Shirley Johnson, Personal Representative of the Estate of Elbert Davis, Sr. v. Baltimore City Police Department

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SHIRLEY JOHNSON, et al., *

*

Plaintiffs, *

*

v. * Civil Case No. SAG-18-2375

*

BALTIMORE POLICE DEPARTMENT, *

et al., *

*

Defendants. *

*

* * * * * * * * * * * * * *

AMENDED MEMORANDUM OPINION

This case is one of many filed in this District against current and former Baltimore Police

Department (“BPD”) officers, stemming from allegedly illegal conduct in plainclothes units

within the BPD. On April 28, 2010, BPD officers allegedly ambushed Umar Burley and Brent

Matthews, who were sitting in a car on Parkview Avenue in Baltimore City, Maryland. Fearing

for their lives, Burley, the driver, sped away, and the officers gave chase. Several blocks later,

with the officers in pursuit, Burley ran a stop sign, and crashed into a car driven by Elbert Davis,

Sr. (“Davis” or “Decedent”). The crash killed Davis, and left his passenger, Phosa Cain

(“Cain”), severely injured.

On August 2, 2018, Plaintiff Shirley Johnson, personally and as personal representative

of the Estates of Davis, and of Cain, along with Plaintiffs Delores Davis, Mary Cox, Gloria

Davis, Albert Cain, Elbert Davis, Jr., Anita Cain (the administrator of the Estate of Arthur Cain),

and the Use of Gail Davis, Leroy Davis, and Elbert Lee Davis (collectively, “Plaintiffs”) sued the

BPD, along with Dean Palmere (“Palmere”), Wayne Jenkins (“Jenkins”), Ryan Guinn (“Guinn”),

Richard Willard (“Willard”), William Knoerlein (“Knoerlein”), Michael Fries (“Fries”), and

Keith Gladstone (“Gladstone”) (collectively, “Defendants”). ECF 1. Plaintiffs filed a Third

Amended Complaint on August 16, 2019. ECF 57. Jenkins answered on October 4, 2019. ECF

64.

Before the Court are three Motions to Dismiss the Third Amended Complaint: one by

the BPD and Palmere, ECF 63; one by Guinn, ECF 65; and one by Fries, Gladstone, Knoerlein,

and Willard, ECF 66. The Court has reviewed each Motion, along with the related Oppositions

and Replies thereto. See ECF 71 to 76. No hearing is necessary. See Loc. R. 105.6 (D. Md.

2018). For the reasons that follow, the Motions will be granted in part and denied in part.

I. FACTUAL BACKGROUND

The following facts from the Third Amended Complaint are accepted as true, and all

reasonable inferences are drawn in Plaintiffs’ favor. See, e.g., E.I. du Pont de Nemours & Co. v.

Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).

A. Defendants’ Positions within the BPD

In 2010, the BPD employed each Defendant as a police officer. ECF 57, ¶ 21. At the

time, Palmere led the Violent Crime Impact Section (“VCIS”) within the BPD.1 Id. ¶ 28; see

also id. ¶¶ 169-70 (explaining that Palmere led the VCIS from 2008 to 2010, and still oversaw

VCIS when, in 2010, he was promoted to the Chief of the Criminal Investigation Division, into

which VCIS merged). Palmere later served as a Deputy Commissioner in the BPD from 2013 to

2018, overseeing all plainclothes units and the BPD’s Patrol and Operations Bureaus. Id. ¶ 28.

Palmere retired from the BPD in 2018. Id. ¶ 28.

In 2010, Fries was a Lieutenant in VCIS, and Willard and Knoerlein were both Sergeants.

Id. ¶¶ 25-27. Fries, Willard, and Knoerlein therefore all held supervisory roles. Id. ¶ 133.

1 Plaintiffs allege that VCIS was, at times, referred to as the Victim Crime Impact Division, or

VCID. For ease of reference, the Court will refer to the unit as VCIS.

Plaintiffs allege that Jenkins, Gladstone, and Guinn (“the Officer Defendants”) worked together

in VCIS, under the supervision of Fries, Willard, Knoerlein, and Palmere. Id. ¶¶ 23-27, 133.

Fries, Knoerlein, and Guinn are still BPD officers. Id. ¶¶ 22-28.

B. The BPD’s Allegedly Unconstitutional Policing Practices in April, 2010

Beginning in the “early 2000s,” the BPD held a “widespread, persistent pattern and

practice of unconstitutional police conduct, including illegal stops without probable cause or

reasonable suspicion, illegal pursuits and arrests, and falsification of evidence by plainclothes

officers regularly employed within the BPD.” Id. ¶¶ 70, 80. The pattern of unconstitutional

practices began, according to Plaintiffs, when the BPD first utilized “elite units comprised of

plainclothes officers,” including “flex squads” and “Special Enforcement Teams” (“SETs”), who

had “wide latitude to investigate and arrest persons suspected of dealing drugs and/or gun

violations.” Id. ¶ 77. These officers, who drove unmarked cars, were often referred to as

“knockers” or “jump out boys,” because of their tendency to drive up to citizens, jump out of

their cars, chase citizens, and conduct “aggressive illegal searches” of them. Id. ¶ 79. Plaintiffs

recount a number of instances, leading up to 2010, in which BPD officers in units like VCIS

raped, robbed, and even killed Baltimore residents while on duty. Id. ¶¶ 81-99.

Plaintiffs specifically allege previous instances of misconduct by Jenkins and Gladstone.

Id. ¶¶ 107-130. Gladstone was involved in a 2003 incident that a federal judge held violated the

arrestee’s constitutional rights. Id. ¶ 108. Further, Plaintiffs allege that, upon information and

belief, Gladstone had an internal affairs finding of misconduct upheld against him in 2004, and

allowed confidential sources to keep drugs in exchange for information “on multiple occasions.”

Id. ¶¶ 109-10. Gladstone became Jenkins’s “mentor” once they started working together in

2008. Id. ¶ 111.

Jenkins had a much more colored past. Id. ¶¶ 112-25. Plaintiffs allege that Jenkins

“repeatedly crashed BPD-issued vehicles, damaging them and/or rendering them inoperable,”

and that he allegedly “went through as many as one department-issued vehicle per month.” Id. ¶

113. Plaintiffs also recount instances in which Jenkins assaulted a Baltimore resident, but

incurred no departmental consequences, id. ¶ 117-20, and in which Jenkins fabricated evidence

in order to incriminate an individual in 2008, id. ¶¶ 121-25. According to one of Jenkins’s

former colleagues on the Gun Trace Task Force (“GTTF”), “Jenkins was very reckless, you

know. I mean, he was just out of control, putting citizens at risk, you know, driving on the side

of the street, going in people bumpers. I just never saw anything like this . . . .” Id. ¶ 128.

Plaintiffs allege that Willard, Knoerlein, and Fries each “held supervisory roles within the

plainclothes units in which the Officers worked.” Id. ¶ 133. Beginning in 2004, Fries supervised

Jenkins when Jenkins served on a SET, and knew of the “widespread abuse[s]” officers in that

SET committed. Id. ¶ 134, 152. Plaintiffs allege that Fries selected Jenkins to join VCIS, which

Fries supervised in 2006, despite “knowledge of Jenkins’s prior misconduct.” Id. ¶ 139. Fries

was also Gladstone’s supervisor in VCIS starting in 2008, and upon information and belief, was

his supervisor when Gladstone committed misconduct prior to 2010, as well as during the April

28, 2010 incident giving rise to this lawsuit. Id. ¶¶ 140-41. Plaintiffs further allege that

Knoerlein had “actual or constructive knowledge” of Jenkins’s and Gladstone’s prior instances

of misconduct while supervising them, and that he supervised them during some of those

instances, including the April 28, 2010 incident. Id. ¶¶ 143, 145-56. Willard also allegedly had

“actual or constructive knowledge” of Jenkins’s prior instances of misconduct before joining

VCIS. Id. ¶¶ 147-48.

Despite knowing that their subordinate VCIS officers were “committing widespread

abuse[s],” Plaintiffs allege that Willard, Knoerlein, and Fries took no steps “to report or remedy

illegal conduct,” and that this failure to properly investigate demonstrated “a gross disregard for

the constitutional rights of the public.” Id. ¶¶ 154-55. Plaintiffs also allege that Willard,

Knoerlein, and Fries failed to properly train Jenkins and Gladstone, despite knowing about their

history of misconduct, and also “encouraged plainclothes officers under their supervision . . . to

violate the constitutional rights of Baltimore residents.” Id. ¶¶ 156-57, 160. Willard, Knoerlein,

and Fries encouraged VCIS officers to commit “overtime fraud,” and to conduct illegal searches

“to get as many guns off the street by whatever means necessary.” Id. ¶¶ 161-62.

Palmere, as a high-ranking, senior command-level officer in the BPD, is alleged to have

had “the authority and responsibility to discipline officers he knew had engaged in misconduct.”

Id. ¶ 166. Despite this, Palmere failed to take any actions to report or remedy illegal conduct.

Id. ¶¶ 177-78, 182. For example, in 2005, Palmere, while serving on an officer’s trial board,

voted to only give the officer a “reduced sentence” for his actions in engaging in an unlawful

search of a home, and later lying and saying that he had a warrant to search the home. Id. ¶ 167.

With Palmere as head of VCIS, the unit saw “increased citizen complaints and widespread

abuses,” which included one incident that resulted in a $200,000 payout to the victim, and

another in which three VCIS officers were charged with kidnapping two Baltimore City

teenagers. Id. ¶ 169. Palmere also “assisted and coached former GTTF officer Jemell Rayam in

the cover up of the fatal shooting of Shawn Cannady” in 2009. Id. ¶ 176. Jenkins was allegedly

a “golden boy” and “prince” under Palmere, despite Palmere knowing of his previous instances

of misconduct. Id. ¶¶ 178-180. Indeed, Palmere awarded Jenkins, and other BPD plainclothes

officers, an achievement pin for their work in the plainclothes units. Id. ¶ 181.

Plaintiffs further allege a number of other instances of police misconduct that occurred

under the BPD’s watch prior to 2010. E.g., id. ¶¶ 191-195. However, Plaintiffs allege that the

BPD “provided no meaningful oversight of,” and doled out no meaningful disciplinary actions

against, Jenkins, Gladstone, and Guinn. Id. ¶¶ 199-200. Further, “[d]espite knowing of the

recurrent misconduct by its plainclothes officers, [the] BPD failed to establish reasonable and

necessary systems to train, supervise, investigate, and hold accountable those officers or to take

the necessary steps to eliminate [plainclothes] units’ culture of corruption” and ensure that

officers did not engage in further misconduct. Id. ¶¶ 187, 204. Indeed, former Commissioner

Kevin Davis “admitted that the BPD ‘absolutely’ should have known about the conduct of the

GTTF officers and stated that, ‘the culture here contributes to it.’” Id. ¶ 205.

Plaintiffs also allege that the BPD “did not institute any meaningful oversight of [its]

specialized plainclothes units.” Id. ¶ 215; see also id. ¶ 226. They allege that the BPD’s Internal

Affairs Division’s (“IAD”) procedures were deficient in a large number of respects, including,

but not limited to: discouraging people from filing complaints; tolerating “excessive and chronic

delays in resolving disciplinary complaints”; supervisors “misclassif[ying] serious complaints as

minor ones” to avoid IAD involvement; failing to consider evidence contrary to an officer’s

report; and failing “to effectively discipline” those officers found to have engaged in misconduct.

