Okwa v. Harper

HARRELL, Judge. On 15 June 1996, Inalegwu Okwa (Mr. Okwa) was arrested by Maryland Transportation Authority (MTA) police officers at Baltimore-Washington International airport (BWI) following a verbal dispute between Mr. Okwa and a counter attendant of British Airways, PLC (British Airways) over the validity of an airline ticket previously issued to Mr. Okwa for a British Airways flight. He was charged with assault, disorderly conduct, and resisting arrest. At his trial in the District Court of Maryland, sitting in Anne Arundel County, the Court found Mr. Okwa not guilty of all charges.

Seemingly vindicated, Mr. Okwa and his wife, Margaret Westmoreland-Okwa (Appellants), filed a fifteen-count complaint in the Circuit Court for Baltimore City against British Airways, a British Airways employee, the State of Maryland, the MTA, and three MTA police officers. The causes of action stated in the complaint stem from the alleged manner in which the MTA police officers and British Airways personnel treated Mr. Okwa during his dispute with the British Airways counter staff over the plane ticket and subsequent arrest. The case was transferred, on motion of the defendants, to the Circuit Court for Anne Arundel County. Following a hearing, the Court granted the defendants’ motion to dismiss or for summary judgment.

Appellants filed a notice of appeal with the Court of Special Appeals. Before that court considered the case, we issued a writ of certiorari on our own initiative. ¹⁷⁰ Okwa v. Harper, 357 Md. 233 , 743 A.2d 245 (2000). Appellants focus their appeal solely on the Circuit Court’s judgment as to the motions of the three MTA police officers (Appellees). I. BACKGROUND Mr. Okwa arrived at the British Airways ticket counter at BWI on 15 June 1996 at 5:30 p.m.

His purpose was to check-in for a flight to Lagos, Nigeria, scheduled to depart at 6:45 p.m. Mr. Okwa had paid $2,353 for his ticket. 1 When he walked up to the counter and offered his ticket, Ms. Maria Spriggs and another British Airways employee informed him that his ticket was invalid for travel on that particular flight to Nigeria. Mr. Okwa inquired as to why they would not accept his ticket. Ms. Spriggs did not answer his question; instead she recommended that he take up his ticket dispute with his travel agent.

Mr. Okwa renewed his request for an explanation regarding the problem with his ticket. Without further explanation, Ms. Spriggs asked Mr. Okwa to pick up his baggage and leave the check-in area. At least two MTA police officers, Michael G. Harper (Harper) and Kimberly Potter (Potter), were in the same area of the airport terminal where Mr. Okwa’s ticket dispute was evolving. They ap ¹⁷¹ proached the check-in counter and were informed by Ms. Spriggs that Mr. Okwa was “causing trouble.” 2 At this point, the parties, in their pleadings and papers submitted to the Circuit Court, offer conflicting accounts of what happened next.

The affidavits of Officers Harper and Potter stated that the officers approached Mr. Okwa and asked him to calm down, but Mr. Okwa “continued to get more agitated.” Officer Potter reportedly told Mr. Okwa “to cease and desist his unlawful activities and explained that he could not stand in a public facility and scream and holler or else I would have to arrest him for disorderly conduct.” According to the officers, Mr. Okwa thereupon demanded that they arrest him and he offered his hands to be handcuffed. The officers asserted they complied with his request. They handcuffed Mr. Okwa and guided him toward a terminal exit. The third Appellee, Officer William H. Gernert, 3 arrived on the scene at this point and assisted his fellow officers in removing Mr. Okwa.

When the group exited the terminal, the officers explained that Mr. Okwa “started jumping up and down trying to break free and yelling at us to shoot him.” In an attempt to restrain Mr. Okwa, Officer Potter stated that she grabbed his hands, but Mr. Okwa twisted his arms and trapped Officer Potter’s hands in the handcuffs. The whole group then fell to the ground. The officers restrained Mr. Okwa on the ground until additional officers arrived on the scene. When a patrol car arrived on the scene, Mr. Okwa calmed down and ceased to struggle.

Officer Harper placed Mr. Okwa into the car and he was taken to the Anne Arundel County Detention Center. Officer Potter was taken to a hospital for treatment of injuries suffered in the scuffle and fall. In an affidavit 4 offered by Mr. Okwa, he presented a different version of the events leading up to his incarceration. ¹⁷² According to Mr. Okwa, without inquiring about the nature of his ticket dispute with the British Airways personnel, Officers Harper and Potter prematurely demanded that he leave the airport terminal. Mr. Okwa explained to the officers that he had a valid ticket and wished to board the flight.

