he observed that Cline appeared to be talking on his handset radio and writing. After about 15 minutes, another patrol car arrived, apparently as back up. Cline got out of his car and talked with the officer for several minutes.

During this time, Lee got out of his car because he was tired of just sitting there. About 30 seconds after he did so, Cline yelled at Lee to get back into his car. Lee complied. Eventually, the other officer left the scene.

After several more minutes, Maryland State Trooper Eric Fogle arrived with his dog, which was trained to detect narcotics. Cline again exited his cruiser and spoke with Fogle for a couple of minutes. Fogle approached Lee’s vehicle, and asked Lee whether he had any drugs in the car. Lee said ⁴⁷ that he did not.

Fogle and his dog then circled Lee’s car. When the dog did not alert, Fogle returned to his car and left. At that point, Cline returned to Lee’s vehicle to deliver two warning citations involving the missing tag. After commenting that he could have ticketed Lee, Cline asked Lee to sign both citations.

Lee did so, whereupon Cline returned his license and registration. Lee proceeded directly to the nearby house of his grandmother, calling his wife along the way. When he arrived, his grandmother already had heard about the stop from someone who saw it. Lee told his cousin about the incident, and then later that day, called his attorney.

Cline does not have any independent recollection of Lee or the stop. A tape of the radio dispatch and other police department records, however, recorded the following: 15:11 Cline reported Lee’s tag number and “requested a traffic on that vehicle.” Cline testified at his deposition that it is his standard practice to report and request such information before he has pulled over a motorist. 15:13 Dispatch advised that the tag was valid and would expire in July 1994. 15:14 Cline asked the dispatcher to “locate a canine and start him my way.” The dispatcher responded that there were no canine units available. 15:16 Dispatch advised that a State of Maryland canine unit was on 1-270, near Route 109, and could respond. Cline asked the canine unit to be sent, stating, “I’ve got a suspect not being too cooperative. Already told me there’s no way he’s going to give me consent to search.

Go ahead and start this way please.” Cline then requested information on Lee’s driving record and arrest warrant status. 15:17 Dispatch advised that Lee’s license was valid, with no points or restrictions, and that Lee’s wanted status was negative. ⁴⁸ 15:22 Officer Henry reported that he was on the scene as backup. 15:23 Cline asked for the “reporting district and beat” information'necessary to complete traffic citations. At the same time, he asked for the canine unit’s estimated time of arrival, commenting that he had almost finished his paperwork. Dispatch advised that the “ETA” was three minutes. 15:31 Trooper Fogle reported being on the scene. (The K-9 Unit Search Report shows arrival time as 15:30). 15:42 Cline reported that the stop was “cleared.” The Litigation Alleging that he had been “detained, seized and searched pursuant to a ‘drug courier profile’ and policy in practice ... which targets persons of the African American race,” Lee filed suit in the Circuit Court for Frederick County.

He sued Maryland State Trooper Eric Fogle, the Maryland State Police, Frederick County Sheriff James W. Hagy, Deputy Sheriff Gary Cline, and the County Commissioners of Frederick County. The circuit court dismissed Fogle because the state trooper was not alleged to be responsible for any unlawful detention, and the Maryland State Police because it concluded that Lee’s notice of claim under the Maryland Tort Claims Act did not provide adequate notice of his claim against Fogle. Lee filed an amended complaint, asserting a federal civil rights cause of action under 42 U.S.C. section 1983 , along with his state law claims for violation of his State constitutional rights, false imprisonment, invasion of privacy, intentional infliction of emotional distress, and negligence. The amended complaint did not name the State, which was Cline’s employer for purposes of the Maryland Tort Claims Act, as a defendant.

The remaining defendants removed the case to federal court. After discovery, that court granted summary judgment for Hagy, who did not become sheriff until after this ⁴⁹ incident, and for the County Commissioners. In addition, the federal court granted summary judgment in favor of Cline on the section 1983 count. In a memorandum opinion, the court concluded that, although there were factual disputes regarding both the length of the stop and what occurred during the stop, there was insufficient evidence that Cline acted with the type of malice that can defeat a federal section 1983 claim. 2 On remand to the circuit court, the remaining defendants were Cline and the County Commissioners.

They jointly moved for summary judgment on all of the state law claims. At the conclusion of the summary judgment hearing, the circuit court granted Cline summary judgment on all claims, ruling that there had been no violation of Lee’s constitutional rights; that Cline had qualified immunity under Md.Code (1974, 2002 Repl.Vol.), section 5-522(b) of the Courts & Judicial Proceedings Article (“CJ”); and that Lee had not overcome Cline’s qualified immunity with evidence raising an inference of malice. DISCUSSION Lee offers four reasons for reversing the judgment in favor of Cline on all counts, which we restate in issue format as follows: I. Did the circuit court err in holding that Lee did not produce sufficient evidence to create a factual dispute as to whether there was a constitutionally unjustified “second stop”?