Id. ¶ 228; see also id. ¶¶ 227, 229-231. Plaintiffs allege that this failure to supervise and

discipline officers properly, combined with the BPD’s knowledge of the number of instances of

officer misconduct, allowed a custom of unconstitutional policing to develop in the BPD’s

plainclothes units, and that the BPD “condoned” it by “willfully ignoring it.” Id. ¶¶ 238, 240-44.

C. The April 28, 2010 Incident

On April 28, 2010, Burley and Matthews were sitting in a vehicle parked in the 3800

block of Parkview Avenue in Baltimore City when Jenkins and a second officer, both in

unmarked police vehicles, pulled behind Burley’s vehicle “in an attempt to ‘box him in.’” Id. ¶¶

32-33. Jenkins and the other officer, who Plaintiffs allege was Guinn, approached Burley’s

vehicle with their guns drawn. Id. ¶ 34. Both officers were in plain clothes, and neither

identified himself as a police officer. Id. Believing they were about to be robbed, Burley fled in

his vehicle, and sped down Parkview Avenue towards Belle Avenue. Id. ¶¶ 35-36. Jenkins and

the other officer gave chase, speeding through at least five stop signs, without activating their

vehicles’ emergency equipment. Id. ¶¶ 37-38.

At that same time, Davis and Cain were traveling in a vehicle heading eastbound on

Gwynn Oak Avenue, towards Belle Avenue. Id. ¶ 39. Decedent, operating the car, approached

the four-way intersection of Gwynn Oak and Belle Avenues, which was controlled by stop signs

in each direction of travel. Id. Decedent brought his vehicle to a complete stop, and entered the

intersection. Id. ¶¶ 39-40. Burley, still traveling at a high rate of speed, ran the stop sign

controlling his direction of travel, and collided with Decedent’s vehicle, on its driver’s side door.

Id. ¶¶ 41-42. Decedent passed away just hours later, and Cain sustained severe physical injuries.

Id. ¶ 43.

Following the collision, Jenkins instructed Guinn to “call another officer and ask him to

bring the ‘stuff’ or ‘shit’ in his car,” which referred to a stash of illegal drugs. Id. ¶¶ 45-46.

Jenkins, Gladstone, and Willard (who eventually arrived on the scene of the crash), planted

thirty-two grams of heroin in Burley’s vehicle, as a means of providing a lawful justification for

the otherwise unlawful pursuit of Burley. Id. ¶¶ 46-48. Guinn was also present at the scene

during the planting of the heroin. Id. ¶ 47. A separate BPD officer, who was directed to search

Burley’s vehicle, found the heroin. Id. ¶ 49. Jenkins, Guinn, Gladstone, and Willard thereafter

gave false statements to the investigating officer, and Jenkins also authored a false probable

cause statement in support of criminal charges against Burley and Matthews. Id. ¶¶ 51-52, 54.

Plaintiffs allege that this incident was a result of the illegal conduct by BPD plainclothes units

that the BPD “condoned.” Id. ¶¶ 240-42.

As a result of the incident, and based upon the false evidence and statements given by the

Officer Defendants, Burley pled guilty in Maryland state court to vehicular manslaughter, and

received a ten year prison sentence on August 10, 2011. Id. ¶ 55. Both Matthews and Burley

also pled guilty to possession with intent to distribute heroin in this Court. Id. ¶¶ 56-57. Burley

received a fifteen year prison sentence on August 18, 2011, to run concurrently with his state

prison sentence. Id. ¶¶ 54, 57. On April 11, 2013, Shirley Johnson, Delores Davis, Gloria

Davis, Mary Alice Cox, Leroy Davis, Decedent’s Estate, Elbert Davis, Jr., Arthur Cain, Albert

Cain, and the Use of Gail S. Davis filed suit against Burley in the Circuit Court for Baltimore

City, Maryland.2 Johnson v. Burley, No. 24-c-13-002083 (Cir. Ct. Balt. City Apr. 11, 2013),

Docket Entry No. 1/0. On January 29, 2014, the court entered a judgment in favor of Plaintiffs

in the amount of $1,092,500, against Burley. Id., Docket Entry No. 18/0, 18/1.

D. The Department of Justice Investigates the BPD Beginning in 2015,

Eventually Leading to the Conviction of Defendant Wayne Jenkins and

Seven Other BPD Officers

In April, 2015, then-Mayor Stephanie Rawlings-Blake asked the United States

Department of Justice (“DOJ”) to investigate the BPD’s policies, patterns, and practices. Id. ¶

2 Upon a Rule 12(b)(6) motion, the Court may consider “matters of which a court may take

judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see Fed.

R. Evid. 201. “The most frequent use of judicial notice . . . is in noticing the content of court

records.” Colonial Penn. Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (citation omitted).

208. Out of that investigation came a report from the DOJ’s Civil Rights Division (“the DOJ

Report”), issued on August 10, 2016, detailing several instances of unconstitutional BPD police

practices. Id. ¶¶ 209-10; see also ECF 1-1 (the DOJ Report). On January 12, 2017, the United

States filed a civil complaint against the Baltimore Police Department. ECF 57, ¶ 211. That

same day, the United States and the BPD entered a consent decree, providing for a full-scale

review of the BPD’s practices, and calling for additional training of its officers. Id. ¶ 212.

Just over one month later, on February 23, 2017, a federal grand jury indicted eight BPD

officers in connection with their actions as members of the GTTF. Id. ¶ 189. The GTTF, a

separate unit from VCIS, was formed in 2007, “with the stated goal of tracking and curbing

illegal gun sales and gun activity.” Id. ¶ 185. Among the GTTF officers indicted was Wayne

Jenkins, who pled guilty to several of the indicted offenses on January 5, 2018. Id. ¶¶ 63, 189;

see also Plea Agreement, United States v. Jenkins, Crim. No. CCB-17-638 (D. Md. Jan. 5, 2018),

ECF 5.3 Plaintiffs allege that Jenkins admitted that he

knowingly concealed, covered up[,] and falsified entries in an official Statement

of Probable Cause in the District Court of Maryland for Baltimore City reflecting

his actions, and actions of his fellow BPD officers, in relation to the seizure of

heroin from Mr. Burley’s vehicle on April 28, 2010, with the intent to impede,

obstruct[,] and influence the investigation of the events which [led] to the fatal car

crash on April 28, 2010, and Mr. Burley and Mr. Matthews’ subsequent arrest and

conviction.

ECF 57, ¶ 64. As a result, Burley’s and Matthews’s convictions in federal and state court,

stemming from the April 28, 2010 incident, were vacated. Id. ¶¶ 65-66. Most recently, however,

the Circuit Court for Baltimore City rejected Burley’s attempt to vacate the civil judgment

rendered against him in January, 2014. See Johnson, No. 24-c-13-002083 (Cir. Ct. Balt. City

3 Plea agreements, as public records filed in open court, are also subject to judicial notice. See,

e.g., Drubetskoy v. Wells Fargo Bank, N.A., Civ. No. CCB-13-2196, 2013 WL 6839508, at *2

(D. Md. Dec. 20, 2013).

Nov. 22, 2019), Docket Entry No. 32/0. Burley has since noted an appeal, id., Docket Entry No.

33/0, and has filed his own suit against the BPD in this Court, see generally Burley v. BPD, No.

SAG-18-1743 (D. Md. filed June 13, 2018).

E. Plaintiffs’ Instant Claims for Relief

On February 6 and February 7, 2018, Plaintiffs sent the Baltimore City Solicitor and the

Treasurer of the State of Maryland, respectively, notice of Plaintiffs’ claims. ECF 57, ¶¶ 13-14.

As relevant here, Plaintiffs’ Third Amended Complaint alleges that as a result of the unlawful

pursuit of Burley, Decedent was severely injured and died, and that both he (in the moments

prior to his death) and Cain suffered “severe physical and emotional pain.” Id. ¶¶ 248-49, 251.

Plaintiffs also allege that they suffered “extensive damages,” including “pecuniary loss, mental

anguish, emotional pain and suffering, loss of society, loss of companionship,” and other

noneconomic harms. Id. ¶ 250.

Plaintiffs seek recovery of compensatory damages, punitive damages, and reasonable

attorneys’ fees based on eight claims for relief. Count I alleges that Jenkins, Guinn, Gladstone,

and Willard deprived Decedent, Cain, and all other Plaintiffs of their Fourteenth Amendment

right to due process, in violation of 42 U.S.C. § 1983. Id. ¶¶ 252-59. Count II asserts that

Palmere, Knoerlein, Fries, and Willard are liable under § 1983 for the same constitutional

violations, under a supervisory liability theory. Id. ¶¶ 260-66. Count III alleges that the BPD is

also liable under § 1983 for those constitutional violations, pursuant to Monell v. Department of

Social Services, 436 U.S. 658 (1978). Id. ¶¶ 267-277. Count IV, brought only by Plaintiff

Shirley Johnson, individually, as the daughter of Decedent, Delores Davis, Mary Cox, Gloria

Davis, Albert Cain, Elbert Davis, Jr., and Anita Cain (administrator of Arthur Cain’s estate),

asserts a wrongful death action against all Defendants. Id. ¶¶ 278-85. Count V is a survival

action, brought only by Plaintiff Shirley Johnson, as representative of Decedent’s Estate, for

Decedent’s “conscious pain and suffering, mental anguish, pre-death fright,” and other damages.

Id. ¶¶ 286-90. Count VI seeks to hold Defendants Jenkins, Guinn, Gladstone, and Willard liable

in negligence. Id. ¶¶ 291-97. Count VII asserts that all Defendants, except the BPD, violated

Decedent’s and Cain’s Due Process rights, as guaranteed by Article 24 of the Maryland

Declaration of Rights, causing Plaintiffs damages. Id. ¶¶ 298-301. Finally, Count VIII seeks to

compel the BPD to indemnify the individual Defendants, upon a finding of their liability to

Plaintiffs. Id. ¶¶ 302-07.

II. LEGAL STANDARDS

With the exception of Jenkins, Defendants have filed motions to dismiss the Third

Amended Complaint, in its entirety, under Federal Rule of Civil Procedure 12(b)(6). ECF 63,

65, 66. A defendant is permitted to test the legal sufficiency of a complaint by way of a motion

to dismiss. See, e.g., In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty.

Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). A Rule 12(b)(6) motion constitutes an

assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails

as a matter of law “to state a claim upon which relief can be granted.”

Whether a complaint states a claim for relief is assessed by reference to the pleading

requirements of Rule 8(a)(2), which provides that a complaint must contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to

provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to

relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to

“state a claim to relief that is plausible on its face.” Id. at 570; see Ashcroft v. Iqbal, 556 U.S.

662, 684 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil

actions.’”); see also Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a plaintiff need not

include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.

Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect

statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, 574 U.S.

___, 135 S. Ct. 346, 346 (2014) (per curiam).

Nevertheless, the rule demands more than bald accusations or mere speculation.

Twombly, 550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir.

2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation

of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. Rather, to

satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual

matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of

those facts is improbable and . . . recovery is very remote and unlikely.” Id. at 556 (internal

quotation marks omitted).

In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual

allegations contained in the complaint” and must “draw all reasonable inferences [from those

facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co., 637 F.3d 435 at 440 (citations

omitted); see Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v.

Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015). However, a court is not required to

accept legal conclusions drawn from the facts. Papasan v. Allain, 478 U.S. 265, 286 (1986). “A

court decides whether [the pleading] standard is met by separating the legal conclusions from the

factual allegations, assuming the truth of only the factual allegations, and then determining

whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the

legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),

cert. denied, 566 U.S. 937 (2012).