Without further warnings or discussion, the officers then handcuffed him and,began to drag him away from the ticket counter, at which point they were joined by Officer Gernert and a police search dog. When the group exited the terminal, Mr. Okwa asserted that he was forced to the ground, struck in the head by either Officer Harper or Gernert, and had his cuffed hands twisted by his thumbs by Officer Potter. As a result of the ¹⁷³ incident, Mr. Okwa suffered injuries to his head, neck, knees, and arms. At the time of the ticket dispute and his arrest, Mr. Okwa stated that he was the only person in the immediate area of the terminal where the British Airways counter was located, except for the police officers and British Airways personnel.

He acknowledged that he raised his voice during the ticket dispute, but claimed that he never screamed or yelled at the officers or Ms. Spriggs. Mr. Okwa concluded his affidavit stating that he did not resist or provoke the officers and that it was his belief “that the actions by Gernert, Harper, and Potter were motivated by the fact that I was a black male and were taken with the intended purpose to injure me.” Mr. Okwa was charged with disorderly conduct in a public place, resisting arrest, and assault. His District Court trial was held 1 May 1997. The State presented five witnesses, including Ms. Spriggs and Officers Potter and Gernert.

After the State presented its case, defense counsel for Mr. Okwa decided not to call any witnesses because he believed that the State had failed to meet its burden. The trial judge agreed. He found that there were too many contradictions in the testimony given by the State’s witnesses to warrant a conviction and therefore found Mr. Okwa not guilty of all charges. 5 On 5 March 1998, Appellants filed a complaint seeking damages in the Circuit Court for Baltimore City. On 7 April 1998, Officers Harper and Potter, the MTA, and the State of Maryland filed a motion to dismiss for improper venue.

On 17 June 1998, the Court denied the motion to dismiss, but ¹⁷⁴ ordered the case transferred to the Circuit Court for Anne Arundel County. 6 See Md. Rule 2-327(b). Appellants filed an amended complaint in the Circuit Court for Anne Arundel County on 20 January 1999. In the amended complaint, Appellants asserted against all the defendants the common law torts of false imprisonment, malicious prosecution, intentional infliction of emotional distress, as well as violations of 42 U.S.C. § 1985 and 42 U.S.C. § 1981 . Each count sought compensatory and punitive damages against Officers Harper, Potter, and Gernert, the MTA, and the State of Maryland. 7 Additionally, Appellants included a common law battery count and counts charging violations of 42 U.S.C. § 1983 and Article 24 of the Maryland Declaration of Rights, seeking compensatory and punitive damages, against Officers Harper, Potter, and Gernert, the MTA, and the State of Maryland.

Finally, Appellants added a loss of consortium claim against all of the defendants. On 18 February 1999, Officers Harper and Potter, the MTA, and the State of Maryland filed an amended motion to dismiss, or alternatively motion for summary judgment. The affidavits of Officers Harper and Potter were attached to the motion. On that same day, Officer Gernert filed a motion to dismiss, supporting memorandum of law, and his affidavit.

On 18 February 1999, British Airways and Ms. Spriggs filed a motion to dismiss the first amended complaint. Appellants filed, on 25 March 1999, separate memoranda in opposition to all the defense motions and Mr. Okwa’s affidavit. ¹⁷⁵ A hearing was held in the Circuit Court for Anne Arundel County, on 14 June 1999, to address all pre-trial motions filed by the parties. At the hearing, the Court treated British Airways’s and Ms. Spriggs’s motion to dismiss as a motion for summary judgment and granted the motion at the hearing. The Court signed an order granting summary judgment to those defendants on 1 July 1999.

In similar fashion, the Court orally granted the motion to dismiss, or alternatively motion for summary judgment, filed by the MTA, and the State. It then signed the order granting their motion on 6 July 1999. The Court at the 14 June hearing reserved its ruling on the motions filed on behalf of Officers Harper, Potter, and Ger-nert. Ultimately, the Court granted motions to dismiss or, in the alternative, motions for summary judgment in favor of Officers Harper, Potter, and Gernert. 8 In an extensive footnote to each order regarding the officer’s motions, the Court made certain findings pertinent to the present appeal.

