Smith v. Bortner

ZARNOCH, J. In this appeal, we are asked to determine the appropriate State constitutional standard for a claim that police used excessive force on a citizen in custody following a valid arrest. The unfortunate circumstances described below led Eyrania Smith, appellant, to file suit in January 2008 in the Circuit Court for Baltimore County against Michael Bortner, appellee, an officer of the Baltimore County Police Department. In that suit, she alleged that the officer mistreated her following her arrest while she was in custody at a Baltimore County police station awaiting transfer to the Baltimore City Police Department. The complaint alleged that Bortner violated Smith’s rights under Articles 24 and 26 of the Maryland Declaration of Rights, and that he committed several common law torts.

In December 2008, the circuit court granted summary judgment to Bortner on all counts of the complaint. In this appeal, Smith challenges only the rejection of one of her constitutional claims and contends that the circuit court failed to apply the correct standard for determining whether the officer’s conduct violated Article 24. For the reasons that follow, we affirm the circuit court’s order granting summary judgment. FACTS AND PROCEEDINGS On Saturday morning, March 26, 2005, Smith was driving with her children on Interstate 83 in Baltimore County, when Officer Gibbons of the Baltimore County Police Department stopped her for speeding.

The officer learned that there was an outstanding warrant for Smith’s arrest that had been issued by the District Court for Baltimore City in 2001. 1 ⁵³⁸ Despite Smith’s protests that the police record of a warrant was mistaken, at 9:08 a.m., the officer arrested and handcuffed Smith and transported her to the Cockeysville precinct station. Smith’s car was left at a Park-and-Ride near 1-83. Smith’s two daughters, who were seventeen and eight or nine, respectively, were left alone in the car. 2 At approximately 9:20 a.m., Officer Michael Bortner, the booking officer at the station, fingerprinted and photographed Smith. Bortner then had Smith sit down on a bench near a wall in the fingerprinting room, handcuffed her left wrist to a pole above her seat, and shackled her ankles to a pole running parallel near the bottom of the wall.

The Baltimore County police then notified the Baltimore City Police Department that Smith was in custody and requested that the City police pick her up. However, City police officers did not arrive. According to the arrest report, at 2:15 p.m., the County police contacted the City police, who said its ⁵³⁹ 4 p.m. to midnight shift would handle the matter. At 5 p.m., the County contacted the City again to obtain an estimated time when police would arrive and were told that the City’s midnight shift would handle the matter.

Around midnight, after City police still had not come, County officers transported Smith to Baltimore City police custody. During most of her stay at the Cockeysville station, appellant remained handcuffed and shackled to the wall. According to Smith, she repeatedly told Bortner and other officers that the warrant was a mistake. Appellant said at her deposition that the police told her that she could not be placed in a cell because all three of the station’s cells were occupied by men.

Appellant also stated that an officer called a nearby prison that houses women to inquire if there were empty cells, but was informed that there were none. Appellant was diabetic and a number of times asked about obtaining the insulin she had left in her car so she could inject herself. Her requests were denied, and appellant testified that an officer told her that she would “be fine” without her insulin for a day. In her deposition, appellant recounted a phone conversation one officer had with her husband about getting her insulin: “What I heard him say to my husband was, we’re not a hospital facility, and we can’t allow her to inject herself here.” Smith also complained about the shackles cutting into her ankles, but she said that her complaint was ignored.

According to appellant, police officers’ children were at the station that day for an Easter party, and they ran into the room in which she sat and called her a “jailbird.” Around 5:15 p.m., she was moved from the fingerprinting room to the hallway of the station and remained handcuffed there. The record is silent on whether she was handcuffed and shackled to a pole as in the fingerprint room. The arrest report indicates that appellant used the restroom twice and was fed at 5 p.m. According to appellant, she was offered a sandwich, but was so disgusted that she gave it to a prisoner who was being held in a nearby cell.

She accepted the drink the police offered her. Police records indicated that Bortner worked a 6 a.m. to 2 p.m. shift ⁵⁴⁰ that day, and thus, at most, was involved with appellant for about four and a half hours. According to appellant’s complaint, after being transferred to Baltimore City, the police advised her that there was no outstanding warrant for her arrest. She was released at approximately 12:54 a.m. on March 27, 2005.