III. ANALYSIS

The pending motions seek to dismiss each Count of the Third Amended Complaint. First,

various Defendants assert immunity to certain Counts. Palmere, Willard, Knoerlein, Fries,

Gladstone, and Guinn assert public official immunity to Plaintiffs’ state law claims. ECF 63-1 at

32-33; ECF 65 (Guinn’s Motion, adopting certain portions of ECF 63-1); ECF 66 (Gladstone,

Willard, Knoerlein, and Fries’s Motion, adopting certain portions of ECF 63-1).4 Palmere

asserts sovereign immunity to all state law claims in his official capacity, and to the § 1983 claim

against him. ECF 63-1 at 21-23, 31. The BPD likewise asserts sovereign immunity to the §

1983 claim against it. Id. at 21-23. Second, on the merits, Palmere, Willard, Knoerlein, Fries,

and the BPD argue that the § 1983 claims against them fail to state a claim. Id. at 25-29, 31-32.

Third, Defendants assert three affirmative defenses: (1) all of Plaintiffs’ claims are time-barred;

(2) Plaintiffs failed to comply with the Local Government Tort Claims Act’s notice provisions;

and (3) the rule prohibiting double recovery bars Plaintiffs’ instant suit. Id. at 5-19, 23-24.

Finally, the BPD argues that Plaintiffs’ indemnification claim must be dismissed. Id. at 29-31.

Before addressing these arguments, however, the Court must determine whether any of the

Exhibits attached to Palmere and the BPD’s Motion may be considered at this stage.

A. Two of Defendants’ Attached Exhibits are Improper for Consideration at the

Rule 12(b)(6) Stage.

Defendants have attached six exhibits to their Motion. While Plaintiffs do not challenge

their authenticity, they do challenge this Court’s ability to take judicial notice of two of them: a

4 Because Fries, Gladstone, Guinn, Knoerlein, and Willard simply adopt the BPD and Palmere’s

arguments, ECF 65-66, the Court will just refer to Palmere and the BPD’s Motion, ECF 63-1.

copy of a letter sent to Plaintiffs from their current counsel of record at the law firm Azrael,

Franz, Schwab, & Lipowitz, LLC (“AFSL”), ECF 63-3; and a copy of a purported letter sent to

Gail Davis by AFSL, ECF 63-5 (collectively, “the ASFL letters”). ECF 71 at 6-7.

In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a

court ordinarily “may not consider any documents that are outside of the complaint, or not

expressly incorporated therein.” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th

Cir. 2013); see Bosiger, 510 F.3d 442, 450 (4th Cir. 2007). However, a court may properly

consider documents incorporated into the complaint or attached to the motion to dismiss, “so

long as they are integral to the complaint and authentic.” U.S. ex rel. Oberg v. Pennsylvania

Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (quoting Philips v. Pitt Cty.

Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). As noted previously, the Court may also

consider “matters of which a court may take judicial notice.” Tellabs, Inc., 551 U.S. at 322; see

Fed. R. Evid. 201; Zak v. Chelsea Theraputics Int’l, Ltd., 780 F.3d 597, 607 (4th Cir. 2015)

(characterizing this as a “narrow exception” to the general rule that the Court’s analysis must be

limited to the four corners of the Complaint, and all documents integrated therein). Even when

taking notice of such facts, the Court must still construe them in a light most favorable to

Plaintiffs. Zak, 780 F.3d at 607.

Defendants argue that the AFSL letters “are public records, the authenticity of which is

not in dispute,” because they were included in the Burley state court file. ECF 74 at 1; see also

id. at 1-2. Thus, according to Defendants, this Court may take judicial notice of all assertions

made therein as facts that are not subject to reasonable dispute. This argument is misplaced. As

an initial matter, the Court agrees with Plaintiffs that the two challenged exhibits are neither

integral to the Complaint, nor expressly incorporated into it. The copies of the Memorandum

Opinion, ECF 63-6, and Judgment, ECF 63-2, from Plaintiffs’ state court litigation against

Burley, are the types of court records appropriate for judicial notice. See, e.g., Colonial Penn.

Ins. Co., 887 F.2d at 1239. But Defendants improperly attempt to stretch this legal principle to

the AFSL letters. While a court-generated document is unquestionably authentic, that

authenticity does not ipso facto give this Court the ability to “accurately and readily” determine

the accuracy of the assertions made in any document filed in court, like the AFSL letters. See

Fed. R. Evid. 201. Because these two letters are neither integral to, nor expressly incorporated

into, the Third Amended Complaint, the Court will exclude both, ECF 63-3 and ECF 63-5, from

its consideration of all of Defendants’ arguments in favor of dismissal.

B. Outside of the Single Claim that Plaintiffs Concede Should Be Dismissed,

Defendants’ Assertions of Public Official Immunity Fail at this Stage.

All Defendants named in Counts IV, V, and VI – Palmere, Willard, Fries, Knoerlein,

Gladstone, and Guinn – assert that they have public official immunity to those claims. ECF 63-1

at 32-33. Plaintiffs concede that they have public official immunity to Count VI, the negligence

claim. ECF 71 at 23; ECF 72 at 1 (adopting this concession); ECF 73 at 1 (same); ECF 80

(clarifying the scope of their concession). However, Defendants’ argument in favor of dismissal

appears to extend also to Counts IV and V, the Wrongful Death and Survival Action claims. See

ECF 63-1 at 32-33. Plaintiffs offer no argument as to why those two claims are not subject to

dismissal. See generally ECF 71-73. In effect, then, the Motions to Dismiss the wrongful death

and survival action claims on public official immunity grounds are unopposed. Nevertheless, the

Fourth Circuit has made clear that this Court retains an “obligation to review the motions to

ensure that dismissal is proper,” even though they are unopposed. Stevenson v. City of Seat

Pleasant, 743 F.3d 411, 416 n.3 (4th Cir. 2014).

Maryland courts have long recognized the common law doctrine of public official

immunity. E.g., James v. Prince George’s County, 288 Md. 315, 323 (1980). Public official

immunity is “generally applicable only in negligence actions or defamation actions based on

allegedly negligent conduct.” Lee v. Cline, 384 Md. 245, 258 (2004). The immunity typically

applies in cases involving “a tort claim based upon [an] alleged mis-judgment or a negligent

exercise of judgment,” and is “intended to be a defense against claims that a ‘better choice’ could

have been made.” Id. at 261.

For public official immunity to apply, it must be shown that (1) the actor is a public

official, “rather than a mere government employee or agent”; (2) the alleged tortious conduct

“occurred while the actor was performing discretionary, as opposed to ministerial, acts”; (3) the

actor committed the relevant acts “within the scope of his official duties.” Thomas v. City of

Annapolis, 113 Md. App. 440, 452 (1997). Police officers are “public officials” under Maryland

law, see, e.g., Robinson v. Bd. of Cty. Comm’rs for Prince George’s Cty., 262 Md. 342, 347

(1971), leaving only the final two elements at issue here.

Once those three conditions are met, “the public official enjoys a qualified immunity.”

Thomas, 113 Md. App. at 452. That immunity is defeated if the actor performed the relevant

acts with “malice,” id., acts with “gross negligence,” Cooper v. Rodriguez, 443 Md. 680, 723

(2015), commits an intentional tort, Houghton v. Forrest, 412 Md. 578, 586, 588 (2010), or

commits a state constitutional tort, Ritchie v. Donnelly, 324 Md. 344, 370 (1991). “Actual

malice is established by proof that the defendant-officer ‘intentionally performed an act without

legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose

being to deliberately and willfully injure the plaintiff.’” Bord v. Baltimore County, 220 Md.

App. 529, 557 (2014) (quoting Town of Port Deposit v. Petetit, 113 Md. App. 401, 416 (1997));

see also Hines v. French, 157 Md. App. 536, 562-63 (2004) (characterizing this definition as the

standard for “malice” for the purposes of public official immunity). Gross negligence, on the

other hand, is

an intentional failure to perform a manifest duty in reckless disregard of the

consequences as affecting the life or property of another, and also implies a

thoughtless disregard of the consequences without the exertion of any effort to

avoid them. Stated conversely, a wrongdoer is guilty of gross negligence or acts

wantonly and willfully only when he [or she] inflicts injury intentionally or is so

utterly indifferent to the rights of others that he [or she] acts as if such rights did

not exist.

Cooper, 443 Md. at 708 (quoting Barbre v. Pope, 402 Md. 157, 187 (2007)). Whether one acted

with malice or gross negligence is typically a fact-dependent determination. See id. at 708-09;

Artis v. Cyphers, 100 Md. App. 633, 653-54 (1994).

First, as to Gladstone and Guinn, their claims of public official immunity fail at this

stage. Their actions are only considered to be within their “discretionary functions” “if the

decision which involves an exercise of personal judgment also includes, to more than a minor

degree, the manner in which the police power of the State should be utilized.” James, 288 Md. at

327. Indeed, “when they are within the scope of their law enforcement functions,” police officers

“are clearly acting in a discretionary capacity.” Robinson, 262 Md. at 347 (emphasis added).

Here, however, Plaintiffs have sufficiently alleged that Jenkins, Gladstone, and Guinn had no

reason at all to initiate their pursuit of Burley and Matthews. See ECF 57, ¶¶ 32-38. In fact,

taking Plaintiffs’ allegations as true, the Officer Defendants needed to plant drugs in Burley’s

car, provide false statements after the fact, and author false police reports, in order to justify their

actions. See id. ¶¶ 44-53. This criminal course of conduct led, in part, to Jenkins pleading guilty

to a RICO offense in this Court. See id. ¶¶ 63-64, 189; see also Plea Agreement, Jenkins, Crim.

No. CCB-17-638 (D. Md. Jan. 5, 2018), ECF 5. Further, even if these actions are considered to

be within the scope of their duties as law enforcement officers, those allegations give rise to the

reasonable inference that Guinn and Gladstone acted with at least gross negligence. If these facts

are proven at trial, this case falls far from the typical public official immunity case in which the

public official made a simple misjudgment. See Lee, 384 Md. at 261. Therefore, at the current

stage of the proceedings, Guinn and Gladstone’s assertions of public official immunity fail.

Second, as to Palmere, Willard, Fries, and Knoerlein, the Third Amended Complaint

similarly contains sufficient factual allegations to permit the reasonable inference that they acted

with gross negligence in supervising the Officer Defendants. Even assuming that their failure to

properly supervise and discipline the Officer Defendants constitutes a “discretionary act” within

the scope of their duties, as discussed more fully in Section III.E.2.i, infra, Plaintiffs have alleged

facts that, taken as true, show that Palmere, Willard, Knoerlein, and Fries acted with a deliberate

indifference towards a pervasive and unreasonable risk of constitutional harm to citizens like

Decedent and Cain. Defendants’ reliance on Baltimore Police Dep’t v. Cherkes, 140 Md. App.

282, 330-31 (2001), is unavailing, because the complaint in that case was “utterly devoid of any

factual foundation” to support a finding of malice. Accordingly, the remaining state law claims

against Palmere, Willard, Knoerlein, and Fries will proceed to discovery.