The Court explained: a. ) Count I & II Battery & Punitive Damages: Plaintiffs fail to state a claim upon which relief may be granted as against these Defendants. The court finds that Defendants were acting in accordance with their duties of employment and as such are immune from suit.... Furthermore, the requisite finding of malice against Plaintiffs does not exist to remove the bar of immunity in the present suit.... b. ) Count III & IV False Arrest & False Imprisonment: This count too is barred by the grant of immunity.... Further, these counts fail to establish a claim upon which relief can be granted in that False Arrest & False Imprisonment require an arrest or confinement without legal authority or probable cause....

As a result of Plaintiff Okwa’s independent actions, the officers had adequate probable cause to cause an arrest and imprisonment. ¹⁷⁶ c. ) Count V & VI Malicious Prosecution: In addition to the immunity of the Defendants, this Court finds that there are not adequate grounds to support a cause of action for Malicious Prosecution as to these Defendants.... íj: # d. ) Counts IX & X 42 U.S.C. Section 1983 Violation of Civil Rights: Defendants in this case enjoy the privilege of immunity and did not act with malice to lift the bar of such immunity. Further, Plaintiffs fail to allege facts sufficient to lift the bar of immunity in that they have not proved that Plaintiffs were deprived of a right or privilege secured by the Constitution. As a result Plaintiffs cannot maintain an action against Harper, Potter, or Gernert____ * * * * * h. ) Counts XVII & XVIII Violation of the Maryland Declaration of Rights and Punitive Damages: Plaintiffs seek remedies to which they cannot establish a basis for. Defendants in this case were acting within the scope of their employment, and arrested and detained Plaintiff Okwa in accordance with the Constitution....

Plaintiff Okwa fails to state a claim which would permit this Court to grant a remedy. i. ) Count[s] XIX & XX Loss of Consortium: This tort is derivative in nature, and therefore it too fails to demonstrate compensable harm on the part of the Plaintiffs____ On 27 July 1999, Appellants appealed to the Court of Special Appeals. Before the intermediate appellate court considered the appeal, we granted a writ of certiorari on our own initiative to consider whether the Circuit Court erred in granting summary judgment to Officers Harper, Potter, and Gernert (Appellees) on the common-law, constitutional, and loss of consortium claims asserted by Appellants. 9 The specific questions presented to the Court are: ¹⁷⁷ I. Whether the lower court erred in granting appellee police officers’ motion for summary judgment on the claims for battery, false arrest, and malicious prosecution, because genuine issues of material fact existed on the issue of malice.

II

Whether the lower court erred in granting appellee police officers’ motion for summary judgment on the state and federal constitutional claims for excessive force when genuine issues of material fact existed on the issue of “objective reasonableness.” II. STANDARD OF REVIEW The Circuit Court’s pertinent orders state “that the Defendant’s Motion to Dismiss or, in the Alternative for Summary Judgment [as] to [ ] [the] First Amended Complaint be, and is hereby GRANTED.” Although the Circuit Court did not explain whether it was granting Appellees’ motions to dismiss or motions for summary judgment, we shall treat the orders as granting summary judgment. Pursuant to Maryland Rule 2-322(c), when a trial judge is presented with factual allegations beyond those contained in the complaint to support or oppose a motion to dismiss and the trial judge does not exclude such matters, then the motion shall be treated as one for summary judgment. See also Green v. H & R Block, 355 Md. 488, 501 , 735 A.2d 1039, 1047 (1999); Fairfax Savings v. Kris Jen Ltd. Partnership, 338 Md. 1, 9-10 , 655 A.2d 1265, 1269 (1995).

In the present case, the parties offered dueling affidavits that included allegations beyond those in the complaint. The trial judge did not expressly exclude the parties’ affidavits and, at the motions hearing, appears to have referred to language found in Mr. Okwa’s affidavit. Thus, we will review the Circuit Court’s orders under our summary judgment jurisprudence. ¹⁷⁸ A summary judgment motion is not a substitute for trial. Rather it is used to dispose of cases when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

See Md. Rule 2-501(e); Ungar v. Handelsman, 325 Md. 135, 146-47 , 599 A.2d 1159, 1164 (1992). The standard for appellate review of a trial court’s grant of summary judgment is whether the trial judge was legally correct in his or her rulings. See Sheets v. Brethren Mut. Ins.

Co. 342 Md. 634, 638-39 , 679 A.2d 540, 542 (1996); Heat & Power v. Air Prod., 320 Md. 584, 592 , 578 A.2d 1202, 1206 (1990). In granting a motion for summary judgment, the trial judge may not resolve factual disputes, but instead is limited to ruling on matters of law. See Pittman v. Atlantic Realty Co., 359 Md. 513, 537 , 754 A.2d 1030, 1042-43 (2000); Sheets, 342 Md. at 638 , 679 A.2d at 542 . Summary judgment is generally inappropriate when matters such as knowledge, intent, and motive are at issue.

