Shoemaker v. Smith

WILNER, Judge. The immediate issue before us is a procedural one—whether the Court of Special Appeals erred in dismissing petitioners’ appeal from an interlocutory order denying their motion for summary judgment, upon a finding that the appeal did not fall within the collateral order doctrine. The motion for summary judgment was based on a claim of immunity under the Maryland Tort Claims Act (Maryland Code, § 12-105 of the State Government Article and § 5-522 of the Courts and Judicial Proceedings Article), and, to resolve the procedural issue, we need to determine the standard of “malice” for purposes of § 5-522 and consider the effect of certain findings made by Judge Alexander Williams, of the United States District Court for the District of Maryland, in a related action. We shall affirm the judgment of the Court of Special Appeals.

BACKGROUND This lawsuit had its genesis in an investigation by personnel of the St. Mary’s County Department of Social Services (DSS) and the county Sheriffs Department into possible child abuse allegedly perpetrated by Danny Smith against his three children, Donna, Ben, and Travis. The investigation culminated in an attempt, on June 17, 1992, by Sheriffs Deputies Diane Shoemaker, Mickey Bailey, and Robert Hall and DSS social worker Monica Bankins, to remove Ben and Travis, then ages ¹⁴⁷ 15 and 10, respectively, from their home. During the removal operation, the boys, who did not want to leave and who resisted, were forcibly restrained, handcuffed, threatened, driven away, and detained without benefit of counsel for several hours at a police station. Not until their lawyer arrived and took charge of them were they presented to a court and released to their parents.

All proceedings with respect to them were eventually dismissed. Through their mother, Judee Smith, the boys filed two lawsuits—one in U.S. District Court and this one in the Circuit Court for St. Mary’s County. The Federal action was dismissed against all defendants. The only defendants before us, as petitioners in this appeal, are Sheriffs Deputies Shoemaker and Bailey.

On October 31, 1991, Ms. Bankins received a call from one Cathy Meyers, who was then serving as a psychotherapist for Donna, and who apparently reported the prospect of sexual abuse of Donna by her father. Ms. Bankins and Deputy Shoemaker interviewed Donna that same day. Although Ms. Bankins said that Donna did not give them a lot of information at that time, Bankins’s notes indicate that Donna accused her father of having touched her in the vaginal area and having tickled her between the legs. She also recounted having been hit by her father with a leather strap while she was in the bathtub.

When those events occurred is not clear. Donna, then 17 years old, had been in out-patient therapy for a number of years and, on two earlier occasions, had been hospitalized for psychiatric problems. There is some reference in the record to a protective service investigation that had been closed about five years earlier, but there are no details with respect to the investigation. The next day, Ms. Bankins and Deputy Shoemaker interviewed Mrs. Smith, who described Donna as a “real discipline problem” and “very angry,” but acknowledged that she and her husband did spank.

Ms. Bankins had Mrs. Smith sign a service agreement to follow through with counseling with Cathy Meyers and not to use belts or any type of corporal punishment on Donna. There is no evidence that the Smiths repudiated or failed to comply -with that agreement. Within a ¹⁴⁸ week, after a further interview with Donna, Ms. Bankins filed a CINA (child in need of assistance) petition in the juvenile court, and Donna was removed from the home. She eventually ended up at Sheppard-Pratt Hospital in Baltimore.

At the time, in November, the focus was entirely on Donna, although Ms. Bankins developed some concern about Ben and Travis as well, simply because they were siblings in the same household. She told Mrs. Smith at the shelter hearing for Donna that she wanted to talk to the boys, but Mrs. Smith, believing that Donna was fabricating her story of abuse, felt that such an interview was not necessary. In conjunction with the CINA case, Donna and her parents were evaluated by Dr. Nicholas Kirsch, a psychologist. In his report of December 28, 1991, Dr. Kirsch recounted Donna’s charge of sexual abuse by her father, including vaginal penetration.

