Mayor of Baltimore v. Silver

Finan, J., delivered the opinion of the Court. On April 19, 1861, riots broke out in the streets of Baltimore inspiring James Ryder Randall to wax poetically, “Avenge the patriotic gore that flecked the streets of Baltimore.” 1 The occasion was the passage of Union troops through the City and in the aftermath, one Poultney, a gunsmith, sued the City for the negligence of the authorities in failing to afford police protection to his shop which was looted of firearms. At common law a municipality generally is immune from actions for injuries occasioned by its negligence or nonfeasance in the exercise of functions essentially governmental in character (Wynkoop v. Hagerstown, 159 Md. 194, 198 , 150 A. 447 (1930)), but Chapter 137 of the Acts of 1835 (“The Riot Act,” subsequently codified as Article 82 of the Maryland Code) under certain circumstances renders a municipality liable for damages sustained to private citizens resulting from the failure of the City to prevent or contain riotous acts. Baltimore v. Poultney, 25 Md. 107 , ⁴⁴³ 126 (1866).

The same Article 82 is presently Code (1969 Repl. Vol.), Article 82, §§ 1 through 4 inclusive. 2 On April 6, 1968, some 107 years later, the vestigial winds of prejudice having not yet abated in this land, Dr. Martin Luther King, Jr. was assassinated in Memphis, Tennessee, and in the wake of this event civil disorders broke out in the City of Baltimore and continued for several days. This was a part of a pattern experienced in other large municipalities in the Nation. As a result of damages sustained to real and personal property, citizens and corporations have filed some 400 civil suits against the Mayor and City Council of Baltimore (City) ⁴⁴⁴ seeking redress.

Another 1500 suits are anticipated prior to the expiration of limitations. 3 At this point, the City recognizing that as a municipal corporation its standing to raise constitutional issues might be questioned, filed a petition for declaratory judgment in which Charles L. Benton, the City Director of Finance, John A. Leutkemeyer, the City Treasurer, and F. Pierce Linaweaver, the City Director of Public Works, joined as plaintiffs. The declaratory judgment proceeding was brought against John and Hazel Silver, the plaintiffs in one of the cases on the Civil Disturbance Docket and the appellees herein. The appellees filed an answer to the petition for declaratory relief in which they suggested that the City could make use of methods of preventing or restraining civil disorders other than by the solitary employment of the police department in order to satisfy the requirements of Article 82. The City then filed a motion for summary judgment which was heard before Harris, J., of the Superior Court of Baltimore City, along with the City’s demurrers in three test cases.

In an able memorandum opinion filed on August 12, 1970, Judge Harris concluded that the City’s demurrers in the test cases should be overruled, that the motion for summary judgment in the declaratory judgment proceeding should be denied, and that the petition for declaratory relief should be dismissed. A final order to this effect was issued by the court on December 21, 1970. The City now ⁴⁴⁵ appeals that portion of the order which denies the motion for summary judgment and dismisses the declaratory relief proceeding. The City once more contends that in view of The Police Omnibus Bill, Ch. 203 of the Acts of 1966, whereby the Police Department of Baltimore City was established as an agency and instrumentality of the State, it is legally incapable of controlling the police department and accordingly the application of Article 82 constitutes a deprivation of due process and equal protection of the law to the City and its taxpayers.

Thus after more than a century of relative obscurity, “The Riot Act,” Article 82 becomes the center of controversy in the present case. We first turn to a consideration of Article 82. Historically, the granting of redress to citizens who have sustained damages to property as a result of public riots which have not been prevented or contained by civil authorities is anything but novel. 4 The Supreme Court of the United States, tracing the ancient lineage of this remedy in a discussion of a similar Illinois statute in Chicago v. Sturges, 222 U. S. 313 , 32 S. Ct. 92 (1911), made the following observation: “The policy of imposing liability upon a civil subdivision of government exercising delegated police power is familiar to every student of the common law. We find it recognized in the beginning of the police system of Anglo-Saxon people.

Thus, ‘The Hundred,’ a very early form of civil subdivision, was held answerable for robberies committed within the division. By a series of statutes, beginning possibly in 1285, ⁴⁴⁶ in the statutes of Winchester coming on down to the 27th Elizabeth, the riot act of George I and act of George II, Chap. 10, we may find a continuous recognition of the principle that a civil subdivision intrusted with the duty of protecting property in its midst, and with police power to discharge the function, may be made answerable not only for negligence affirmatively shown, but absolutely as not having afforded a protection adequate to the obligation. * * 222 U. S. at 323-324 . It is of equal interest to note that, although the principle of communal responsibility for criminal violence made an early appearance in England, it enjoys an even more ancient recognition in Eastern culture as a similar provision is found in Sections 23 and 24 of the Code of Hammurabi. 5 Today some twenty states have statutes of similar import. See Criminal Victim Compensation, 30 Md. L. Rev. 266 (1970); Compensation for Victims of Violent Crimes, 61 Northwestern L. Rev. 72 (1966), and The Aftermath of the Riot, 116 Univ.