See Brown v. Dermer, 357 Md. 344, 355 , 744 A.2d 47, 53 (2000). If any inferences may be drawn from the well-plead facts, the trial court must construe those inferences in the light most favorable to the non-moving party. See Ashton v. Brown, 339 Md. 70, 79 , 660 A.2d 447, 452 (1995). The existence of a dispute as to some non-material fact will not defeat an otherwise properly supported motion for summary judgment, but if there is evidence upon which the jury could reasonably find for the non-moving party or material facts in dispute, the grant of summary judgment is improper.

See Beatty v. Trailmaster, Inc., 330 Md. 726, 738 , 625 A.2d 1005, 1011 (1993).

III

COMMON-LAW TORT CLAIMS Appellees argue for affirmance because Appellants failed to establish that Appellees acted with malice when they arrested Mr. Okwa, thus failing to overcome the immunity from certain tort suits enjoyed by state personnel. Appellees further urge they had adequate legal justification and probable cause to arrest Mr. Okwa based on his conduct at BWI. ¹⁷⁹ A. The Circuit Court concluded that Appellees’ were entitled to summary judgment on Appellants’ battery count because the Appellees “were acting in accordance with their duties of employment ... [and] the requisite finding of malice [motivating their conduct] against [Mr. Okwa] does not exist to remove the bar of immunity in the present suit.” The immunity referred to by the trial court is that provided to state personnel under the Maryland Tort Claims Act (MTCA). Maryland Code (1984, 1999 Repl.Vol.), State Government, § 12-105 provides that “State personnel shall have the immunity from liability described under § 5-552(b) of the Courts and Judicial Proceedings Article.” Maryland Code (1973, 1998 Repl.Vol.), Courts & Judicial Proceedings, § 5-522(b) in turn states, in pertinent part: State personnel, as defined in § 12-101 of the State Government Article, are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence. Section 12 — 101(a)(2)(i) defines employees of the Maryland Transportation Authority as “State Personnel.” It is undisputed that Appellees were police officers employed by the Maryland Transportation Authority and Appellants concede that Appellees were acting within the scope of their public duties during their confrontation with Mr. Okwa.

As Appellants do not argue that Appellees acted with gross negligence, the sole issue as to the battery count is whether the Circuit Court concluded correctly that there existed no triable issue as to whether Appellees acted with malice when they arrested and restrained Mr. Okwa. This Court has addressed the issue of defining malice under the MTCA. Recently in Shoemaker v. Smith, 353 Md. 143 , 725 A.2d 549 (1999), we clarified the standard of malice under CJP § 5-522(b). Shoemaker involved two St. Mary’s County sheriffs deputies sued by a family following the deputies’ temporary detention of the family’s children. 10 The deputies sought summary judgment, ¹⁸⁰ arguing they were immune from suit under the MTCA.

The Circuit Court denied the motion. Before this Court, the deputies asserted they were entitled to summary judgment based on the doctrine of collateral estoppel because, in a related federal case where the family had asserted a 42 U.S.C. § 1988 claim against the deputies, a United States District Judge found that the deputies did not use excessive or unreasonable force. See Shoemaker, 353 Md. at 158 , 725 A.2d at 557 . Following a review of the evolution of the grounds for immunity from a 42 U.S.C. § 1983 claim, we rejected the deputies’ argument, holding that substantial distinctions existed between 42 U.S.C. § 1983 immunity and immunity under the MTCA.

We noted that malice had been eliminated effectively as a ground that would trump immunity in a § 1983 context, but that the absence of malice was a legislatively mandated element for immunity under the MTCA and CJP § 5-522(b). We explained that: [t]he question raised for purposes of immunity under the State Tort Claims Act is whether a jury could reasonably find that [the deputies] conduct, given all of the existing and antecedent circumstances, was motivated by ill will, by an improper motive, or by an affirmative intent to injure the boys ... that motive or animus may exist even when the conduct is objectively reasonable. If it does, there is no immunity under the State Tort Claims Act. Id. at 164, 725 A.2d at 560 .