Although he made clear that the tests he administered could not determine conclusively whether sexual abuse had occurred or, if it had occurred, who the perpetrator was, the results were “consistent with a personality system severely damaged in certain areas due to severe psychological terror and abuse.” The test results, he said, were highly suggestive of a dissociative disorder, possibly multiple personality disorder “that are perhaps always the result of chronic sexual and/or physical abuse during childhood.” Dr. Kirsch reported inconclusive results with respect to both parents. It was “virtually impossible” to determine whether Mr. Smith physically or sexually abused Donna. The test results were consistent both with a profile for known offenders and with a healthy, well-adapted profile but appeared “to lend most support to the hypothesis that the probability of Mr. Smith committing sexual or physical abuse is in the moderate-high range relative to the general adult male population.” As to Mrs. Smith, he said it was unlikely that she would consciously allow abusive relationships in her family, but he then opined that she had a personality profile “with a higher than average chance of accommodating the sort of chronic but secretive abuse that is alleged in this case.” Dr. Kirsch recommended that Donna not reside or have unsupervised visits with her father. ¹⁴⁹ Her concern heightened by Dr. Kirsch’s report, Ms. Ban-kins, together with Deputy Shoemaker but without any advance notice to Mr. or Mrs. Smith, attempted to interview Ben and Travis at their schools on January 6, 1992. Travis’s school refused to permit the surprise interview. 1 The investigators succeeded in talking with Ben for about five minutes before Mr. Smith arrived and terminated the interview.

During the brief conference, Ben told Ms. Bankins and Deputy Shoemaker that Donna was lying and that she used to make up stories about him. On January 21,1992, Deputy Shoemaker, along with other law enforcement officers, entered the Smith home in order to execute a search warrant. The record before us does not reveal who issued the warrant, on what basis, or what the officers were searching for. What is relevant is what occurred in the home, and, for that, we may take as fact, for purposes of this appeal, the finding by Judge Williams: “Several officers entered through the front door, however, others entered through a door in the downstairs area where they found Benjamin and Travis playing.

The officers ordered the boys to go upstairs, to sit with their hands in their laps in plain sight, not to move and not to speak. When Benjamin asked questions about what was going on and Travis began to cry uncontrollably, [Officer] Hall and other officers threatened that if they were not quiet the officers would handcuff them and take them to a boys’ home. Eventually Hall, Shoemaker and other officers left the Smith home with Mr. Smith in custody.” Several events followed this intrusion into the home. Mr. Smith was arrested, held for an hour or so, and then released. ¹⁵⁰ In February, Ms. Bankins and the county attorney representing DSS filed CINA petitions against Ben and Travis.

The petitions alleged (1) that “[b]ased on the parents interference with the lawful police investigation of abuse within the family, it was impossible to rule out physical or emotional abuse of the younger sibling in the house when a report of abuse was made regarding an older child in the family,” (2) “[a] report of corporal punishment of [the children] with use of a belt,” (3) a “[statement by the father that admits the use of corporal punishment,” and (4) the “inability of the mother to keep the children safe.” It is not clear what, if anything, came of the CINA petitions. An attorney, David Densford, was appointed by the court to represent the children. Because of the publicity and intrusions, the Smiths sent the boys to stay for a while with their grandparents in Texas. The authorities, though informed of that fact, made no attempt to have the children returned or to pursue matters in Texas.

According to Travis, they remained in Texas for two months and then returned to their parents’ home. Contemporaneously with the CINA petitions, Mr. Smith was charged criminally with a variety of offenses committed against Donna, including rape, sexual offenses, and child abuse. Those charges were dismissed in August, 1993 after a trial that resulted in a hung jury. In March, 1992, Ms. Bankins received a Report of Suspected Child Abuse from Dr. Joyanna Silberg, a therapist for Donna at Sheppard-Pratt Hospital.

Donna had recounted to Dr. Silberg episodes of Satanic rituals through “the church” occurring at different parents’ homes, including her home. She described children between three and eleven years old being placed on a table and poked with sticks and needles by a man in a black robe. These rituals, she said, occurred in at least four churches in various States. Donna expressed concern for the safety of her “brother” but did not indicate whether her concern was for Ben, for Travis, or for both of them.

By June, the boys had returned from Texas; indeed, the record indicates that they returned near the end of April. ¹⁵¹ On June 9, Ms. Bankins had another interview with Donna at Sheppard-Pratt. She taped the interview, but, by the time of her deposition in December, 1995, much of the tape had been erased. Donna apparently expressed concern that Travis might be in danger of ritualistic abuse associated with the upcoming summer solstice, “where there are certain types of either sexual acts or physical acts that take place.” Donna’s concern, in Ms. Bankins’s words, “increased the imminent danger” for Travis. 2 On June 10—the day after Ms. Bankins’s conversation with Donna—Ben and Travis were evaluated by Dr. Nancy Davis, a psychologist. Although petitioners contend in their brief that Dr. Davis was hired by the parents, her report states clearly that the children were referred by DSS, a statement confirmed by Ms. Bankins in her deposition testimony. 3 Ben told Dr. Davis that hers was his fourth psychological evaluation ¹⁵² and, though cooperative, he was angry at having to be tested again.