II

Did the circuit court err in holding that, under section 5-522(b) of the Maryland Tort Claims Act, Cline had a qualified immunity defense against constitutional tort claims? ⁵⁰ III. Did the circuit court err in holding that, under section 5-522(b), Cline had a qualified immunity defense against intentional tort claims?

IV

Did the circuit court err in holding that there was insufficient evidence of malice to defeat Cline’s qualified immunity? We shall hold that the circuit court erred in concluding that there was no evidence of an unjustified detention, but that the grant of summary judgment was nonetheless proper because, under section 5-522(b), Cline could assert a qualified immunity defense against both Lee’s constitutional tort claims and his intentional tort claims, and Lee did not present sufficient evidence of malice to defeat summary judgment. Accordingly, we shall affirm the judgment in favor of Cline. I. The Circuit Court Erred In Concluding As A Matter Of Law That Cline Did Not Violate Lee’s Constitutional Rights A. Alleged Violation Of Maryland Declaration Of Rights The Court of Appeals “has recognized that a common law action for damages lies when an individual is deprived of his or her liberty in violation of the Maryland Constitution.” Okwa v. Harper, 360 Md. 161, 201 , 757 A.2d 118 (2000).

Constitutional tort claims frequently arise from allegations that the police used excessive force during an arrest or search. See, e.g., id. (claim of excessive force during arrest); Shoemaker v. Smith, 353 Md. 143 , 725 A.2d 549 (1999)(claim of excessive force to remove children from home); Tavakoli-Nouri v. State, 139 Md.App. 716 , 779 A.2d 992 (2001)(claim of excessive force during arrest). This case does not involve allegations of excessive ⁵¹ force.

Nor does it concern a search or arrest. 3 Instead, it turns solely on whether there was an unjustified detention of Lee. For analytical purposes, however, we see no relevant distinction between cases addressing civil liability for a constitutionally unjustified search or arrest, without the use of force, and those addressing civil liability for an unjustified detention. Lee alleged that Cline unjustifiably detained him for a canine scan after he refused Cline’s request to search his car. He theorized that Cline’s actions reflected retaliation, racial profiling, or both.

The test for civil liability of an individual police officer is whether the detention was constitutionally unjustified. See Richardson v. McGriff, 361 Md. 437, 445-46 , 762 A.2d 48 (2000); Okwa, 360 Md. at 202 , 757 A.2d 118 . In turn, the answer to that question depends on “whether the totality of the circumstances justified a particular sort of search or seizure.” See Tennessee v. Gamer, 471 U.S. 1, 8-9 , 105 S.Ct. 1694, 1700 , 85 L.Ed.2d 1 (1985). Accordingly, in the context of this case, our inquiry into whether Deputy Cline can be held civilly liable is coextensive with our inquiry into whether there was an unreasonable detention of Lee, or, in Fourth Amendment parlance, whether there was a constitutionally justified “second stop.” As grounds for summary judgment, Cline argued that there was no undue delay, and thus no constitutional violation and no constitutional tort.

Cline’s counsel asked the court to “find that the stop based upon the record was not excessive or unreasonable[.]” The circuit court did so, stating that it “just [did not] think there’s any evidence in that regard as to the violation.” ⁵² Lee challenges that finding. He asserts that the evidence, when viewed in the light most favorable to him, is sufficient to establish an unjustified detention. Cline counters that (1) Lee’s complaint did not adequately allege a violation of his right to be free from an unlawful seizure under the Maryland Declaration of Rights, and (2) in any event, the court correctly concluded that there was no evidence of a violation of that right. For the reasons set forth below, we agree with Lee and reject both of Cline’s justifications for the court’s ruling.

B. Claim Of Unjustified Detention Cline argues that the circuit court properly granted summary judgment on the constitutional tort claim because Lee asserted an equal protection claim rather than an unjustified detention claim. He points to the allegation in Lee’s third amended complaint that Cline’s “actions ... constituted restrictions and deprivations of [Lee’s] liberty in violation of Article 24 of the Maryland Declaration of Rights.” 4 Lee acknowledges that he “mistakenly characterized [the detention] as a violation of Article 24 ... as opposed to a violation of Article 26[.]” 5 Lee points out, however, that ⁵³ throughout his prior complaints, his pleadings, and his summary judgment arguments, he “consistently and repeatedly alleged a violation of his state constitutional rights to be free from unreasonable intrusions upon his person.” He contends that the “thoroughly vetted” issue of whether there was an unjustified detention is therefore “properly before this [C]ourt for consideration.” Our review of the record confirms that it has been clear from the outset of the pre-trial motions in this case that Lee was asserting an unjustified detention claim. In fact, Cline argued to the federal court that “the thrust of [the constitutional tort claims under both federal and state law] is really a seizure claim under the Fourth Amendment,” and incorporated that argument into his subsequent motion for summary judgment in circuit court. The circuit court did not cite the mistaken reference to Article 24 as grounds for granting Cline’s motion.