C. Neither Palmere Nor the BPD Has Sovereign Immunity to the Claims of

Supervisory Liability or Monell Liability, Respectively

Next, Palmere and the BPD argue that they enjoy sovereign immunity as to Counts II and

III, Plaintiffs’ § 1983 claims against them. ECF 63-1 at 21-23; ECF 74 at 9. In three recent

decisions, all of which are currently before the Fourth Circuit, United States District Judges in

this District have rejected that contention. See Burley v. Balt. Police Dep’t, __ F. Supp. 3d __,

No. ELH-18-1743, 2019 WL 6253251, at *27-29 (D. Md. amended Nov. 22, 2019), appeal

docketed and consolidated, No. 19-2029 (4th Cir. Sept. 27, 2019); Lucero v. Early, No. GLR-13-

1036, 2019 WL 4673448, at *3-5 (D. Md. Sept. 25, 2019), appeal docketed, No. 19-2072 (4th

Cir. Oct. 4, 2019); Order, Parks v. Balt. Police Dep’t, No. TDC-18-3092 (D. Md. Sept. 9, 2019),

ECF 86, appeal docketed and consolidated, No. 19-2029 (4th Cir. Sept. 27, 2019). Having

deemed the rationales in those decisions persuasive, this Court hereby adopts them, and

concludes that the BPD and Palmere are not entitled to sovereign immunity from Plaintiffs’ §

1983 claims, at this stage in the litigation. However, should the Fourth Circuit issue an opinion

in those cases to the contrary, this Court will entertain a motion for reconsideration on this issue.

D. Plaintiffs Concede that Palmere Has Sovereign Immunity to their State Law

Negligence Claims

Finally, notwithstanding the fact that Palmere lacks sovereign immunity as to the § 1983

claim, Plaintiffs concede that Palmere has sovereign immunity as to the state law claims brought

against him in his official capacity. ECF 71 at 21. Accordingly, Counts IV, V, and VI, against

Palmere, in his official capacity, will be dismissed with prejudice.

E. The Estates of Decedent and Cain Plausibly Allege a Claim of Supervisory

Liability under § 1983

Next, Defendants Palmere, Willard, Knoerlein, and Fries argue that Plaintiffs fail to

plausibly allege a theory of supervisory liability under § 1983. ECF 63-1 at 31-32; ECF 74 at 5-

7 & n.2. First, these Defendants assert that Plaintiffs do not properly allege a violation of their

constitutional rights. ECF 63-1 at 25, 32. Second, they contend that Plaintiffs fail to “plead a

connection between the alleged pattern and practice and the alleged violation of constitutional

rights in their specific case.” ECF 74 at 5. As discussed infra, only the Estates of Decedent and

Cain have plausibly alleged a theory of supervisory liability.

1. Only the Estates of Decedent and Phosa Cain Have Plausibly Alleged a

Constitutional Violation

If any person acting “under color of any statute, ordinance, regulation, custom, or usage,

of any State” deprives a United States citizen of any constitutional right, he may be liable in a

suit for money damages. 42 U.S.C. § 1983 (2018). Necessarily, then, Plaintiffs must first

plausibly allege two prerequisites for supervisory and Monell liability: (1) that Defendants were

acting “under color of state law”; and (2) that their conduct deprived them of the “rights,

privileges, or immunities secured by the Constitution or laws of the United States.” Temkin v.

Frederick Cty. Comm’rs, 945 F.2d 716, 720 (4th Cir. 1991) (citation omitted). Defendants

make no argument that the officers involved were not acting under color of state law.

As noted at the outset, there are two groups of Plaintiffs in this case. First, Plaintiff

Shirley Johnson sues as Personal Representative of the Estates of Decedent and Cain,

respectively (“the Estates”). ECF 57, ¶¶ 15-16. The second group, including Shirley Johnson in

her individual capacity, is comprised entirely of the adult children of the Decedent and Cain. Id.

¶ 17. The constitutional rights violations asserted by each group are addressed in turn.

i. The Third Amended Complaint Sufficiently Alleges Conduct by the

Officer Defendants that “Shocks the Conscience,” Plausibly

Demonstrating a Violation of Decedent’s and Cain’s Substantive

Due Process Rights

The Estates assert that the actions of the Officer Defendants deprived them of their right

to life and liberty without due process of law, in violation of the Due Process Clause of the

Fourteenth Amendment. ECF 57, ¶ 256; see U.S. CONST. amend. XIV. Substantive due process

violations are actionable under § 1983. Zinermon v. Burch, 494 U.S. 113, 125 (1990). Indeed,

the Due Process Clause was intended “to prevent the government ‘from abusing [its] power, or

employing it as an instrument of oppression.’” DeShaney v. Winnebago Cty. Dep’t of Soc.

Servs., 489 U.S. 189, 196 (1989) (quoting Davidson v. Cannon, 474 U.S. 344, 348 (1986)). The

question remains whether the Estates have properly alleged such a violation.

In cases like this, which allege unconstitutional action by an arm of the executive branch

of government, “only the most egregious official conduct can be said to be ‘arbitrary in the

constitutional sense,’” such that a substantive due process violation lies. County of Sacramento

v. Lewis, 532 U.S. 833, 846 (1998) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 129

(1992)). Specifically, the Supreme Court in Lewis reaffirmed that only official conduct that

“shocks the conscience” will give rise to a substantive due process violation. Id. at 846-47; see

also, e.g., United States v. Salerno, 481 U.S. 739, 746 (1987) (“So-called ‘substantive due

process’ prevents the government from engaging in conduct that ‘shocks the conscience,’ or

interferes with rights ‘implicit in the concept of ordered liberty.’” (citations omitted)); Temkin v.

Frederick Cty. Comm’rs, 945 F.2d 716, 720 (4th Cir. 1991) (“[C]onduct which ‘amount[s] to a

brutal and inhumane abuse of official power literally shocking to the conscience,’ violates the

substantive guarantees of the Due Process Clause . . . .” (quoting Hall v. Tawney, 621 F.2d 607,

613 (4th Cir. 1980))). The “most likely” sort of conduct to “shock the conscience,” the Court

noted, was “conduct intended to injure in some way unjustifiable by any government interest.”

Lewis, 532 U.S. at 849 (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)).

Defendants urge that the facts underlying the Supreme Court’s decision in Lewis compel

a finding that the Estates have not plausibly alleged a violation of the Due Process Clause. ECF

74 at 5 n.5. In Lewis, the parents and representatives of the estate of Philip Lewis sued

Sacramento County, its Sheriff’s Department, and the Sheriff’s Deputy involved in Philip’s

death. 532 U.S. at 837. Philip Lewis died after a Sacramento County Sheriff’s Deputy initiated

a traffic stop of the motorcycle Lewis was riding on, because the motorcycle was traveling at a

high rate of speed. Id. at 836-37. The operator of the motorcycle, Willard, led the Deputy on a

high-speed chase through a residential neighborhood, at times reaching speeds of up to 100 miles

per hour. Id. at 837. The motorcycle eventually crashed, and the Deputy, unable to stop in time,

crashed directly into Lewis, who was pronounced dead at the scene. Id.

After elucidating the appropriate “shock the conscience” standard for the claim that

Lewis was deprived of his life, in violation of the Fourteenth Amendment, the Supreme Court

considered the routine application of that standard to law enforcement officers’ engagement in

high-speed chases. Id. at 851-54. Considering the ad hoc judgments facing law enforcement

officers engaging in such pursuits, the Court held that “high-speed chases with no intent to harm

suspects physically or to worsen their legal plight,” ordinarily, do not “shock the conscience.”

Id. at 854. But in a footnote, the Court observed that there may be a different result if “a citizen

suffers or is seriously threatened with physical injury due to a police officer’s intentional misuse

of his vehicle.” Id. at 854 n.13 (quoting Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986)).

Applying those standards, the Court held that the Deputy’s action did not shock the

conscience. Id. at 854-55. According to the Court, the Deputy “was faced with a course of

lawless behavior” for which he bore no blame. Id. at 855. He did “nothing to cause Willard’s

high-speed driving in the first place . . . and nothing (beyond a refusal to call off the chase) to

encourage him to race through traffic at breakneck speed.” Id. Though “prudence would have

repressed” the Deputy’s decision to continue the chase, the Court reasoned that his “instinct was

to do his job as a law enforcement officer, not to induce Willard’s lawlessness, or to terrorize,

cause harm, or kill.” Id. Accordingly, the Court held that the Deputy’s actions failed to violate

Lewis’s substantive due process rights. Id.

To be sure, there is a long line of cases holding that a police officer’s engaging in a high-

speed pursuit, eventually leading to the death of an innocent bystander uninvolved in the pursuit,

is not, by itself, conscience-shocking behavior. See, e.g., Meals v. City of Memphis, 493 F.3d

720, 723-24, 730-31 (6th Cir. 2007); Slusarchuk v. Hoff, 346 F.3d 1178, 1180-81, 1183 (8th Cir.

2003); Onossian v. Block, 175 F.3d 1169, 1170, 1172 (9th Cir. 1999); Fagan v. City of Vineland,

22 F.3d 1296, 1299-1300, 1307-08 (3d Cir. 1994) (en banc); Temkin, 945 F.2d at 718, 723.

If there were ever a case whose facts almost precisely fit the contours of the Lewis

Court’s narrow definition of a police chase that might shock the conscience, Plaintiffs have

alleged it. Plaintiffs have alleged that Jenkins and Guinn, dressed in plainclothes and without

observing any suspicious or ongoing criminal conduct, attempted to maneuver their BPD-issued,

unmarked police vehicle to “box in” the car Burley and Matthews occupied. ECF 57, ¶¶ 33-34.

Burley, fearing for his and Matthews’s lives, was able to escape the “box in,” and speed down

Parkview Avenue. Id. ¶¶ 36-37. Instead of ending the failed effort to illegally seize Burley and

Matthews, Plaintiffs allege that Jenkins and Guinn sped after them down residential streets,

running stop signs in five different intersections, without ever activating their vehicles’

emergency equipment. Id. ¶¶ 36-38. This chase only ended once Burley struck Decedent’s car

at Gwynn Oak Avenue and Belle Avenue. Id. ¶¶ 39-42.

Considering these facts, as well as all reasonable inferences drawn therefrom, it is

plausible that Guinn and Jenkins were not driven by their “instinct to do [their] job as a law

enforcement officer,” but instead by “an improper or malicious motive,” such as to “terrorize,

[or] cause harm” to Burley and Matthews. Lewis, 532 U.S. at 855. Indeed, the facts alleged

plausibly demonstrate an instance in which two citizens “suffer[ed] . . . physical injury due to a

police officer’s intentional misuse of his vehicle,” not just injury due to mere negligence, or even

gross negligence. Id. at 854 n.13 (quoting Checki, 785 F.2d at 538). That conclusion is only

fortified by the allegations that the Officer Defendants falsified police reports, and planted drugs

in Burley and Matthews’s car, in order to provide a post hoc justification of their pursuit. ECF

57, ¶¶ 44-53. This case therefore stands in stark contrast to Lewis, and all other cases cited

above, because in each of those cases, the defendant officers at least had probable cause to

initiate the high-speed chases. Compare with Lewis, 523 U.S. at 854-55; Meals, 493 F.3d at

723-24, 730-31; Slusarchuk, 346 F.3d at 1180-81, 1183; Onossian 175 F.3d at 1170, 1172;

Fagan, 22 F.3d at 1299-1300, 1307-08; Temkin, 945 F.2d at 718, 723.

As a final point, in a single sentence of a footnote in their Reply, Defendants assert that

there cannot be any constitutional violation here, per Lewis, because “is no allegation that any of

the Defendants intended to harm the Plaintiffs, or that they intentionally caused their injuries.”

