Thacker v. City of Hyattsville

ADKINS, Judge. Like a chameleon, the common legal term “malice” must be examined in context. As the Court of Appeals recently observed in an analogous case involving qualified public official immunity, “[t]he word ‘malice’ has been a troublesome one in the law, because it has been used in many different contexts____” Shoemaker v. Smith, 353 Md. 143, 161 , 725 A.2d 549 (1999). This wrongful arrest case is additional anecdotal affirmation of that troublesome nature.

We must resolve a series of “malice” related issues in this appeal from summary judgment in favor of appellees, who are eight municipal defendants. Because the Circuit Court for Prince George’s County concluded that there was insufficient evidence of malice to defeat the presumption of qualified immunity afforded to municipal officials under Md.Code (1974, 1998 Repl.Vol.), § 5-507 of the Courts & Judicial Proceedings Article (“Section 5-507”), 1 we will address the qualified immunity issue first. In doing so, we also must consider the effects of an order by Judge Alexander Williams of the United States District Court for the District of Maryland, dismissing with ²⁷⁸ prejudice the federal civil rights claim of Robert Thacker, appellant. We shall hold that (1) the federal court’s decision had no preclusive effect on the remanded state law claims now before us; (2) there was sufficient evidence to raise an inference of malice against the arresting officer; (3) the city employing the arresting officer may be held vicariously liable for his torts and constitutional violations, and is not otherwise immune from liability for violations of the Maryland Constitution; and (4) there was no evidence of malice against the other six municipal defendants.

As a result, we must review the undisputed material facts to determine whether summary judgment was appropriate even absent such qualified immunity. Each cause of action must be considered separately, because the respective prima facie elements and defenses differ. We shall affirm in part, reverse in part, and remand to the circuit court for further proceedings consistent with this opinion. BACKGROUND OF LEGAL PROCEEDINGS The Arrest And Complaint Thacker’s arrest for disorderly conduct precipitated the instant case.

Thacker, an apartment complex manager, requested police assistance in removing from the property management office a tenant who was disgruntled over Thacker’s refusal to issue him a temporary parking permit. In the ensuing encounter among Thacker, Hyattsville police officers, and the tenant, Officer Gary Blakes arrested Thacker. Additional evidence regarding that encounter and arrest is reviewed in Part III of this opinion. After the disorderly conduct charge was nolle prossed, Thacker and Melvin Berman, as general partner of the partnership that employed Thacker, filed a complaint against Blakes and seven other municipal defendants. 2 The gravamen of the complaint was that Thacker did not commit any crime, ²⁷⁹ that Blakes made defamatory statements regarding Thacker, and that the arrest was wrongfully motivated by Blakes’ dislike of Thacker and his desire to retaliate, intimidate, humiliate, and harm him.

The other municipal defendants were alleged to be liable under theories of vicarious liability, negligent training, and/or negligent supervision. 3 Federal Court Proceedings The municipal defendants removed the entire case to the United States District Court for the District of Maryland, based upon a single civil rights count under 42 U.S.C. section 1983 (the “section 1983 claim”). 4 They immediately filed a preliminary motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). No discovery had been conducted. Plaintiffs filed an opposition, attaching a copy of Blakes’ incident report to it. At the motion hearing, without prior notice to Thacker’s attorney, defense counsel urged the court to exercise its ²⁸⁰ discretion under Rule 12(b) to convert the motion to dismiss into a motion for summary judgment. [DEFENSE COUNSEL]: I do note that while the complaint itself is fairly limited in factual allegations, the plaintiff has attached a copy of the police report to his reply memorandum, thereby, I submit, making the police report itself in essence part of his complaint.

I think it’s therefore fair to refer to that complaint. THE COURT: Are you now turning this into a motion for summary judgment? [DEFENSE COUNSEL]: It is in practical effect a motion for summary judgment based upon the additional material supplied by the plaintiff, not the defendant, to the record. THE COURT: Does [plaintiffs’ counsel] have the right to receive notice of this and an opportunity to supplement his response? What is your view on that? [DEFENSE COUNSEL]: I would respectfully submit that the defendant is under no obligation to warn the plaintiff that by adding additional information he risks converting what is a motion to dismiss to a motion for summary judgment.

