Williams v. Mayor of Baltimore

¹⁰⁷ CATHELL, Judge. On November 6, 1996, petitioners, Mary Williams et al., 1 brought this negligence action in the Circuit Court for Baltimore City against the State of Maryland, the Mayor and City Council of Baltimore, and Baltimore City Police Officer Edward Colbert, under the Maryland Tort Claims Act and the Local Government Tort Claims Act. The claim arose out of a domestic violence incident in which Gerald Watkins shot and partially paralyzed Mary Williams, his girlfriend’s mother, shot and killed Valerie Williams, his girlfriend and mother of his child, and then shot and killed himself. On January 22, 1997, the Circuit Court for Baltimore City dismissed the claims against the State and the City.

The case proceeded against Officer Colbert until February 27, 1998, when another judge on the Circuit Court for Baltimore City entered summary judgment in favor of the police officer. Petitioners appealed to the Court of Special Appeals, challenging the two orders issued by the judges. 2 In an opinion filed September 7, 1999, that court affirmed the judgments of the trial court. Williams v. Mayor & City Council of Baltimore, 128 Md.App. 1 , 736 A.2d 1084 (1999). Petitioners presented three questions to this Court, for which we granted certiorari: I. Was [respondent] Officer Colbert divested of discretion and mandated by [Maryland Code (1957, 1996 RepLVol., 1999 Cum.Supp.),] Article 27, § 798(B)(2) ¹⁰⁸ and [Baltimore City] Police Department General Order 10-93 [3] to protect [petitioners]?

II

Did [respondent Officer] Colbert’s affirmative actions and specific promises of protection to Mary and Valerie Williams, which were reasonably relied upon by them, to their detriment, create a special relationship between [respondent] and Mary and Valerie Williams which created a duty of protection on the part of [respondent] Colbert?

III

Were Officer Colbert’s actions at 622 Melville Avenue protected by either statutory or common law immunity? Petitioners did not present the dismissal of their complaint against the State or the City in their petition for writ of certiorari to this Court; nor did they present the Court of Special Appeals’ decision affirming the dismissal of their complaint against the City. In the proceeding before us, they present only the claims against Officer Colbert. 4 We resolve the issues presented in the context of the trial court’s granting of Officer Colbert’s motion for summary judgment. I. Facts The facts and circumstances of the present case are tragic.

By July of 1995, eighteen-year-old Valerie Williams had been involved in an abusive, relationship with Gerald Watkins for approximately four years. The record indicates that Watkins began beating Valerie Williams when she was around fourteen years old and that the beatings continued while she was pregnant with his child. On numerous occasions, the Balti ¹⁰⁹ more City Police Department was notified and responded to these incidents of domestic violence. On the morning of July 19, 1995, Mary Williams arrived at work as an office manager for Multi-Specialty Health Care, at approximately 8:45 a.m.

Just before her lunch break, she received a frantic telephone call from her daughter, Valerie Williams. Mary Williams immediately left work and drove to her home at 622 Melville Avenue, in Baltimore, where she found her daughter sitting on a sofa with a swollen eye and holding a compress to her mouth. After Valerie Williams told her that she had been beaten by Watkins, Mary Williams telephoned the police via 911. Officer Colbert responded to the call.

Upon arriving at the scene, Officer Colbert took statements from both Mary and Valerie Williams, during which he was informed of the history of abuse suffered by Valerie at the hands of Watkins. Valerie proceeded to inform Officer Colbert that Watkins was a known drug dealer and provided the officer with a photograph of Watkins and his home address. While the officer was talking to the Williamses, Watkins telephoned the household two separate times and talked with both Mary and Valerie. Valerie answered the first telephone call.

After she hung up, she told Mary, in the officer’s presence, that the call was from Watkins and that he had threatened to come back to the house. When Watkins called a second time, Mary Williams answered the telephone. Upon realizing that the caller was Watkins, Mary Williams briefly expressed her anger to him and then hung up the telephone. The Caller I.D. box indicated that he had called from the Alameda Liquor Store.

She reported that fact to Officer Colbert, whereupon he requested a police car to be dispatched to that location. From this point forward, the parties’ versions of the events diverge dramatically. We review the depositions of both Mary Williams and Officer Colbert. According to the deposition of Mary Williams, after Officer Colbert dispatched a police car to the Alameda Liquor Store, he then stated to Valerie “You stay here, I’ve got to call for a ¹¹⁰ camera, we have to wait for a camera.” 5 At this point, Mary-had a brief conversation with Officer Colbert asking whether she could pick up her grandson from a neighboring house. 6 With Officer Colbert’s approval, Mary left to retrieve her grandson from the babysitter.

Upon returning home, she immediately noticed that Officer Colbert was no longer in the house. When she asked Valerie where he was, she replied, “[h]e said stay here, he went out to the car.” Mary Williams, carrying her grandson, then went out the front door of her house and down the steps to the sidewalk where Officer Colbert was sitting in a police car. She asked him, “What’s next[?],” to which he replied, “I’ve got to write this report,” followed by “go in the house, I’m going to be here, I’ve got to finish this report.” According to Mary Williams, no further relevant information was exchanged between them. Mary Williams returned to the house and did not lock the front door.