ECF 74 at 5. This argument fails. As previously stated, Lewis held “that high-speed police

chases with no intent to harm suspects physically or to worsen their legal plight do not give rise

to liability under the Fourteenth Amendment, redressible by an action under § 1983.” 523 U.S.

at 854. Though the Fourth Circuit has not directly addressed this precise issue, the weight of

authority post-Lewis holds that the “intent to harm” standard applies to substantive due process

claims arising out of police chases, whether the claim is brought by the target of the chase, or an

innocent bystander.5 E.g., Ellis ex rel. Estate of Ellis v. Ogden City, 589 F.3d 1099, 1102-03

5 In Bringue v. Prunchak, the Ninth Circuit recognized that there remained some uncertainty

whether Lewis required that the “intent to harm” standard apply to every claim arising out of a

police chase. 512 F.3d 1169, 1175-76 (9th Cir. 2008). Some courts have held that a plaintiff

need only show that an officer acted with “deliberate indifference” for a due process violation to

lie, if there was a sufficient opportunity to deliberate prior to acting. See Rivas v. City of

Passaic, 365 F.3d 181, 195-96 (3d Cir. 2004); Ewolski v. City of Brunswick, 287 F.3d 492, 510-

13 (6th Cir. 2002); Radecki v. Barela, 146 F.3d 1227, 1231-32 (10th Cir. 1998). It is worth

noting that if there was a sound basis in law for applying a “deliberate indifference” standard in

some police chase cases, the instant case would likely qualify as one such case. As alleged here,

(10th Cir. 2009); Helseth v. Burch, 258 F.3d 867, 872 (8th Cir. 2001) (en banc); Onossian, 175

F.3d at 1171-72; Davis v. Township of Hillside, 190 F.3d 167, 170 n.2 (3d Cir. 1999). Notably,

in none of these cases did a court reject a bystander’s substantive due process claim because the

police did not intend to harm them; rather, the claims all failed because of the claimant’s inability

to demonstrate that the relevant officer had no intent to harm the target of the pursuit. See also

Meals, 493 F.3d at 730-31; Slusarchuk, 346 F.3d at 1180-81, 1183; Onossian 175 F.3d at 1172.

An officer’s actions motivated by an intent to harm a suspect are no less conscience shocking,

whether the resulting harm accrues to the intended target (the suspect), or an innocent third party.

Accordingly, the Estates have plausibly alleged conscience-shocking conduct that caused

Decedent and Cain to suffer serious physical injury and death, in violation of the substantive due

process rights the Fourteenth Amendment guarantees.

ii. The Remaining Plaintiffs Have Not Alleged a Violation of a

Recognized Due Process Right

In Count III of the Third Amended Complaint, which asserts that the BPD is liable under

Monell, Decedent’s children allege that as a result of the BPD’s unconstitutional policy, custom,

pattern, and practices, they “suffered pecuniary loss, mental anguish, emotional pain and

suffering, loss of society, loss of companionship, loss of comfort, loss of protection, loss of

parental care, loss of attention, loss of advice, loss of counsel, loss of training, loss of guidance,

and loss of services.” ECF 57, ¶ 277. Notably, these allegations are not included in Count II, the

supervisory liability count. See id. ¶¶ 260-66.

the Officer Defendants had no basis in law for engaging in the initial stop of Burley and

Matthews. None of the concerns the Supreme Court detailed in Lewis regarding the ad hoc

decisionmaking needed in emergency, high-speed pursuits, are implicated on these facts. See

523 U.S. at 852-54. This Court need not reach the issue, however, because even under the higher

“intent to harm” standard, the Estates have plausibly alleged a constitutional harm.

Reading these allegations in a light most favorable to them, Decedent’s children appear

to allege that their substantive due process rights were violated because the Officer Defendants’

actions, and the BPD’s condonation of such conduct as a matter of custom or policy, deprived

them of the continued companionship of, and support from, their father. Indeed, this must be the

case, for without a violation of Decedent’s children’s constitutional rights, the BPD can have no

Monell liability under § 1983. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per

curiam) (“If a person has suffered no constitutional injury at the hands of the individual police

officer, the fact that the departmental regulations might have authorized the use of

constitutionally excessive force is quite beside the point.”). This claim fails as a matter of law.

In Cook v. Howard, United States District Judge J. Frederick Motz considered such a

substantive due process claim made by the parents and children of a man, Cook, who was

allegedly killed as a result of unlawful BPD police action. No. JFM-10-cv-0332, 2011 WL

2118652, at *1, *5-6 (D. Md. May 27, 2011). Cook’s parents and children argued that they had a

“constitutional liberty interest in continued association and support of [Cook].” Id. at *6. Judge

Motz rejected this claim, because “[t]he Fourth Circuit does not recognize that cause of action.”

Id. (citing Shaw v. Stroud, 13 F.3d 791, 804-05 (4th Cir. 1994)). On appeal, the Fourth Circuit

affirmed this ruling for the exact same reason:

As we recognized in Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), “the Supreme

Court has never extended the constitutionally protected liberty interest

incorporated by the Fourteenth Amendment due process clause to encompass

deprivations resulting from governmental actions affecting the family only

incidentally.” Id. at 805. We declined to sanction such a claim in Shaw, and we

adhere to that precedent. See id.

Cook v. Howard, 484 F. App’x 805, 825 (4th Cir. 2012) (per curiam), cert. denied, 568 U.S.

1230 (2013). Thus, here, because Decedent’s children allege (conscious-shocking) BPD conduct

that “only incidentally” affected their familial association with their father, Decedent’s children’s

fail, as a matter of law, to allege a violation of their own constitutional rights. Id. To the extent

Decedent’s children assert a § 1983 claim in Count II, it must be dismissed with prejudice.6

2. The Estates Plausibly Allege that Fries, Knoerlein, Willard, and Palmere

Are Liable as Supervisors

The Estates seek to hold Fries, Knoerlein, Willard, and Palmere liable under § 1983 as

supervisors. It is well settled that, under § 1983, “supervisory officials may be held liable in

certain circumstances for the constitutional injuries inflicted by their subordinates.” Shaw v.

Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Technically, “the term ‘supervisory liability’ is a

misnomer,” because supervisory officials can only be liable “for his or her own misconduct”;

supervisors cannot have § 1983 liability under a respondeat superior theory. Iqbal, 556 U.S. at

677; accord Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984) (citing Monell, 436 U.S. at 691).

“Supervisory liability” exists only to address those cases in which a supervising

authority’s “indifference or tacit authorization of subordinates’ misconduct may be a causative

factor” in constitutional harm suffered at the hand of those subordinates. Slakan, 737 F.2d at

372-73. Specifically, plaintiffs alleging supervisory liability must show:

(1) that the supervisor had actual or constructive knowledge that his subordinate

was engaged in conduct that posed “a pervasive and unreasonable risk” of

constitutional injury to citizens like the plaintiff;

(2) that the supervisor's response to that knowledge was so inadequate as to show

“deliberate indifference to or tacit authorization of the alleged offensive

practices,”; and

(3) that there was an “affirmative causal link” between the supervisor's inaction

and the particular constitutional injury suffered by the plaintiff.

6 The parties have not argued, and the Court therefore does not address, whether this conclusion,

and the conclusion regarding the Estates’ substantive due process rights plausibly having been

violated, see supra Section III.E.1.i, apply equally to Plaintiffs’ claims for relief under Article 24

of the Maryland Declaration of Rights.

Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014) (alteration omitted) (quoting Shaw, 13

F.3d at 799). Whether supervisory liability exists “is ordinarily [an issue] of fact, not law.”

Shaw, 13 F.3d at 799.

Fries, Willard, Knoerlein, and Palmere argue that the Estates have failed to plausibly

establish each of these elements, because “[t]he allegations purport to show knowledge of

wrongful arrests, searches, and seizures, not the type of alleged violations at issue in this case.”

ECF 63-1 at 32. As demonstrated below, this argument is unpersuasive.

i. The Estates Have Plausibly Alleged that Fries, Knoerlein, Willard,

and Palmere Were Deliberately Indifferent to Conduct by the

Officer Defendants Posing an Unreasonable, Pervasive Risk of

Constitutional Harm to Citizens Like the Estates

Because the first two elements of supervisory liability are intertwined, the Court analyzes

them together. See Shaw, 13 F.3d at 799 n.12. As to the first element, the Estates must allege

facts showing that the Officer Defendants’ conduct “is widespread, or at least has been used on

several different occasions[,] and that the conduct engaged in by the subordinate poses an

unreasonable risk of harm of constitutional injury.” Wilkins, 751 F.3d at 226 (quoting Shaw, 13

F.3d at 799). The second element, the supervisors’ deliberate indifference to the alleged

offensive practices, can be established “by demonstrating a supervisor’s continued inaction in the

face of documented widespread abuses.” Id. (quoting Shaw, 13 F.3d at 799). In Slakan, the

Fourth Circuit explained how a plaintiff meets the “heavy burden” to show deliberate

indifference:

Ordinarily, [the plaintiff] cannot satisfy his burden of proof by pointing to a single

incident or isolated incidents, for a supervisor cannot be expected to promulgate

rules and procedures covering every conceivable occurrence within the area of his

responsibilities. Nor can he reasonably be expected to guard against the deliberate

criminal acts of his properly trained employees when he has no basis upon which

to anticipate the misconduct. A supervisor's continued inaction in the face of

documented widespread abuses, however, provides an independent basis for

finding he either was deliberately indifferent or acquiesced in the constitutionally

offensive conduct of his subordinates.

737 F.2d at 373 (internal citation omitted).

The Estates have plausibly alleged these first two elements. Like Burley and Matthews

in their Second Amended Complaint, see Burley, 2019 WL 6253251, at *36-38, the Estates have

alleged that both Jenkins and Gladstone have numerous documented instances of misconduct,

including, but not limited to, previous unlawful arrests, allowing informants to keep illicit

controlled substances, excessive use of force, and fabrication of evidence. See ECF 57, ¶¶ 108-

25; see also supra Section I.B. Fries, Knoerlein, and Willard were all supervising Jenkins and

Gladstone when Jenkins and Gladstone committed documented instances of misconduct in the

VCIS, and are alleged to have had actual or constructive knowledge of their misconduct prior to

joining the VCIS. ECF 57, ¶¶ 133-34, 139-48. Indeed, the Estates allege that Fries supervised

Jenkins when he committed instances of misconduct prior to their time in the VCIS, and still

specifically chose Jenkins to join the VCIS. Id. ¶¶ 135-39. Willard is even alleged to have been

present at the April, 2010 crash scene when Jenkins, Gladstone, and Guinn planted the drugs in

Burley’s vehicle. Id. ¶ 149. Finally, Fries, Knoerlein, and Willard are further alleged to have

known about the misconduct committed by other VCIS members, including the repeated

instances of misconduct by Officer Jemell Rayam, who, in 2009, was involved in the fatal

shooting of a citizen (his third in the span of twenty months), and a robbery of two citizens. Id.

¶¶ 95-96, 153. Despite all of this knowledge, Fries, Willard, and Knoerlein “failed to adequately

train, investigate, supervise, or discipline” their subordinates, and in fact “encouraged” them “to

violate the constitutional rights of Baltimore residents.” Id. ¶¶ 157-60.

Taking these facts as true, as well as all others referenced in the Third Amended

Complaint, the Court finds that they are sufficient to demonstrate that Fries, Knoerlein, and

Willard were deliberately indifferent to a pervasive pattern of misconduct by the Officer

Defendants, which posed an unreasonable risk of constitutional harm to the citizens of

Baltimore. See Burley, 2019 WL 6253251, at *36-38.