In addition, Cline has never cited Lee’s reliance on Article 24 as ground for summary judgment on his unjustified detention claim. It is rare that we will decide an issue that was neither presented to nor decided by the circuit court. See Md. Rule 8-131(a). We will not do so here, because we may not affirm summary judgment on grounds other than those that the circuit court cited in support of its decision.

See Lovelace v. Anderson, 366 Md. 690, 695 , 785 A.2d 726 (2001). Accordingly, we shall treat Lee’s constitutional tort claim as a claim of unjustified detention in violation of Article 26 of the Maryland Declaration of Rights. C. Evidence Of Unjustified Detention Lee argues that the circuit court erred in holding that he did not produce sufficient evidence to support his claim that Cline violated his constitutional rights by detaining him longer than was necessary to resolve the matter of the missing license plate. Cline disputes Lee’s interpretation of the evidence, claiming that “[t]he record before this Court dem ⁵⁴ onstrates that the length of the stop was approximately twenty minutes,” and that Lee “was detained no longer than reasonably necessary for Deputy Cline to complete the two warnings.” Before addressing the respective merits of these positions, we shall review the relevant legal standards for assessing Cline’s liability for this traffic stop. 1.

Constitutionally Unjustified “Second Stops” “The Fourth Amendment requires that ... seizures be reasonable. A ... seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 , 121 S.Ct. 447, 451 , 148 L.Ed.2d 333 (2000). The Supreme Court has refused to “credit the ‘general interest in crime control’ as justification for a regime of suspicionless stops.” Id., 531 U.S. at 41 , 121 S.Ct. at 454 . Thus, an officer who detains a motorist must have an articulable basis for the stop.

See id. When, as in this case, the officer has a specific legitimate reason for stopping a motorist, that detention is reasonable. See Whren v. United States, 517 U.S. 806, 810 , 116 S.Ct. 1769, 1772 , 135 L.Ed.2d 89 (1996). But the officer’s continued detention of a motorist stopped for a traffic offense may develop into a second stop.

Florida v. Royer, 460 U.S. 491, 500 , 103 S.Ct. 1319, 1325 , 75 L.Ed.2d 229 (1983), and its progeny teach that a second stop occurs when the officer detains the motorist “longer than is necessary to effectuate the purpose of the [initial] stop.” “[T]he officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.” Ferris v. State, 355 Md. 356, 372 , 735 A.2d 491 (1999). At that point, “the initial traffic stop .... [can] no longer serve as the Fourth Amendment justification for anything that followfs].” ⁵⁵ Charity v. State, 132 Md.App. 598, 613 , 753 A.2d 556 , cert. denied, 360 Md. 487 , 759 A.2d 231 (2000). The officer must have a separately articulable basis for that second stop, because even “seizures that involve only a brief detention” may violate the Fourth Amendment.

See Nathan v. State, 370 Md. 648, 659-60 , 805 A.2d 1086 (2002); Ferris, 355 Md. at 371 , 735 A.2d 491 . “[AJbsent reasonable suspicion, even a reasonable delay would not [be] permitted[.]” Green v. State, 145 Md.App. 360, 391 , 802 A.2d 1130 , cert. granted, 371 Md. 613 , 810 A.2d 961 (2002). Refusal to consent to a search of one’s vehicle does not give police reason to prolong a traffic stop. Long ago, in Snow v. State, 84 Md.App. 243 , 578 A.2d 816 (1990), we expressed particular disturbance at the notion “[t]hat law enforcement personnel [would] assume that a citizen exercising his or her constitutional right to reject a search indicates that he or she is guilty of some criminal activity[.]” Id. at 261-62 , 578 A.2d 816 . “A citizen’s exercise of the Fourth Amendment right to be free from unwarranted searches does not trigger a reasonable suspicion that he or she is carrying narcotics.” Id. at 262 , 578 A.2d 816 . Cline does not contend that Lee’s refusal of his request to search justified the canine scan.