Approximately two to three minutes later, Valerie informed Mary that Watkins had recently been threatening to kill her. Upon hearing this news, Mary panicked and went to the front door to tell Officer Colbert. Mary arrived at the front door to discover that Officer Colbert was no longer parked in front of her house. Instead, she saw Gerald Watkins running up the steps to her home.

She tried to shut the door and lock it but Watkins kicked the door open. Carrying her grandson, Mary made it past Watkins and started running down the steps in front of her house. Watkins shot her in the leg, which caused her to fall down the steps. Watkins then put the gun to Mary’s head, said ‘What have I ever done to you?” and pulled the trigger, shooting her again.

Watkins then shot and killed Valerie Williams before killing himself. Mary Williams survived the attack but remains partially para ¹¹¹ lyzed. Myreq Watkins was not injured in the course of the shooting. Officer Colbert’s version of the events is similar to Mary Williams’ up until when Mary Williams came outside of her house and had a conversation with the police officer.

According to his deposition, when she approached his police car and asked, “What’s next?,” the following events occurred: I told her I’m waiting to see if somebody is available to bring me a camera. At that time I called again. There was nobody available to bring a camera. I then told Ms. Williams I have to go get the camera myself, and she said that was fine.

According to Officer Colbert, it was only after this exchange that he drove off to go pick up a camera. He was approximately 6-7 blocks away when he received a call about a shooting at 622 Melville Avenue. Upon his return he found Mary Williams laying face-down on the ground in front of her home and the bodies of Valerie Williams and Gerald Watkins down the street. On November 6, 1996, petitioners filed a complaint based in negligence in the Circuit Court for Baltimore City against (1) the State of Maryland under Maryland Code (1984, 1999 Repl.Vol), Title 12, subtitle 1, of the State Government Article (the Maryland Tort Claims Act); (2) the Mayor and City Council of Baltimore City under Maryland Code (1973, 1998 Repl.Vol., 1999 Cum.Supp.), Title 5, subtitle 3 of the Courts & Judicial Proceedings Article (the Local Government Tort Claims Act); and Baltimore City Police Officer Edward Colbert.

The complaint specifically alleged that Baltimore City Police Department General Order 10-93 divested Officer Colbert of any discretion in carrying out his statutory duty to protect Valerie and Mary Williams and Myreq Watkins and mandated that he do so. In later pleadings, petitioners added that Maryland Code (1957, 1993 ReplVol., 1995 Cum.Supp.), Article 27, section 11F, 7 also supported this argument. The ¹¹² complaint also alleged that Officer Colbert, through his actions and express promise of protection, had established a “special relationship” with petitioners that imposed on him a duty of protection beyond that which he would ordinarily owe to citizens threatened by crime. An order dismissing the complaints against both the City and the State was issued on January 17, 1997, ruling that neither of those parties could be sued because of the provisions of the respective tort claims acts.

On February 27, 1998, a different judge on the Circuit Court for Baltimore City entered summary judgment in favor of the police officer. The court ruled that, as a matter of law, Officer Colbert was acting in a discretionary capacity, without malice, at the time of the incident and was therefore entitled to qualified immunity as a government official. Petitioners appealed to the Court of Special Appeals challenging the orders of the circuit court. 8 That court affirmed the holdings of the trial court in Williams, 128 Md.App. 1 , 736 A.2d 1084 . Petitioners filed a petition for writ of certiorari to this Court which we granted to resolve the three issues.

As to the grant of summary judgment in respect to Officer Colbert, we hold that under the circumstances of this case he was not mandated by Maryland Code (1957, 1996 Repl.Vol., 1999 Cum.Supp.), Article 27, section 798(b)(2) 9 and Baltimore City Police Department General Order 10-93 to protect petitioners. Nevertheless, we hold that, viewing the deposition of Mary Williams in a light favorable to her, Officer Colbert’s affirmative actions, directions, and specific promises of protec ¹¹³ tion to Mary and Valerie Williams, if they occurred and were reasonably relied upon by them, may have created a special relationship between himself and the Williamses that would establish a duty of care on the part of Officer Colbert to protect them; therefore, his actions at 622 Melville Avenue might not be protected by either statutory or common law immunity. Accordingly, there was, at the least, a dispute of a material fact. We reverse the decision of the Court of Special Appeals and remand with instructions to vacate the order of the Circuit Court for Baltimore City granting Officer Colbert summary judgment.

