Rouse v. Florio

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

THERESA ROUSE, et al., *

Plaintiffs, *

v. * Civil Action No. GLR-17-3482

P.O. CHRIS FLORIO, et al., *

Defendants. *

* * *

MEMORANDUM OPINION

THIS MATTER is before the Court on Defendants P.O. Chris Florio (“Officer

Florio”), P.O. John Romeo (“Officer Romeo”), and P.O. Billy Shiflett’s (“Officer Shiflett”)

(collectively, the “Officer Defendants”) Motion for Summary Judgment (ECF No. 36).

This action under 42 U.S.C. § 1983 (2018) arises from Plaintiffs K.V.1 and Theresa Rouse’s

interaction with Officer Defendants in May 2016. The Motion is ripe for disposition, and

no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the following reasons,

the Court will grant the Motion in part and deny it in part.

I. BACKGROUND2

On May 7, 2016, Plaintiff K.V., a thirteen-year-old boy, and other juveniles,

1 The Court identifies K.V. and other minors in this Memorandum Opinion by their

initials only.

2 Unless otherwise noted, the facts outlined here are set forth in Plaintiffs’ Amended

Complaint (ECF No. 5). To the extent the Court discusses facts that Plaintiffs do not allege

in their Amended Complaint, they are uncontroverted and the Court views them in the light

most favorable to the non-moving party. The Court will address additional facts when

discussing applicable law.

entered a gas station (the “Gas Station”) on 900 N. Monroe Street in Baltimore, Maryland.

(Am. Compl. ¶ 15, ECF No. 5). At around 12:00 p.m., Sergeant Michael Brinn (“Sergeant

Brinn”) and Officer Anthony Ward (“Officer Ward”), who are not named as Defendants in

the Amended Complaint,3 responded to a call-for-service at the Gas Station regarding

juveniles who were fighting. (Defs.’ Mot. Summ. J. [“Defs.’ Mot.”] Ex. A [“Ward Incident

Report”] at 1–2, ECF No. 36-3; Pls.’ Resp. Opp’n Defs.’ Mot. Summ. J. [“Pls.’ Resp.”]

Ex. 3 [“Florio Interrogs.”] at 7, ECF No. 39-3). As Officers Brinn and Ward approached

the Gas Station, they saw male juveniles rolling and smoking an object that appeared to be

a hand-rolled cigar. (Ward Incident Report at 2). The Gas Station owner approached

Sergeant Brinn and told him that these were the juveniles who were smoking marijuana

inside his store, prompting his 9-1-1 call. (Id.). Officer Ward smelled marijuana on one of

the juveniles, M.H., searched him, and found a hand-rolled cigar containing green leaves.

(Id.).

Thereafter, other officers, including Officer Defendants, arrived at the Gas Station.

(See id.; Florio Interrogs. at 7; Defs.’ Mot. Ex. D [“Shiflett Interrogs.”] at 7, ECF No. 36-

6). Officer Romeo and Officer Ryan Ernst (“Officer Ernst”) stopped three more juveniles

who Sergeant Brinn had observed inside the Gas Station who smelled of marijuana. (Ward

Incident Report at 2; Florio Interrogs. at 14). Officer Shiflett arrived and monitored the

3 Officers Florio, Romeo, and Shiflett are the only Baltimore Police Department

officers named as Defendants in the Amended Complaint. (See Am. Compl. at 1). The

Amended Complaint brings claims against “John Doe Officers” and “John Doe

Supervisors,” (id.), but only Officers Florio, Romeo, and Shiflett have moved for summary

judgment. Plaintiffs have not named any of the other officers identified in this

Memorandum Opinion as defendants in this case.

crowd gathered in front of the Gas Station. (See Shiflett Interrogs. at 7).

Plaintiff Theresa Rouse heard about the incident and walked up to the Gas Station,

where she saw that M.H. was one of the detained juveniles. (See Defs.’ Mot. Ex. C [“Rouse

Dep.”] 16:1–6, 22:8–12, ECF No. 36-5; Pls.’ Resp. Ex. 2 [“Rouse Crim. Charges”] at 2,

ECF No. 39-2). Rouse told Officer Defendants that she was the grandmother of one of the

juveniles. (Rouse Dep. 16:8–10). Officer Defendants allege that Rouse said she was the

grandmother of M.H. specifically. (Defs.’ Mot. Ex. J [“Florio Incident Report”] at 2, ECF

No. 36-12). Officer Shiflett called M.H.’s mother, who denied that Rouse was M.H.’s

grandmother but said Rouse was dating M.H.’s grandfather. (Id.; Rouse Dep. 22:19–21).

