State v. Meade

WILNER, Chief Judge. In the early morning hours of April 26, 1991, appellant Gabriel Bewley, a Baltimore City police officer, attempted to place appellee Cedric Meade under arrest for loitering. Meade refused to submit and, instead, attempted to flee. With his gun drawn, Bewley chased him through the streets and alleys of the neighborhood, eventually caught up with him, and shot him in the chest.

Meade was severely injured. Following the shooting, Officer Bewley charged Meade with resisting arrest, assault, disorderly conduct, and unlawful loitering. Those charges were eventually placed on the “stet” docket by the State, where they remain to this day. Mr. Meade sued the State of Maryland, the City of Baltimore, Officer Bewley, and a number of other individuals for a variety of torts.

All of the defendants, except the State and Officer Bewley, were eventually dismissed from the case. In special verdicts, the jury found that Bewley had committed assault and battery, false arrest, and false imprisonment but that, in doing so, he acted without malice; that in pressing charges against Meade he also committed malicious prosecution; but that he did not commit an intentional infliction of emotional distress. The jury found compensatory damages in the amount of $1,545,813, consisting of $30,542 for past medical expenses, $15,271 for future medical expenses, and $1,500,-000 for non-economic damages. The court reduced the non-economic damages to $350,000, otherwise denied the post-trial motions, and entered judgment accordingly.

Because of the jury’s finding that the assault, battery, false arrest, and false imprisonment were committed without malice, the court concluded that Officer Bewley had public official immunity with respect to those common .law torts, and it therefore entered the judgment on those findings under Count IV of the complaint, charging Bewley and the State with violating Meade’s rights under articles 24 and 26 of the ⁵¹⁷ Maryland Declaration of Rights, for which common law immunity does not exist. 1 All three parties have appealed. The State presents two issues. Its major complaint is that the court erred in holding the State liable for the tortious conduct of a Baltimore City police officer. Such officers, it argues, are not within the ambit of the State Tort Claims Act, and the State has therefore not waived its immunity with respect to their conduct. 2 Officer Bewley takes a very different position as to that; he avers that the Tort Claims Act does cover City police officers and that, under that Act, he is entitled to immunity, even as to State Constitutional claims, so long as he was acting within the scope of his employment and without either malice or gross negligence.

Bewley makes a number of other complaints as well. He contends that the court erred (1) in finding as a matter of law, and so instructing the jury, that he had no probable cause to arrest Mr. Meade and that the arrest was therefore in violation of articles 24 and 26 of the Maryland Declaration of Rights; (2) in instructing the jury in such manner as to permit it to find that the actual shooting, even if accidental, nonetheless constituted a violation of articles 24 and 26; (3) in refusing to instruct that the arrest and the shooting were ⁵¹⁸ [Separate issues for purposes of assessing liability and dam- ■ ages; and (4) in allowing the jury to find liability for malicious prosecution when there was no finding of malice for the arrest and the charges stemming from the arrest were placed on the “stet” docket. Mr. Meade complains only about the damages. He urges that the court (1) should have allowed the jury to assess damages separately for the Constitutional torts (Count IV) and the malicious prosecution (Count VII), and (2) erred, for several reasons, in applying the statutory “cap” for non-economic damages (Md.Code Cts. & Jud.Proc. art., § 11-108) and thus reducing that part of the jury’s verdict.

Underlying Facts In order to place the various issues raised in a proper context, it is important to revisit some of the underlying facts and factual disputes. Mr. Meade testified that, on the night in question, he was living with his grandmother about a half block from the corner of Druid Hill Avenue and Whitelock Street in Baltimore City. He returned home late that night, around 1:00 in the morning, and his grandmother refused to open the door for him. He therefore decided to take a bus to a friend’s house and waited on the corner for the bus.

Another friend, Howard Mack, happened to be standing on the corner and waited with him. There was evidence that, at that hour of the night, buses came in 25-minute or greater intervals. After Meade had been waiting about 20 minutes, Officer Bewley pulled up, got out of his cruiser, directed Meade and Mack to place their hands on the car, and thoroughly frisked both of them. No weapons or contraband were discovered.