II

Discussion The threshold issue before this Court is whether respondent, Officer Colbert, was entitled to summary judgment as a matter of law. In reviewing a grant of a summary judgment, we are first concerned with whether a genuine dispute of material fact exists and then whether the movant is entitled to summary judgment as a matter of law. Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 144 , 642 A.2d 219, 224 (1994); Gross v. Sussex, Inc., 332 Md. 247, 255 , 630 A.2d 1156, 1160 (1993); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737 , 625 A.2d 1005, 1011 (1993); Arnold Developer, Inc. v. Collins, 318 Md. 259, 262 , 567 A.2d 949, 951 (1990); Bachmann v. Glazer & Glazer, Inc., 316 Md. 405, 408 , 559 A.2d 365, 366 (1989); King v. Bankerd, 303 Md. 98, 110-11 , 492 A.2d 608, 614 (1985). “A material fact is a fact the resolution of which will somehow affect the outcome of the case.” King, 303 Md. at 111 , 492 A.2d at 614 (citing Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8 , 327 A.2d 502, 509 (1974)). “[A] dispute as to facts relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of summary judgment.” Salisbury Beauty Schs. v. State Bd. of Cosmetologists, 268 Md. 32, 40 , 300 A.2d 367, 374 (1973).

This Court also has stated that “[t]he standard of review for a grant of summary judgment is whether the trial court was legally correct.” Goodwich v. Sinai Hosp. of Balti ¹¹⁴ more, Inc., 343 Md. 185, 204 , 680 A.2d 1067, 1076 (1996); see also Murphy v. Merzbacher, 346 Md. 525, 530-31 , 697 A.2d 861, 864 (1997); Hartford, Ins. Co., 335 Md. at 144 , 642 A.2d at 224 ; Gross, 332 Md. at 255 , 630 A.2d at 1160 ; Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 592 , 578 A.2d 1202, 1206 (1990). As we have said: Concerning summary judgment, Maryland Rule 2-501(e) provides: “The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” In determining whether a party is entitled to judgment under this rule, the court must view the facts, including all inferences, in the light most favorable to the opposing party. Beard v. American Agency, 314 Md. 235, 246 , 550 A.2d 677 (1988); Kramer v. Bally’s Park Place, 311 Md. 387, 389 , 535 A.2d 466 (1988); Liscombe v. Potomac Edison Co., 303 Md. 619, 621-22 , 495 A.2d 838 (1985).

The trial court will not determine any disputed facts, but rather makes a ruling as a matter of law. Scroggins v. Dahne, 335 Md. 688, 691 , 645 A.2d 1160 (1994); Southland Corp. v. Griffith, 332 Md. 704, 712 , 633 A.2d 84 (1993); Beatty v. Trailmaster, 330 Md. 726, 737 , 625 A.2d 1005 (1993). The standard of appellate review, therefore, is whether the trial court was legally correct. See, e.g., Southland, supra, 332 Md. at 712, 633 A.2d 84 .

Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 42-43 , 656 A.2d 307, 311 (1995); see also Dobbins v. Washington Suburban Sanitary Comm’n, 338 Md. 341, 344-45 , 658 A.2d 675, 676-77 (1995). As we said in Ashton v. Brown, 339 Md. 70 , 660 A.2d 447 (1995): In reviewing the grant of summary judgment, this Court must consider the facts reflected in the pleadings, depositions, answers to interrogatories and affidavits in the light most favorable to the non-moving parties, the plaintiffs. Even if it appears that the relevant facts are undisputed, “if those facts are susceptible to inferences supporting the ¹¹⁵ position of the party opposing summary judgment, then a grant of summary judgment is improper.” Id. at 79 , 660 A.2d at 452 (quoting Clea v. Mayor & City Council of Baltimore, 312 Md. 662, 677 , 541 A.2d 1303, 1310 (1988)).

The purpose of the summary judgment procedure is not to try the case or to decide the factual disputes, but to decide whether there is an issue of fact, which is sufficiently material to be tried. See Goodwich, 343 Md. at 205-06 , 680 A.2d at 1077 ; Coffey v. Derby Steel Co., 291 Md. 241, 247 , 434 A.2d 564, 567-68 (1981); Berkey v. Delia, 287 Md. 302, 304 , 413 A.2d 170, 171 (1980). Thus, once the moving party has provided the court with sufficient grounds for summary judgment, the non-moving party must produce sufficient evidence to the trial court that a genuine dispute to a material fact exists. See, e.g., Hoffman Chevrolet, Inc. v. Washington County Nat’l Sav.

Bank, 297 Md. 691, 712 , 467 A.2d 758, 769 (1983). With these considerations in mind, we turn to the instant case. A. Article 27, section 798(b)(2) and BCPD General Order 10-93 Petitioners allege that Officer Colbert was divested of discretion and mandated by Maryland Code (1957, 1996 Repl. Vol., 1999 Cum.Supp.), Article 27, section 798 and Baltimore City Police Department General Order 10-93 to protect Mary and Valerie Williams and Myreq Watkins.

We disagree. We commence our analysis of these two provisions by shedding light on the legislative intent behind Article 27, section 798. As we said in State v. Bell, 351 Md. 709 , 720 A.2d 311 (1998): We have said that “[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423, 429 (1995). Legislative intent must be sought first in the actual language of the statute.

Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437 , 444- ¹¹⁶ 45, 697 A.2d 455, 458 (1997); Stanford v. Maryland Police Training & Correctional Comm’n, 346 Md. 374, 380 , 697 A.2d 424, 427 (1997) (quoting Tidewater v. Mayor of Havre de Grace, 337 Md. 338, 344 , 653 A.2d 468, 472 (1995)); Coburn v. Coburn, 342 Md. 244, 256 , 674 A.2d 951, 957 (1996); Romm v. Flax, 340 Md. 690, 693 , 668 A.2d 1, 2 (1995); Oaks, 339 Md. at 35 , 660 A.2d at 429 ; Mauzy v. Hornbeck, 285 Md. 84, 92 , 400 A.2d 1091, 1096 (1979); Board of Supervisors v. Weiss, 217 Md. 133, 136 , 141 A.2d 734, 736 (1958). Where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts normally do not look beyond the words of the statute to determine legislative intent. Marriott Employees, 346 Md. at 445 , 697 A.2d at 458 ; Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515 , 525 A.2d 628, 633 (1987); Hunt v. Montgomery County, 248 Md. 403, 414 , 237 A.2d 35, 41 (1968). This Court recently stated that “statutory language is not read in isolation, but ‘in light of the full context in which [it] appear[s], and in light of external manifestations of intent or general purpose available through other evidence.’ ” Stanford v. Maryland Police Training & Correctional Comm’n, 346 Md. 374, 380 , 697 A.2d 424, 427 (1997) (alterations in original) (quoting Cunningham v. State, 318 Md. 182, 185 , 567 A.2d 126, 127 (1989)).

To this end, [w]hen we pursue the context of statutory language, we are not limited to the words of the statute as they are printed____ We may and often must consider other “external manifestations” or “persuasive evidence,” including a bill’s title and function paragraphs, amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case. ¹¹⁷ ... [I]n State v. One 1983 Chevrolet Van, 309 Md. 327 , 524 A.2d 51 (1987), ... [although we did not describe any of the statutes involved in that case as ambiguous or uncertain, we did search for legislative purpose or meaning—what Judge Orth, writing for the Court, described as “the legislative scheme.” [Id. at] 344-45, 524 A.2d at 59 . We identified that scheme or purpose after an extensive review of the context of Ch. 549, Acts of 1984, which had effected major changes in Art. 27, § 297. That context included, among other things, a bill request form, prior legislation, a legislative committee report, a bill title, related statutes and amendments to the bill. See also Ogrinz v. James, 309 Md. 381 , 524 A.2d 77 (1987), in which we considered legislative history (a committee report) to assist in construing legislation that we did not identify as ambiguous or of uncertain meaning.

Kaczorowski, 309 Md. at 514-15 , 525 A.2d at 632-33 (some citations omitted). Id. at 717-19, 720 A.2d at 315-16 (some alterations in original). Section 798 was originally enacted in 1979 as Maryland Code (1957, 1976 Repl.Vol., 1981 Cum.Supp.), Article 27, section 11F. The implementation of section 11F originated in 1979 Maryland Laws, Chapter 307 (House Bill 53).

The original title to House Bill 53 outlined its purpose: [For] the purpose of establishing an emergency procedure available to victims of spousal violence in order to inform them of services available, provide transportation, and provide protection so that they may return safely to the family home in order to remove certain necessary personal property; establish an emergency procedure for the protection of children during incidents of spousal violence; coordinating certain statutory provisions; defining certain terms; and relating generally to spousal violence. Throughout the bill file to House Bill 53 there were several letters and written testimony supporting the passage of this bill. The general theme of these documents is an intent by the sponsors and supporters of this bill to alleviate the plight ¹¹⁸ of the spousal assault victim by broadening both the obligation and the authority of the police to intervene. Nearly everyone involved acknowledged that in many instances of spousal abuse, although the violent episode may have subsided prior to the arrival of the police, the situation frequently remained a dangerous and possibly deadly situation.

Delegate (now Senator) Ida G. Ruben of Montgomery County, sponsor of House Bill 53, clearly explained the purpose of the Bill: When domestic violence occurs, the usual procedures available immediately after the fact are not satisfactory for the victims, for the police or for the courts. This bill is a result of my concern for a person who has been abused at home, thrown out of the home, or forced to run from the home and who has no place to turn for help.... The purpose of this bill is to provide emergency protection in spousal violence cases so that the victims are offered some real choices and so that the time spent on such matters by police and courts can be spent more productively.... ' All this bill asks for is emergency assistance for such people to enter their own homes and take a few of their personal belongings so that they can exist for a short time elsewhere until a longer term resolution of their problems can-proceed in an orderly way .... Most of these victims do not have money in their pockets at the time of the crisis in order to go out and buy duplicates of their clothing and other necessities.