Officer Defendants then asked Rouse to leave and she did. (Rouse Dep. 16:12–14).

Meanwhile, K.V. had fled the Gas Station, but Sergeant Brinn apprehended him in

a nearby alley. (See Ward Incident Report at 2; Defs.’ Mot. Ex. E [“K.V. Dep.”] 12:2–13,

ECF No. 36-7). Sergeant Brinn searched K.V. and brought him back to the Gas Station to

sit with the other juveniles. (Ward Incident Report at 2). Rouse then returned to the scene

and saw the officers detaining K.V., her actual grandson. (Rouse Dep. 16:16–21). A cell

phone video (the “Cell Phone Video”) taken by an onlooker offers a view of what happened

next. (Florio Interrogs. at 12; see generally Defs.’ Mot. Ex. G [“Cell Phone Video”], ECF

No. 36-9).

Officer Florio observed two other officers searching or adjusting the handcuffs on

K.V. as K.V. sat on a curb with his head close to his knees. (Cell Phone Video 00:01–

00:33). Rouse approached the Officers, protesting their treatment of K.V., at which point

Officer Florio told her to “get back.” (Id. 00:32–00:36). Around this time, Officer Florio

also told Rouse to dispose of the lit cigarette she had in her hand. (See Rouse Dep. 30:1–

2). As Officer Florio approached her, Rouse, who was facing Officer Florio, “plucked” her

cigarette behind him. (Id. at 30:1–3; see Cell Phone Video 00:35–00:38). Officer Florio

then moved to arrest Rouse. (Cell Phone Video 00:38–00:40). Defendants allege Rouse

stepped back to resist arrest, whereas Rouse alleges she was pushed back. (Florio Interrogs.

at 7–8; Rouse Dep. 29:3–5).

Officer Florio and Officer John Rosenblatt (“Officer Rosenblatt”) then forced Rouse

to the ground, Officer Florio put his knee against her back, and pulled her hands behind

her body to handcuff her while she lay on her stomach. (Cell Phone Video 00:38–00:49;

see Florio Interrogs. at 7–8). Officers Florio and Rosenblatt then carried Rouse by her

hands and feet to a nearby police car. (Cell Phone Video 00:38–01:04). When Officers

Florio and Rosenblatt could not get Rouse fully into the police car, they then carried her to

the Gas Station curb and sat her there. (Id. 01:04–01:45). Rouse then fell to her side and

yelled that she was injured and needed to go to the hospital. (Id. 01:45–02:37). Officer

Florio then called an ambulance, which took Rouse to the hospital. (Florio Incident Report

at 2).

The Officers continued to detain the juveniles, including K.V., at the Gas Station

until their parents or guardians arrived to pick them up. (See Ward Incident Report at 2).

At approximately 1:12 p.m., about twenty minutes after Rouse’s arrest, K.V. was released

to his mother. (Id.; K.V. Dep. 13:13–15, 14:17–19). Upon Rouse’s release from the

hospital, she was charged with second-degree assault, possession of a dangerous weapon

with intent to injure, reckless endangerment, and disorderly conduct, all of which were

eventually dismissed. (Rouse Crim. Charges at 2–3)

On November 22, 2017, Plaintiffs sued Officer Defendants, John Doe Officers

(collectively, with Officer Defendants, “All Officer Defendants”) and John Doe

Supervisors, and the City of Baltimore (the “City”). (ECF No. 1). On November 29, 2017,

Plaintiffs filed an eight-count Amended Complaint, alleging: violations of the Fourth,

Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution against the City4 (Count

I); violations of the Fourth and Fourteenth Amendments against John Doe Supervisors

(Count II); false arrest in violation of the Fourth and Fourteenth Amendments against All

Officer Defendants (Count III); excessive force in violation of the Fourth and Fourteenth

Amendments against All Officer Defendants (Count IV); failure to intervene to stop the

excessive force in violation of the Fourth Amendment against All Officer Defendants

(Count V); malicious prosecution in violation of the Fourth Amendment against

Defendants (Count VI); and abuse of process in violation of the Fourth Amendment against

Defendants (Count VII). (Am. Compl. ¶¶ 31–126). Plaintiffs bring their claims under 42

U.S.C. § 1983 (2018). (Id. at 7, 15, 17, 20, 23, 25, 27). They seek compensatory and

punitive damages, as well as attorney’s fees under 42 U.S.C. § 1988 (2018). (Id. ¶¶ 1, 126).