Pa. L. Rev. 649, 684 (1968). A reading of the Maryland statute makes it abundantly clear that the core of the statutory liability for riot damages is negligence on the part of those in authority who are charged with the responsibility and are vested with the power to maintain public peace. Some statutes raise the conclusive presumption that the occurrence of riot damage was caused by the local government’s failure to properly use its power and authority to maintain peace, but such is not the case with the Maryland law which is less stringent in its requirements.

Article 82 requires that the plaintiff prove by a fair preponderance of af ⁴⁴⁷ firmative evidence that, (1) the City had good reasons to believe that a riot was about to take place, or (2) having taken place, the City had notice in time to prevent property destruction, and (3) having notice, the City had the ability of itself, or with its own citizens to prevent the injury. In addition, Section 2 of Article 82 provides that as a “condition of liability” no indemnity shall be forthcoming if the local government uses all reasonable diligence and all powers entrusted to it for the prevention or suppression of riots. An earlier version of Article 82, but not different from the present in substance, was affirmed as to its constitutionality in Hagerstown v. Sehner, 37 Md. 180, 189 (1872). In the present case, the appellants do not question the constitutionality of Article 82, per se, but only with regard to its application to the City in view of Chapter 203 of the Acts of 1966 commonly referred to as The Police Omnibus Bill and a corollary piece of municipal legislation, Article II, Section 27 of the Baltimore City Charter (1964 Revision).

Therefore, to understand the constitutional vulnerability which the City attaches to Article 82, we must turn to an analysis of The Police Omnibus Bill. The City makes a persuasive argument that as early as 1860 the General Assembly of Maryland was intent upon taking the City of Baltimore out of the business of controlling civil disorders. See Chapter 7 of the Acts of 1860, as amended by Chapter 367 of the Acts of 1867. A graphic description of the reason for such a drastic change in police control was narrated by our predecessors in Upshur v. Baltimore, 94 Md. 743 (1902): “* * * For some years prior to the adoption of the Act of 1860, Ch. 7, and, therefore, during a period when the police force was wholly under the control of the municipality, the city authorities failed to suppress the disorder and lawlessness which prevailed to an alarming extent, and the riots and blood-shed which invari ⁴⁴⁸ ably accompanied a general or local election.

The law was defied; the public peace was disturbed; the constabulary were powerless, if not in sympathy with the mob, and reputable citizens were driven by violence from the polls. Relief from the intolerable conditions which existed was finally sought by an appeal to the General Assembly, and the Act of 1860, Ch. 7, completely separating the police department from the city government, was the result. The Police Board was created and its members and the force enrolled by them were made state officers and the city was denied, in the most positive manner, any right to interfere with or control the policemen. The underlying purpose was to deprive the city of all power over the police * * *.” 94 Md. at 756 .

An informative and entertaining account amply documenting the reasons for “The Police Reform Bills” is found in an article by H. H. Walker Lewis, “The Baltimore Police Case of 1860,” 26 Md. L. Rev. 215 (1966). 6 The 1860 Act establishes a State controlled police board for the City and the City’s police function was restricted to legislation, i.e., the passage of ordinances for preserving order, securing property and persons from violence, danger or destruction, etc. The Act also carried the sanction that neither the Mayor nor any officer of the City should in any manner “impede, obstruct, hinder or intervene with the said Board of Police, or any officer, agent or servant thereof or thereunder.” However, the Act contained a significant clause which was designed to make the City liable for police failures, stating, “nothing in this article contained shall be taken to destroy or diminish the liability * * * of the Mayor and City ⁴⁴⁹ Council * * * for any failure to discharge the duties or obligation of said corporation * * *, the board of police hereby created being, and they are hereby constituted to be, authorities of said corporation, * * * to the same effect as if created and appointed by or under the said Mayor and City Council. * * *” By Chapter 367 of the Acts of 1867, the Act of 1860 was pointedly amended to remove the incongruous imposition of liability of the City for the acts of the police department over which it had no control. The opinion of this Court in Adams v. Baltimore Transit Co., 203 Md. 295, 311 , 100 A. 2d 781 (1953), appears to establish beyond cavil that the City has no power with regard to the enforcement of the law but only with regard to the passages of regulatory ordinances. Altvater v. Baltimore, 31 Md. 462, 468 (1869) also establishes the proposition of the City’s non-liability for activities entrusted to the police department, in that instance the enforcement of an anti-sledding ordinance. See also Sinclair v. Mayor and City Council of Baltimore, 59 Md. 592, 596 (1883).