They may have children with them for whom they need clothing, medications or essential documents. [Emphasis added.] [10] ¹¹⁹ A number of other people testified in favor of House Bill 53. On February 22, 1979, Katherine Foss, of the Prince George’s County Department of Social Services, testified: The large majority [of women who participated in their emergency shelter program over the last year] left home with nothing but the clothes on their backs. In all cases the women were extremely fearful. They were fearful to return home and fearful that if they left home all their possessions would be lost.

In many cases, when the woman has returned home she has found that her clothes have been ripped apart or thrown out. In one case the husband set fire to the apartment; in another case the husband removed his wife’s belongings from the house and burned them. Many times she finds upon returning home that her husband has changed the locks to the house or apartment and the landlord refuses to allow her entrance, even though her name is on the lease and she may have been paying the rent. This destruction is particularly wasteful and costly in view of the fact that the Department often must issue an emergency grant to provide such victims with basic necessities such as clothing.

If a Public Assistance Grant is necessary, the application process is impeded by her lack of verifying documents, birth certificates, rent receipts, etc. Cynthia Anderson, Supervisor of the Abused Persons Program in Montgomery County testified on February 22, 1979: Law enforcement officers are generally the first line of community intervention in abusive domestic disputes. They represent community authority and are often able to temporarily diffuse the immediate crisis. However, after they leave the home, the victim is sometimes threatened again, or further abused because of the police intervention. A consistent mechanism is needed so that every victim of spousal abuse may have a choice of remaining in the home or leaving by police escort to a safe place.

It is appropriate, therefore, for law enforcement officials to be knowledgeable ¹²⁰ of shelter services, be required to advise the victim of these alternatives, and be available to assist the victim to such facilities. In those cases where the victim has already fled the home—to the protection of a neighbor or friend— it is equally urgent for them to have safe return into the home to retrieve those necessary personal belongings that will enable them to remain separate. If a woman decides to live apart from the violent home, she may need to apply for State services for financial aid, employment training, and legal services. These State services, A.F.D.C. and JUDI-CARE, require proof for eligibility in the form of bank statements, pay records, birth certificates.

Therefore, it becomes essential for the victim to be able to gather these documents in addition to gathering personal effects that will enable them to constructively move towards an independent living arrangement. [Emphasis added.] Elizabeth Fischer, Executive Director of ASSISI, Inc., also testified on February 22, 1979: As a representative of ASSISI, I strongly urge your support for this bill for one reason; the battered woman, and I ask you to try to put yourself in this woman’s shoes. She has just been beaten. She is scared. She may need medical attention.

In most cases she will not stop to get her purse, her clothes; it is usually night time; sometimes she is in her nightgown, barefooted. Where does she go? Who does she go to? When she gets to a police station she needs to be told where to get help.

But then, what about her money, a change of clothes. Doesn’t she have a right to her personal things? Yes, you say and here, we all agree. But almost always she is afraid; afraid of being beaten again.

If she goes back alone, she is taking a risk of being beaten again. If she takes a family member or a friend, someone who is untrained, she is exposing them to assault. She needs a trained person to standby while she gets her personal effects. ¹²¹ In 34% of the cases ASSISI has handled, women have had their clothes shredded or disappear after an assault; their jewelry missing. And think how vital toothpaste and deod[o]rant would be to you if you had none and had no money, checks or identification.

In order to get Social Service assistance, she needs her birth certificate and identification. This is all we are asking in this bill: (1) let the woman know what help is available and (2) let her get the things she needs until pending further action. [Emphasis added.] On April 4, 1979, Carol Lane, President of the Board of Directors of Citizens Against Spousal Assault (CASA) of Howard County testified in support of House Bill 53: Our continuing experience with victims of domestic violence indicates the need for passage of a law that will provide these people with a measure of safety in the face of danger and a sense of pride in the face of degradation—the degradation of needing not just to flee one’s home but to flee without clothing, toothbrush or other personal belongings necessary to reside elsewhere temporarily. We have seen women bruised and beaten who have run or have been chased from their homes, often in fear of their lives, without their personal belongings, medication for themselves or the children in their care; they must “sneak” back, in dread of harm, to retrieve a coat, a baby bottle, or other personal effects. House Bill [ ]53 as amended will have the effect of guaranteeing certain rights to our citizens: protection from violence and the right to enter their own dwelling to remove personal belongings without fear of additional harm. [Emphasis added.] In addition to the testimony outlined, supra, the bill file also included several letters that provide us with further information presented to the Legislature when it was considering House Bill 53.

In a letter dated February 16, 1979, Annette ¹²² Flower, President of the Baltimore County Commission for Women, wrote to Delegate Joseph E. Owens, Chairman of the House Judiciary Committee, in support of House Bill 53: This bill would insure that victims of spousal violence receive protection in removing necessary belongings from the family home, and that they are informed of the availability of public or private support agencies in their locality. Domestic violence is a growing problem throughout Maryland, and indeed throughout the country. All too often, the victim of spousal violence is not only subjected to physical and psychological abuse, but is forced to flee the home without adequate clothing, perhaps even without identification, prescription medicines, eyeglasses, and other necessary personal items. By providing the protection of an law enforcement agency for victims to retrieve such personal belongings, HB-53 will insure at least minimal physical comfort during the period when the victim must remain away from the family home.