On January 24, 2019, Officer Defendants filed their Motion for Summary Judgment.

(ECF No. 36). On February 7, 2019, Plaintiffs filed an Opposition. (ECF No. 39). On

February 27, 2019, Officer Defendants filed a Reply. (ECF No. 40).

4 On February 12, 2018, Plaintiffs voluntarily dismissed the City from the case.

(ECF No. 11).

II. DISCUSSION

A. Standard of Review

In reviewing a motion for summary judgment, the Court views the facts in a light

most favorable to the nonmovant, drawing all justifiable inferences in that party’s favor.

Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).

Summary judgment is proper when the movant demonstrates, through “particular parts of

materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations . . . admissions, interrogatory answers,

or other materials,” that “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A). Significantly, a

party must be able to present the materials it cites in “a form that would be admissible in

evidence,” Fed.R.Civ.P. 56(c)(2), and supporting affidavits and declarations “must be

made on personal knowledge” and “set out facts that would be admissible in evidence,”

Fed.R.Civ.P. 56(c)(4).

Once a motion for summary judgment is properly made and supported, the burden

shifts to the nonmovant to identify evidence showing there is genuine dispute of material

fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).

The nonmovant cannot create a genuine dispute of material fact “through mere speculation

or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 141

(4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).

A “material fact” is one that might affect the outcome of a party’s case. Anderson,

477 U.S. at 248; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459,

465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).

Whether a fact is considered to be “material” is determined by the substantive law, and

“[o]nly disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248;

accord Hooven-Lewis, 249 F.3d at 265. A “genuine” dispute concerning a “material” fact

arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the

nonmoving party’s favor. Anderson, 477 U.S. at 248. If the nonmovant has failed to make

a sufficient showing on an essential element of her case where she has the burden of proof,

“there can be ‘no genuine [dispute] as to any material fact,’ since a complete failure of

proof concerning an essential element of the nonmoving party’s case necessarily renders

all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

B. Analysis

Officer Defendants move for summary judgment on Plaintiffs’ claims against them,

Counts III–VII. The Court will address each count in turn, beginning with Plaintiffs’ claims

for false arrest.

1. False Arrest (Count III)

Officer Defendants argue that they were not involved in K.V.’s detention, that

Officers Romeo and Shiflett were not involved in Rouse’s arrest, that Officer Florio had

probable cause to arrest Rouse, and that even if he did not, Officer Florio is entitled to

qualified immunity from this claim. Plaintiffs counter that Officer Florio did not have

probable cause to arrest Rouse and is not entitled to qualified immunity. The Court agrees

with Officer Defendants.

In order to state a claim under § 1983 for false arrest in violation of the Fourth

Amendment, a plaintiff must show that her arrest was made without probable cause. Carter

v. Durham, No. WMN-14-2635, 2015 WL 641370, at *2 (D.Md. Feb. 12, 2015) (citing

Street v. Surdyka, 492 F.2d 368, 372–73 (4th Cir. 1974)). Probable cause exists if the

evidence before the law enforcement officer is “sufficient to warrant a prudent person, or

one of reasonable caution, in believing, in the circumstances shown, that the suspect [has]

committed . . . an offense.” Gray v. State, No. CCB-02-0385, 2004 WL 2191705, at *6

(D.Md. Sept. 24, 2004) (quoting Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998)).

Whether there is probable cause depends on the totality of the circumstances. Gilliam v.

Sealey, 932 F.3d 216, 234 (4th Cir. 2019) (quoting Smith v. Munday, 848 F.3d 248, 253

(4th Cir. 2017)). “While probable cause requires more than bare suspicion, it requires less

than that evidence necessary to convict.” Id. (quoting United States v. Gray, 137 F.3d 765,

769 (4th Cir. 1998)). “It is an objective standard of probability that reasonable and prudent

persons apply in everyday life.” Id. (quoting Gray, 137 F.3d at 769). Whether probable

cause to arrest exists is based only on the information the officers had at the time of the

arrest. Id. (first citing Munday, 848 F.3d at 253; then citing Graham v. Gagnon, 831 F.3d

176, 184 (4th Cir. 2016)). The court does not consider “the subjective beliefs of the

arresting officers to determine whether they thought that the facts constituted probable

cause.” Id. (quoting Munday, 848 F.3d at 253).

