Lee v. Cline

ELDRIDGE, J. The issues in this case are (1) whether the Maryland Tort Claims Act, Maryland Code (1984, 2004 Repl.Vol.), §§ 12-101 et seq. of the State Government Article, provides qualified immunity to state personnel for tort actions based upon violations of the Maryland Constitution, (2) whether the Maryland Tort Claims Act provides qualified immunity to state personnel for tort actions based upon certain common law “intentional” torts, and (3), if the Act does grant such qualified immunity, whether the plaintiffs evidence of malice was sufficient to generate a triable issue as to whether the immunity was defeated. I. As this case was resolved by a grant of the defendant Cline’s motion for summary judgment, “[w]e review the record in the light most favorable to the non-moving party [here the plaintiff] and construe any reasonable inferences which may be drawn from the facts against the movant.” Walk v. Hartford Casualty, 382 Md. 1, 14 , 852 A.2d 98, 106 (2004). See, e.g., Jurgensen v. New Phoenix, 380 Md. 106, 114 , 843 A.2d 865, 869 (2004); Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 533 , 836 A.2d 655, 669 (2003); Remsburg v. Montgomery, 376 Md. 568, 579-580 , 831 A.2d 18, 24 (2003); Rite Aid v. Hagley, 374 Md. 665, 684 , 824 A.2d 107, 118 (2003); Lovelace v. Anderson, 366 Md. 690, 695 , 785 A.2d 726, 728 (2001), and cases there cited. ²⁴⁹ Keith Lee is an African-American Maryland resident. He left his home on the outskirts of Frederick, Maryland, on the morning of Saturday, March 12, 1994, to run various errands in his BMW automobile.

Lee made several stops, one of which was at a car wash at a gas station. Sometime later he noticed that his car’s front license plate was missing. He correctly surmised that the plate had come off at the car wash, and he returned to the gas station to retrieve it. Lee found that the license plate was mangled so that he was unable to reattach it to his car.

He placed the plate on the rear floor of the automobile behind the driver’s seat, and resumed his errands. At about 3:00 p.m. on March 12th, while Lee was still running errands, he observed a police car, with overhead lights activated, following his car. When he pulled over, Frederick County Deputy Sheriff Gary Cline approached Lee’s car and asked Lee to present his driver’s license and automobile registration card. Lee did so, and asked Cline the reason for the stop.

When Cline responded that the front license plate was not on Lee’s automobile, Lee explained that the plate had fallen off at the car wash and showed Cline the mangled plate. Deputy Sheriff Cline then asked Lee if he would consent to Cline searching the vehicle for illegal narcotics and weapons. Lee refused to consent to the search, and 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 still refused to consent to the search.

Next, Cline took Lee’s driver’s license and registration card, returned to his police car, and contacted by radio the Frederick County Emergency Communications Center. Cline provided the radio dispatcher with Lee’s license plate number in order to check its status. According to the radio dispatch tape of the incident, this initial call from Cline to the dispatcher was at 3:11 p.m. About two minutes later, the dispatcher called Cline and informed Cline that the license plate was valid and would not expire until later in the year. ²⁵⁰ About a minute after being told that the license plate was valid, Cline again called the dispatcher and requested that the dispatcher “locate a canine [unit] and start him my way.” The dispatcher replied that no canine units were available to send to that location.

Two minutes later, however, at 3:16 p.m., the dispatcher contacted Cline and informed the deputy sheriff that a State Police canine unit was nearby and available. Cline requested that the canine unit be sent to his location, stating (emphasis supplied): “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 also asked the dispatcher about Lee’s driving record and arrest warrant status.

At 3:17 p.m., the dispatcher informed Cline that Lee’s driver's license was valid, that Lee had no points, that Lee was not wanted by the police, and that he had never been involved with the criminal justice system. The radio dispatch tape discloses that, at 3:22 p.m., a second deputy sheriff, Officer Henry, reported to the dispatcher “that he was on the scene as backup.” Shortly thereafter, while Officers Cline and Henry were engaged in a conversation at the side of Cline’s police car, Lee got out of his vehicle and stood by the front of his vehicle. According to Lee’s deposition, he “had been sitting there [in the vehicle] for a good while. [His] legs were getting ... tired.” Lee continued: “Then, after about 30 seconds, Officer Cline yelled, get back in your car,” and Lee got back into the car. A Maryland State Police trooper arrived on the scene at 3:30 p.m., with a dog.