In an earlier case, Sawyer v. Humphries, 322 Md. 247 , 587 A.2d 467 (1991), we similarly described the element of malice for purposes of the MTCA. The defendant in Sawyer , a state police officer, was alleged to have committed numerous intentional torts, including battery. The plaintiffs claimed that the officer, while off-duty, threw rocks at their car and attacked one of the occupants of the car. The Court of Special Appeals affirmed the trial court’s judgment dismissing the case, holding that the officer was immune from the suit under the MTCA.

As one basis for our reversal of the Court of Special Appeals, we held the plaintiffs had alleged sufficiently, to ¹⁸¹ overcome the motion to dismiss, that the officer’s actions were malicious. In clarifying the meaning of the term “malice,” we stated: [w]hen someone, without provocation or cause, throws rocks at two other persons, he is obviously demonstrating ill will towards those persons. Wrestling another to the ground, pulling his hair, and hitting him on the face, again without cause or provocation, is certainly malicious conduct. Sawyer, 322 Md. at 261 , 587 A.2d at 474 .

Our review of the record in the present case, in particular the affidavits submitted by Mr. Okwa and Appellees, reveals two diametrically opposed versions of the circumstances surrounding Mr. Okwa’s arrest. According to the Appellees’ affidavits collectively, as the three officers were escorting Mr. Okwa toward the terminal exit, he started “jerking from side to side” and began to “kick his feet.” After the group “calmly exited” the terminal, Mr. Okwa “started jumping” and Appellees merely “tried to control him by his handcuffs.” Mr. Okwa continued to struggle and the group “fell to the ground” while Officer Harper “tried to break Mr. Okwa’s fall as he would not be able to catch himself.” Mr. Okwa was still “fighting” as Appellees held him to the ground. Mr. Okwa, however, offered a different view of the incident. He explained in his affidavit that, after he was handcuffed, Appellees “roughly dragged” him toward the exit.

When the group emerged outside of the terminal, he “was forcibly put to the ground.” Although “at no time did [he] resist or provoke the officers,” Mr. Okwa was struck “in the head and neck” and “his cuffed hands [were twisted] by his thumbs.” As a result of the incident, Mr. Okwa “suffered injuries to [his] head, neck, knees, wrists, and arms.” Based on Appellees’ version of the story, a fact finder, if given the opportunity, could conclude that Appellees acted without malice and did not commit the act of battery while arresting Mr. Okwa. The fact finder could find that any injuries suffered by Mr. Okwa were the product of his own resistive and combative efforts. Apparently this is the version ¹⁸² of events that the trial judge opted to believe. The trial judge necessarily determined Appellees’ accounts of the alteration to be more credible and based his ruling on them.

This was an error. The summary judgment process is not properly an opportunity for the trial court to give credence to certain facts and refuse to credit others. See Pittman v. Atlantic Realty Co., 359 Md. 513, 537 , 754 A.2d 1030, 1042-43 (2000) (citations omitted)(the trial judge is not permitted to weigh evidence in deciding a motion for summary judgment); Sheets v. Brethren Mut. Ins.

Co., 342 Md. at 638 , 679 A.2d at 542 (“[i]n granting a motion for summary judgment, the trial court does not resolve factual disputes, but instead is limited to ruling as a matter of law”); Dobbins v. Washington Suburban Sanitary Comm’n, 338 Md. 341, 345 , 658 A.2d 675, 677 (1995)(“the trial court does not determine facts, but instead rules on the motion [for summary judgment] as a matter of law”). If a fact finder believed Mr. Okwa’s rendition of the incident, however, it could infer reasonably that Appellees were motivated by an improper motive or that they had an affirmative intent to bring harm to Mr. Okwa. See Shoemaker, 353 Md. at 164 , 725 A.2d at 560 . It would not be unreasonable for a fact finder to infer that Appellees were motivated by an extreme and overzealous desire to punish Mr. Okwa for failing to obey immediately their instructions to walk away from the ticket counter and exit the terminal.

The alleged fact, if believed, that peace officers beat a citizen about his head and neck while they twisted his thumbs, could support an inference that Appellees were inspired with malicious intention. Such behavior fits the type of conduct which would strip the actor’s immunity otherwise provided under the MTCA. See Shoemaker, 353 Md. at 164 , 725 A.2d at 560 . Because disputed material facts exist in the record, or inferences of malicious conduct may be drawn from Mr. Okwa’s version of the facts, the battery counts were not amenable to disposition via summary judgment.