Here, it is undisputed that Officer Defendants did not participate in K.V.’s

apprehension or detention, and therefore no reasonable jury could find them liable for false

arrest as to K.V. Similarly, it is undisputed that Officers Shiflett and Romeo did not effect

Rouse’s arrest, and therefore no reasonable jury could find that they are liable to her for

false arrest.

Turning to the false arrest claim against Officer Florio, Defendants argue that Rouse

committed several offenses, each of which gave Defendant Florio probable cause for the

arrest: second-degree assault, disorderly conduct, hindering, false statement, and littering.

Under Maryland law, a person “may not willfully act in a disorderly manner that disturbs

the public peace.” Md. Code Ann., Crim. Law § 10-201(c)(2) (West 2019). A person also

“may not willfully fail to obey a reasonable and lawful order that a law enforcement officer

makes to prevent a disturbance to the public peace.” Id. at § 10-201(c)(3). In considering

this charge, Maryland courts have considered whether the conduct in question disturbs,

incites, or tends to incite a crowd of people in the same area. See Spry v. State, 914 A.2d

1182, 1187 (Md. 2007); Harris v. State, 206 A.2d 254, 256 (Md. 1965) (holding that

appellant was guilty of disorderly conduct because he ignored officers’ repeated requests

to remain outside of a building and “appeal[ed] to passions of his sympathetic crowd of

onlookers”).

Here, Rouse refused to stay away from the officers despite repeated requests to do

so and yelled using profanity during her second and third encounters with Officer

Defendants, which, the Cell Phone Video shows, ultimately incited the crowd behind her

during her third encounter. Plaintiffs’ reliance on Diehl v. State, 451 A.2d 115, 119 (Md.

1982) is unavailing. In Diehl, a police officer pulled over a car over whose passenger,

Diehl, got out; the officer unlawfully instructed Diehl to get back in the car; and Diehl

protested the officer’s demand using profanity. Id. at 116–17. The Court of Appeals

concluded that when “a person is acting in a lawful manner (a passenger getting out of a

stopped car) and is the object of an unlawful police order, it is not usually a criminal

violation . . . to verbally protest a police officer’s insistence . . . to such an order.” Id. at

123. But since Diehl, the Court of Appeals has limited its holding to self-help. See Hill v.

State, 20 A.3d 780, 785 (Md. 2011) (reasoning that Diehl applies only to self-help

circumstances where defendant argues that his own arrest was illegal); Briggs v. State, 599

A.2d 1221, 1226 (Md.Ct.Spec.App. 1992) (“We distinguish Diehl and the case at bar . . .

by pointing out that the defendant in Diehl behaved lawfully.”). Here, Plaintiff Rouse was

not protesting her own arrest, but rather the arrest of Plaintiff K.V., and was not behaving

lawfully when she repeatedly ignored Defendants’ requests to leave the scene. Given the

totality of the circumstances, a reasonable officer in Officer Florio’s position would have

believed that Rouse had committed a crime. See Gray, 2004 WL 2191705, at *6; Gilliam,

932 F.3d at 234. Because Officer Florio had probable cause to arrest Rouse, she cannot

show that her arrest lacked probable cause, as she must to prove this claim. See Carter,

2015 WL 641370, at *2. Accordingly, the Court will grant summary judgment against K.V.

and Rouse, and in favor of Officer Defendants, as to Count III.

2. Malicious Prosecution (Count VI)

Officer Defendants argue that they are not liable for malicious prosecution because

Officer Florio had probable cause to arrest Rouse and because K.V. was not charged.

Plaintiffs argue that Officer Defendants did not have probable cause and that the other

elements of malicious prosecution are present. The Court agrees with Officer Defendants.