Indeed, Cline has never argued that he had any legal justification for a second stop; rather, he asserts that there was no second stop at all. Consequently, the viability of Lee’s Article 26 claim turns on whether Cline prolonged Lee’s stop in order to obtain the canine scan. “When ... there is evidence that the investigating officers have not proceeded as diligently as they could under the circumstances, a prolonged detention will be viewed as unreasonable.” Graham v. State, 119 Md.App. 444, 468 , 705 A.2d 82 (1998). “In the absence of a justification for continued detention that manifests itself during the period of time reasonably necessary for the officer to (1) investigate the [violation for which the stop was made] and [the driver’s] ⁵⁶ license status, (2) establish that the vehicle has not been reported stolen, and (3) issue a traffic citation, the Fourth Amendment prohibits a detention in excess of that period of time.” Pryor v. State, 122 Md.App. 671, 682 , 716 A.2d 338 , cert. denied, 352 Md. 312 , 721 A.2d 990 (1998). In particular, prolonging “a detention because the K-9 unit is detained elsewhere must be viewed as contrary to the diligence required under a Fourth Amendment reasonableness analysis.” Graham, 119 Md.App. at 468 , 705 A.2d 82 . In Wilkes v. State, 364 Md. 554, 570 , 774 A.2d 420 (2001), the Court of Appeals held that because an investigation incident to a traffic stop was still legitimately underway at the time the canine scan occurred, there was no second stop.

That case, however, differs from this case, because that canine unit arrived and conducted the scan before the officer received radio verification of the motorist’s driver’s license, registration, and warrant status. See id. Wilkes is consistent with our decisions emphasizing that the officer has a reasonable amount of time to effectuate the purpose of the stop, so that when a canine is present at the time of the initial stop, or arrives while the officer is still investigating and ticketing the motorist for the traffic offense, a perimeter canine scan of the vehicle may be “entirely proper.” See Pryor, 122 Md.App. at 681 n. 6, 716 A.2d 338 . Many of those decisions, however, involved stops that we concluded were unjustified second stops because they continued after the officer had resolved the reason for the initial traffic stop.

Compare Pryor, 122 Md.App. at 681 & n. 6, 716 A.2d 338 (unjustified second stop occurred because canine did not arrive for 20-25 minutes after Whren stop, and officer made no effort to pursue the traffic violation during that time); Graham, 119 Md.App. at 468-69 , 705 A.2d 82 (unjustified second stop of passenger occurred because canine scanned 25 minutes after the stop, and after driver had been arrested for driving without a valid license); Munafo v. State, 105 Md.App. 662, 673 , 660 A.2d 1068 (1995)(unjustified second stop occurred because canine did not arrive until two to three ⁵⁷ minutes after officer learned the license and registration were in order); and Snow, 84 Md.App. at 267 , 578 A.2d 816 (unjustified second stop occurred because canine scan was conducted after speeding ticket was issued) with McKoy v. State, 127 Md.App. 89, 100-01 , 732 A.2d 312 (1999)(no second stop because canine was present in vehicle of officer who made the traffic stop, and scan was conducted immediately after officer spoke with motorists and before license was verified); In re Montrail M., 87 Md.App. 420, 437 , 589 A.2d 1318 (1991), aff'd, 325 Md. 527 , 601 A.2d 1102 (1992)(no second stop because canine arrived and scanned while officer was still checking license and registration). As a general rule, then, the time that it takes to complete the investigation and ticketing resulting from the initial stop is not to be considered in determining whether there was a second stop. See Pryor, 122 Md.App. at 681-82 , 716 A.2d 338 . An important caveat to this rule is dramatically illustrated by Charity v. State, 132 Md.App. 598, 614-15 , 753 A.2d 556 , cert. denied, 360 Md. 487 , 759 A.2d 231 (2000), in which we warned that officers may not delay writing or delivering a traffic citation in order to conduct an intervening narcotics investigation.

Delays for that purpose will be treated as a second stop sandwiched between the initial stop and the ultimate delivery of the completed ticket. “Just as a traffic stop ... loses its energizing power to legitimate a contemporaneous but extrinsic investigation once it is formally terminated, so too may the legitimating raison d’etre evaporate if its pursuit is unreasonably attenuated or allowed to lapse into a state of suspended animation.” Id. at 614 , 753 A.2d 556 (citation omitted). On the other hand, we also cautioned in Chanty that the existence and constitutional significance of any delay cannot be measured solely by the length of a particular stop. We are not suggesting for a moment that when the police effectuate a traffic stop, they are operating under a “time gun” or may not pursue two purposes essentially simultaneously, with each pursuit necessarily slowing down the ⁵⁸ other to some modest extent. We are simply saying that the purpose of the justifying traffic stop may not be conveniently or cynically forgotten and not taken up again until after an intervening narcotics investigation has been completed or has run a substantial course.