On Monday, March 28, 2005, appellant went to the District Court for Baltimore City and informed the judge who had sentenced her in 2001 about the weekend’s events. The judge recognized the mistake and, that day, issued an order recalling the bench warrant. Appellant was examined by a physician on April 6, 2005. In a report, the doctor diagnosed her as suffering from strains to her left shoulder, spine, hips, and chest, a sprain to several areas of her left arm, and a left ankle contusion/sprain.

He also wrote that Smith suffered post-traumatic headaches and anxiety. The doctor recommended physical therapy and referred Smith to an orthopedic surgeon. He ordered Smith to refrain from working, but did not indicate a time frame for her return to work. At her deposition, appellant said that she went back to her job as a cashier at Walmart shortly after the incident, but nearly “had a nervous breakdown at the [cash] register.” According to appellant, she was unable to return to work thereafter.

On January 2, 2008, appellant filed a complaint against Bortner, individually and in his official capacity, alleging counts of: (1) battery; (2) false arrest; (3) false imprisonment; and (4) violations of Articles 24 and 26 the Maryland Declaration of Rights. 3 The complaint stated that Bortner shackled ⁵⁴¹ her “to a pole with her left wrist above her head and both ankles shackled for 12^ hours,” and that she “repeatedly advised Officer Bortner and others that there was no warrant against her and that she was diabetic and could not remain in [the] position” in which she was placed. She alleged that she suffered “serious, painful and permanent bodily injuries, great physical pain and mental anguish, severe and substantial emotional distress and loss of the capacity for the enjoyment of life,” and incurred medical expenses as a result. The complaint sought $1 million compensatory and $1 million punitive damages. On May 14, 2008, Bortner moved for summary judgment on all counts, arguing that the basis of the complaint was that the police acted without an arrest warrant, but in fact the police acted on a facially valid outstanding bench warrant, which was not recalled until two days after the arrest.

On May 30, 2008, appellant filed a response, countering that the warrant “was an error and ultimately quashed,” and that appellant repeatedly advised the police that there was a mistake. Appellant further stated that her claims did not arise from the arrest itself, but from the manner in which the officer treated her while holding her at the station. In a ruling dated August 8, 2008, Judge John F. Fader II denied the motion, noting that “there is much more in the Complaint filed than an allegation that [appellant] was arrested without a warrant,” including allegations about the amount of time and the manner in which the Baltimore County police held her. He ruled that “summary judgment [was] inappropriate on the facts presented by the motion[.]” Subsequently, Smith was deposed.

On September 26, 2008, Bortner moved a second time for summary judgment, arguing that appellant could not prevail on her claims of battery, false arrest, and false imprisonment, because the warrant provided legal justification for the arrest. Bortner further argued that ⁵⁴² he enjoyed public official immunity unless he acted with malice, and there was no evidence of malice. Lastly, Bortner argued that the claims of violations of Articles 24 and 26 of the Maryland Declaration of Rights should fail because the conduct complained of did not “shock the conscience” or amount to “punishment.” 4 Judge Judith Ensor heard oral argument on the motion on December 18, 2008. That day, she granted appellee’s motion as to counts 1, 2, and 3, but reserved judgment on count 4, the constitutional claims.

On December 30, 2008, she granted summary judgment to appellee on count 4, explaining that in order for appellant to prevail on her claim that Bortner committed constitutional torts by using excessive force against her, Bortner’s conduct must “shock the judicial conscience.” The court found that Bortner’s conduct did not rise to that level and was also “objectively reasonable.” Smith timely noted an appeal on January 30, 2009. QUESTION PRESENTED We have slightly rephrased the single question appellant has presented: Whether the circuit court applied the correct standard for determining whether appellee’s conduct violated appellant’s constitutional rights? 5 ⁵⁴³ DISCUSSION We review a grant of summary judgment de novo. Beyer v. Morgan State Univ., 369 Md. 335, 359 , 800 A.2d 707 (2002). Maryland Rule 2-501 authorizes a grant of summary judgment where “there is no genuine dispute as to any material fact and ... the party is entitled to judgment as a matter of law.” “When reviewing the grant or denial of a motion for summary judgment we must determine whether a material factual issue exists, and all inferences are resolved against the moving party.” Olde Severna Park Improvement Ass’n v. Gunby, 402 Md. 317, 328 , 936 A.2d 365 (2007) (citation and quotations omitted). “[Ojnce we have concluded that there is no genuine issue of material fact, our standard of review is whether the trial court was legally correct.” Reiter v. ACandS, Inc., 179 Md.App. 645, 659 , 947 A.2d 570 (2008) (citation and quotations omitted).