When Bewley learned that Mack was a juvenile, he released him but told Meade, who was over 18, that “he was going to make an example of him.” Meade then fled. Officer Bewley gave chase but, at some point, tripped and fell, whereupon some neighbors who were sitting on their steps jeered at the officer. Bewley then shouted that, if Meade did not stop, ⁵¹⁹ Bewley would “blow [his] black ass head off.” 3 Meade kept running, noticing at the time that Bewley had his gun drawn. When Meade got to the end of Traction Street, he ran into Officer Bewley, who had circled the area and was waiting for him with his gun drawn.

At that point, according to the narration in Meade’s brief: “Mr. Meade immediately put his hands in the air, and started walking towards Officer Bewley slowly. When Mr. Meade got close to Officer Bewley, the officer grabbed him around the neck with his right (gun) arm, and knocked him onto his stomach. Mr. Meade turned over onto his back. As he did so, Officer Bewley stuck his gun into Mr. Meade’s mouth and told him not to move.

Officer Bewley then removed his gun, again ordering him not to move. Without further provocation, Officer Bewley then leaned back, and shot Mr. Meade in the stomach.” Officer Bewley told a very different story, involving not one, but two encounters with Meade that evening. He said that, while on routine patrol, he observed Meade standing about five to ten feet from the corner. Although there were many people in the area, “all over the place,” Meade was alone.

Estimating that Meade was standing within 50 feet of Little Willie’s Tavern, Bewley told him, in effect, “to vacate the corner due to the loitering laws or he would be subject to being arrested.” Officer Bewley had in mind Baltimore City Code, art. 19, § 56, which provides, in relevant part, that it is unlawful for any person standing or loitering within 50 feet of a retail establishment which sells alcoholic beverages “in such manner as to obstruct free passage on or along the street or sidewalk, to disobey a request by a police officer to move on.” Officer Bewley had not seen Meade before and had no idea how long he had been standing on the corner. Prior to his accosting Meade, Bewley did not see anyone walking by him or anyone being obstructed from passing him. The sidewalk at the location was 10 feet in width. It is evident from his ⁵²⁰ testimony that he was concerned because the area was a high-crime, drug-infested area and that he wanted to clear the corner of loiterers.

Bewley said that Meade acknowledged the warning and began to walk away. In later testimony, he said that Meade “did leave the corner. I know he left that area.” The officer got back into his car and resumed his patrol. Bewley said that he returned to the corner about 20 minutes later and again saw Meade standing there, this time with another young man, Mr. Mack.

Other people were walking up and down the street. Bewley called Meade and Mack over to his car, allowed Mack to leave, but announced that Meade was under arrest for loitering. At that point, Meade fled. Bewley drew his weapon as he chased Meade down an alley, but reholstered it when he temporarily lost sight of his suspect.

Seeing him again, Bewley resumed the chase, drawing his weapon again when he saw Meade “messing with the front of his pants.” He said he thought that Meade “had some sort of weapon that could harm me.” Bewley circled the area and apparently met up with Meade at the end of an alley. With his gun pointed, he ordered Meade to “freeze,” whereupon Meade slipped and fell. Bewley placed his left hand on Meade’s shoulder to gain control, but Meade continued to “flop around and move in an effort to try to get up.” The officer ordered him to stop moving, to no avail. All of a sudden, he said, Meade turned around with his hands up and grabbed the officer’s weapon, causing it, accidentally, to discharge.

Evidence was presented that between eight and nine pounds of pressure was required on the trigger for the gun to discharge. Upon this conflicting evidence, the major factual disputes were whether there had been one encounter or two, whether Officer Bewley had thoroughly frisked Meade before the chase began and thus knew that Meade was unarmed, and what actually caused the gun to discharge. Among the legal issues generated by this evidence, aside from the immunity questions, were whether Officer Bewley had probable cause to ⁵²¹ place Meade under arrest, whether, in any event, he had the right to threaten and use deadly force, and whether any of his conduct was malicious. Immunity: The State and Officer Bewley As indicated, in light of the jury’s determination that Officer Bewley did not act with malice in accosting, arresting, chasing, and shooting Mr. Meade, the court found him, and the State, protected by common law public official immunity with respect to the direct torts pled in Counts I (assault and battery) and II (false arrest and imprisonment).