B. The Circuit Court granted Appellees’ motion for summary judgment, as to the malicious prosecution counts, be ¹⁸³ cause “there are not adequate grounds to support a cause of action for Malicious Prosecution as to these [Appellees].” 11 For the reasons explained below, we hold that the trial judge erred in reaching this conclusion. A plaintiff must show the following to establish the tort of malicious prosecution: 1) the defendant instituted a criminal proceeding against the plaintiff; 2) the criminal proceeding was resolved in the plaintiffs favor; 3) the defendant did not have probable cause to institute the proceeding; and 4) the defendant acted with malice or a primary purpose other then bringing the plaintiff to justice. See DiPino v. Davis, 354 Md. 18, 54 , 729 A.2d 354, 373 (1999); One Thousand Fleet Ltd. Partnership v. Guerriero, 346 Md. 29, 37 , 694 A.2d 952, 956 (1997); Krashes v. White, 275 Md. 549, 554 , 341 A.2d 798, 801 (1975). Appellees do not contest that following Mr. Okwa’s arrest by Appellees, he was charged with disorderly conduct, resisting arrest, and assault.

It is also uncontested that Mr. Okwa was found not guilty of these charges by the District Court. Thus, facts have been plead that, if proven, satisfy elements 1) and 2) of the tort. It is necessary for us to consider whether there are a triable issues as to whether Appellees had probable cause to arrest Mr. Okwa and whether they acted with malice when they did so. Probable cause, as the term suggests, is a concept based on probability.

See State v. Ward, 350 Md. 372, 396 , 712 A.2d 534, 545-46 (1998)(quoting Illinois v. Gates, 462 U.S. ¹⁸⁴ 213, 231, 103 S.Ct. 2317, 2328 , 76 L.Ed.2d 527, 544 (1983)). It does not have a technical definition. Rather, the question of whether a law enforcement officer had probable cause to make a particular arrest is determined on “factual and practical considerations of everyday life on which reasonable and prudent [people] ... act.” Id. We have defined probable cause as “ ‘facts and circumstances sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.’ ” DiPino, 354 Md. at 32 , 729 A.2d at 361 (citations omitted)(alterations in original).

In DiPino , we instructed that: [t]o determine whether an officer had probable cause, under that conception, the reviewing court necessarily must relate the information known to the officer to the elements of the offense that the officer believed was being or had been committed. The officer, of course, must undertake the same analysis in determining, in the first instance, whether the person may lawfully be arrested. Id. Appellees initially arrested Mr. Okwa for disorderly conduct.

Therefore, it is necessary for us first to consider the nature of that offense. Disorderly conduct in public places is a statutory crime with common law roots. It is presently codified in Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 123. The statute provides, in pertinent part: A person may not act in a disorderly manner to the disturbance of the public peace, upon any public street, highway, alley, park or parking lot, in any city, town, or county in this State, or at any place of public worship, or public resort or amusement in any city, town or county in this State, or in any store during business hours, or in any elevator, lobby or corridor of any office building or apartment house having more than three separate dwelling units, or in any public building in any city, town or county of this State.

We have interpreted the statute to prohibit “the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same ¹⁸⁵ area.” See Dennis v. State, 342 Md. 196, 201 , 674 A.2d 928, 930 (1996), vacated on other grounds and remanded, 519 U.S. 802 , 117 S.Ct. 40 , 136 L.Ed.2d 4 (1996), affirmed on remand, 345 Md. 649 , 693 A.2d 1150 (1997). Appellees correctly asserted at oral argument that there is a police command aspect to the crime of disorderly conduct. See Dennis, 342 Md. at 201 , 674 A.2d at 930 . When a citizen disobeys a reasonable and lawful request by a police officer “fairly made to prevent a disturbance to the public peace” that citizen has engaged in disorderly conduct.

See Harris v. State, 237 Md. 299, 303 , 206 A.2d 254, 256 (1965). See also Baynard v. State, 318 Md. 531, 538 , 569 A.2d 652, 655 (1990)(under some circumstances, it is a violation to disobey a police officer’s request to leave an area). The police officer’s request, however, must be intended to prevent someone from inciting or offending others. It may not be an arbitrary directive.

See Dennis, 342 Md. at 201 , 674 A.2d at 930 . In Dennis , we held that a passenger’s failure to remain in a car after he was commanded to do so did not pose a sufficient danger of breaching the peace in order to sustain a disorderly conduct conviction. See id. at 203 , 674 A.2d at 931 . But see Barnhard v. State, 325 Md. 602, 616 , 602 A.2d 701, 708 (1992)(evidence that a defendant taunted police with obscenities, threatened to kill another officer, and incited a crowd was sufficient to give police probable cause to make an arrest for disorderly conduct).