The trooper asked Lee if he had any drugs in the car, and Lee replied that he did not. The State trooper then circled Lee’s ear with the trooper’s dog and indicated that there was no sign of drugs. The trooper then put the dog back in the State police vehicle and left. Following the departure of the State trooper, Cline gave Lee two warning tickets, which Lee signed.

Cline returned Lee’s driver’s license and registration card, and Lee left the scene. ²⁵¹ The radio dispatch tape shows that Cline reported the stop “cleared” at 3:42 p.m.

II

Lee filed a complaint in the Circuit Court for Frederick County against Deputy Sheriff Gary Cline, Frederick County Sheriff James W. Hagy, the Maryland State Police, Maryland State Police trooper Eric Fogle, and the County Commissioners of Frederick County. Lee alleged “that he was detained and searched because of a Frederick County Sheriffs Department practice which targets African-American males driving expensive cars. Such drivers allegedly fit the Department’s drug courier ‘profile.’ ” The complaint went on to state that “[a]t no time did defendants ... Cline or ...

Fogle have probable cause, reasonable ... suspicion or any ground, to believe that a crime had been committed or that the Plaintiff was carrying drugs [of] any kind.” Lee claimed that Cline and Fogle were guilty of an unreasonable search and seizure, that the police officers unlawfully detained and imprisoned him, and that the officers “intentionally discriminated against Plaintiff on the basis of race and failed to afford him equal protection of the law.” Lee asserted that the Frederick County Commissioners were “aware of the Frederick County Sheriffs Department policy of utilizing a race-based drug courier profile and a policy of stereo-typing African-American males in late model luxury automobiles as ‘suspicious’ and criminal and these Defendants provide manpower and other resources in support of the Frederick County Sheriffs race-based policy.” Lee further alleged that the violations of his rights were knowing and “intentional, extreme, outrageous, and intolerable and offend[ed] generally accepted standards of decency, morality and fairness, and ... caused Plaintiff to suffer embarrassment, mental anguish and emotional distress.” Count I of Lee’s original complaint charged a violation of his civil rights under 42 U.S.C. § 1983 ; he asserted that the stop violated his rights under the Fourth and Fourteenth Amend ²⁵² ments to the United States Constitution. In the next count, Lee alleged that the defendants’ actions violated his rights under the Maryland Declaration of Rights. The remaining counts in the original complaint were non-constitutional common law claims of false imprisonment, invasion of privacy, and intentional infliction of emotional distress. Lee filed in the Circuit Court two amended complaints, adding a count sounding in negligence and a count charging a “Violation of Title VI of the Civil Rights Act of 1964,” 42 U.S.C. § 2000d and 28 C.F.R. § 42.104 (b)(2).

He also asserted that the “Defendants’ acts were done with malice [and] deliberate indifference to and in knowing violation of Plaintiffs’ legal and constitutional rights----” In addition, Lee alleged that the Maryland State Police officer’s canine was a “large ferocious looking canine [which] caused Plaintiff to believe that he was not free to leave.” Following a ruling by the Circuit Court that, for several reasons, there was no basis for the asserted causes of action against Maryland State Police trooper Fogle and the Maryland State Police, Lee’s second amended complaint abandoned his claims against those two defendants. Finally, Lee sought compensatory and punitive damages, as well as declaratory and injunctive relief. Next, the remaining defendants removed the case from the Circuit Court for Frederick County to the United States District Court for the District of Maryland. Following discovery, various motions, other pleadings, and memoranda, the United States District Court dismissed the state law claims against Sheriff Hagy and the Frederick County Commissioners, granted the defendants’ motion for summary judgment on the counts based upon federal law {i.e., 42 U.S.C. § 1983 and Title VI of the Civil Rights Act of 1964), and declined to hear the counts against Cline based upon the Maryland Declaration of Rights and Maryland common law.

The case was returned to the Circuit Court for Frederick County. The defendant Cline then filed in the Circuit Court a motion for summary judgment which the court granted. The Circuit ²⁵³ Court held that there had been no violation of Lee’s state constitutional rights, that Cline had qualified immunity under the Maryland Tort Claims Act with regard to the non-constitutional tort claims, and that the plaintiff had presented no evidence of malice to overcome Cline’s qualified immunity. Lee appealed, and the Court of Special Appeals affirmed, although the intermediate appellate court’s reasoning differed somewhat from that of the Circuit Court.