The legitimating power of a traffic stop to justify a coincidental investigation has a finite “shelf life,” even when the traffic stop ... is not formally terminated. Id. at 614-15 , 753 A.2d 556 . Charity involved an egregious instance of a suspended investigation of a traffic offense. Charity’s vehicle was stopped, along with another vehicle, for a traffic violation.

When the police officer asked for Charity’s license and registration, he noticed that Charity’s vehicle was filled with what turned out to be 72 air fresheners. The officer asked Charity to step out of the vehicle, questioned Charity and his passenger about their activities and destination, and then patted Charity down. The pat down of Charity yielded a small amount of marijuana, and a subsequent search of the vehicle yielded a large amount of cocaine. Hours after Charity arrived at the police station, the officer issued Charity a traffic citation.

We held that there had been an unjustified second stop. Under the extreme circumstances of this case ... it is clear ... that the police purpose of taking appropriate action ... for [Charity’s] traffic infraction of following too closely effectively lapsed into a coma at the instant [the officer] approached the Nissan Maxima and [Charity] rolled down the window. As soon as Sergeant Lewis smelled and saw the air fresheners, if not before, he was, figuratively as well as literally, “on the scent” of a narcotics violation. His total focus had shifted from the traffic infraction, if it had ever been there, to drug interdiction.

Id. at 618 , 753 A.2d 556 . In Lee’s case, the circumstances do not so clearly establish that there was a second stop. We agree with Cline that there is no comparably conclusive evidence that he suspended his ⁵⁹ investigation of the traffic infraction while he awaited the arrival of the canine unit to pursue his otherwise unsubstantiated suspicion that Lee might possess narcotics. Lee reminds us, however, that an unjustified detention need not be so egregious or obvious as the one featured in Charity .

He analogizes his case to Whitehead v. State, 116 Md.App. 497 , 698 A.2d 1115 , cert. denied, 348 Md. 207 , 703 A.2d 148 (1997), and Munafo , in which detained motorists also refused to consent to a search of their vehicles, which were then subjected to canine scans, in Whitehead , we held that after the officer received information that the motorist had a valid license and was not wanted on any outstanding warrants, and that his vehicle was not stolen, the officer “was under a duty expeditiously to complete the process of either issuing a warning or a traffic citation for whatever traffic offenses that he had observed.” Whitehead, 116 Md.App. at 499, 503 , 698 A.2d 1115 . In Munafo , we held that once the officer had obtained such information, his continued detention of the motorist for “two to three minutes” while awaiting the arrival of a canine unit, and for another “minute or two” to discuss the situation with the responding canine unit officer, was “brief,” but nevertheless “entirely unjustified by the purpose of the original stop.” Munafo, 105 Md.App. at 673 , 660 A.2d 1068 . Read together, these cases teach that the length of a traffic stop, by itself, does not dictate whether there was an unconstitutional second stop. As Munafo illustrates, the time consumed by a constitutionally unjustified delay might be “brief,” lasting only a couple of minutes.

Just as a “time gun” cannot be used to condemn a particular traffic stop, neither can it be used to legitimize one. Instead, we must ask what occurred during the particular stop, and why. 2. Factual Disputes Material To Determining Whether There Was An Unjustified Second Stop Evidence that Cline delayed either his preparation or delivery of the warning tickets would establish an unjustified ⁶⁰ second stop. Lee points to the following evidence, which he contends raises such an inference. • Deposition testimony of former supervising officers of Frederick County and the Maryland State Police opining that the tickets written by Cline should not have taken more than five minutes to complete. • Statistical evidence authenticated by the Frederick County sheriff who supervised Cline, showing that the average length of similar traffic stops throughout the department was approximately 14 minutes, and that the length of four similar “equipment warning” stops by Cline, in particular, ranged from four to ten minutes. • Lee’s deposition testimony that when he refused Cline’s request to search the car, Cline retorted that he didn’t “need [his] permission to search the car” because he “can get dogs in here and search it without your permission.” • Lee’s testimony and the police dispatch tape showing that Cline twice requested a canine unit, with the second request made immediately after Lee refused Cline’s search request. • The police dispatch tape showing that Cline specifically asked how long it would take for the canine unit to arrive, because he was almost finished with his paperwork, and that he was told that the unit would not be there for another three minutes. • Lee’s deposition testimony that about fifteen minutes after the stop, and before the canine unit arrived, Officer Henry arrived as backup, and that Cline then talked with him for several minutes while Lee watched and waited in his car. • Lee’s deposition testimony that the delay from when Cline returned to his cruiser until the canine unit arrived was nearly thirty minutes, during which time he looked at the clock, read a newspaper, listened to the radio, and eventually exited his vehicle when he began to tire of waiting and to wonder about the delay. ⁶¹ • Lee’s testimony that when the canine unit officer arrived, three to five minutes elapsed before the officer and dog approached the vehicle, during which time the canine officer talked with Cline for “[a] few minutes.” • Lee’s testimony that “after the [canine] officer le[ft], Officer Cline reapproache[d] the car with two warning citations ... asking for my signature.” Cline argues that “this is not a ‘second-stop’ case” because, even though he has no independent recollection of the stop, the evidence shows that it lasted only twenty minutes, and that the canine scan occurred during the period that he was doing his paperwork.