It also concluded, however, that this non-malicious conduct did constitute a State Constitutional tort—a violation of Meade’s rights under articles 24 and 26 of the Maryland Declaration of Rights as pled in Count IV of the complaint. Applying the Maryland law enunciated in Clea v. City of Baltimore, 312 Md. 662, 680-85 , 541 A.2d 1303 (1988) and Ritchie v. Donnelly, 324 Md. 344, 374 , 597 A.2d 432 (1991), the court held that Officer Bewley enjoyed no common law immunity for such Constitutional torts. By virtue of certain 1989 amendments to the definition of “State personnel” in the State Tort Claims Act (Md.Code State Gov’t, art., § 12-101), the court held that Baltimore City police officers had been excluded from the protection of that Act, and that, as a result, the State had not waived its sovereign immunity for the conduct of City police officers and had thus left such officers without statutory immunity. Notwithstanding this conclusion, it seems that judgment was, in fact, entered against the State, although the basis for that judgment is not entirely clear.

The docket entry initially recording the judgment on the verdict indicates that it was against both Officer Bewley and the State and, except for the remittitur for non-economic damages, that judgment was not disturbed. We assume, therefore, that the judgment was entered against the State. The court became aware, however, that, through a number of Resolutions approved by the City Board of Estimates, the City had adopted a formal policy of indemnifying its employ ⁵²² ees and public officers from monetary loss due to non-intentional acts of negligence committed within the scope of their employment and that, in 1992, following the Ritchie case, the Board of Estimates had specifically agreed to provide a defense to police officers in civil actions and to indemnify the State if it were sued and suffered any loss. These Resolutions were admitted as exhibits by the court, and, upon them, the court assumed, as a practical matter, that the judgments entered against Officer Bewley would ultimately be paid by the City.

Indeed, its final conclusion was that Officer Bewley “is not entitled to the immunity of the Maryland Tort Claims Act” but that “he is entitled to fall under the indemnity provision between Baltimore City and the Baltimore City Police Department.” This last assumption puts a special gloss on the argument made by the State, as appellant. The State is represented in this appeal not by the Attorney General but rather by the City Solicitor of Baltimore, who does not even mention in his brief and did not mention at oral argument the fact that the court found the State itself to be immune and that the real party in interest, other than Officer Bewley, is the City of Baltimore. There are a number of sub-issues raised by the parties with respect to the immunity question, but we think only one needs to be addressed. We shall conclude that the State is immune because of the 1989 amendments to the definition of “State personnel” and shall therefore reverse the judgment entered against it.

For that same reason, we shall conclude that Officer Bewley has no statutory immunity and that he also enjoys no common law immunity. That Officer Bewley has no common law immunity is clear from Clea and Ritchie, supra, and is really not contested. In both of those cases, the Court confirmed that a common law action for damages will lie for violations of articles 24 and 26, that the public official who violates them does not have common law public official immunity, but that, absent legislation consenting to suit, the doctrine of sovereign immunity ⁵²³ precludes an action for damages against the State. See Ritchie, 324 Md. at 373-74 , 597 A.2d 432 .

In Clea , a City police officer, the City Police Department, and the City itself were sued following the officer’s wrongful entry into the plaintiffs home in execution of a search warrant meant for another address. Holding that the City Police Department was a State, not a City, agency, the Court concluded that, as a result, the City was not the officer’s employer and therefore could not be held liable as such for his wrongful conduct. The Police Department itself was entitled to the State’s sovereign immunity, except to the extent that such immunity had been waived by statute. Although noting that the Tort Claims Act had been substantially broadened in 1985, the Court did not address the scope of those amendments because the conduct at issue predated them.