My position would perhaps have been clearer had I submitted affidavits from my clients, but, frankly, I didn’t think it necessary. Thacker’s attorney objected that he was not prepared for a dispositive evidentiary motion, and that the police report was neither proffered nor admissible for the truth of Officer Blakes’ statements therein. [PLAINTIFF’S COUNSEL]: Initially, I must state that I was prepared today to argue the motion to dismiss and not a motion for summary judgment. And it is very clear from my pleading that the purpose of attaching the police officer’s report was only for the purpose of showing his state of mind, if you would, for purposes of arrest. We certainly do not admit the facts that are alleged in that report and I make that clear when I attached that to my pleading by a statement to that effect.

We certainly dispute those facts. Our position here is that we are not here to try this case. ²⁸¹ We are here on an issue of whether or not we have sufficiently pled facts from which a jury can reasonably infer that these violations have occurred. Without further comment on converting the motion to dismiss, the federal court proceeded to raise the issue of qualified immunity. THE COURT: Well, what is the purpose of having submitted a copy of the complaint and your interpretation of that?

What was the purpose of that? [PLAINTIFF’S COUNSEL]: To show that the officer thought that it was his responsibility to resolví he parking problem, and he thought that it was within his parameters to arrest Mr. Thacker, the plaintiff, by virtue of the fact that he would not stop asking him to remove the tenant from his office. THE COURT: It just seems to me that it’s a built-in qualified immunity defense. It doesn’t matter whether in fact he had probable cause, but if he reasonably and objectively believed that he had the right to arrest him for disorderly conduct, I think the game is over. That’s what qualified immunity is. [PLAINTIFF’S COUNSEL]: Well, I would think, Your Honor, that whether or not it was reasonable for him to believe such is the jury question.... [M]y point is that the justification for the arrest is what compromises the whole claim.

If there are sufficient facts from which the jury can determine, which I believe there is, that the officer was not reasonable in thinking that he could make the arrest and that his arrest was not justified, which we claim that it is not justified, then there falls the probable cause argument. After noting that “we have not even developed any of the facts in this case,” Thacker’s attorney proffered his client’s anticipated testimony that (a) as he and the tenant were leaving, Officer Blakes yelled that Thacker was a bad manager, and (b) Thacker responded by yelling out the door that “If I’m a bad manager, you’re a bad police officer.” ²⁸² Without further proffer, argument, or ruling, the federal court granted defendants’ motion to dismiss the section 1983 claim. In accordance with his “clear and consistent” practice of declining to exercise supplementary jurisdiction over pendent state law claims, Judge Williams remanded the remaining state law claims without addressing the effect his ruling would have on those remanded claims: Well, I’m going to tell you wliat I’m going to do, counsel. I’m going to allow you to go back to state court.

I’m going to remand this case back to the state court. Why? Because I don’t believe that you have and can establish, based on the pleadings itself, a 1983 action.... But based on the document that you submitted, based on my reading of the facts, and based on what confronts me and leaps out at me right now, I believe that all over this case is qualified immunity....

Based on the facts I see and what is so clear to me as a matter of law, I find that the officers had a bas[i]s to arrest. They had probable cause, and even if they didn’t have probable cause, they objectively and reasonably believed they had the right to arrest, which, as I see it, that’s qualified immunity. The Fourth Circuit has told these district court judges to assess qualified immunity as early as we can. I have done that.

I have given you a chance to talk me out of it.... I’m dismissing [the 1983 claim] with prejudice. And having reviewed the complaint that' you have submitted, I also believe that as an alternative ground summary judgment should be awarded. I’m going to remand Counts I, II, III, IV, V, and VII [and IX] to the state court for your continued litigation.

I will not offer an opinion at all on those counts. I will leave those for you to fight in the state system.... I will remand the case back to state court, again, having ruled on only the one claim. So, your complaint is still viable, counsel, and you may continue your suit back in ...