He denied the stories being told by Donna. Dr. Davis reported that his behavior during the evaluation and his responses to the personality and intelligence tests “are not consistent with the type of behaviors usually found in adolescents who have been abused.” She said that the results did not rule out the possibility that he may have been abused but that it was unlikely that he had experienced significant abuse over any length of time. As to Travis, Dr. Davis made clear that the evaluation was to determine the probability of sexual and ritualistic abuse occurring in the home. Although she found Travis to have experienced a great deal of stress resulting from his move to Texas, having his house searched by the police, and having Donna, with whom he was close, removed from the home after making allegations of abuse, Dr. Davis did not believe that he had been ritualistically or sexually abused “in a long-term, traumatic way.” She recommended only that Travis participate in individual therapy to help him deal with the trauma in his family and regain a more positive self-image; she made no recommendation that he, or Ben, be removed from the home.

On June 15, Ms. Bankins learned that Ben and Travis were back with their parents. The next day, after discussing the matter with Ms. McKinley, she decided to remove them from their home, for fear that they were in imminent danger of ritualistic abuse in conjunction with the summer solstice. This fear emanated, according to Ms. Bankins, from Donna’s revelations and from Dr. Silberg’s report, which, itself, mostly recounted Donna’s statements. Ms. Bankins conceded that she made no effort to contact the parents, the two boys, any neighbors, the pastor, Mr. Densford, or Dr. Davis.

Instead, Ms. Bankins or Ms. McKinley arranged for Deputy Shoemaker to assist them in the removal the next day. When asked whether her decision would have been altered had she known of Dr. Davis’s conclusions, Ms. Bankins said, “I’m not sure.” There are two provisions in the Maryland Code permitting a child to be removed from his or her home on an emergency basis. Section 3-814 of the Courts and Judicial Proceedings ¹⁵³ Article, which is part of the Juvenile Causes law, permits a law enforcement officer or other person authorized by the juvenile court to take a child into custody upon reasonable grounds to believe that the child is in immediate danger from his or her surroundings and that removal is necessary for the child’s protection. That law also requires, however, that, with all reasonable speed, the child be returned to the parents or taken to a place of shelter care designated by the court.

Section 5-709 of the Family Law Article permits a DSS agent to enter the household if the agent (1) has previously been denied the right of entry, and (2) has probable cause to believe that a child is in serious, immediate danger. With the assistance of a law enforcement officer, the agent may remove the child -without prior approval by the juvenile court if the agent believes that the child is in serious, immediate danger. If the child is removed, DSS must have the child thoroughly examined by a physician. It is evident that Ms. Bankins intended to act pursuant to § 5-709, rather than § 3-814.

Her intent was to seize the children and take them from Lexington Park, in St. Mary’s County, to the Psychiatric Institution for Montgomery County, where they “would be evaluated both physically and psychologically to see if there were any indications of child abuse.” It appears that Ms. McKinley had made arrangements with the Psychiatric Institute, although the record is silent as to why they chose that facility, many miles away. On the morning of June 17, Ms. Bankins and Ms. McKinley rendezvoused with Deputy Shoemaker and two other sheriffs deputies. The plan was for Ms. McKinley to go to the door, present Mrs. Smith with a “limited custody sheet” which is neither in the record nor explained in the record, and for Deputy Shoemaker and Deputy Bailey to seize the boys, put them in a car, and drive them to the Psychiatric Institution. The operation did not go as planned.

Ben was eating breakfast. When he saw Ms. Bankins rush into the house, he called for his brother and fled. As he ran out of the door, he saw Deputy Shoemaker with her hand on her pistol, as if getting ready to draw the weapon. The dog was barking, and Deputy ¹⁵⁴ Shoemaker yelled at Ben that if he did not quiet the dog, she would kill it. 4 Ben ran to the gate in the back, where he encountered two deputies, who ordered him to stop.

They seized him, pushed him to the ground, pulled his arms behind him, and handcuffed him. When he yelled at them, they tightened the cuffs. Finally, he was put in a squad car. Travis, barefoot and still in his pajamas, was playing with a friend when Ben yelled for him to run.