Lee v. Cline, 149 Md.App. 38 , 814 A.2d 86 (2002). The Court of Special Appeals held that the Circuit Court erred in deciding that there was no triable issue with regard to the claimed violation of Lee’s state constitutional rights. Lee v. Cline, supra, 149 Md.App. at 50-63 , 814 A.2d at 93-101 . The intermediate appellate court summarized ( 149 Md.App. at 63 , 814 A.2d at 101 ): “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.” Nevertheless, the Court of Special Appeals held that the qualified immunity granted to state personnel, including deputy sheriffs, by the Maryland Tort Claims Act, “grant[ed] qualified immunity to State personnel on all types of tort claims,” including “state constitutional torts” and intentional torts. 149 Md.App. at 65 , 814 A.2d at 102 . See Code (1984, 2004 Repl.Vol.), § 12-105 of the State Government Article, and Code (1974, 2002 Repl.Vol., 2004 Supp.), § 5-522(b) of the Courts and Judicial Proceedings Article. 1 The Court of Spe ²⁵⁴ cial Appeals went on to hold that “[w]e find no error in the circuit court’s holding that Lee failed to proffer sufficient evidence of malice to overcome Cline’s qualified immunity.” 149 Md.App. at 89 , 814 A.2d at 116 . Lee filed in this Court a petition for a writ of certiorari which presented the following three questions: “I. Whether the Court of Special Appeals err[ed] in holding that [, under the Maryland Tort Claims Act,] Officer Cline had qualified immunity against state constitutional violations. “II.

Whether the Court of Special Appeals erred in holding that [, under the Maryland Tort claims Act,] Officer Cline had qualified immunity against state common law intentional torts. “HI. WTiether the Court of Special Appeals erred in holding that there was insufficient evidence of malice to overcome any qualified immunity possessed by Officer Cline.” Cline did not file a cross-petition for a writ of certiorari challenging the Court of Special Appeals’ holding that Lee had presented sufficient evidence of a violation of his state constitutional rights to generate a triable issue. This Court granted Lee’s petition for a writ of certiorari, Lee v. Cline, 374 Md. 82 , 821 A.2d 370 (2003). Our order granting the petition neither limited the issues nor added any issues.

Accordingly, the only issues before us are the three questions presented by Lee’s certiorari petition. Maryland Rule 8 — 131(b)(1); R.A. Ponte Architects, Ltd. v. Investors’ Alert Inc., 382 Md. 689 , 694 n. 3, 857 A.2d 1 , 3-4 n. 3 (2004); Edwards v. Corbin, 379 Md. 278 , 287 n. 5, 841 A.2d 845 , 850 n. 5 (2004), and cases there cited. ²⁵⁵ III. We shall consider Lee’s first two questions together, namely whether the Maryland Tort Claims Act grants qualified immunity to state personnel for tortious acts or omissions, within the scope of the state employees’ public duties, when those acts or omissions involve violations of state constitutional rights or constitute so-called “intentional” torts. A. With one major exception not involved in the present case, the immunity granted to state personnel by the Maryland Tort Claims Act is generally co-extensive with the coverage of the statute.

See § 5-522(b) of the Courts and Judicial Proceedings Article. If this case had involved the language of the Maryland Tort Claims Act as it existed prior to July 1, 1985, Lee’s argument would have considerable merit. His argument, however, finds no support in the present statutory language. The General Assembly originally enacted the Maryland Tort Claims Act by Ch. 298 of the Acts of 1981, waiving the State’s governmental immunity with respect to six categories of claims.

These six categories were limited to specific types of negligence actions such as the negligent operation or maintenance of a motor vehicle, negligence by a state health care employee, defective conditions in state structures or property, and negligent actions by state employees in state parks or recreation facilities. These six categories would not have encompassed intentional torts or tort actions based upon constitutional violations. Nevertheless, by Ch. 538 of the Acts of 1985, effective July 1, 1985, the coverage of the Tort Claims Act was broadened to include tort actions generally, with certain specified exceptions and limitations. Section 12-104(a)(l) of the State Government Article now provides that “the immunity of the State and of its units is waived as to a tort action, in a court of the State.... ” Neither intentional torts (in the absence of malice), nor torts based upon constitutional violations, are excluded.