Prince George’s County. In a subsequent written order, the federal court granted the motion to dismiss the section 1983 count with prejudice, ²⁸³ denied the motion with respect to the pendent claims, remanded the case to the circuit court, and ordered the case closed. The reasons stated in that order are as follows: For the reasons stated on the record [at the motion hearing], a reading of the complaint indicates that the three individual officers are entitled to qualified immunity, and that no federal claims lie against the other Defendants. Therefore, Count VI must be dismissed under Fed.R.Civ.

Pro, 12(b)(6). Moreover, in light of the report submitted by Plaintiffs themselves, and having heard a proffer of facts offered by Plaintiffs’ counsel at the hearing, the Court also concludes that the motion could be converted to one for summary judgment. Upon reviewing Plaintiffs’ additional evidence and counsel’s proffer, the Court also concludes that the Defendants would be entitled to summary judgment. Plaintiffs did not appeal the order.

Circuit Court Proceedings After Remand After remand, defendants immediately attempted to use Judge Williams’ order to dispose of all the state law claims. They moved to dismiss, or in the alternative for summary judgment, on the grounds that the federal court had granted summary judgment based upon factual findings of probable cause, lack of malice, and qualified immunity under federal law, and that the federal court’s decision collaterally estopped Thacker from disputing that they were entitled to qualified immunity under Maryland law. Alternatively, they argued that the federal court made a factual finding of probable cause that necessarily vitiated the assault and battery, false arrest, false imprisonment, malicious prosecution, and Maryland Declaration of Rights claims, because each of those causes of action requires a showing of lack of probable cause. The circuit court denied the motion after hearing.

In doing so, the court raised questions about the extent and impact of the federal court’s order: ²⁸⁴ The problem is he kind of went back and forth about the reason why he was dismissing a Federal claim.... Now, the question is, what did he do when he decided the 1983 case. If he made a determination as a fact finder that there was-there was not sufficient evidence to support the claim. That is not really what a Motion to Dismiss is.

A Motion to Dismiss is supposed to be based solely on the pleadings, and if he did it on the basis of the pleadings alone, then I don’t think he’s made a finding about good faith or anything else. I don’t know how he made this determination. Rejecting defense counsel’s argument that the narrative preceding the order of dismissal established that Judge Williams had made conclusive factual findings of probable cause and lack of malice, the circuit court also questioned the basis of the federal court order: “Just on the basis of the report he did that? The report is clearly self-serving.

How can you do that?” The circuit court declined to give the federal order any preclusive effect, and denied defendants’ motion. After conducting substantial discovery', defendants filed a second motion for summary judgment, accompanied by deposition transcripts and the same federal order and transcript. They renewed their collateral estoppel arguments, and also sought judgment based on the evidence developed in discovery, or the lack thereof. They asserted that such evidence established that none of the officers at the scene had acted with malice, and that defendants were otherwise entitled to summary judgment on each of the various counts.

Plaintiffs opposed the motion. At the motion hearing, the circuit court quickly disposed of the preclusion arguments: ... [Y]ou all have raised res judicata. And that is not, and I have already said, I don’t see that as the primary issue here. That is only as to Count 6 on the federal claim.

The court then ruled on each of the remanded state law claims in seriatim: ²⁸⁵ Count I (defamation): summary judgment granted as to all defendants; Counts II (assault and battery), III (false arrest), IV (false imprisonment), and V (malicious prosecution): summary judgment granted as to all defendants except Blakes (taken under advisement); Count VII (Md. Declaration of Rights): taken under advisement as to all defendants; and Count IX (interference with contract): summary judgment granted as to all defendants. After post-hearing briefing, the court issued a written opinion and order granting summary judgment for Blakes and the other municipal defendants on all of the counts taken under advisement. The court based its decision on its conclusion that there was insufficient evidence of malice to overcome the presumption of qualified immunity. Final judgment was entered on all counts in favor of all defendants.

This appeal followed. DISCUSSION I. Standard Of Review Once again, we shall follow familiar principles governing appellate review of summary judgment. Summary judgment is appropriate when there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. Md. Rule 2-501.

Our review of the grant of summary judgment requires us to determine whether a dispute of material fact exists, and whether the trial court was “legally correct.” Hartford Ins. Co. v. Manor Inn of Bethesda, 335 Md. 135, 144 , 642 A.2d 219 (1994). Facts necessary to the determination of a motion may be placed before the court by pleadings, affidavit, deposition, answers to interrogatories, admissions of facts, stipulations, and concessions. See Wood v. Palmer Ford, 47 Md.App. 692, 694 , 425 A.2d 671 (1981).