By the Act of 1860 the Police Board, under Section 13, could call upon the sheriff to form a “posse comitatus” for the purpose of preserving the peace, and likewise the Board could command all conservators of the peace in the City. Section 6 of the Act also authorized the Police Board to raise additional forces for “extraordinary emergencies.” Sections 14 and 15 removed the City’s power to raise and pay any other police force, and by Section 16 any attempt by the City to interfere with State control of the police force was made a criminal act. As will be developed later in this opinion, The Police Omnibus Act (Chapter 203 of the Acts of 1966) makes no mention regarding the manner in which a “posse comitatus” may be raised. In fact, the last mention of a “posse comitatus” is found in the 1949 Edition of the City’s Public Local Laws under Section 550, wherein the provisions of the 1860 Act are codified as amended by Chapter 367 of the Acts of 1867.

We cannot, however, agree with the City’s contention that the failure to in- ⁴⁵⁰ elude in The Police Omnibus Act of 1966 any mention of the manner in which “posses” may be raised, is indicative of a Legislative intent to abolish this common law institution, as an anachronism in modern day society. Thus it may be fairly stated that The Police Omnibus Act of 1966, the Act which affects the instant case, does not differ greatly from its predecessor acts insofar as separating the City from any control over the police department is concerned. In The Police Omnibus Act of 1966, control of the department is vested in the State with immediate supervision and direction of the department under a police commissioner who is appointed by the Governor. 7 Further support for the autonomy of the police department is found in Article 2, Section 27 of the Charter of the City which provides that, “ [N] o ordinance of the City or act of any municipal officer shall conflict, impede, obstruct, hinder, or interfere with the powers of the Police Commissioner.” However, an appreciation of the relationship between the City and the police department cannot be fully grasped unless it is understood that the City is the agency responsible for appropriating money for the operation of the police department and that the police commissioner must annually appear before the Board of Estimates of the City to defend his budgetary requests. Section 533(a) ⁴⁵¹ Chapter 203 of the Acts of 1966.

Certainly, although this in itself could not be construed as a method of indirect control over the police department by the City, nonetheless one would be overly naive not to think that such a situation would provide the occasion for the flow and exchange of communications, accommodations and cooperative action between the City and the police commissioner. The thrust of the City’s contention is that a reasonable construction of The Police Omnibus Act of 1966, together with Article II, Section 27 of the City Charter, for all practical purposes emasculates the City of any power or ability to prevent or contain riots. The City has made a most persuasive argument as to the unconstitutional exposure to liability in which it is placed under Article 82 (“The Riot Act”) by virtue of its lack of control over the police department. Indeed, this argument might be completely unanswerable if control of the police department were the only demonstrable means available to prevent or suppress riots and tumultuous actions.

However, we think the answer is, as Judge Harris succinctly stated in the lower court, that “Article 82 was not intended to be based on the requirement that the Mayor and City Council must have control over a police force to have the ability to suppress riots.” Support for this proposition is found in the case of Hagerstown v. Dechert, 32 Md. 369 (1870). At the time of Dechert, supra, the City of Hagerstown not only had no municipal police force but had no lawful power to create or employ a police force to prevent or suppress riots. On May 24, 1862, Dechert’s property was destroyed by the actions of a tumultuous assemblage. Dechert, some hours prior to the riot, had notified the Mayor of Hagerstown of the threatened destruction of his property and requested protection.