In fact, a ²⁵⁶ 1989 bill (House Bill 364), which would have excluded constitutional torts, did not pass. This history was summarized in Ritchie v. Donnelly, 324 Md. 344 , 374 n. 14, 597 A.2d 432 , 447 n. 14 (1991), as follows: “As a result of 1985 amendments to the Maryland Tort Claims Act, the statute does not exclude specified categories of torts except claims arising ‘from the combatant activities of the State Militia during a state of emergency/ § 5-399.2(a)(3) of the Courts and Judicial Proceedings Article. Otherwise, ‘tort actions generally1 are encompassed, Simpson v. Moore, 323 Md. 215, 219 , 592 A.2d 1090, 1092 (1991), as long as the state employee’s actions were not malicious, grossly negligent, or outside the scope of employment, Boyer v. State, supra, 323 Md. at 579, n. 14 , 594 A.2d at 131, n. 14; Sawyer v. Humphries, 322 Md. 247, 253 , 587 A.2d 467, 470 (1991). House Bill 364 of the 1989 Session of the General Assembly would have provided that ‘[ijmmunity is not waived’ under the Maryland Tort Claims Act for ‘any state ... constitutional claim.’ In the course of the bill’s legislative process, this provision was amended out.

Ultimately House Bill 364 did not pass.” See also, e.g., Shoemaker v. Smith, 353 Md. 143, 156-158 , 725 A.2d 549, 556-557 (1999); Condon v. State of Maryland, 332 Md. 481, 492-493 , 632 A.2d 753, 758-759 (1993); Sawyer v. Humphries, 322 Md. 247, 253-254 , 587 A.2d 467 -470 (1991); Rucker v. Harford County, 316 Md. 275, 297-302 , 558 A.2d 399, 409-412 (1989); Clea v. Mayor and City of Baltimore, 312 Md. 662, 671 , 541 A.2d 1303, 1307 (1988). The current language of the Maryland Tort Claims Act plainly appears to cover intentional torts and constitutional torts as long as they were committed within the scope of state employment and without malice or gross negligence. There are no exceptions in the statute for intentional torts or torts based upon violations of the Maryland Constitution. This Court has been most reluctant to recognize exceptions in a statute when there is no basis for the exceptions in the statutory language.

See, e.g., O’Connor v. Baltimore County, 382 Md. 102, 113 , 854 A.2d 1191, 1198 (2004) (“When interpret ²⁵⁷ ing a statute, we assign the words their ordinary and natural meaning. * * * We will not ... ‘judicially insert language to impose exceptions, limitations or restrictions not set forth by the legislature’ ”); Nesbit v. GEICO, 382 Md. 65, 75 , 854 A.2d 879, 885 (2004); Melton v. State, 379 Md. 471, 477 , 842 A.2d 743, 746 (2004); Salamon v. Progressive Classic Insurance Company, 379 Md. 301, 311-316 , 841 A.2d 858, 865-868 (2004); Piscatelli v. Board of Liquor License Commissioners, 378 Md. 623, 630-633 , 837 A.2d 931, 936 (2003); Blind Industries and Services of Maryland v. Maryland Department of General Services, 371 Md. 221, 231 , 808 A.2d 782, 788 (2002); Western Correctional Institution v. Geiger, 371 Md. 125, 142 , 807 A.2d 32, 42 (2002). While this Court has not, until today, directly decided whether intentional torts and constitutional torts are covered by the Maryland Tort Claims Act, thereby granting state personnel qualified immunity for such torts, our prior opinions do support such coverage. See Larsen v. Chinwuba, 377 Md. 92, 99, 107-109 , 832 A.2d 193, 196, 201-202 (2003) (A tort action against the Insurance Commissioner setting forth causes of action for defamation, invasion of privacy, abuse of process, and violation of rights guaranteed by the Maryland Declaration of Rights, and this Court held that the Commissioner was entitled to immunity under the Maryland Tort Claims Act, although the issue before the Court concerned scope of employment rather than the basic coverage of the statute); Okwa v. Harper, 360 Md. 161 , 757 A.2d 118 (2000) (A tort action against state governmental officials based upon allegations of various common law intentional torts, violations of the federal constitution, and violations of the state constitution, and the issues included (1) the sufficiency of the evidence to show malice, thereby defeating Maryland Tort Claims Act immunity, (2) liability under 42 U.S.C. § 1983 , and (3) the inapplicability of the public official immunity doctrine to state constitutional torts; the Court held, inter alia, that there was sufficient evidence of malice to defeat Maryland Tort Claims Act immunity, although no other issue was raised regarding the coverage of the Act); DiPino v. Davis, 354 Md. 18, 49-56 , ²⁵⁸ 729 A.2d 354, 370-374 (1999) (Holding that there was coverage under the Local Government Tort Claims Act for certain intentional and constitutional torts): Ashton v. Brown, 339 Md. 70, 107-108, 123-124 , 660 A.2d 447, 465-466, 473-474 (1995) (same); Ritchie v. Donnelly, supra, 324 Md. at 374 -375 n. 14, 597 A.2d at 446 -447 n. 14 (Suggests that the statutory immunity under the Maryland Tort Claims Act applies to non-malicious constitutional and intentional torts); Sawyer v. Humphries, supra, 322 Md. at 252-262 , 587 A.2d at 469 — 474 (Held that intentional torts may be covered by the Maryland Tort Claims Act, although the issues raised concerned scope of employment and malice). B. Despite the statutory language and the above-cited cases, Lee argues that the immunity granted by the Maryland Tort Claims Act should have no application to state constitutional torts or intentional torts.