In support of that position, Cline cites the following evidence: • The dispatch tape showing that he did not request the “RD & B” (i.e., reporting district and beat) code necessary to complete the warning tickets until 3:23 p.m. • Cline’s deposition testimony that whenever he is writing two tickets, he invariably requests RD & B information when writing the first of the two tickets. • Lee’s admission that while he was waiting, he saw Cline in his police cruiser writing and occasionally speaking into his radio. • Cline’s affidavit that police records showed that the canine unit arrived “no later than 3:31 (15:31),” and the canine unit officer’s testimony that scans take approximately ninety seconds to complete. • Cline’s deposition testimony and affidavit stating that he has never delayed a traffic investigation or citation in order to await the arrival of a canine unit. We conclude that both the length of the stop and whether Cline delayed writing or delivering the warnings for the purpose of obtaining the canine scan are disputed questions of fact that cannot be resolved on summary judgment. As the federal court correctly pointed out, “[t]he earliest time mentioned is 3:09 p.m., which corresponds to the time Officer Cline [allegedly] witnessed the violation from his patrol car. The ⁶² latest time mentioned is 3:42 p.m., which is the time that the call was cleared.” (Record citations omitted.) Thus, “[r]e-solving all evidentiary disputes in Mr. Lee’s favor, the stop may have lasted as long as 33 minutes[,]” with the canine unit arriving “twenty one minutes after the earliest time that Mr. Lee could have been stopped.” Moreover, there was “some disputed testimony about exactly what took place during that túne.” “Mr. Lee testified that, when the second officer arrived, Officer Cline got out of his car and chatted with him.

Although ‘he does not recall this particular stop,’ Officer Cline asserts that he spent the entire time Mr. Lee was detained filling out paperwork and conducting background checks, and that ‘he has never detained a motorist to wait for a canine after he has finished his paperwork.’ ” We agree with Lee and the federal court that, in this case, the length of the stop and whether Cline prolonged it to obtain the canine scan rest on factual disputes that cannot properly be resolved on summary judgment. For purposes of summary judgment, we must reject Cline’s scenario of a twenty minute stop, during which the canine unit arrived before he had an opportunity to complete the warnings. Most notably, we cannot credit the witnesses and documents that he relies on as more accurate reports of the length and events during the stop than the testimony of Lee. The evidence proffered by Lee raised an inference that 20 to 25 minutes elapsed between the time he showed Cline the mangled license plate and Cline returned to his cruiser with Lee’s license and registration, and the time the canine scan was finally conducted.

Nor can we credit Cline’s claim that he diligently used that time to write the tickets, given the statistical evidence regarding the length of similar stops by Cline and other members of the Frederick County Sheriffs Department; the expert opinions that the length of this stop was unreasonable, especially given that the license, registration, and warrant checks were negative; Lee’s testimony that Cline spent several minutes conversing with both the backup and the canine unit officers; Cline’s statement at 3:23 that he was almost done with the paperwork and ⁶³ indicating concern about when the canine unit would arrive; and the undisputed evidence that Cline delivered the tickets immediately after the canine unit left. “The summary judgment process is not properly an opportunity for the trial court to give credence to certain facts and refuse to credit others.” Okwa, 360 Md. at 182 , 757 A.2d 118 . We hold that there were material disputes regarding whether Cline prolonged Lee’s traffic stop while awaiting the arrival of the canine unit. In concluding that there was no evidence of a constitutional violation, the circuit court disregarded Lee’s version of events and accepted Cline’s, even though Cline could not remember anything about this particular traffic stop. That was error.

See, e.g., id. (because evidence raised material dispute as to events surrounding forceful arrest, summary judgment was improper). The next question is whether summary judgment was appropriate despite this error. Cline contends that it was, because, even assuming that he did unjustifiably detain Lee in an improper second stop, the circuit court correctly concluded that he has qualified immunity from civil liability for that constitutional violation due to his lack of malice.

We turn now to the immunity issues raised by that ruling.