We will review the “same information from the record and ²⁸⁶ decide the same issues of law as the trial'court.” Heat & Power Corp. v. Air Prods. & Chems., 320 Md. 584, 591-92 , 578 A.2d 1202 (1990). In doing so, we are mindful of important limitations on the court’s role. In resolving whether a material fact remains in dispute, the court must accord great deference to the party opposing summary judgment. Even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the trial court is obliged to make the inference in favor of the party opposing summary judgment.

The court should never attempt to resolve issues of fact or of credibility of witnesses—these matters must be left for the jury. Laws v. Thompson, 78 Md.App. 665, 674 , 554 A.2d 1264 , cert. denied, 316 Md. 428 , 559 A.2d 791 (1989) (citation omitted). For these reasons, certain types of claims are usually inappropriate for summary judgment. The Court of Appeals recently reminded us that [s]ummary judgment generally is inappropriate when matters—such as knowledge, intent or motive—that are ordinarily reserved for the fact-finder are essential elements of the plaintiffs case or of the defense[,] ...'. [because] ‘the facts concerning the defendant’s knowledge and conduct, and the circumstances in which they existed, as well as any determinations of how they relate to the legal standard ... are best left for resolution by the trier of fact at trial.’ Brown v. Dermer, 357 Md. 344, 355-56 , 744 A.2d 47 (2000) (quoting Fed. Sav. & Loan Ins.

Corp. v. Williams, 599 F.Supp. 1184, 1213 (D.Md.1984)). Whether a municipal official is entitled to qualified immunity because the discretionary act complained of was performed “without malice” raises the type of intent and state of mind issues that are less likely to be resolved on summary judgment. See Shoemaker, 353 Md. at 168 , 725 A.2d 549 . ²⁸⁷ II. Propriety Of Summary Judgment On Grounds Of Qualified Immunity The circuit court held that all of the defendants were entitled to qualified immunity under section 5-507, because there was “an absence of evidence” that Blakes, the arresting officer, acted with malice in making the decision to arrest Thacker.

We disagree. For the reasons set forth below, we shall reverse in part, affirm in part, and remand the case for further proceedings consistent with this opinion. A. Effect Of Federal Court Order Dismissing The Section 1983 Claim As a threshold question, we must decide whether the federal court’s dismissal of the section 1983 claim had any preclusive effect on the remanded state law claims. The specific question raised by defendants involves collateral estoppel—or to use the more descriptive term, “issue preclusion.” 5 Defendants contend that in disposing of the section 1983 claim, the federal court made factual findings of probable cause, lack of malice, and qualified immunity under federal law, and that, as a matter of law, such findings establish lack of malice and qualified immunity under section 5-507.

Alternatively, they argue that the federal court’s finding of proba ²⁸⁸ ble cause makes it impossible to establish or defend the state law claims for assault and battery, false arrest, false imprisonment, malicious prosecution, and violation of the Maryland Declaration of Rights. Defendants correctly point out that when a federal court disposes of a federal claim before trial, collateral estoppel may preclude the plaintiff from relitigating factual issues actually decided by the federal court. “Federal law determines the preclusive effect of federal orders on a question of federal law, regardless of whether the court applying the federal judgment is state or federal.” Nutter v. Monongahela Power Co., 4 F.3d 319, 321 (4th Cir.1993). The Fourth Circuit has explained that ‘[collateral estoppel or issue preclusion is premised on the notion that a judgment in a prior suit “precludes relitigation of issues actually litigated and necessary to the outcome of the first action.” ’ United States v. Wight, 819 F.2d 485, 487 (4th Cir.1987) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322 , 326 n. 5, 99 S.Ct. 645 , 649 n. 5 [ 58 L.Ed.2d 552 ] (1979)). Once a court decides an issue of law or fact necessary to its judgment, that decision can be binding upon a party to it if the party was given a “ ‘full and fair opportunity’ to litigate that issue in the earlier case.” Allen v. McCurry, 449 U.S. 90, 94-95 , 101 S.Ct. 411, 414-15 [ 66 L.Ed.2d 308 ] (1980) (citations omitted)).