Informing victims of available support agencies can be accomplished by giving them a printed card or brochure.... [Emphasis added.] As evidenced by the original title as well as the supporting testimony and letters, the initial goals of House Bill 53 initially had a much greater scope than what was ultimately enacted by the Legislature. This is primarily due to the reaction of Maryland’s police organizations. In response to the initial version of House Bill 53, a Joint Police Committee 11 drafted a letter dated February 2, 1979, to Delegate Joseph E. Owens, Chairman of the House Judiciary Committee, which demonstrated their general approval of the bill along with their general recommendation that the police responsibility be scaled back: The representatives present expressed a favorable view as to the need for this type [of] assistance by [a] spouse who is ¹²³ a victim of violence and agreed with the general concept of the bill.... The Committee believed that the enactment of the bill in its present form would result in a severe manpower drain on police departments, which might result to the detriment of the general public in other matters urgently requiring police assistance.

Another practical difficulty the police envisioned would be that juvenile authorities and social service agencies would not be available during the evening hours or weekends when action by these agencies would be necessary. The Committee felt that police participation in spousal violence situations is appropriate where violence exists, however, the remainder of the problem is one for social agencies. The Committee would approve the concept of the bill but oppose some of the obligations imposed upon police departments by the bill. [Emphasis added.] Subsequently, House Bill 53 was amended to scale back the list of police responsibilities. The original version of the bill provided that a law enforcement officer would: (1) advise the victim with respect to available sources of shelter, medical care, counseling, and other services; (2) transport the victim to such facilities where appropriate; and (3) accompany the victim back to the family home to retrieve clothing and other personal effects.

However, the only provision that survived the amending process was that, upon request, a police officer was to provide protection to a spouse who needed to return to the family home for the exclusive purpose of retrieving necessary personal property. In its final form, the title to House Bill 53 read as follows: [For] the purpose of authorizing law enforcement officers to provide protection for victims of spousal assault and assistance in removing certain personal property from the family home; and providing immunity from liability for officers carrying out the provisions of this Act. This final title clearly states the express purpose of House Bill 53 and limits its scope: to provide the authorization for certain police activity that otherwise may well have been beyond the scope of traditional police authority. The Legislature made a ¹²⁴ conscious decision to amend House Bill 53 to limit its scope to only two precise sets of circumstances.

The first was a duty already encompassed by a police officer’s traditional role: to protect the victim of a crime occurring in the officer’s presence. The second was newly created by the statute. In final form, the statute provided protection for victims of spousal assault and assistance in removing certain personal property from the family home. As originally enacted Article 27, section 11F provided: (a) Assistance to victim,.—Any person who alleges to have been a victim of spousal assault and who believes there is a danger of serious and immediate injury to himself or herself may request the assistance of a local law enforcement agency.

A local law enforcement officer responding to the request for assistance shall: (1) Protect the complainant from harm when responding to the request; and (2) Accompany the complainant to the family home so that the complainant may remove his or her personal clothing and effects and also the personal clothing and effects of any children that may be in the care of the complainant. The personal effects to be removed shall be only those required for immediate needs. (b) Immunity of law enforcement officer from civil liabil ity.—Any law enforcement officer responding to such a request shall be immune from civil liability in complying with the request as long as the officer acts in good faith and in a reasonable manner. As indicated by both the express wording of the statute and the evolution of House Bill 53, as initially enacted, the exclusive concern of Article 27, section 11F was to authorize a law enforcement officer to render assistance to a victim of spousal abuse.

The Legislature was very precise in defining what the “assistance” was limited to, because subsections (a)(1) and (a)(2) expressly direct what the officer shall do in “responding to the request for assistance.” Section 11F clearly dealt with two very narrow and limited situations. As we have indicated, ¹²⁵ the first one protecting complainants from harm during the officer’s response legislated what was always an obligation of the officer. The second imposed a new obligation on the officer, to protect the complainant who is returning to retrieve items from the home or attempting to leave with such items, during that process. This last function appears to have been the primary purpose of the original statute. 1994 Maryland Laws, Chapter 728 (the Domestic Violence Act of 1994) provided the first significant change to Article 27, section 11F by expanding the class of persons who were entitled to the assistance of the law enforcement officer. 12 As originally enacted, the law only extended special assistance to a person who alleged that he or she had been “a victim of spousal assault.” 1994 Maryland Laws, Chapter 728 broadened the class of persons entitled to assistance under section 11F to include “victim[s] of abuse.” During this expanding of the class of protected people, the Act modified the subtitle of section 11F from “Spousal Assault” to “Domestic Abuse.” 13 A “victim” was, in turn, defined as a “person eligible for relief’ under Maryland Code (1984, 1991 RepLVol., 1997 Cum.Supp.), section 4-501 of the Family Law Article, which provides basic definitions in the context of domestic violence. 1997 Maryland Laws, Chapter 315 further amended this section “[for] the purpose of clarifying that when a law enforcement officer is required to accompany an alleged victim of domestic abuse to the family home so that the victim may remove the personal effects of certain persons, the personal effects include certain medicines or medical devices; authorizing the complainant to remove certain items regardless of who paid for the items; ¹²⁶ and generally relating to domestic abuse and the duties of law enforcement officers.” Section 11F, now codified as section 798 of Article 27, remains a statute with a very limited scope.