Malicious prosecution, brought under § 1983, is a “Fourth Amendment claim for

unreasonable seizure which incorporates certain elements of the common law tort.” Evans

v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (quoting Lambert v. Williams, 223 F.3d

257, 261 (4th Cir. 2000)). In order to be held liable under malicious prosecution, the

defendant must have “(1) caused (2) a seizure of the plaintiff pursuant to legal process

unsupported by probable cause, and (3) criminal proceedings were terminated in plaintiff’s

favor.” Id. at 647.

Here, Officer Defendants were not involved in detaining K.V., and K.V. faced no

charges and, therefore, no criminal proceedings. As a result, no reasonable jury could find

that Officer Defendants maliciously prosecuted K.V. Further, because Officers Shiflett and

Romeo did not personally arrest Rouse, no reasonable jury could find that these Defendants

maliciously prosecuted against her. As discussed above, Officer Florio had probable cause

to arrest Rouse. Because Rouse’s arrest was supported by probable cause, she cannot prove

her claim for malicious prosecution against Officer Florio.

As a result, there is no genuine dispute of material fact that Officer Defendants did

not seize either K.V. or Rouse without probable cause. Accordingly, the Court will grant

summary judgment against Plaintiffs and in favor of Officer Defendants on Plaintiffs’

malicious prosecution claims.

3. Abuse of Process

In their briefing, the parties treat malicious prosecution and abuse of process as one

and the same. To the extent that Plaintiffs intended to bring a claim for malicious abuse of

process, which is another name for malicious prosecution, see, e.g., Rice v. Calvert Cty.

Bd. of Cty. Comm’rs, No. DKC 2007-1005, 2009 WL 10685346, at *5 (D.Md. Mar. 9,

2009), their claims fail for the same reasons stated above. To the extent they intended to

bring a claim for abuse of process, the common law tort, it also fails.

Under Maryland law, abuse of process occurs when “when a party has willfully

misused criminal or civil process after it has issued in order to obtain a result not

contemplated by law.” Thomas v. Gladstone, 874 A.2d 434, 439 (Md. 2005) (first citing

Krashes v. White, 341 A.2d 798, 802 (Md. 1975); then citing 1000 Fleet Ltd. P’ship v.

Guerriero, 694 A.2d 952, 956 (Md. 1997)). Unlike malicious prosecution,

abuse of process “is concerned with the improper use of criminal or civil process in a

manner not contemplated by law after it has been issued, without the necessity of showing

lack of probable cause.” Id. (quoting Walker v. Am. Sec. & Trust Co. of Washington, 205

A.2d 302, 307 (Md. 1964)). Importantly, abuse of process is a state common law claim that

does not support “recovery under § 1983 which . . . provides redress only for violations of

[f]ederal law.” Id.

Here, Plaintiffs’ abuse of process claim must fail because they bring it under § 1983

and, in any event, pleaded only the elements of the tort without any supporting facts. For

those reasons, Plaintiffs’ abuse of process claims could not have survived a motion to

dismiss. At this stage of the litigation, Plaintiffs have offered no evidence beyond those

conclusory allegations that Officer Defendants “misused criminal . . . process after it issued

in order to obtain a result not contemplated by law.” Id. As a result, the Court will grant

summary judgment in favor of Officer Defendants and against Plaintiffs on their abuse of

process claims.

4. Excessive Force (Count IV)

Plaintiffs argue that even if Officer Florio had probable cause to arrest Rouse,

Officer Florio used unreasonable and disproportionate force under the circumstances.

Officer Defendants argue that Officer Florio’s take-down was proportionate and

reasonable.

Again, because it is undisputed that Officer Defendants did not actively participate

in K.V.’s detention, no reasonable jury could find that Defendants used excessive force on

him. Officers Shiflett and Romeo also did not arrest Rouse; therefore, no reasonable jury

could find that these Defendants used excessive force on her. The Court now turns to the

claim against Officer Florio.

Excessive force in the course of an arrest is analyzed “under the Fourth

Amendment’s ‘objective reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 388

(1989). In assessing whether such force is reasonable, the Fourth Amendment requires

“careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth

Amendment interests’ against the countervailing governmental interests at stake.” Id. at

396 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). Though “the right to make

an arrest . . . necessarily carries with it the right to use some degree of physical coercion

. . . [the reasonableness standard] requires careful attention to the facts and circumstances

of each particular case,” including (1) “the severity of the crime at issue”; (2) “whether the

suspect poses an immediate threat to the safety of the officers or others”; and (3) “whether

he is actively resisting arrest or attempting to evade arrest by flight.” Id. (citing Tennessee

v. Garner, 471 U.S. 1, 8–9 (1985)). The “reasonableness standard” requires an objective

analysis, judged from “the perspective of a reasonable officer on the scene, rather than with

the 20/20 vision of hindsight.” Id.