II

The Circuit Court Properly Held That Cline Had Qualified Immunity Against Constitutional Torts A. The Qualified Immunity Debate At the summary judgment hearing, Lee’s attorney argued that, even if the evidence was insufficient to establish that Cline acted with malice, Lee must be allowed to proceed on his constitutional tort claim because state officials like Cline do not have qualified immunity from liability for their constitutional torts. Counsel “maintain[ed] that ... when you analyze ⁶⁴ the constitutional tort in this case, whether or not ... Cline acted with malice is just not germane.” When the circuit court asked Cline’s attorney whether he agreed, he replied, “No,” taking the position that “you need to prove malice for a Maryland Declaration of Rights claim[.]” Cline reads Md.Code (1974, 2002 Repl.Vol.), section 5-522(b) of the Courts & Judicial Proceedings Article (“CJ”), as a blanket gift of statutory immunity to all State personnel. He argues that, “[biased upon the plain language of [section] 5-522(b), it clearly applies to all torts, regardless of type,” because the immunity granted by section 5-522(b) “does not differentiate in any manner between intentional and non-intentional, or constitutional and non-constitutional, torts.” The circuit court agreed that summary judgment was appropriate on the constitutional tort claim because there was no indication that Cline acted with malice. 6 In this appeal, Lee challenges that conclusion, while Cline urges us to affirm it.

Citing Okwa v. Harper, 360 Md. 161 , 757 A.2d 118 (2000), Lee contends that “[t]he principle that governmental immunity is not a defense to [a] claim of violation of state constitutional rights is firmly etched in Maryland law.” Cline points out, however, that “the Maryland Court of Appeals has never directly addressed the applicability of the statutory immunity ⁶⁵ provided in § 5-522(b) to state constitutional torts.” He contends that section 5-522(b) abrogated the common law. We agree with Cline that section 5—522(b) gives State personnel qualified immunity against constitutional torts. A plain reading of the statute in light of its purpose, and a careful reading of the Court of Appeals’ decisions regarding section 5-522(b) leads us to this conclusion. In particular, we believe that in Ritchie v. Donnelly, 324 Md. 344 , 597 A.2d 432 (1991), the Court of Appeals recognized that the General Assembly changed the common law, under which State officials did not have qualified immunity against their state constitutional torts, by granting qualified immunity to State personnel on all types of tort claims.

We recognize that the Court of Appeals’ opinion in Okwa suggests a different result, and that Okwa has been applied as authority for the proposition that State personnel cannot assert a qualified immunity defense to a state constitutional tort claim, notwithstanding the grant of qualified immunity in section 5-522(b). After examining the record and decision in Okwa , however, we cannot say that it should be read so broadly. We shall explain our conclusions by examining the development of statutory governmental immunity for State personnel under section 5-522(b). In doing so, we distinguish that immunity from both the sovereign immunity enjoyed by the State, and from the governmental immunity enjoyed by local governments and their employees under common law and the Local Government Tort Claims Act.

These distinctions are critical to understanding the unique nature of the qualified immunity available to State personnel. B. The Common Law, Section 5-522(b), And Qualified Immunity Of State Personnel Against Constitutional Torts Under Maryland common law, civil damages could be awarded against a state police officer for violating the plain ⁶⁶ tiffs constitutional rights by conducting a constitutionally impermissible search, arrest, or detention, without regard to whether the officer acted with malice. Clea v. City of Baltimore, 312 Md. 662 , 541 A.2d 1303 (1988), is the landmark ease articulating the principle that, at common law, State officers have no governmental immunity against constitutional torts. In that case, the Clea family alleged that a Baltimore City police officer mistakenly obtained and executed a search warrant for their house, although a house located on a neighboring street was the correct target.

The Cleas acknowledged that the error resulted from the officer’s reliance on incorrect address information provided by an informant. The Court of Appeals concluded that the officer’s mistaken search “was clearly a violation of the Cleas’ constitutional rights.” Id. at 679 , 541 A.2d 1303 . After reviewing three analogous cases involving constitutional tort damage claims against individual police officers, the Court specifically rejected the officer’s “argument that a public official, guilty of violating a plaintiffs rights under the Maryland Constitution, should be entitled to a qualified immunity from compensatory damages based upon the absence of malice.” Id. at 684 , 541 A.2d 1303 . It held that the officer could be held personally liable for damages resulting from that violation, even though he did not act with malice.

See id. at 684-85 , 541 A.2d 1303 . “[A] public official who violates a plaintiffs rights under the Maryland Constitution is entitled to no immunity. The plaintiff may recover compensatory damages regardless of the presence or absence of malice.” Id. at 680 , 541 A.2d 1303 . In this oft-cited passage, the Court explained why: There are sound reasons to distinguish actions to remedy constitutional violations from ordinary tort suits. The purpose of a negligence or other ordinary tort action is not specifically to protect individuals against government officials or to restrain government officials.