A. Article 24 or Article 26? This case is presented to us as arising solely under Article 24 of the Maryland Declaration of Rights, with the parties inviting us to choose from one of two due process standards: “shock the conscience” or excessive force “amounting to punishment.” In the circuit court, Smith claimed that Officer Bortner violated her rights guaranteed by Article 24 and Article 26. In this Court, on the basis of Robles v. Prince George’s County, 302 F.3d 262 , 268 (4th Cir.2002), she has abandoned any contention of wrongful arrest or resultant excessive force under Article 26. 6 Nor does she contend that the appropriate due process standard in a case of excessive force against a detainee is derived from Article 26’s proscription against unreasonable seizures. ⁵⁴⁴ At first blush, this appears to be a surprising concession for two reasons. First, the standard for gauging excessive force under the Fourth Amendment/Article 26 is more plaintiff-friendly than a due process standard.

See Harris v. City of Circleville, 583 F.3d 356, 365 (6th Cir.2009) (“A substantially higher hurdle must be surpassed to make a showing of excessive force under the Fourteenth Amendment than under the ‘objective reasonableness’ test____”). See also Comment, Jill I. Brown, Defining “Reasonable” Police Conduct: Graham v. Connor and Excessive Force During Arrest, 38 UCLA L.Rev. 1257, 1270 n. 86 (1991) (“[I]t is more difficult to show that the defendants’ use of force amounted to punishment (under the Due Process Clause) than to merely prove that it was unreasonable (under the Fourth Amendment).”). Second, Maryland cases have said that the standard for analyzing claims of excessive force by police officers are the same under Articles 24 and 26 of the Maryland Declaration of Rights and that the test is one of objective reasonableness, as set forth in the U.S. Supreme Court’s Fourth Amendment case of Graham v. Connor, 490 U.S. 386, 397 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989). See Okwa v. Harper, 360 Md. 161, 203-04 , 757 A.2d 118 (2000) 7 ; Randall v. Peaco, 175 Md.App. 320, 330 , 927 A.2d 83 (2007); Hines v. French, 157 Md.App. 536, 574-75 , 852 A.2d 1047 (2004); Branch v. McGeeney, 123 Md.App. 330, 338 , 718 A.2d 631 (1998); Williams v. Prince George’s County, 112 Md.App. 526, 547 , 685 A.2d 884 (1996).

See also Richardson v. McGriff 361 Md. 437, 452 , 762 A.2d 48 (2000). 8 However, a closer look at these Maryland decisions and the Supreme Court’s opinion in Graham suggests that appellant may have not conceded very much. Each of the above-cited Maryland cases involved a claim of excessive force in a pre-arrest setting or during the course of ⁵⁴⁵ an arrest. None presented the issue of excessive force after a person had been taken into custody following a valid arrest. The same is true of Graham .

There, the majority opinion of the Supreme Court said that all claims that law enforcement officers have used excessive force “in the course of’ an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its reasonableness standard rather than under a substantive due process approach. 490 U.S. at 395 , 109 S.Ct. 1865 . In a footnote, the Court went on to observe: Our cases have not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins, and we do not attempt to answer that question today. It is clear, however, that the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment. See Bell v. Wolfish, 441 U.S. 520, 535-539 , [ 99 S.Ct. 1861 , 60 L.Ed.2d 447 ] (1979).

Id. n. 10. 9 By declining to address this issue, and to define the point at which an arrest ends and pretrial detention begins, Graham spawned disagreement among the federal circuits about the source and standard of constitutional protection afforded an individual against excessive force in police custody. It has been said that “[b]etween arrest and sentencing lies something of a legal twilight zone.” Wilson v. Spain, 209 F.3d 713 , 715 ⁵⁴⁶ (8th Cir.2000). See also infra, pp. 548-49, 998 A.2d 369 , pp. 377-78. Some federal circuit courts have held that only the Fourteenth Amendment Due Process Clause, not the Fourth Amendment, protects individuals that are in police custody after an arrest, relying on the language of the Fourth Amendment and Bell v. Wolfish, 441 U.S. 520, 535-36 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979), in which the Supreme Court held that pretrial detainees are protected by the Due Process Clause’s prohibition on punishing an individual prior to an adjudication of guilt.