Here, Officer Florio had probable cause to arrest Rouse, but it was for being

disorderly. Rouse was agitated and did not promptly follow all orders, but she had not made

physical contact with the Officers or anyone else at the scene, or threatened to. The severity

of the crime for which Officer Florio had probable cause to arrest her was therefore

relatively mild. Relatedly, she had identified herself as a grandmother and was

considerably smaller than both Officers Florio and Rosenblatt, who had no reason to

believe that she was armed or especially dangerous. See Smith v. Ray, 781 F.3d 95, 102

(4th Cir. 2015) (reasoning that the second Graham factor weighed in favor of a “smaller

woman” plaintiff who was unarmed who was tackled and arrested by an officer who was a

“pretty good size[d] man”). Further, even if Rouse took a step back when Officer Florio

attempted to arrest her, such force may not constitute resistance. Id. at 103 (“Nor could a

reasonable officer believe that [plaintiff’s] initial act of pulling her arm away when

[defendant] grabbed her without warning . . . justified [defendant’s] decision to throw her

down, jam his leg into her back, and wrench her arm behind her.”). The Court therefore

concludes there is a genuine dispute of material fact as to whether the force Officer Florio

used to subdue Rouse was excessive.

6. Failure to Intervene (Count V)

Officer Defendants argue there was no constitutional violation during which they

failed to intervene and, if there was, they did not have a reasonable opportunity to do so.

Plaintiffs counter that Officer Defendants were at the Gas Station around the time that K.V.

and Rouse were detained or arrested, and therefore a reasonable jury could conclude that

they failed to intervene to prevent any constitutional violations.

An officer may be liable under § 1983 on a theory of bystander liability, if he “(1)

knows that a fellow officer is violating an individual’s constitutional rights; (2) has a

reasonable opportunity to prevent the harm; and (3) chooses not to act.” Randall v. Prince

George’s Cty., 302 F.3d 188, 204 (2002); see 42 U.S.C. § 1983 (2018) (“Every person who

. . . subjects, or causes to be subjected . . . any citizen of the United States . . . to the

deprivation of any rights . . . secured by the Constitution . . . shall be liable to the party

injured in an action at law . . . .”). In order for an officer to be liable, there must be a

“realistic opportunity to intervene and end the unlawful” activity. Randall, 302 F.3d at 204.

Determinations of whether an officer “had sufficient time to intercede or was capable of

preventing harm being caused by another officer is an issue of fact for the jury unless . . .

a reasonable jury could not possibly conclude otherwise.” Anderson v. Branen, 17 F.3d

552, 557 (2d Cir. 1994). Further, if no excessive force “is applied by the fellow officer, the

officer witnessing the conduct ‘cannot be held liable under bystander liability for a failure

to intervene.’” Jarvis v. Securitas Sec. Servs. USA, Inc., No. 11-CV-00654-AW, 2012 WL

527597, at *6 (D.Md. 2012) (citing Howie v. Prince George’s Cty., No. DKC 2006-3465,

2009 WL 2426018, at *6 (D.Md. Aug. 5, 2009)); Dodson v. Prince George’s Cty., No. JKS

13-2916, 2016 WL 67255, at *3 (D.Md. (2016)).

Here, given the evidence, there is a genuine dispute of material fact about whether

Officer Defendants knew the circumstances of K.V.’s detention or arrest such that they

could know that his constitutional rights were being violated. In their depositions, K.V. and

Officer Defendants indicate that Sergeant Brinn chased K.V. down an alley, away from the

other officers. Only if Officer Defendants knew that their fellow officers were violating

K.V.’s constitutional rights would the other two prongs of the bystander liability test come

into play.

As for Officer Defendants’ bystander liability with respect to K.V.’s excessive force

claim, the Court concludes that no reasonable jury could find Officer Defendants liable.