The Estates have also plausibly alleged these first two elements vis-à-vis Palmere.

Palmere began supervising plainclothes units in the BPD in 2006, was named the head of VCIS

in 2008, and led that unit until 2013. ECF 57, ¶¶ 168-71. He is alleged to have had both “the

authority and responsibility to discipline officers he knew engaged in misconduct,” and actual or

constructive knowledge of VCIS officers’ misconduct. Id. ¶¶ 166, 177-78. However, Palmere

condoned the conduct, and failed to take any steps “to report or remedy” it. Id. ¶¶ 175, 182. In

addition to the instances previously described, the Estates point to the 2005 vote Palmere cast for

a reduced internal punishment for an officer who engaged in, and lied about, an unlawful search,

and how, in 2009, Palmere “assisted and coached former GTTF officer Jemell Rayam in the

cover up of the fatal shooting of Shawn Cannady.” Id. ¶¶ 167, 176; see also id. ¶ 169 (discussing

how Palmere had direct oversight of three officers who kidnapped two Baltimore City teenagers

in 2010). Instead of reprimanding officers like Rayam and Jenkins, Palmere approved of their

tactics through service awards. Id. ¶¶ 97, 181. These allegations are also sufficient to

demonstrate Palmere’s deliberate indifference to the pervasive misconduct engaged in by

officers of BPD plainclothes units, including VCIS officers Jenkins, Gladstone, and Guinn. See

Burley, 2019 WL 6253251, at *37-38.

Fries, Knoerlein, Willard, and Palmere’s primary objection is that there are no allegations

to show that they were deliberately indifferent to widespread instances of the constitutional

violations alleged here – substantive due process violations. ECF 63-1 at 32. This argument is

unpersuasive. Whether a supervisor was deliberately indifferent to a course of conduct that

posed an unreasonable risk of constitutional harm to a group of citizens is a distinct question

from whether that course of conduct is causally connected to the plaintiff’s particular harm. See

Wilkins, 751 F.3d at 226. The Estates have plausibly alleged that the Officer Defendants targeted

and pursued essentially anyone that they believed, in their “discretion,” to be involved in drug-

and/or gun-related offenses. In doing so, the Officer Defendants plausibly engaged in conduct

posing unreasonable risk of constitutional harm to citizens like Decedent and Cain – citizens of

Baltimore. The more difficult question is whether Fries, Knoerlein, Willard, and Palmere’s

deliberate indifference to that conduct was the legal cause of the particular constitutional harm

Decedent and Cain suffered. See id. It is this question that Fries, Knoerlein, Willard, and

Palmere improperly attempt to merge into the Court’s initial analysis of whether they were

deliberately indifferent to some unconstitutional policy or custom by the Officer Defendants.

ii. Fries, Knoerlein, Willard, and Palmere’s Deliberate Indifference

Is Plausibly Causally Connected to the Estates’ Harms

Turning to that causation issue, because the Estates do not have any proof of direct

causation (i.e., that any BPD policy directly “command[ed] the injury” the Estates suffered), the

Estates must demonstrate causation according to “the tort principle that holds a person liable for

the natural consequences of his actions.” Id. (quoting Shaw, 13 F.3d at 799); Wellington v.

Daniels, 717 F.2d 932, 936 (1983). Pursuant to those well-established tort principles, a

supervisor will be liable if he “proximately caused a violation of the plaintiff’s rights by doing

something or failing to do something he should have done.” Shaw, 13 F.3d at 799 (citing Spell v.

McDaniel, 591 F. Supp. 1090, 1109-10 (E.D.N.C. 1984)); id. at 800 (“In Slakan, we determined

that the causal link in § 1983 cases is analogous to proximate cause.”); see also, e.g., Bodine v.

Warwick, 72 F.3d 393, 400 (3d Cir. 1995) (Alito, J.) (noting that, “under basic principles of tort

law,” an officer’s § 1983 liability will only extend to “the harm ‘proximately’ or ‘legally’ caused

by their tortious conduct” (citing Restatement (Second) of Torts §§ 431, 871 cmt. 1 (Am. Law

Inst. 1965 & 1979))).

Defendants’ point that the alleged unconstitutional practices concern not the deprivation

of substantive due process rights, but rather the fabrication of evidence, and the violations of

citizens’ right to be free from unlawful searches and seizures, is well taken. See ECF 63-1 at 28-

29, 32. The law, however, is clear that if supervising officers have actual or constructive

knowledge that their subordinate officers are engaging in a pattern of conduct that poses an

unreasonable risk of constitutional harm, then the supervising officers are liable for any

constitutional harm that is the “natural consequence[]” of – or, in other words, proximately

caused by – the supervising officer’s deliberate indifference. Shaw, 13 F.3d at 799. Defendants

have not cited to, nor could the Court independently discern, any precedent to support the notion

that a supervising officer can evade § 1983 liability because the pattern of misconduct he has

been deliberately indifferent to caused a different kind of constitutional harm than it typically

does, even though that constitutional harm was reasonably foreseeable from his subordinate’s

course of conduct.

Though a close question, on the current record, and drawing all factual inferences in a

light most favorable to the Estates, the Court concludes that Fries, Knoerlein, Willard, and

Palmere’s deliberate indifference to the Officer Defendants’ conduct has an “affirmative causal

link” to the particular substantive due process violations the Estates suffered. Shaw, 13 F.3d at

799. The Estates have plausibly alleged that, as relevant here, the Officer Defendants engaged in

tactics that involved “driving unmarked vehicles towards groups of people, jumping out of their

vehicles, chasing Baltimore residents, and conducting aggressive illegal searches of persons in

the vicinity,” ECF 57, ¶ 79, and that Fries, Knoerlein, Willard, and Palmere had knowledge of

these tactics, id. ¶¶ 70-72, 91, 103. Reading all facts in a light most favorable to the Estates,

Defendants’ failure “to investigate, or even to address, the pervasive” misconduct by the Officer

Defendants is, plausibly, a proximate cause of Burley’s crash into Decedent’s car. While the

facts adduced in discovery may later call this into question, at this stage, the Court cannot say

that, as a matter of law, that there exists any superseding intervening factor that breaks the causal

chain leading to the Estates’ alleged constitutional deprivations. Accordingly, Fries, Knoerlein,

Willard, and Palmere’s Motion to Dismiss Count II will be denied as to the Estates, but granted

as to Decedent’s children.

F. The Estates of Decedent and Cain Plausibly Allege a Claim of Monell

Liability under § 1983

The BPD similarly contends that the Third Amended Complaint insufficiently alleges its

liability to Plaintiffs under the theory espoused in Monell v. Department of Social Services, 436

U.S. 658 (1978). ECF 63-1 at 25-29; ECF 74 at 5-7 & n.2. There are three necessary elements

for Monell liability. First, the plaintiff must plausibly allege that his constitutional harm stems

from the acts of a municipal employee “taken in furtherance of some municipal ‘policy or

custom.’” Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984) (quoting Monell,

436 U.S. at 694); see also Spell, 824 F.2d at 1389. As interpreted by the Fourth Circuit, a

“policy or custom” can exist in four ways:

(1) through an express policy, such as a written ordinance or regulation; (2)

through the decisions of a person with final policymaking authority; (3) through

an omission, such as a failure to properly train officers, that “manifest[s]

deliberate indifference to the rights of citizens”; or (4) through a practice that is so

“persistent and widespread” as to constitute a “custom or usage with the force of

law.”

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215, 218

(4th Cir. 1999)). Second, the plaintiff must allege facts showing that the policy’s creation is

fairly attributable to the municipality. Spell, 824 F.2d at 1389; see also Owens v. Balt. City

State’s Attorney’s Office, 767 F.3d 379, 402 (4th Cir. 2014) (“Only if a municipality subscribes

to a custom, policy, or practice can it be said to have committed an independent act, the sine qua

non of Monell liability.”). Third, the plaintiff must allege an affirmative causal link between the

“policy or custom,” and the particular injury suffered by the plaintiff. Spell, 824 F.2d at 1389.

The BPD only addresses the first and third prongs. See ECF 63-1 at 25-29; ECF 74 at 5-6.

As an initial note, because Decedent’s children fail to plausibly allege a constitutional

violation, their Monell claims must be dismissed. As to the Estates, reading their allegations in a

light most favorable to them, they appear to allege the existence of an unconstitutional “custom

or policy” in the BPD in three ways: through the decisions of a person with final policymaking

authority; through a failure to properly train officers; and through the condonation of a

widespread pattern of unconstitutional conduct. See ECF 57, ¶¶ 267-77. Only the condonation

theory is properly alleged.

1. The Estates Fail to Plausibly Allege that a BPD Official with Final

Policymaking Authority Established an Official Policy

As noted, a municipality can be held liable for constitutional harms stemming from a

policy or custom instituted by the “official actions” of municipal officials with “final

policymaking authority,” or those officials who “have the responsibility and authority to

implement final municipal policy with respect to a particular course of action.” Riddick v. Sch.

Bd. of the City of Portsmouth, 238 F.3d 518, 522-23 (4th Cir. 2000) (citations omitted). The

“official policy” of a municipality “refers to formal rules or understandings – often but not

always committed to writing – that are intended to, and do, establish fixed plans of action to be

followed under similar circumstances consistently and over time.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 480-81 (1986).

The Third Amended Complaint’s allegations are insufficient to establish any sort of

official policy instituted by a BPD official with final policymaking authority. Indeed, the Estates

often couch their allegations in terms of the BPD’s failure to do something, not in terms of an

official, enacted policy. See, e.g., ECF 57, ¶ 75 (“[T]he BPD condoned unlawful police conduct

committed by plainclothes BPD units by ignoring the widespread abuses.”); id. ¶ 76 (“The BPD

turned a blind eye to this pattern and practice of illegal activity . . . .”); id. ¶¶ 104-05 (alleging

that the BPD “had sufficient notice” of the problems with plainclothes units, and that “a

reasonable police department would have taken sufficient steps to adequately train, supervise and

discipline officers”); id. ¶ 204 (“[The] BPD failed to establish reasonable and necessary systems

to train, supervise, investigate, and hold accountable these officers or to take the necessary steps

to eliminate those units’ culture of corruption”); id. ¶¶ 214-244 (alleging, in detail, the

shortcomings in the BPD’s policies). Further, to the extent that the Estates have alleged some

official policy, there are no allegations concerning (1) exactly who, within the BPD, instituted

the policy, and (2) why that individual (or group of individuals) had final policymaking

authority. Accordingly, the Estates have failed to allege a “decision of a person with final

policymaking authority” sufficient to sustain a viable claim.

2. The Estates Do Not Plausibly Allege a Custom Through the BPD’s Failure

to Train BPD Plainclothes Officers

A municipality can also be liable for an established “policy” through a failure to train, if

it “reflects a ‘deliberate’ or ‘conscious’ choice” to not do so. City of Canton v. Harris, 489 U.S.

378, 389 (1989). Training policy deficiencies can include (1) “express authorizations of

unconstitutional conduct,” (2) “tacit authorizations” of such unconstitutional conduct, and (3)

failures to adequately “prohibit or discourage readily foreseeable conduct in light of known

exigencies of police duty.” Spell, 824 F.2d at 1390. No matter which theory is alleged, the

plaintiff must point out “a specific deficiency” in training, “rather than general laxness or

ineffectiveness in training.” Id. But the municipality will only be liable if “the need for more or

different training is so obvious, and the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can reasonably be said to have been

deliberately indifferent to the need.” Harris, 489 U.S. at 390 (emphasis added); accord Jordan

by Jordan v. Jackson, 15 F.3d 333, 341 (4th Cir. 1994).