In Riley v. Dorton, 115 F.3d 1159, 1163 (4th Cir. 1997) (en banc) (quoting Bell, 441 U.S. at 533-34 , 99 S.Ct. 1861 ), abrogated on other grounds by Wilkins v. Gaddy, — U.S.-, 130 S.Ct. 1175 , — L.Ed.2d-(2010), the United States Court of Appeals for the Fourth Circuit noted the split among federal circuit courts on this issue, but rejected the “continuing seizure” theory of the Fourth Amendment and held that “the Fourth Amendment ... applies to the ‘initial decision to detain an accused,’ not to the conditions of confinement after that decision has been made.” The court held that “Bell instructs us to analyze excessive force claims of pretrial detainees under the Due Process Clause of the Fourteenth Amendment.” Id. at 1162. See also Robles v. Prince George’s County, supra, 302 F.3d at 268. In Brothers v. Klevenhagen, 28 F.3d 452, 456 (5th Cir.), cert. denied, 513 U.S. 1045 , 115 S.Ct. 639 , 130 L.Ed.2d 545 (1994), the United States Court of Appeals for the Fifth Circuit likewise held that the Fourth Amendment does not apply after the initial arrest, citing three reasons: First, the text of the Fourth Amendment — prohibiting unreasonable “seizures” — does not support its application to a post-arrest encounter. Second, the Supreme Court has refused to apply the Fourth Amendment to protect inmates after incarceration.

And third, Graham [, 490 U.S. at 395 n. 10, 109 S.Ct. 1865 ] and Bell v. Wolfish, 441 U.S. 520 [ 99 S.Ct. 1861 , 60 L.Ed.2d 447 ] (refusing to concede that Fourth Amendment applied to pretrial detainee subjected to body cavity search), dictate that the Due Process Clause is the appropriate constitutional basis for pretrial detainee excessive force suits. ⁵⁴⁷ (Citation omitted). See also Valencia v. Wiggins, 981 F.2d 1440, 1444 (5th Cir.1993) (holding that “the concept of ‘seizure’ in the Fourth Amendment is not so capacious or elastic as to cover pretrial detention three weeks after the initial arrest”). The Seventh Circuit, as well, has consistently rejected the concept of a “continuing seizure” protected by the Fourth Amendment. Wallace v. City of Chicago, 440 F.3d 421, 429 (7th Cir.2006); McCullah v. Gadert, 344 F.3d 655, 661 (7th Cir.2003); Reed v. City of Chicago, 77 F.3d 1049 , 1052 n. 3 (7th Cir.1996); Wilkins v. May, 872 F.2d 190, 192-94 (7th Cir.1989).

The First Circuit has rejected the view that a Fourth Amendment seizure lasts through a defendant’s trial. Nieves v. McSweeney, 241 F.3d 46, 55-56 (1st Cir.2001). The Eleventh Circuit has also held that claims involving the mistreatment of arrestees or pretrial detainees in custody are governed by the Fourteenth Amendment’s Due Process Clause. Danley v. Allen, 540 F.3d 1298, 1306 (11th Cir.2008).