He also fled, but was captured by Deputy Shoemaker, handcuffed, and put in the squad car. Judge Williams added in his recitation of the facts: “Both boys were crying and screaming for their parents. When Benjamin began to kick the back of the front seat, one of the deputies indicated that, ‘if you don’t shut the f[_] up we’re going to take you to a mental hospital.’ Later, when Benjamin refused to calm down, Bailey indicated that, ‘if you don’t shut up I’m going to slap you in a straightjacket.’ ” With Ben and Travis handcuffed in the back of the car, Ms. Bankins and Deputy Shoemaker headed for the Psychiatric Institute. Ben stated that he wanted to talk with his lawyer, Mr. Densford, but, according to Judge Williams, Shoemaker responded that he would not be permitted to do so until he “settled down and talked to them nicely.” 'When Ben asked where they were being taken, Shoemaker said “that he did not need to know.” At some point along the way, apparently when they were already in Charles County, Deputy Shoemaker received radio instructions to turn around and proceed instead to a police outpost.

When they arrived at the outpost, Deputy Shoemaker removed the cuffs from Travis but left Ben shackled. Ben again asked to call Mr. Densford but was told that the telephone at the police station was inoperable. 5 ¹⁵⁵ Judge Williams found that, while at the post, the boys were told that they were being held for their own good and that they were removed from their home because their father abused them. Ms. Bankins expressed concern that she would be sued over what occurred, but Deputy Shoemaker responded that she (Shoemaker) “would cover for her.” The group remained at the outpost for several hours until Mr. Densford arrived. He directed that Ben’s handcuffs be removed, eventually took charge of the boys, and took them to court for an emergency hearing.

The court released them to their parents. They never were examined by a physician, as required by Family Law Article, § 5-709. At some point in 1994, Mrs. Smith, on behalf of Ben and Travis, filed a four-count complaint in U.S. District Court, charging Ms. Bankins and Deputies Shoemaker, Hall and Bailey with a violation of the boys’ civil rights, 42 U.S.C. § 1983 , Deputies Shoemaker, Hall, and Bailey with assault, Deputies Shoemaker and Hall with battery, and all four defendants with false imprisonment and violations of the Maryland Constitution. In October, 1995, the court dismissed the action against Bankins, finding, essentially, that, in removing the boys, she acted under the authority of Family Law Article, § 5-709, did not use excessive (or any) force, and did not deprive the boys of procedural or substantive due process.

All claims against Deputy Hall were also dismissed, largely on the ground that there was no allegation that he used any force against the boys. Only the Federal claims against Shoemaker and Bailey based on their use of excessive and unreasonable force and the State law claims against them were kept alive, apparently to permit further discovery. In August, 1996, the court disposed of the remaining claims by granting Shoemaker’s and Bailey’s motion for summary judgment. With respect to the Federal claim under § 1983, ¹⁵⁶ the court applied the objective test required by Supreme Court jurisprudence in an excessive force case, namely, whether the officers’ actions were “ ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 , 109 S.Ct. 1865, 1872 , 104 L.Ed.2d 443, 456 (1989).

Against that standard; the court found that the officers’ conduct, under the circumstances, was objectively reasonable and that the force applied was not excessive. Concluding that they had a legal basis upon which to remove the children, the court found that the force used to achieve that result was appropriate and justified. As that ruling exhausted the Federal claim, the court exercised its discretion and dismissed the pendant State law claims. No appeal was taken from the court’s final judgment.

Mrs. Smith and her husband, for themselves and the two boys, had filed this action in St. Mary’s County in June, 1995, but kept the case dormant during the pendency of the Federal action. In Counts I and II, they charged all defendants with violations of Articles 24 (due process) and 26 (unlawful seizure) of the Maryland Declaration of Rights; in Count III (mislabeled Count II), Ben and Travis charged Hall, Bailey, and Shoemaker with assault; in Count IV (mislabeled Count III), the boys charged Hall and Shoemaker with battery; and in Count V (mislabeled Count TV), the boys charged all defendants with false imprisonment. The claims against Hall and Bankins were dismissed by stipulation. The remaining defendants—Shoemaker and Bailey—moved for summary judgment on the alternative grounds that (1) they were entitled to immunity under the Maryland Tort Claims Act; (2) the plaintiffs’ claims were not cognizable under the Declaration of Rights; (3) their claims were barred by collateral estoppel, based on the Federal court judgment; and (4) the defendants’ acts were performed with legal justification and were supported by probable cause.