The BPD asserts that Count III’s failure to train claim is insufficient, because the Estates

“do not allege any facts about the training program or point to any specific deficiencies in the

training.” ECF 63-1 at 27 (citing McDowell v. Grimes, No. GLR-17-3200, 2018 WL 3756727,

at *4 (D. Md. Aug. 7, 2018)). The Estates, conclusorily, counter that they have sufficiently

alleged a pattern and practice of widespread illegal conduct in the BPD. ECF 71 at 18-19. This,

however, is insufficient. As courts in this District have made clear, a plaintiff must provide

factual allegations about the specific deficiencies in the BPD’s training to state a failure to train

claim. McDowell, 2018 WL 3756727, at *4; see also, e.g., Peters v. City of Mount Rainier, No.

GJH-14-955, 2014 WL 4855032, at *5 (D. Md. Sept. 29, 2014); Hall v. Fabrizio, No. JKB-12-

754, 2012 2905293, at *2 (D. Md. July 13, 2012). Here, the Estates’ only allegation regarding

any sort of training is a 2009 lesson plan regarding stop-and-frisk training, which “misstated the

relevant standard for search and seizures.” ECF 57, ¶ 234. This lone allegation is insufficient to

push the Estates’ failure to train claim beyond the line from “possible” to “plausible.” See

Peters, 2014 WL 4855032, at *5.

But even if that allegation were sufficient, it does little to demonstrate a causal link

between the insufficient training and the harm the Estates suffered here. Plainly, a single

allegation that BPD plainclothes officers were insufficiently trained, on one occasion, on the

proper standard for conducting a lawful seizure of an individual does not plausibly link the

BPD’s training to Jenkins’s admittedly intentional criminal conduct. Compare with Estate of

Bryant v. Balt. Police Dep’t, No. ELH-19-384, 2020 WL 673571, at *39 (D. Md. Feb. 10, 2020)

(finding that specific allegations regarding the BPD’s failure to train officers on disclosing

evidence pursuant to Brady plausibly alleged the BPD’s Monell liability to the plaintiff for the

alleged actions of evidence suppression leading to his conviction for felony murder). Thus, the

Estates do not plausibly allege a Monell claim through the BPD’s failure to train its officers.

3. The Estates Plausibly Allege that the BPD Condoned the Plainclothes

Units’ Unconstitutional Practices

The BPD’s arguments regarding the Estates’ condonation theory of Monell liability

largely focus on the causation prong. ECF 63-1 at 28-29; ECF 74 at 5-6. But, in a footnote to its

Motion, the BPD states that it does not “concede that the allegations are sufficient to make out a

Monell claim for a violation of any” constitutional right. ECF 63-1 at 28. Assuming that this is

sufficient to raise the argument that the Estates have not plausibly alleged the presence of a

policy or custom via condonation, it nonetheless fails.

A municipality is liable under a condonation theory “if municipal policymakers fail ‘to

put a stop to[,] or correct[,] a widespread pattern of unconstitutional conduct.’” Owens, 767 F.3d

at 402 (quoting Spell, 824 F.2d at 1389). To plausibly allege Monell liability by condonation, a

plaintiff must state facts showing “a persistent and widespread practice of municipal officials, the

duration and frequency of which indicate that policymakers (1) had actual or constructive

knowledge of the conduct, and (2) failed to correct it due to their deliberate indifference.” Id. at

402-03 (internal alterations and quotations omitted) (quoting Spell, 824 F.2d at 1386-91). While

“[p]revailing under such a theory is no easy task . . . alleging such a claim is, by definition,

easier.” Id. at 403.

The Estates have sufficiently alleged such a claim. As described at the outset, the Estates

have alleged a wide range of misconduct, including unlawful stops and pursuits of citizens, by

various plainclothes officers, including Jenkins and Gladstone, that went unpunished. These

well-pleaded facts give rise to the reasonable inference that policymakers within the BPD had

actual or constructive knowledge of that misconduct. The Estates’ allegations regarding the

“minimal substantive review of plainclothes officers’ justification for unlawful stops and

searches,” and regarding the BPD’s inadequate Internal Affairs protocol for ferreting out such

unlawful conduct, renders the BPD’s deliberate indifference to that conduct plausible. ECF 57,

¶¶ 226-27; see also id. ¶¶ 228-236 (discussing, in detail, the BPD’s shortcomings in disciplining

the relevant misconduct). Indeed, the BPD’s deliberate indifference can be further inferred from

the Estates’ extensive factual allegations of BPD plainclothes officers’ misconduct, which

demonstrates a recurrent, widespread pattern of misconduct, to include unlawful stops, and

pursuits, of Baltimore citizens. Owens, 767 F.3d at 403 (internal quotations omitted) (quoting

Spell, 824 F.2d at 1391). In fact, the amount of specific past instances that the Estates have

alleged far exceed those complaints in other cases that, without any specific past incidents of

misconduct, have been determined to adequately plead a policy by condonation. See McDowell,

2018 WL 3756727, at *5 (citing Jones v. Jordan, No. GLR-16-2662, 2017 WL 4122795, at *9

(D. Md. Sept. 18, 2017); Johnson v. Holmes, 204 F.Supp.3d 880, 892 (W.D. Va. 2016); Jones v.

Chapman, No. ELH-14-2627, 2015 WL 4509871, at *5, *17 (D. Md. July 24, 2015)).

Accordingly, the Estates have properly alleged the existence of an unconstitutional policy or

custom by condonation.

Merely alleging that the BPD condoned an unconstitutional policy does not automatically

give rise to a Monell claim. The Estates must also plausibly allege that the condoned policy or

custom has an affirmative causal link to their particular constitutional violation. E.g., Spell, 824

F.2d at 1391. This causal link is satisfied “if occurrence of the specific violation [alleged] was

made reasonably probable by permitted continuation of the custom,” such that the specific

violation was “almost bound to happen, sooner or later, rather than merely likely to happen in the

long run.” Id. (internal quotations omitted); see also, e.g., Carter, 164 F.3d at 218 (quoting

Spell, 824 F.2d at 1390).

As the Fourth Circuit has recognized, however, at the pleading stage, “[t]here is no

requirement that” the plaintiff “plead the multiple incidents of constitutional violations that may

be necessary at later stages to establish . . . causation.” Jordan by Jordan, 15 F.3d at 339.

Indeed, in holding that only the notice pleading requirements of Federal Rule of Civil Procedure

8 applied to Monell claims, the Supreme Court stated, “federal courts and litigants must rely on

summary judgment and control of discovery to weed out unmeritorious claims.” Leatherman v.

Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993); accord

Jordan by Jordan, 15 F.3d at 340. Courts in this District have heeded this call, and held that a

plaintiff need only allege that the municipality “was aware of ongoing constitutional violations,”

and that this awareness allowed the custom of unconstitutional practices to continue developing.

Garcia v. Montgomery County, No. JFM-12-3592, 2013 WL 4539394, at *5 (D. Md. Aug. 23,

2013); see also, e.g., McDowell, 2018 WL 3756727, at *6; J.A. v. Miranda, No. PX-16-3953,

2017 WL 3840026, at *7 (D. Md. Sept. 1, 2017).

Here, the Court recognizes that, as the BPD urges, the Estates have not alleged any prior

instances in which the BPD’s (plausibly) unlawful practice of unlawful stops, and pursuits, of

Baltimore citizens caused the deprivation of a bystander’s substantive due process rights under

the Fourteenth Amendment. ECF 74 at 5-6. At this stage, however, it suffices that the Estates

have alleged that the BPD was aware of these ongoing constitutional violations, and that this

pattern developed throughout the 2000s, and into 2010. See, e.g., Garcia, 2013 WL 4539394, at

*5; see also Miranda, 2017 WL 3840026, at *7; McDowell, 2018 WL 3756727, at *6. As

discussed with regards to supervisory liability claim (Count II) in Section III.E.2.ii, supra,

determining whether the BPD’s condoned policy or custom is too attenuated from the particular

harm the Estates suffered requires the development of a factual record through discovery.

Accordingly, the BPD’s Motion to Dismiss Count III will be denied.

G. Plaintiffs’ Claims, Viewed in the Light Most Favorable to Them, Are Not

Time-Barred.

Turning the first of Defendants’ various affirmative defenses, Defendants argue that

Plaintiffs’ claims are time-barred. They assert that Plaintiffs’ claims all accrued on April 28,

2010, the date of the underlying motor vehicle accident, meaning that they needed to have been

brought by April 28, 2013. ECF 63-1 at 8; see id. at 7-20. Ultimately, Defendants’ arguments

fail as to both Plaintiffs’ § 1983 claims, and Plaintiffs’ state law common law and constitutional

law tort claims.

Federal Rule of Civil Procedure 8(c) provides that a statute of limitations defense is an

affirmative defense. Accordingly, the burden rests on Defendants to prove that Plaintiffs’ claims

are time-barred. See, e.g., Newell v. Richards, 323 Md. 717, 725 (1991). In Goodman v.

Praxair, Inc., an en banc Fourth Circuit explained that the trial court “generally cannot reach the

merits” of a statute of limitations defense at the pleading stage. 494 F.3d 458, 464 (4th Cir.

2007) (en banc). Courts may only rule on the defense at the Rule 12(b)(6) stage “if all facts

necessary to the affirmative defense ‘clearly appear[] on the face of the complaint.’” Id. (quoting

Richmond, Fredericksburg, & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)). Indeed,

in resolving a motion to dismiss, courts generally do not “resolve contests surrounding the facts,

the merits of a claim, or the applicability of defenses.” Edwards v. City of Goldsboro, 178 F.3d

231, 243-44 (4th Cir. 1999) (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir.

1992)). Only “in the relatively rare circumstances where facts sufficient to rule on an affirmative

defense are alleged in the complaint” will a court, under Rule 12(b)(6), dismiss a complaint

based on an affirmative defense. Goodman, 494 F.3d at 464.

The parties agree that Maryland’ three-year statute of limitations applies to Plaintiffs’ §

1983 claims. See 42 U.S.C. § 1988(a) (2018); Md. Code Ann., Cts. & Jud. Proc. § 5-101 (West

2019); Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 187 (4th Cir. 1999)

(noting the “well-settled” principle that § 1983 claims are governed by the forum state’s personal

injury statute of limitations). The parties disagree, however, as to the relevant accrual date.

Importantly, while the statute of limitations for § 1983 claims is borrowed from state law,

“the question of when a cause of action accrues under 42 U.S.C. § 1983 remains one of federal

law.” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995) (en banc); see

Tommy Davis Constr., Inc. v. Cape Fear Pub. Util. Auth., 807 F.3d 62, 66-67 (4th Cir. 2015)

(clarifying that this principle applies to all claims rooted in § 1983, including Monell actions

against municipalities and other local government entities). The “standard rule” is that a § 1983

action accrues when the plaintiff has “a complete and present cause of action” such that he “can

file suit and obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (quoting Bay Area

Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)).

The Fourth Circuit has since clarified that the “standard rule” is that a § 1983 claim accrues

when “the plaintiff knows or has reason to know of his injury.” Owens, 767 F.3d at 389 (citation

omitted). In other words, the standard is inquiry notice: the “cause of action accrues either when

the plaintiff has knowledge of his claim or when he is put on notice—e.g., by the knowledge of

the fact of injury and who caused it—to make reasonable inquiry and that inquiry would reveal

the existence of a colorable claim.” Nasim, 64 F.3d at 955.7

Maryland law on this point is largely identical, and therefore instructive. It provides that

any civil action must be filed “within three years from the date it accrues.” Md. Code Ann., Cts.