The Second, Third, Sixth, Eighth, Ninth, and Tenth Circuits, however, have extended Fourth Amendment protections beyond a suspect’s initial arrest to include, to various degrees, some of the time during which the suspect remains in police custody. See Powell v. Gardner, 891 F.2d 1039, 1044 (2nd Cir.1989) (“We think the Fourth Amendment standard probably should be applied at least to the period prior to the time when the person arrested is arraigned or formally charged, and remains in the custody (sole or joint) of the arresting officer.”); McDowell v. Rogers, 863 F.2d 1302, 1306 (6th Cir.1988) (holding that a Fourth Amendment seizure “continues throughout the time the person remains in the custody of the arresting officers”); Wilson v. Spain, 209 F.3d 713, 715-16 (8th Cir.2000) (analyzing claims of excessive police force after an arrest under the Fourth Amendment reasonableness standard); Torres v. City of Madera, 524 F.3d 1053, 1056 (9th Cir.2008); Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir.1996) (“[T]he Fourth Amendment sets the applicable constitutional limitations on the treatment of an arrestee detained without a warrant up until the time such arrestee is released or found to be legally in custody based upon probable ⁵⁴⁸ cause for arrest.”); Robins v. Harum, 773 F.2d 1004, 1009-10 (9th Cir.1985); Austin v. Hamilton, 945 F.2d 1155, 1160 (10th Cir.1991) (concluding that the Fourth Amendment’s protections “impose restrictions on the treatment of the arrestee detained without a warrant”). See also DiBella v. Borough of Beachwood, 407 F.3d 599, 602-03 (3rd Cir.2005); Torres v. McLaughlin, 163 F.3d 169, 174 (3rd Cir.1998) (stating that “there may be some circumstances during pre-trial detention that implicate Fourth Amendment rights”); Albright v. Oliver, 510 U.S. 266, 276-81 , 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994) (Ginsburg, J., concurring) (advocating that an individual who is released from police custody pending trial should be considered “seized” within the meaning of the Fourth Amendment because such a person “is scarcely at liberty; he remains apprehended, arrested in his movements, indeed ‘seized’ for trial, so long as he is bound to appear in court and answer the state’s charges”); Eamonn O’Hagan, Note, Judicial Illumination of the Constitutional “Twilight Zone”: Protecting Post-Arrest Pretrial Suspects from Excessive Force at the Hands of Law Enforcement, 44 B.C. L.Rev. 1351 (2003); Tiffany Ritchie, Note, A Legal Twilight Zone: From the Fourth to the Fourteenth Amendment, What Constitutional Protection is Afforded a Pretrial Detainee?, 27 S. Ill. U. L.J. 613 (2003); Irene M. Baker, Comment, Wilson v. Spain: Will Pretrial Detainees Escape the Constitutional Twilight Zone?, 75 St. John’s L.Rev. 449 (2002).

There appears to be no Maryland case adopting or rejecting the “continuing seizure” rationale for an Article 26 or a Fourth Amendment excessive force claim and the parties have not asked that this be the first. As noted earlier, Smith seems to assume the correctness of the Fourth Circuit’s view in Robles, see supra, n. 6, and accompanying text, and has abandoned her Article 26 claim. Although the circuit court apparently applied the Article 26/Fourth Amendment standard of objective reasonableness — in addition to the due process shock-the-conscience test — in upholding the appellee’s actions, Smith did not ask the circuit court to apply the less burdensome of the ⁵⁴⁹ two standards. 10 Waiver aside, this case seems to be a poor vehicle to address the issue. Appellant’s arrest was valid.

She has not sued the arresting officer. Rather, the sole defendant named was the booking officer, who was present for only 4tk hours of the custodial period. Although no analysis of unconstitutional excessive force by police would have been complete without discussion of the above-cited authorities, we believe the focus of this appeal must be limited to the choice of the substantive due process standards advanced by the parties. B. Shock the Conscience or Force Amounting to Punishment?

The parties have staked out widely divergent positions on the appropriate due process standard governing excessive police force against a pre-trial detainee. 11 Bortner now argues that the sole standard governing the excessive force conten ⁵⁵⁰ tion here is the “elemental” standard of “shock the conscience,” which denotes a “very high standard of culpability.” Prince George’s County v. Longtin, 190 Md.App. 97, 138 , 988 A.2d 20 (2010), cert. granted, 414 Md. 330 , 995 A.2d 296 (May 14, 2010). Smith contends that we should apply the due process test articulated in Robles, 302 F.3d at 269, of whether the detaining officer’s conduct amounted to punishment that was not an incident of some other legitimate government purpose. Smith’s argument is strengthened by the fact that Robles is based upon the Supreme Court’s decision in Bell v. Wolfish, supra, as reaffirmed in Graham with regard to an excessive force claim of a pre-trial detainee. 12 The parties do not appear to disagree that the shock-the-conscience standard is the more difficult test for a plaintiff to meet and that the Bell v. Wolfish analysis is the more plaintiff-friendly. 13 Equally clear is that the “shock-the-conscience” ⁵⁵¹ standard is not a