Fullerton Aircraft Sales & Rentals v. Beech Aircraft Corp., 842 F.2d 717, 720 (4th Cir.1988). The “elements” of collateral estoppel reflect this fundamental concern for fairness. For collateral estoppel to apply, the proponent must establish that: (1) the issue sought to be precluded is identical to one previously litigated; (2) the issue must have been actually determined in the prior proceeding; (3) determination of the issue must have been a critical and necessary part of the decision in the prior proceeding; (4) the prior judgment must be final and valid; and (5) the party against ²⁸⁹ whom estoppel is asserted must have had a full and fair opportunity to litigate the issue in the previous forum. Sedlack v. Braswell Svcs.

Group, 134 F.3d 219 , 224 (4th Cir.1998). In this case, these elements have not been satisfied. First, the issue considered by the federal court was not “identical” to the qualified immunity issue addressed by the circuit court. In Shoemaker, supra, the Court of Appeals recently held that Maryland law governing qualified immunity from state law claims is not “identical” to federal law governing qualified immunity from section 1983 claims.

This difference arises from fundamental differences in the history, objectives, underlying policies, and standards governing qualified immunity. The [Supreme] 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.... [T]he 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, [ 457 U.S. 800, 816 , 102 S.Ct. 2727, 2737 , 73 L.Ed.2d 396 (1982)]. The subjective element of good faith, or lack of malice, was thus incompatible with the desire that insubstantial claims should not proceed to trial____ 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’....

The good and evil intentions of the official play no direct role in this analysis. ²⁹⁰ Id. at 159, 725 A.2d 549 . The Shoemaker Court then contrasted the objective federal standard for qualified immunity with Maryland’s subjective, malice-based standard. That is not the test for determining the qualified immunity under the State Tort Claims Act, however. Unlike the judicially-fashioned purely objective tests for immunity under § 1983, the General Assembly has made clear that State personnel do not enjoy immunity under § 5—522(b) if they act with malice____ [T]he Supreme Court has clearly and expressly eliminated malice, which it regarded as the embodiment of subjectivity, from the immunity doctrine.

In enacting the State Tort Claims Act, the General Assembly just as clearly and expressly retained the subjective element for immunity purposes. In doing so, it has provided a greater separation between substantive liability and immunity and simply struck a different balance. The Legislature has decided that, when State personnel act maliciously, they ... must bear the risk. The predominant and laudable public policy is to discourage State personnel from acting with malice in the performance of their public duties.

Id. at 160-61, 725 A.2d 549 . Based on such differences, the Shoemaker Court concluded that a federal court decision based on qualified immunity under federal law is not entitled to any preclusive effect in subsequent state court proceedings involving qualified immunity under the Maryland Tort Claims Act. 6 Id. at 162 , 725 A.2d 549 . We see no reason why Shoemaker’s distinctions and conclusions would not be equally applicable in. a case involving qualified immunity for municipal officials under section 5-507. Indeed, the Shoemaker Court explicitly relied upon section 5-507 cases, including, inter alia, this Court’s decision in Davis v. DiPino, 99 Md.App. 282 , 637 A.2d 475 (1994), rev’d on other grounds, 337 Md. 642 , 655 A.2d 401 (1995).

In Davis, we ²⁹¹ distinguished the meaning of “malice” in the context of public official immunity under section 1983 from the meaning of “malice” in the context of municipal official immunity under section 5-507. Id. at 290, 637 A.2d 475 . Because Judge Williams clearly applied the objective federal standard for qualified immunity, we hold that his decision that the defendants were entitled to qualified immunity from section 1983 liability did not collaterally estop plaintiffs from litigating whether defendants were entitled to qualified immunity from liability under Maryland tort law. But defendants have a second issue preclusion arrow in their quiver.