In Briggs v. State, 90 Md.App. 60 , 599 A.2d 1221 (1992), the Court of Special Appeals affirmed a disorderly conduct conviction on somewhat analogous facts to those alleged by Appel-lees in the present case. During a carnival in Caroline County, the defendant became agitated after he lost a sum of money at a gambling table. He began cursing in a loud voice, violently throwing dice at the table, and grabbing for his lost money. Despite efforts to calm him down, the defendant continued his behavior, the police were summoned and eventually arrested him.

During the arrest, the defendant swung his arms around and struck the police officers. A large crowd gathered during the struggle. ¹⁸⁶ After his conviction for disorderly conduct, the defendant appealed to the Court of Special Appeals challenging the sufficiency of the evidence supporting his conviction. The court undertook a chronological analysis, viewing the defendant’s conduct in separate episodes, first at the gambling table and then during the fight with the police. It ultimately held that the defendant’s behavior in either time frame was sufficient to support a disorderly conduct conviction.

Focusing on his behavior at the table, the court stated: [the defendant] shouted, grabbed back the money he lost, and slammed the dice into the table. The carnival was crowded, and some of the patrons were noticeably affected by this: people complained to the firemen, asking them to do something to induce [the defendant] to desist. So extreme was [the defendant’s] behavior that the firemen operating the dicing game were moved to seek police assistance in persuading him to leave after their own attempts to discourage his disruptive behavior were unsuccessful. This alone would be sufficient to invoke the statute’s sanctions.

Briggs, 90 Md.App. at 69 , 599 A.2d at 1225 . Turning to the point in time when the defendant was arrested, the court explained: his response to their order constituted disorderly conduct: in addition to physically resisting their efforts to take him into custody, he threatened them, and incited the crowd sufficiently to cause the officers to fear that the crowd would ‘take him away’ from them .... we conclude that a rational jury reasonably could have concluded that [the defendant] was guilty of disorderly conduct. [The defendant’s] actions at every turn disrupted the carnival, challenged the police, and eventually incited the crowd against the officers. This behavior reasonably prompted the officers to arrest him for disorderly conduct. Id. at 73 , 599 A.2d at 1227.

Against this backdrop, Appellees contend that they acted properly when they arrested Mr. Okwa for disorderly conduct. They point out that he engaged in the type of conduct ¹⁸⁷ prohibited by the statute by “waiving his hands in the air, yelling, repeatedly refusing to obey Officer Potter’s orders to cease and desist this activity in the Airport,” and that “a reasonable person observing Mr. Okwa’s conduct could believe that Mr. Okwa committed the offense of disorderly conduct.” This may be a persuasive argument when made to a fact-finder, but it will not carry the day in our review of the grant of summary judgment in this case. Implicit in the Circuit Court’s grant of summary judgment is a finding of the facts, viewed in the light most favorable to Appellants, supporting the conclusion, as a matter of law, that Appellees had probable cause to arrest Mr. Okwa. See Md. Rule 2-501(a); Baltimore Gas and Elec.

Co. v. Lane, 338 Md. 34, 43 , 656 A.2d 307, 311 (1995); Natural Design, Inc. v. Rouse Co., 302 Md. 47, 62 , 485 A.2d 663, 671 (1984). That was an error. Examining the factual record before the Circuit Court, under the correct standard, it suggests that Mr. Okwa paid over $2000 for a plane ticket to Nigeria and confirmed his reservation twice before the flight. On both confirmation efforts, airline personnel advised him that there were no problems with his reservation.

As he attempted to check-in on the day of the fight, airline personnel refused to accept his ticket or explain their refusal. Rather, he was informed to take up his dispute with his travel agent. His flight was about to depart and he raised his voice, understandably, in frustration. The police approached and, without inquiring into the situation, told him to leave the area.

According to Mr. Okwa’s version of the event, only he, Appellees, and British Airways personnel were in the immediate vicinity of the dispute. Mr. Okwa stated that he wanted to know why he could not board his flight and the police immediately arrested him. If Mr. Okwa’s factual allegations are believed ultimately, Officers Potter and Harper did not have probable cause to arrest Mr. Okwa. 12 Maryland Code (1957, 1996 Repl.Vol.), ¹⁸⁸ Article 27, § 123 is directed at deterring more severe conduct than that engaged in by Mr. Okwa by his account. From the facts alleged by Appellants, a reasonable person might not believe Mr. Okwa’s behavior could have offended, disturbed, or incited a group of surrounding people.