Neither K.V. nor Rouse testify about anything that could be construed as excessive force

in their depositions. The only evidence of any force that any Officer applied to K.V. is at

the beginning of the Cell Phone Video when a non-Officer Defendant pushes K.V.’s head

down for perhaps a second in the course of either searching or handcuffing him. Even if

any Officer Defendants saw that and knew in real time that it constituted unconstitutional

excessive force, which is doubtful, there was no reasonable or realistic opportunity for

them to intervene before the brief incident was over. The Court, therefore, will grant

summary judgment in favor of Officer Defendants as to K.V.’s failure to intervene claim.

As for Plaintiff Rouse, Officers Romeo and Shiflett admit that they saw Officer

Florio arrest her. The Court has concluded that Officer Florio had probable cause to arrest

Rouse but concluded there is a genuine dispute of material fact as to whether the force used

during her arrest was excessive. Given the nature of the force used, there also remains a

genuine dispute of material fact concerning whether Officers Romeo and Shiflett knew that

Officer Florio was violating Rouse’s constitutional rights and, given the sequence of events

over the next couple of minutes, whether Officers Romeo and Shiflett had a realistic

opportunity to intervene. See Branen, 17 F.3d at 557. Accordingly, the Court will deny

Officer Defendants’ Motion as to Rouse’s failure to intervene claim.

7. Qualified Immunity

Officer Defendants argue they are entitled to qualified immunity on all claims, but

they only make a specific argument regarding the probable cause required for the false

arrest and malicious prosecution claims. Plaintiffs contend Officer Defendants are not

entitled to qualified immunity.

The doctrine of qualified immunity shields government officials “from liability for

civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); West v. Murphy, 771 F.3d 209, 213 (4th Cir. 2014).

Qualified immunity protects government officials when they have made “mere mistakes in

judgment, whether the mistake is one of fact or one of law.” Butz v. Economou, 438 U.S.

478, 507 (1978). As “an immunity from suit rather than a mere defense to liability, . . .

[qualified immunity] is effectively lost if a case is erroneously permitted to go to trial.”

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis removed). Accordingly, courts

should resolve qualified immunity questions prior to discovery or on summary judgment

if possible. See Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987).

There is a two-prong test to determine if a government official is protected by

qualified immunity: (1) whether the facts that the plaintiff has alleged or shown “make out

a violation of a constitutional right”; and (2) whether that right was “clearly established”

at the time of the purported violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009)

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts have discretion to resolve these

two prongs in whichever order they deem appropriate, based on the circumstances of the

case. Id. at 236. The answers to both prongs must be in the affirmative for a plaintiff to

prevail. Batten v. Gomez, 324 F.3d 288, 293–94 (4th Cir. 2003) (considering the issue in

the context of a police officer’s motion for summary judgment on qualified immunity

grounds). Once the defendant raises qualified immunity as a defense, the plaintiff bears the

burden of proof on the first prong, that is, to show a constitutional violation occurred. Henry

v. Purnell, 501 F.3d 374, 377 (4th Cir. 2007) (citing Bryant v. Muth, 994 F.2d 1082, 1086

(4th Cir. 1993)). The defendant bears the burden on the second prong, that is, to show that

the right was not clearly established at the time of the violation. Id. at 378 (quoting Wilson

v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003)).

The second prong involves a three-step analysis. First, the court identifies “the

specific constitutional right allegedly violated.” Collinson v. Gott, 895 F.2d 994, 998 (4th

Cir. 1990). Second, the court inquires whether at the time of the alleged violation, that right

was “clearly established.” Id. Third, the court assesses “whether a reasonable person in the

official’s position would have known that his conduct would violate that right.” Id.; see

Cloaninger ex rel. Cloaninger v. McDevitt, 555 F.3d 324, 331 (4th Cir. 2009) (explaining

that a right is “clearly established” when “it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted” (quoting Saucier, 533 U.S. at 202)).

To determine if a right was “clearly established,” a district court must first examine “cases

of controlling authority” in its jurisdiction,” that is, “decisions of the Supreme Court, [the]

court of appeals, and the highest court of the state in which the case arose.” Booker v. S.C.

Dep’t of Corr., 855 F.3d 533, 538 (4th Cir. 2017) (first quoting Amaechi v. West, 237 F.3d

356, 363 (4th Cir. 2001); then quoting Owens ex rel. Owens v. Lott, 372 F.3d 267, 279

(4th Cir. 2004)), cert. denied, 138 S.Ct. 755 (2018)).