The court granted summary judgment with respect to Counts I and II—the Constitutional claims—on the basis of collateral estoppel, but it denied the motion with respect to the common law claims embodied in ¹⁵⁷ Counts III, IV, and V. Those claims, the court held, had not been ruled upon by Judge Williams, and they were therefore not barred by collateral estoppel. The court also concluded that there were facts in dispute relevant to whether Deputies Shoemaker and Bailey committed the torts and acted with malice. Notwithstanding the interlocutory nature of the court’s ruling, Deputies Shoemaker and Bailey noted an appeal, claiming the right to immediate appellate review under the collateral order doctrine. The Court of Special Appeals rejected that claim and dismissed the appeal as not allowed by law.

We granted certiorari to consider whether the intermediate appellate court erred in dismissing the interlocutory appeal and, contingently, whether the circuit court erred in denying petitioners’ motion for summary judgment as to the common law claims of assault, battery, and false imprisonment. We shall affirm the appellate judgment dismissing the appeal and need not, therefore, rule on the correctness of the circuit court ruling. DISCUSSION Nature of Immunity Available to Petitioners Section 12-105 of the State Government Article provides that “State personnel” have the immunity from liability described in § 5-522(b) of the Courts and Judicial Proceedings Article. Section 12-101(a)(6) includes a county deputy sheriff within the meaning of “State personnel.” Deputies Shoemaker and Bailey therefore have the immunity provided for in § 5—522(b), with respect to the open common law claims.

Section 5-522(b) grants immunity to State personnel “from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of [their] public duties ... and is made without malice or gross negligence, and for which the State or its units have waived immunity under Title 12, Subtitle 1 of the State Government Article____” (Emphasis added.) Under § 12-104 of the State Government Article, read in conjunction with § 5-522(a) ¹⁵⁸ of the Courts and Judicial Proceedings Article, the State has waived its immunity in tort actions, subject to certain money limits and subject to the caveat that immunity is not waived for the tortious act or omission of State personnel that is not within the scope of their public duties or that is made with malice or gross negligence. It is clear from these provisions that Deputies Shoemaker and Bailey have no immunity under the statute for conduct committed with “malice or gross negligence.” The immunity available to them, therefore, is a qualified, not an absolute, one. The plaintiffs have not contended that the deputies acted with gross negligence; the key is whether they acted with malice. The thrust of petitioners’ case, both as to appealability under the collateral order doctrine and as to the substantive correctness of the ruling denying their motion for summary judgment, is that, in concluding that they did not use excessive or unreasonable force, Judge Williams effectively held that they did not act with malice, and that his ruling collaterally estopped the plaintiffs from asserting otherwise.

Thus, through application of collateral estoppel, they regard the lack of malice, and with that lack their entitlement to statutory immunity, established as a matter of law. The statutory immunity, in their view, conferred not just an immunity from ultimate liability but also the right not to be forced to trial, and that is what gives them the right to an immediate appeal. At one time, the qualified immunity available to most Executive Branch officials charged under § 1983 was in the nature of a “good faith” immunity that had both objective and subjective components. That immunity would be defeated if the official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury.” Harlow v. Fitzgerald, 457 U.S. 800, 815 , 102 S.Ct. 2727, 2736 , 73 L.Ed.2d 396, 409 (1982), quoting from Wood v. Strickland, 420 U.S. 308, 322 , 95 S.Ct. 992, 1001 , 43 L.Ed.2d 214, 225 (1975) (emphasis in Harlow). ¹⁵⁹ The Harlow Court found, from experience, that the subjective component exacted too high a price by forcing government officials, in too many instances, to devote time and energy in defending non-meritorious litigation, diverting their attention from their official duties.

Observing that immunity under § 1983 was generally available only to officials performing discretionary functions, the Court noted that “the judgments surrounding discretionary action almost inevitably are influenced by the decisionmaker’s experiences, values, and emotions,” and that those variables “explain in part why questions of subjective intent so rarely can be decided by summary judgment.” Harlow v. Fitzgerald, supra, 457 U.S. at 816 , 102 S.Ct. at 2737 , 73 L.Ed.2d at 409 . The subjective element of good faith, or lack of malice, was thus incompatible with the desire that insubstantial claims should not proceed to trial—that “bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.” Id. at 817-18 , 102 S.Ct. at 2738 , 73 L.Ed.2d at 410 . Accordingly, the Court eliminated that element from the calculus and re-articulated the remaining objective element. The new standard for immunity under § 1983 was stated thusly: “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, supra, 457 U.S. at 818 , 102 S.Ct. at 2738 , 73 L.Ed.2d at 410 .

On summary judgment, the Court continued, “the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.” Id. The good or evil intentions of the official play no direct role in this analysis.