See Dennis, 342 Md. at 201 , 674 A.2d at 930 . Mr. Okwa simply was attempting to settle a facially legitimate dispute over a commercial transaction. On the record before us, we cannot say, as a matter of law, that Mr. Okwa’s conduct created any real danger of breaching the peace as a matter of law. See Md. Rule 2-501(a); Green v. H & R Block, Inc., 355 Md. 488, 501 , 735 A.2d 1039, 1047 (1999).

We also shall consider briefly the question of whether, on this record and as a matter of law, Appellees lacked “malice, or a primary purpose in instituting the proceeding other than that of bringing the offender to justice.” See Krashes, 275 Md. at 554 , 341 A.2d at 801 . This Court has long held that “the ‘malice’ element of malicious prosecution may be inferred from a lack of probable cause.” Montgomery Ward v. Wilson, 339 Md. 701, 717 , 664 A.2d 916, 924 (1995). See DiPino, 354 Md. at 55 , 729 A.2d at 374 ; Exxon Corp. v. Kelly, 281 Md. 689, 699-700 , 381 A.2d 1146, 1152-53 (1978); Jannenga v. Libernini, 222 Md. 469, 474 , 160 A.2d 795, 798 (1960). Because we have determined that Appellees may not have had probable cause to arrest Mr. Okwa, further analysis of this element is unnecessary.

We note one final matter regarding Appellants’ malicious prosecution claims. Appellants have alleged in their first amended complaint that they are entitled to punitive damages based on the actual malice which allegedly motivated ¹⁸⁹ Appellees. Although an inference of malice based on a lack of probable cause is sufficient to support an award of compensatory damages, in order to receive a punitive damage award Appellants must prove at trial that Appellees were moved by actual malice. This showing may not be made inferentially.

See DiPino, 354 Md. at 55-56 , 729 A.2d at 374 ; Montgomery Ward, 339 Md. at 735-36 , 664 A.2d at 933 . In Montgomery Ward , we recognized that: for punitive damages to be allowable in malicious prosecution actions, a plaintiff must establish by clear and convincing evidence the defendant’s wrongful or improper motive for instigating the prosecution. Although the jury may draw an inference of such motive from lack of probable cause for purposes of compensatory damages, it may not rely on the inference in considering punitive damages. Montgomery Ward, 339 Md. at 735-36 , 664 A.2d at 933 .

We command a higher standard in this context because, in certain situations, police officers or an individual may lack probable cause to institute a criminal proceeding because they have acted negligently. An inference of malice, resulting from a negligent action, rather than one motived by true ill-will, cannot justify an award of punitive damages. See id. at 735 , 664 A.2d at 933 . C. Turning to Appellants’ false arrest and false imprisonment claims, the Circuit Court awarded summary judgment to Appellees based on its finding that “these counts fail to establish a claim upon which relief can be granted in that False Arrest & False Imprisonment require an arrest or confinement without legal authority or probable cause....

As a result of Plaintiff Okwa’s independent actions, the officers had adequate probable cause to cause an arrest and imprisonment.” The Circuit Court erred. In Appellants’ first amended complaint they framed one count designated as “False Arrest / Imprisonment.” Although the intentional torts of false arrest and false imprison ¹⁹⁰ ment are separate causes of action, they share the same elements. See generally Scott v. Jenkins, 345 Md. 21, 29 , 690 A.2d 1000, 1003 (1997); Montgomery Ward, 339 Md. at 721 , 664 A.2d at 926 . We shall discuss the torts concurrently.

For a successful cause of action based on false arrest or false imprisonment, the plaintiff must establish that “the defendant deprived him or her of his or her liberty without consent and without legal justification.” See Scott, 345 Md. at 29 , 690 A.2d at 1003 ; Montgomery Ward, 339 Md. at 721 , 664 A.2d at 926 ; Ashton v. Brown, 339 Md. 70, 119 , 660 A.2d 447, 471 (1995); Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 654 , 261 A.2d 731, 738 (1970). The core issue under Appellants “False Arrest/Imprisonment” cause of action is whether Appellees had legal authority to facilitate the arrest of Mr. Okwa at the airport. To resolve this issue, we must examine Appellees’ legal authority to make arrests in conjunction with the circumstances of Mr. Okwa’s arrest. See Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. at 655 , 261