They also urge us to give preclusive effect to the federal court’s statements regarding probable cause. After carefully reviewing the record, however, we conclude that the issue of probable cause to arrest was not “actually determined” as a “critical and necessary part” of the federal court’s decision to dismiss, and even if it had been, plaintiffs did not have a “full and fair opportunity to litigate the issue” in federal court. We explain. The federal court’s order is one of dismissal, and is specifically predicated upon the allegations of the complaint: For the reasons stated on the record [at the motion hearing], a reading of the complaint indicates that the three individual officers are entitled to qualified immunity, and that no federal claims lie against the other Defendants.

Therefore, Count VI [under Section 1983] must be dismissed under Fed.R.Civ.Pro. 12(b)(6). (Emphasis added.) Understandably, defendants prefer to construe the federal court’s decision as a summary judgment predicated upon conclusive factual findings favorable to their cause. Indeed, defendants did urge the court to convert their motion to dismiss 7 to a motion for summary judgment, and the federal ²⁹² court stated in its order that it “could” convert the motion, and that if it did so, defendants “would be” entitled to summary judgment based on the police report and proffer of Thacker’s testimony. Notwithstanding the effect that statement may have had on the parties’ evaluations of their respective positions in this case, we conclude that such hypothetical language is not the “fatal weapon” that defendants wish it to be.

We specifically reject defendants’ contention that the federal court converted the motion to dismiss into a motion for summary judgment. There are well established guidelines for such conversions. Under Rule 12(b) of the Federal Rules of Civil Procedure, when matters outside the pleadings are submitted with a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), ‘the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.... ’ In interpreting the requirements of this rule, this court has held that the term ‘reasonable opportunity requires that all parties be given “ ‘some indication by the court ... that it is treating the 12(b)(6) motion as a motion for summary judgment,’ with the consequent right in the opposing party to file counter affidavits or pursue reasonable discovery.” Gay v. Wall, 761 F.2d 175, 177 (4th Cir.1985) (citations omitted). Defendants contend that the alleged conversion occurred “inadvertently,” as a result of plaintiffs’ submission of the police report with his opposition to the motion, albeit for expressly limited purposes.

Such an “inadvertent” or “unilateral” conversion is not possible, because Rule 12(b) does not provide that a motion to dismiss supported by materials outside the pleadings shall be treated as one for summary judgment when ‘filed’ with the court or when ‘served’ on a party. Rather, the rule expressly states that a motion to dismiss supported by such materials ‘shall be treated’ as a summary judgment motion only when the ²⁹³ materials ‘are presented to and not excluded by the district court.’ Finley Lines Joint Protective Bd. v. Norfolk Southern Corp., 109 F.3d 993 , 995 (4th Cir.1997). Only the district court can “effectively exclude” such materials, and may do so by refusing to consider them in ruling on the motion. Id. at 996.

In this case, it is clear from the express language of the order that the court did not consider the police report in ruling on the motion to dismiss. Thus, the court effectively excluded the report by failing to consider it. We also note that defendants’ construction of the order, as a summary judgment on a converted motion to dismiss, would require us to conclude, which we do not, that Judge Williams abused his discretion, in violation of clear federal standards governing such conversions. [NJotification that a Rule 12(b)(6) motion may be converted is only one of the requirements of Rule 12. Once notified, a party must be afforded a ‘reasonable opportunity for discovery’ before a Rule 12(b)(6) motion may be converted and summary judgment granted.

Gay, 761 F.2d at 177 . In Gay , the Fourth Circuit held that conversion of a motion “when the plaintiff had barely begun discovery” was a clear abuse of discretion. Id. We find it significant that the plaintiff in Gay had far more notice of the contemplated conversion, more opportunity for discovery, and more opportunity to file a substantive evidentiary opposition to summary judgment than the plaintiffs in this case had for the brief time that they were in federal court.

Accordingly, defendants’ reliance on the paragraph of the order regarding summary judgment is misplaced. Reading the order as a whole, we conclude that the court recognized that conversion would be inappropriate at the preliminary stage of the case, but included the summary judgment language in the order as dictum providing an “early evaluation” of the case in accordance with the recommendations of the Fourth Circuit. By ordering dismissal on the complaint, expressly preserving plaintiffs’ right to litigate the pendent ²⁹⁴ state claims in circuit court, and using conditional language to signal that the case might be amenable to summary judgment, it appears that Judge Williams stayed within the confines of the motion to dismiss, while simultaneously providing such a nonbinding evaluation. For these reasons, we conclude that the order reflects the federal court’s considered decision not to convert the motion, and not to make any conclusive findings of fact with respect to what the evidence might be expected to show if the motion were converted to a motion for summary judgment.