Its evolution over the past two decades has only: (1) broadened the classification of people who warranted this protection and (2) clarified the nature of the personal items allowed to be taken from the home. As it is currently drafted, Article 27, section 798, titled “Duties of law enforcement officers—domestic abuse” states in relevant part: Go) Assistance to victim.—(1) Any person who alleges to have been a victim of abuse and who believes there is a danger of serious and immediate injury to himself or herself may request the assistance of a local law enforcement agency. (2) A local law enforcement officer responding to the request for assistance shall: (i) Protect the complainant from harm when responding to the request; and (ii) Accompany the complainant to the family home so that the complainant may remove the following items, regardless of who paid for the items: 1. The personal clothing of the complainant and of any child in the care of the complainant; and 2.

The personal effects, including any medicine or medical devices, of the complainant and of any child in the care of the complainant that are required for the immediate needs of the complainant or the child. (c) Immunity of law enforcement officer from civil liabil ity.—Any law enforcement officer responding to such a request shall have the immunity from liability described under § 5-610 of the Courts Article. Maryland Code (1957, 1996 RepLVoL, 1999 Cum.Supp.), Art. 27, § 798. There is nothing in the plain language of the statute and nothing in its legislative history that evidences any intent by the Legislature to mandate around-the-clock personal protection ad infinitum for persons who are complainants, i.e., victims, under that act.

In so stating, we do not mean to ¹²⁷ say that, given the experience of the courts with the issue of domestic violence, such protection is not warranted in many cases. Such a mandate, however, must come, if it is to come, from the legislative or executive branches. The other two departments are better able to assess the problems and the costs of providing such extended protection. It is clear to this Court that the Legislature did not intend to create such a heightened level of protection in passing the statute at issue in this case.

As we have said, the plain wording of Maryland Code (1957, 1996 RepLVol., 1999 Cum.Supp.), Article 27, section 798, supported by its legislative history, limits its applicability to a distinct set of circumstances: a law enforcement officer must protect the alleged victim of domestic abuse from harm when responding to a request to accompany the alleged victim of domestic abuse to the family home' so that he or she may recover personal clothing and personal effects, including any medicine or medical devices. It is evident from reviewing the legislative history of section 798, that in the context of domestic violence, two closely related sets of circumstances were of great concern with respect to the responsibility of the police to take some action and the authority of the police to take action. The two sets of circumstances that were primarily addressed were: (1) when the feuding parties were still inside the family home, but someone had called for assistance and (2) where one of the parties had left the family home and re-entry was desired, but risked potential peril. An officer, of course, could always make a warrantless arrest for a crime, including an assault or abuse, committed in his presence.

Beyond that, however, the police authority to intervene in a family fight was highly problematic. Unless an officer had probable cause to believe that a felony had been committed, once the violence had actually subsided, the aggrieved party, out on the street or otherwise, was generally left with no recourse but to go to the District Court and apply for a warrant of arrest. The police officer was powerless to help. The first mandate of section 798, as we have noted, simply authorized the police officer, under the protec ¹²⁸ tion of immunity, to provide protection in a domestic violence situation where both parties are present.

In the present case, when Officer Colbert answered a domestic call at the victims’ home, the alleged attacker was not present. Thus, the first requirement of section 798 is inapplicable to the facts of the case sub judice. As we have said, it is clear that the intent of the Legislature in enacting section 798 clearly was not to create a duty to protect the victim for an indefinite amount of time: it was only to provide protection while responding to the request. When Officer Colbert responded to the request for assistance, he was not initially put in a situation where it was necessary to provide protection to Valerie Williams because Gerald Watkins was not present at the time.

The argument that once Officer Colbert arrived on the scene, he had an affirmative duty to protect Valerie Williams from all possible threats of domestic violence for an indefinite period is incorrect, and not supported by the plain language of the statute or by its legislative history. 14 Section 798 creates a duty to protect a victim of domestic violence only where a clear, imminent threat exists during the officer’s response. The second mandate of section 798 is equally inapplicable to the facts of the present case. It provides the police with the authority, and requires them, to accompany and to protect the victim of abuse when returning to the family home for the limited purpose of retrieving clothing and other personal effects required for immediate needs. 15 Clearly this mandate ¹²⁹ does not apply to the facts of the case. Valerie Williams was never forced from a home she shared with Watkins nor did she need to re-enter premises where Gerald Watkins might be present.