The purpose of these actions is to protect one individual against another individual, to give one person a remedy when he is wrongfully injured by another person. Issues of governmental ⁶⁷ immunity in this context concern whether, and to what extent, as a policy matter, a governmental official or entity is to be treated like an ordinary private party. On the other hand, constitutional provisions like Articles 24 or 26 of the Maryland Declaration of Rights ... are specifically designed to protect citizens against certain types of unlawful acts by government officials. To accord immunity to the responsible government officials, and leave an individual remediless when his constitutional rights are violated, would be inconsistent with the purpose of the constitutional provisions.

It would also ... largely render nugatory the cause of action for violation of constitutional rights!.] Id. at 684-85 , 541 A.2d 1303 (citations omitted). One of the cases that the Clea Court relied on has notable similarities to the case before us now. In Mason v. Wrightson, 205 Md. 481 , 109 A.2d 128 (1954), the Baltimore City Police Commissioner had responded to a rash of armed crimes by issuing a “ ‘general order’ for police to search ‘all persons coming under police suspicion’ for weapons.” Clea, 312 Md. at 682 , 541 A.2d 1303 . “David T. Mason, an attorney and later a distinguished judge of the Court of Special Appeals,” was seated with friends at a tavern when Wrightson, a city officer, “told him to ‘stand up and be searched!.]’ ” Id. Mason “ ‘arose from his chair, but informed Sergeant Wrightson that he did not consent to be searched because there was no legal basis for the search.’ ” Id.

Wrightson proceeded to pat down Mason without his consent. Mason then sued the officer for damages. The trial court granted judgment for Wrightson, but the Court of Appeals reversed, holding that Mason was entitled to nominal damages against Wrightson. See Mason, 205 Md. at 489 , 109 A.2d 128 .

Chief Judge Bruñe explained that [w]hen a peace officer goes beyond the scope of the law he may become liable civilly and is not shielded by the immunity of the law. The fact that the appellee was acting under ⁶⁸ orders of a superior officer does not relieve him of civil liability for his actions which are illegal[.] Id. at 487 , 109 A.2d 128 . Clea and Mason both applied the common law principle that government officials do not have qualified immunity against claims alleging a violation of the Maryland Declaration of Rights. But the Court of Appeals’ opinion in Clea also recognized that the common law had been dramatically changed by statute.

The Clea Court specifically acknowledged that immunity for State officials had been “broadened considerably” in 1985, when the General Assembly first adopted a qualified immunity provision for State personnel as part of the Maryland Tort Claims Act (the “MTCA”). See Clea, 312 Md. at 671 n. 6, 541 A.2d 1303 ; 1985 Md. Laws ch. 538 § 2 (effective July 1, 1985). The MTCA was an historic quid pro quo. Before it was enacted, the State and its agencies had absolute sovereign immunity from liability for all torts. “[T]he doctrine' of sovereign immunity prevent[ed] the State from being held liable in damages for an unconstitutional act absent a legislative waiver.” Ritchie, 324 Md. at 373-74 , 597 A.2d 432 .

Thus, before the MTCA, the State could not be held liable, either directly or under principles of respondeat superior, for constitutional torts committed by State employees. In contrast, as Clea illustrates, individual state officials did not share the State’s sovereign immunity. See Clea, 312 Md. at 680 , 541 A.2d 1303 . The only immunity available to State employees was the limited governmental immunity available to public officials under common law.

See id. at 680-81 , 541 A.2d 1303 . That common law governmental immunity did not include qualified immunity against constitutional tort liability. See id. at 680-85 , 541 A.2d 1303 . The deal reflected in the MTCA was that the State agreed to partially waive its sovereign immunity in exchange for an expanded immunity from liability for a broader category of State employees.

See id. at 671 n. 6, 541 A.2d 1303 . In 1981, ⁶⁹ the first version of the MTCA was enacted. 7 See 1981 Md. Laws ch. 298; Foor v. Juvenile Svcs. Admin., 78 Md.App. 151, 163 , 552 A.2d 947 , cert. denied, 316 Md. 364 , 558 A.2d 1206 (1989). It provided that the State and individual state employees were immune from liability for specified categories of torts, including negligent operation of a motor vehicle, negligent medical care, and negligent supervision at state parks and recreational facilities.

See 1981 Md. Laws ch. 298. By 1985, these “categories of waiver and protection ha[d] created a sea of legal uncertainty”; according to the State Treasurer, “[n]either the public nor the State employees [could] ascertain their legal positions without a careful study of each case