Thus, we cannot say that the court’s decision and or its statements regarding probable cause constitute “actually determined” “findings of fact” that were “essential” to the court’s decision to dismiss. Nor could we say in the circumstances of this case that “the party against whom estoppel is asserted ... had a full and fair opportunity to litigate the issue in the previous forum.” Sedlack, 134 F.3d at 224. For all of these reasons, we hold that the circuit court properly declined to give the federal court’s decision or statements regarding probable cause any preclusive effect. As a result, we must proceed to consider whether the circuit court erred in concluding that the defendants were entitled to . qualified immunity.

B. Propriety Of Circuit Court Judgment On Qualified Immunity Grounds There is no dispute that all of the municipal defendants were public officials acting in their respective discretionary capacities, and that under section 5-507, they are immune from civil liability for their discretionary actions in the absence of malice. See City of District Heights v. Denny, 123 Md.App. 508, 516 , 719 A.2d 998 (1998). The sole issue is whether the circuit court erred in concluding that there was no genuine dispute of material fact as to whether Officer Blakes and the other municipal defendants acted with malice' in arresting Thacker. ²⁹⁵ 1. Evidence Regarding The Arrest Our de novo review of summary judgment requires us to examine the evidence regarding the encounter between Thacker and Blakes.

The record shows that Thacker is the property manager of Ager Road Station Apartments (“Ager Road”) in Hyattsville, Maryland. Thacker is white. A majority of Ager Road tenants are Latino or African-American. On January 17, 1997, a dispute arose between Thacker and Gerald Grimes, an African-American resident of Ager Road, when Thacker refused Grimes’ request for a temporary parking permit.

At approximately 5:45 p.m., after Grimes refused to leave the property manager’s office, Thacker instructed Lorraine Battle, the resident manager working in the office, to call the Hyattsville Police Department. Officers Gary Blakes, Gregory Phillips, and Limuel Hunter responded to the call. Thacker testified that he advised Blakes that he wanted Grimes to leave the office. According to Thacker, the following ensued: Officer Blakes also talked to [Grimes].

I listened for a little while and then I ... said I really need to go. I told him I need to close the office and I told him I had to go somewhere .... And Officer Blakes got a little upset because of the fact that I wouldn’t give [Grimes] a parking permit. He tried to talk me into giving [Grimes] a parking permit and I explained to him why I couldn’t give [Grimes] a parking permit....

And Officer Blakes waved his hands in front of me and said we’re not getting anywhere ... and that I was a bad manager and ... he looked at Mr. Grimes and said, ‘We know why he won’t give you a parking permit.’ And I asked him to leave because he was being belligerent to me. He was saying I was a bad manager and him and Mr. Grimes walked out. I believe his arm was around Mr. Grimes’ shoulder, telling him that I was a bad manager and going out of the office bad-mouthing me.... At this point, I’m still behind the counter when the[y] went out of the office and I went to the door and I opened ²⁹⁶ the door and I said, ‘If I’m a bad manager, then you’re a bad police officer.’ At that time, he turned around and he said if I said one more word, that he was going to arrest me.

And I told him that if I’ve done something to be arrested for, then to arrest me. And he came towards me and arrested me. Thacker also testified that he felt pressured from the time he started working at Ager Road a year and a half earlier to hire and pay for off-duty uniformed police officer to provide more patrols of the complex, but that he had objected, and refused to do so. I had talked to police officers about patrolling more of the property more often ..., and they’d always send another sergeant or lieutenant in that is in charge of the paid officers.

That’s where I had my biggest problem, because I was asking for protection for my property ... and I was being asked to pay for that service and I didn’t believe in extortion. That’s, what I thought it was. It was extortion. Although Thacker never hired any off-duty officers, when he was away for two weeks, the owner who was covering for him “had to have the police there ... and hired the police for extra protection.” Ms. Battle stated in her affidavit 8 that Thacker was “not out of control,” and raised his voice only in response to Officer Blakes’ comments.