She was in her parent’s home, where she resided. There was no need to recover any personal clothing or effects. It is clear from the statute that it is limited to an officer who is responding to a complaint of domestic violence where the violence continues in the officer’s presence, and an officer who is accompanying a person to recover personal effects. Only in those two limited capacities is there a duty to protect created by the statute at issue.

It was not the intent of the Legislature to create a permanent personal bodyguard for any person who claims abuse. Officer Colbert was neither divested of discretion nor was he mandated by section 798 to protect petitioners forever. Even looking in a light most favorable to Mrs. Williams, section 798 is inapplicable to the facts of the present case. Concerning this issue, there is no genuine dispute of material fact; therefore the trial court’s granting of summary judgment as to petitioners’ claim concerning section 798 was appropriate.

Petitioners also contend that Baltimore City Police Department General Order 10-93 divested Officer Colbert of discretion, and mandated that he protect petitioners. We disagree with this assertion as well. Baltimore City Police Department General Order 10-93 states in relevant part: Subject: Domestic Incidents—Reporting/Arrest Criteria POLICY It is the long-standing policy of the Baltimore Police Department to fully investigate and accurately report all domestic incidents coming to our attention, specifically domestic assaults; to arrest offenders where lawful and appro ¹³⁰ priate; and where practicable, to inform involved parties of the various services that may be available to them within the Criminal Justice System, from social service agencies and other community resources. This directive was prepared in keeping with the values of the department: Our Highest Commitment is Protecting Life (protecting victims of domestic violence); We are Committed to Provide High Quality Public Service and We are Responsive to Community and Neighborhood Priorities (resolving domestic complaints)....

RESPONSIBILITIES 2. Protect the victim of a domestic incident from physical harm. We view General Order 10-93 in the same light as section 798, supra, i.e., it does not apply to the facts of the present case. As we stated in our analysis of section 798, Officer Colbert has a duty to protect a victim of domestic violence only from violence occurring in his presence.

To require a law enforcement officer to protect a victim of domestic abuse from all potential future possibilities of domestic assault would be absurd. That could not have been the intention of the police department in drafting this order, and we are not prepared to create such a duty. Officer Colbert was neither divested of discretion nor was he mandated by General Order 10-93 to protect petitioners beyond the duties expressed by Article 27, section 798. Even looking in a light most favorable to Mrs. Williams, General Order 10-93 is inapplicable to the facts of the present case.

Concerning this issue, there is no dispute of material facts; therefore the trial court’s granting of summary judgment pursuant to petitioners’ claims concerning General Order 10-93 was appropriate. B. Immunity For the sake of organization and clarity, we shall save our discussion of “the special relationship exception,” until after ¹³¹ we discuss statutory and common law immunity. Therefore, we now jump ahead and address petitioners’ third question: Were Officer Colbert’s actions at 622 Melville Avenue protected by either statutory or common law immunity? We start our analysis by addressing whether Officer Colbert’s actions were protected by statutory immunity.

Maryland Code (1974, 1998 Repl.Vol.), section 5-507(b) of the Courts & Judicial Proceedings Article codifies the immunity provision for Maryland municipal public officials, including law enforcement officers. It states in relevant part: (b) Nonliability of officials generally... — (A)n official of a municipal corporation, while acting in a discretionary capacity, without malice, and within the scope of the official’s employment or authority shall be immune as an official or individual from any civil liability for the performance of the action. As we discuss, infra, Officer Colbert, as a law enforcement officer, was an official of a government entity who, as we discussed, supra, was acting in the scope of his employment. Petitioners present no evidence that Officer Colbert acted with malice. 16 Generally, Officer Colbert, to the extent his actions were discretionary and not ministerial, falls under the purview of section 5-511(b) and qualifies for immunity from civil liability.

Additionally, Maryland Code (1974, 1998 RepLVol.), section 5-610 of the Courts & Judicial Proceedings Article, referenced in Article 27, section 798(c), see supra, states: A law enforcement officer who responds to a request under Article 27, § 798 of the Code for assistance by an individual who alleges to have been a victim of spousal ¹³² assault shall be immune from civil liability in complying with the request if the law enforcement officer acts in good faith and in a reasonable manner. As we discussed, supra, section 798 was inapplicable to petitioners’ claim in the case sub judice; however, section 5-610 is still relevant to our analysis as it demonstrates the Legislature’s intent to preserve a law enforcement officer’s immunity under this new authorized duty. Turning our attention back to House Bill 53, it is evident that the Legislature intended to insure that law enforcement officers would not lose their traditional immunity due to the new responsibility of accompanying a victim of domestic violence back into the family home to recover personal effects. By clearly including language in section 11F, and ultimately section 798, that a police officer retained immunity when acting in this capacity, the Legislature demonstrated a desire to preserve both the statutory