Neither the May- or nor any town officials took any steps or employed any means to prevent or suppress the actions of the crowd. The City of Hagerstown took the position that unless the City Charter had bestowed on the corporate authorities the power to raise a police force for the purpose of pre ⁴⁵² venting or suppressing riots, that, no liability could devolve upon it under Article 82. The Court held that, assuming arguendo, Hagerstown could not create a police force, nonetheless, the Mayor, by virtue of his office had certain powers of a Justice of the Peace (Chapter 198 of the Acts of 1847) namely, that of a “conservator of the peace” and that: “* * * As a conservator of the peace, he had full authority to call on the citizens to aid in the prevention and suppression of the riot, and their legal duty was to obey the call. ‘The general duty of the conservators of the peace, by common law is to employ their own and to command the help of others to arrest and pacify all such, who, in their presence, and within their jurisdiction and limits, shall go about to break the peace.’ 3 Burn’s Just. 4.” 32 Md. at 384-385 . The Court in Dechert held that it was also pertinent to the issue of liability to inquire as to whether the Mayor had called upon Hagerstown’s one Justice of the Peace for aid, this bearing on the question of whether the May- or acted with diligence in the prevention or suppression of a riot.

Thus we see that Article 82 was held applicable to the situation, even though Hagerstown was without a police force. In the instant case, the City of Baltimore was not in as desperate a condition as was Hagerstown in Dechert . In the civil disturbance in 1968 there was present in the City at least a police force, although State controlled. Furthermore, although the City of Baltimore had no authority over the police department we think that among the various courses of action that the Mayor might have taken, and perhaps did take, was to have conferred with the police commissioner and made requests for specific kinds of police action.

As will be developed later in this opinion, the question as to whether such action was taken, or whether other action was taken by the Mayor in his capacity as a conservator of the peace, as well as the ⁴⁵³ practical effect of such action, may well be questions which should be determined by the trier of facts at a hearing on the merits of the case. It suffices at this point to conclude that Dechert , at least stands for the proposition that failure to have control over a municipal police force does not excuse a municipality from endeavoring to suppress or contain riots or tumultuous actions by using other reasonable means available. Of similar import, see Williams v. City of New Orleans, 23 La. Ann. 507, 508 (1871).

The next question is, what, if any, reasonable means were available to the City to prevent or suppress the incidents which occurred about 5:00 P.M. on April 6, 1968, and continued for several days and nights thereafter. We have already stated that on the basis of the holdings of our predecessors in Hagerstown v. Dechert, the Mayor is cloaked with the authority of conservator of the peace. In addition, Article IV, Section 4 of the Charter of Baltimore City (1964 Revision) specifically designates the Mayor “a conservator of the peace.” In the language of Dechert as a conservator of the peace, he had “full authority to call on the citizens to aid in the prevention and suppression of the riot,” if such action appeared to have been within the purview of “reasonable diligence.” Within this same ambit of reasonable activity it may have been feasible for the Mayor to have formed a “posse comitatus.” An elaboration on what these ancient vestiges of authority entail is certainly appropriate. The following comment is found in Alexander’s British Statutes, Vol. 1, pgs. 272-273 (Coe’s ed.). “The common law requires sheriffs, constables, and other peace officers, to do all that in them lies towards the suppression of riots, and they may command others to assist them, State v. Mayhew, 2 Gill. 501.

It is no excuse that from the number of rioters the single aid of the person so called upon would have been of no use, ⁴⁵⁴ R. v. Brown, 1 Car. & M 314, where the requisites to support an indictment against a person refusing to aid a constable in quelling a riot are stated. * * * Stat. 34 E. 3, C. 1, authorizes justices of the peace to restrain and arrest rioters and'this has been construed to give a single justice power to arrest persons assembled riotously by raising the power of the county, if necessary, and to authorize others to arrest them by a bare parol command, and the persons so commanded may pursue and arrest the offenders in his absence. By Stat. 17 R. 2 , C. 8, the sheriff and other of the King’s ministers, generally have power to arrest rioters with force, and by 13 H. 4 , C. 7, any two justices with the sheriff may come with the posse comitatus, if need be (all persons, except clergymen, persons decrepit, women, and infants under fifteen, being bound to attend the justices in suppressing a riot, under pain of fine and imprisonment) and suppress any riot, rout or assembly, arrest the rioters, or persons coming from thence riotously arrayed. * * See Article 5 of the Declaration of Rights of the Constitution of Maryland and annotations thereunder in Code, Vol. 9A (1963 Repl. Vol.), pgs. 23 and 24, for authority that certain British Statutes were adopted in Maryland as they existed on July 4, 1776. In the recent compilation of historical essays by the Maryland Hall of Records, titled, “The Old Line State” (Radoff ed. 1971), we find the following account of what appears to be a form of “posse comitatus” in action in J. H. F. Brewer’s “Democratization of Maryland, 1800-1837,” at pg. 63: “ * * * The great national banking crisis now was extended into Maryland, and-the removal of the deposits of the government from the Bank of the United States (peculiarly the idea of ⁴⁵⁵ Roger B.