Even when a plaintiff proves that an official has violated his rights, the official may

nevertheless be entitled to qualified immunity “if a reasonable person in the ‘official’s

position could have failed to appreciate that his conduct would violate’ those rights.”

Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991) (quoting Collinson, 895 F.2d at

998). In this way, the qualified immunity standard allows mistakes—“[e]ven law

enforcement officials who ‘reasonably but mistakenly conclude that probable cause is

present’ are entitled to immunity.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting

Creighton, 483 U.S. at 641). This allowance for mistakes is “ample”—the qualified

immunity standard protects “all but the plainly incompetent or those who knowingly

violate the law.” Id. at 229 (quoting Malley v. Briggs, 475 U.S. 335, 342, 349 (1986)

(internal quotation marks omitted)). This allowance “exists because ‘officials should not

err always on the side of caution’ because they fear being sued.” Id. (quoting Davis v.

Scherer, 468 U.S. 183, 196 (1984)). “If reasonable mistakes were actionable, difficult

questions of discretion would always be resolved in favor of inaction, and effective law

enforcement would be lost.” Torchinsky, 942 F.2d at 261.

Here, to the extent K.V.’s failure to intervene claim focuses on Officer Defendants

failure to intervene in his false arrest, Officer Defendants are entitled to qualified immunity.

First, Officer Defendants were not involved in his arrest, which took place away from the

Gas Station. Thus, it is unclear whether they saw him run or if they learned anything from

Sergeant Brinn about K.V.’s apprehension, and if a constitutional right was violated.

Second, the U.S. Supreme Court and the U.S. Court of Appeals for the Fourth Circuit have

established that qualified immunity applies when an officer reasonably but mistakenly

concludes that probable cause existed. See Hunter, 502 U.S. at 228–29 (reasoning that

qualified immunity applied when agent arrested suspect without a warrant because a

reasonable agent could have believed that probable cause existed); Waterman v. Batton,

393 F.3d 471, 478–79 (4th Cir. 2005) (holding that qualified immunity applied when police

officers used deadly force to stop suspect’s car because a reasonable officer in their position

would conclude that probable cause existed). Third, given the rapid sequence of events the

parties describe in their depositions and which is apparent from the Cell Phone Video, if

K.V. was arrested without probable cause, Officer Defendants could reasonably but

mistakenly have believed, as bystanders, that K.V.’s arrest was supported by the requisite

probable cause. See Hunter, 502 U.S. at 227.

With respect to Rouse’s excessive force claim, Officer Florio is not entitled to

qualified immunity. As discussed above, Rouse has shown there is a genuine dispute of

material fact regarding whether Officer Florio employed excessive force. The Fourth

Circuit has held that “officers using unnecessary, gratuitous, and disproportionate force to

seize a secured, unarmed citizen, do not act in an objectively reasonable manner and, thus,

are not entitled to qualified immunity.” Meyers v. Baltimore Cty., 713 F.3d 723, 734 (4th

Cir. 2013) (quoting Bailey v. Kennedy, 349 F.3d 731, 744–45 (4th Cir. 2003)); see also

Smith, 781 F.3d at 105 (holding that arrestee’s right to be free from police officer throwing

her to the ground when she was only suspected of a misdemeanor and not attempting to

flee was clearly established at the time for qualified immunity purposes). As a result,

Officer Florio is not entitled to qualified immunity regarding Rouse’s excessive force

claim.

Finally, Officer Defendants make no argument regarding their qualified immunity

with respect to Rouse’s failure to intervene claim. Rouse has presented sufficient evidence

of a constitutional violation, and Officer Defendants have not cited any law that such

violation was not clearly established at the time of Rouse’s arrest. As a result, the Court

concludes they are not entitled to qualified immunity as to that claim.

III. CONCLUSION

For the foregoing reasons, the Court will grant in part and deny in part Officer

Defendants’ Motion for Summary Judgment (ECF No. 36). The Court will grant the

Motion as to Counts III, VI, and VII; as to Count V with respect to K.V.’s claim; as to

Count IV with respect to K.V.’s claim, and as to Count IV with respect to Rouse’s claim

against Officers Romeo and Shiflett. The Court will otherwise deny the Motion. A separate

Order follows.

Entered this 30th day of September, 2019.

/s/

George L. Russell, III

United States District Judge