Thacker did not yell, scream, curse, or use profanity. She further stated that Thacker never went any farther outside than the front steps of the office. After she heard Blakes tell Thacker that he was under arrest, she went to the door and saw Blakes handcuffing Thacker at the front steps. Officer Blakes testified that he had responded to calls from Thacker on previous occasions.

Although he had no prior conflicts with Thacker, Blakes testified that based on his past experiences with Thacker, he ²⁹⁷ thought that Mr. Thacker was unfair to his tenants.... [H]e’s not allowed his tenants to speak, his harshness with them.... We deal with a lot of resident managers with complexes the size of Mr. Thacker’s, larger, smaller, and nowhere in my—at that time it would be eight years of law enforcement I have ever seen a resident manager talk, treat his tenants the way Mr. Thacker does. Blakes admitted calling Thacker a “bad manager” during the incident preceding the arrest, but testified that the comment reflected his past experiences in dealing with Thacker rather than this particular experience in dealing with the dispute between Thacker and Grimes. Officer Blakes’ recollection of the events that evening differs from Thacker’s.

Blakes testified that, upon learning that Grimes was a tenant, he advised Grimes that he would have to leave the office. Blakes further testified that Thacker followed Grimes and him outside, where the following occurred: [Thacker] was screaming at me going ... you got to learn how to do your damm job. At which time I turned around to Mr. Thacker and told him he needs to quiet down or he will go back inside his office, as we continue walking out towards the cruiser. We then got out on the public sidewalk and we stepped down on the curb.

Mr. Thacker continued walking on the sidewalk towards us, steadily screaming at us.... The lady identified as Miss Battle had also came outside and she was standing on the two steps that leads up to the sidewalk. And as I looked at Mr. Thacker I could also see an elderly female in the apartment above the rental office with her hands folded, her head leaning and just looking at us. I told [Thacker] a second time that we did what you said, we left the office, at this time you need to quiet down or go back inside your office or you’re going to be subject to arrest.

At which time he replied this is my damned property, there’s not a damned thing you can do to me. ²⁹⁸ The whole time this is going on we’re steady walking back towards the back-up cruisers that were parked in the street. I had then got to the back of my cruiser. Mr. Thacker continued proceeding towards us and I said this is your last warning, if you do not calm down and go back into your office, you will be locked up. And he said you can’t do a damned thing to me.

At which time I instructed Mr. Thacker that he was under arrest. Blakes placed Thacker against a wall, handcuffed him, and instructed Officer Hunter to transport him to the police station. Blakes alone made the decision to arrest and charge Thacker with disorderly conduct. Phillips and Hunter did not participate in the conversations with Thacker, or the decision to arrest and charge Thacker.

Both signed the incident report prepared by Blakes. Sgt. McCully’s only involvement was to sign Blakes’ report as a designated supervisor. Officer Blakes stated that Thacker had created a public disturbance through “[h]is loud voice, his profanity had already made one tenant come to the window and almost had an audience. 9 He also prevented us from even beginning to complete or answer the questions, the additional questions that Mr. Grimes had.” Tenant Grimes testified that he had difficulty talking to Blakes because Thacker kept interrupting.

When Thacker asked .Blakes and Grimes to leave, they did so. Grimes testified that he did not hear Blakes say that Thacker was a bad property manager. He testified that Thacker’s demeanor was “very belligerent” and “very abusive.” When Grimes and Blakes left the office, Thacker followed them down the sidewalk, and “continued the [verbal] abuse” and profanity. ²⁹⁹ Well, we were walking out of the office ... [W]e were still on the property, not on the street, by the sidewalk.... He was right behind us and kept saying . .. just get out....

And as Sergeant Blakes said, look, you don’t have to address me like that. You don’t have to speak to me like that. I respected you. I heard what you have to say.

And [Thacker] said I don’t care about you----and he was being very abusive. ____And Sergeant Blakes said, look, sir, if you continue like that I’m going to arrest you. And [Thacker] said you can’t arrest me ... and that was it. Then [Blakes] arrested him. Grimes also testified that Ms. Battle never