Notwithstanding the non-applicability of the 1985 amendments to the conduct at issue in Clea , the Clea Opinion, filed in June, 1988, certainly raised the specter of State liability for the conduct of persons regarded as State officers but who were neither paid nor directly controlled by the State. The State Treasurer’s Office, which was responsible for providing purchased or self-insurance to cover claims made under the State Tort Claims Act (see Md.Code State Fin. & Proc. art., § 9-105(c)), was sufficiently concerned about that prospect to draft and present to the 1989 session of the General Assembly a departmental bill (HB 364) to narrow the scope of the Act. At the time, by virtue of the definition of “State personnel” in § 12-101 of the State Government article, the State appeared to have waived its immunity with respect to the conduct of “an individual who, with or without compensation, exercises a part of the sovereignty of the State.” (Emphasis added.) In testimony on the bill, the Treasurer’s Office stated, in relevant part: “The bill amends Section [12-101] to establish a more definitive definition of State personnel. It is the Treasurer’s Office belief that the Tort Claims Act was enacted to cover individuals whom the State paid and controlled; the ⁵²⁴ Office believes, further, that the intention of the annual appropriation is to fund coverage for those individuals whose programs are funded under the budget.

Under the current definition, the State may be assuming a much broader liability for the actions of employees of local gov ernment—especially law enforcement personnel who could be deemed to exercise the derivative sovereign power of the State. There have, in fact, been claims filed seeking recovery for action by local policemen; and the court has indicated, at least in one instance, that the State is probably the responsible party.” (Emphasis added.) Although the definition was amended in a number of other respects, the relevant amendment for our purposes was that waiving immunity only with respect to a State employee or official who is paid in whole or in part by the State Central Payroll Bureau in the Comptroller’s Office or who without compensation exercises a part of the sovereignty of the State. The 1989 legislation, as enacted, was clearly effective to reinstitute the State’s sovereign immunity for conduct committed by Baltimore City police officers, among others. They are not paid by the Central Payroll Bureau and do not exercise any part of the sovereignty of the State without compensation.

It is clear, then, that the State, retaining its common law sovereign immunity, is not liable for Officer Bewley’s conduct, and the judgment entered against it must be reversed. It follows equally that, as Officer Bewley is not included within the ambit of “State personnel,” he does not enjoy the statutory immunity provided under the Tort Claims Act (§ 12-105). Because of this conclusion, we need not consider whether, under the Tort Claims Act, the State has waived its common law immunity for State Constitutional torts. Nor, because the issue was not raised in the State’s brief or at oral argument, need we consider whether the City is liable under the indemnity agreements and resolutions. ⁵²⁵ Probable Cause Meade’s claims for false arrest and false imprisonment, both as independent torts and as predicates for the article 24 and 26 violations, depended in part on whether Officer Bewley had probable cause to make an arrest.

That is also the case with the claim for malicious prosecution. The court informed the jury, as to each of these claims, that it had determined as a matter of law that Officer Bewley did not have probable cause to make the arrest. Bewley challenges that determination. The arrest, as we indicated, was for violation of the City loitering law, quoted, in part, above.

A violation of that ordinance, as it relates to this case, requires three things: (1) that Meade was standing or loitering within 50 feet of an establishment selling alcoholic beverages; (2) that he was standing or loitering in a manner obstructing “free passage on or along the street or sidewalk”; and (3) that he disobeyed a request by a police officer to move on. In judging this question, we need to consider the evidence in a light most favorable to Officer Bewley. We therefore must, for this purpose, reject entirely Mr. Meade’s recitation of what occurred—the single encounter in which no request to move was made—and look instead only at Officer Bewley’s account. Moreover, it is clear from that account that only the first encounter is relevant; when he returned, Officer Bewley effected the arrest, or attempted to, -without any further warning to move and -without any indication that Meade, at that time, was obstructing pedestrian traffic.

Officer Bewley testified that, when he first came upon Meade that evening, he believed that Meade was standing within 50 feet of Little Willie’s Tavern. He made no measurements, nor did anyone else, but estimated that Meade was within that distance. Meade more or less