Lee chiefly relies upon opinions dealing with common law public official qualified immunity for discretionary acts. As Lee correctly points out, this Court has consistently held that Maryland common law qualified immunity in tort suits, for public officials performing discretionary acts, has no application in tort actions based upon alleged violations of state constitutional rights or tort actions based upon most so-called “intentional torts.” The Maryland public official immunity doctrine is quite limited and is generally applicable only in negligence actions or defamation actions based on allegedly negligent conduct. 2 See e.g., Muthukumarana v. Montgomery ²⁵⁹ County, 370 Md. 447, 478-481 , 805 A.2d 372, 390-392 (2002) (discussing the public official immunity doctrine); Lovelace v. Anderson, supra, 366 Md. at 705-706 , 785 A.2d at 734 (“[T]he defense of public official immunity generally applies only to negligent acts. * * * The defense is not applicable ‘in an action based on rights protected by the State Constitution.’ ” It is also inapplicable where “a special relationship exists between the [official] and the injured person”); Okwa v. Harper, supra, 360 Md. at 201 , 757 A.2d at 140 (“A state public official alleged to have violated Article 24, or any article of the Maryland Declaration of Rights, is not entitled to” public official immunity); Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 134-139 , 753 A.2d 41, 58-61 (2000) (reviewing both the history and the scope of the common law public official immunity doctrine); DiPino v. Davis, supra, 354 Md. at 49, 51 , 729 A.2d at 370, 371 (Public official immunity “[p]rinciples apply to negligent conduct, not to intentional conduct. * * * [There is no public official] immunity in an action based on rights protected by the State Constitution”); Ashton v. Brown, supra, 339 Md. at 117 , 660 A.2d at 470 (“[T]he plaintiffs’ nonconstitutional tort claims are not limited to negligence, but include several so-called intentional torts. Public official immunity is not a defense to these intentional torts”); Parker v. State, 337 Md. 271, 285 , 653 A.2d 436, 443 (1995) (contrasting limited public official immunity with the much broader judicial immunity under Maryland law); Ritchie v. Donnelly, supra, 324 Md. at 370 , 597 A.2d at 445 (reviewing the public official immunity doctrine and holding “that a public official who violates the plaintiffs rights under the Maryland Constitution is personally liable for compensatory damages”); Clea v. City of Baltimore, supra, 312 Md. at 680 , 541 A.2d at 1311 (refusing “to extend [public official] immunity to damage actions against public officials who violate Maryland constitutional rights”); Ashburn v. Anne Arundel County, 306 Md. 617, 621-624 , 510 A.2d 1078, 1080-1081 (1986) (Public official immunity is limited to negligent acts arising “from the performance of [the official’s] job in a manner which involved judgment and discretion”); Cox v. ²⁶⁰ Prince George’s County, 296 Md. 162, 169 , 460 A.2d 1038, 1041 (1983) (“[A] police officer does not enjoy [public official] immunity if he commits an intentional tort or acts with malice”); James v. Prince George’s County, 288 Md. 315, 323 , 418 A.2d 1173, 1178 (1980) (Public official immunity applies only to an official’s “negligent acts”); Carr v. Watkins, 227 Md. 578, 583-586 , 177 A.2d 841, 843-845 (1962) (Distinguishing, for purposes of defamation actions, the