& Jud. Proc. § 5-101. Because section 5-101 leaves the word “accrues” undefined, Maryland

courts use the discovery rule to determine accrual. Frederick Road Ltd. P’ship v. Brown &

Sturm, 360 Md. 76, 95 (2000) (citing Hahn v. Claybrook, 130 Md. 179, 186-87 (1917)); see also

Poffenberger v. Risser, 290 Md. 631, 636 (1981) (expanding the discovery rule’s application to

all civil actions). Under the discovery rule, a cause of action accrues “when a claimant gains

knowledge sufficient to put him or her on inquiry notice.” Lumsden v. Design Tech Builders,

Inc., 358 Md. 435, 447 (2000). A plaintiff is on “inquiry notice” if he “has ‘knowledge of

circumstances which would cause a reasonable person in the position of the plaintiff[] to

undertake an investigation which, if pursued with reasonable diligence, would have led to

knowledge of the alleged [tort].’” Estate of Adams v. Continental Ins. Co., 233 Md. App. 1, 25

(2017) (quoting Lumsden, 358 Md. at 446). The question of when a plaintiff had inquiry notice

of his claim is typically one of fact for the jury, O’Hara v. Kovens, 305 Md. 280, 294-95 (1986),

since it oftentimes “requires the balancing of factual issues and the assessment of the credibility

of believability of the evidence,” Frederick Road, 360 Md. at 96.

Defendants assert that, “[m]anifestly,” Plaintiffs’ claims all accrued on the date of the

accident, April 28, 2010. ECF 63-1 at 8. At that time, according to Defendants, Plaintiffs knew

7 Wallace held that some § 1983 claims do not accrue upon inquiry notice. 549 U.S. at 388-90

(holding that a § 1983 claim for unconstitutional detention accrued once the plaintiff was falsely

arrested); see also McDonough v. Smith, __ U.S. __, 139 S. Ct. 2149, 2161 (2019). However,

the parties here do not argue that a deviation from the standard rule of accrual is appropriate.

the “critical material facts” at issue here – namely, that Decedent and Cain were injured in a car

accident caused by the Officer Defendants’ chase of Burley. Id. at 17. “[T]he lawfulness of the

stop,” Defendants assert, is simply irrelevant. Id. Knowing that BPD officers were involved in

the accident, Plaintiffs could have filed suit against Defendants back in 2010, but ultimately

chose not to. Id. at 19. Indeed, Defendants go so far as to call Plaintiffs’ suit a “reproachable”

effort “to manipulate the legal system” that “border[s] on sanctionable conduct.” Id. at 19-20.

Quite to the contrary, Plaintiffs have plausibly alleged that their instant § 1983 claims did

not accrue until Jenkins’s indictment on February 23, 2017. Defendants are correct that

Plaintiffs knew in April, 2010 that the Officer Defendants were involved in a chase that led to the

crash, which led to Decedent’s death and Cain’s injuries. But the cases Defendants cite – Lewis

v. Clark, 534 F. Supp. 714, 714-16 (D. Md. 1982), Miller v. Pacific Shore Funding, 224 F. Supp.

2d 977, 986-87 (D. Md. 2002), and Lumsden, 358 Md. at 437, 448-49, 452 – do not, on the

current record, compel the conclusions Defendants seek. In each of those cases, the claimants

had knowledge of all of the operative facts underlying their claims, but were unaware of the legal

significance of those facts. Here, however, Plaintiffs did not have knowledge of all of the

operative facts. It is plausible that, despite knowing that the Officer Defendants were pursuing

Burley, leading to the crash, that Plaintiffs did not know that, as alleged, the Officer Defendants

lacked any probable cause to do so. The facts regarding the constitutionality of Burley’s stop are

legally significant to Plaintiffs’ claims. Without knowledge of those facts, Plaintiffs could not

have been aware of the legal rights associated therewith. See Miller, 224 F. Supp. 2d at 986-87;

see also McGinley v. Mauriello, 682 F. App’x 868, 871-72 (11th Cir. 2017) (per curiam) (finding

that a § 1983 claim against a police officer accrued when the plaintiffs possessed two expert

reports that “directly contradicted” the officer’s investigation report; at that time, “plaintiffs

plainly knew or should have known” that they had a claim).

By extension, without knowledge that Palmere, Willard, Knoerlein, and Fries allowed the

Officer Defendants’ unlawful conduct, and that the BPD ratified these unconstitutional practices,

Plaintiffs could not have had inquiry notice of their § 1983 claims against those Defendants, until

2017. See Wilson v. Hays, 228 F. Supp. 3d 1100, 1112-13 (S.D. Cal. 2017) (finding that a

plaintiff’s Monell claim against a police department plausibly accrued later than her § 1983 claim

against the individual officer, Hays, who sexually abused her, because “whether Plaintiff simply

knew Hays ‘caused her injury’ does not resolve the issue of when her Monell claim accrued’”).

Further, even reasonable measures to investigate Defendants’ involvement in the crash

likely would not have uncovered the pattern of unconstitutional actions giving rise to Plaintiffs’

instant claims. Plaintiffs did have access to the names of the officers involved in the April, 2010

incident, and they had access to both Burley and Matthews, who could have attested to the false

nature of the stop. But in the summer of 2011, both Burley and Matthews pled guilty to the

offenses they were charged with stemming from the April, 2010 incident. ECF 57, ¶¶ 54-57.

For Burley, this meant guilty pleas in both federal and state court, with a total sentence of fifteen

years in prison. Id. ¶¶ 54, 56-57. Reading these facts in a light most favorable to Plaintiffs, a

reasonable lawyer advising Plaintiffs might justifiably take no further action to investigate claims

of police misconduct causing the April, 2010 accident, even had Burley and Matthews continued

to make such claims or profess their actual innocence at that time. It is reasonable to infer that,

in April, 2010, any inquiry into the Officer Defendants’ liability, and the supervising

Defendants’ resulting liability, would not have revealed a colorable § 1983 claim.

Ultimately, whether Plaintiffs took efforts to uncover the allegedly unconstitutional

motives behind the Officer Defendants’ stop of Burley, whether those efforts were reasonable,

and whether those efforts would have uncovered the facts now brought to light, requires the

development of a factual record through discovery. See Bell ex rel. Bell v. Bd. of Educ., 290 F.

Supp. 2d 701, 711 (S.D. W. Va. 2003) (noting that when a party is placed on inquiry notice of

their § 1983 claim, and whether he should have known of a public official’s malfeasance, “are all

fact questions not amenable to a motion to dismiss”). But on the current record, Plaintiffs have

plausibly alleged that their § 1983 claims, including their supervisory liability and Monell

claims, did not accrue until Jenkins’s indictment on February 23, 2017. And because Maryland

employs an identical discovery rule to determine accrual in all civil actions, see Frederick Road,

360 Md. at 94-95, Plaintiffs’ remaining state law claims, as alleged, are also timely. Thus,

Defendants’ Motions to Dismiss will be denied on this ground, without prejudice to their raising

the issue again at the summary judgment stage.8

H. Plaintiffs’ Noncompliance with the Local Government Tort Claims Act is

Excused for Good Cause Shown

Next, Defendants argue that Plaintiffs gave untimely notice of their state law claims,

pursuant to the Local Government Tort Claims Act (“LGTCA”), because Plaintiffs’ state law

8 Even if Plaintiffs’ claims accrued in April, 2010 under section 5-101, Defendants’ Motions

would still be denied because of Maryland’s statutory discovery rule, see Md. Code Ann., Cts. &

Jud. Proc. § 5-203. As relevant for Plaintiffs’ § 1983 claims, federal courts generally must apply

a state’s tolling rules to a § 1983 claim. Battle v. Ledford, 912 F.3d 708, 713 (4th Cir. 2019)

(citation omitted). Section 5-203 tolls accrual “[i]f the knowledge of a cause of action is kept

from a party by the fraud of an adverse party” until the time “when the party discovered, or by

the exercise of ordinary diligence should have discovered the fraud.” Here, Plaintiffs alleged

that the Officer Defendants falsely authored the statements of probable cause, which the BPD

and Palmere, as the head of VCIS, adopted; that Burley and Matthews pled guilty to the offenses;

and that the Defendants fraudulently concealed the officers’ misconduct, allowing Burley and

Matthews’s guilty pleas to stand. ECF 57, ¶¶ 51-57, 64, 67, 281-83. These allegations, taken as

true, suffice to trigger section 5-203.

claims arose in April, 2010. ECF 63-1 at 23-24. Conversely, Plaintiffs assert that their claims

are timely, because, for similar reasons discussed above, their claims did not accrue until

Jenkins’s indictment in 2017. ECF 71 at 17. Further, even if they failed to give timely notice,

Plaintiffs argue that their failure is excused for good cause. Id. at 17-18. Defendants counter

that no such good cause exists. ECF 74 at 7-8. Ultimately, Plaintiffs prevail on their good cause

argument.

1. Based on the Text of the LGTCA’s Notice Provision, Plaintiffs’ Notice of

their State Law Claims Is Untimely

The LGTCA contains a notice provision that applies to all Maryland constitutional and

common law tort claims for unliquidated damages. Md. Code Ann., Cts. & Jud. Proc. § 5-304;

Rounds v. Md.-Nat’l Capital Park & Planning Comm’n, 441 Md. 621, 636 (2015). Before

bringing any such claim, the claimant must serve notice of it upon the Baltimore City Solicitor

“within one year after the injury.” §§ 5-304(b)(1), (c)(3)(i). Before 2015, claimants only had

180 days to give such notice. See 2015 Md. Laws at 589 (Ch. 131, H.B. 113). Compliance with

the notice requirement is a “condition precedent” to suit. E.g., Rios v. Montgomery County, 386

Md. 104, 127 (2005).

Plaintiffs’ argument that the LGTCA’s notice requirement did not apply until their claims

accrued in 2017, while sound in theory, is contradicted by law. In Heron v. Strader, the

Maryland Court of Appeals considered, for the first time, when an “injury” occurs for purposes

of the LGTCA’s notice requirement. 361 Md. 258, 262-63 (2000). Noting the similarity

between LGTCA’s language and the language of the Maryland Torts Claim Act (“MTCA”), the

Court of Appeals adopted, for the LGTCA, its interpretation of when an “injury” occurs under

the MTCA. Id. Thus, the court held that, under section 5-304, a plaintiff must give notice of his

“injury” “when his causes of action arose, i.e., when the legally operative facts permitting the

filing of his claims came into existence.” Id. at 264. To determine when a cause of action

“arose,” courts “must examine the elements of the cause of action, since . . . a cause of action is

said to have arisen ‘when facts exist to support each element.’” Id. (quoting Owens-Ill. v.

Armstrong, 326 Md. 107, 121 (1992)).

The Court of Appeals’s citation to Owens-Illinois is instructive. In that case, Owens-

Illinois argued against the application of a statutory cap on noneconomic damages. 326 Md. at

120. The statute provided that “[i]n any action for damages for personal injury in which the

cause of action arises on or after July 1, 1986, an award for noneconomic damages may not

exceed $350,000.” Id. (quoting Md. Code Ann., Cts. & Jud. Proc. § 11-108). Owens-Illinois

asserted that the determination of when his cause of action arose should be governed by the

discovery rule, id. at 121, which, as discussed above, is the default rule for determining accrual

under Maryland’s general statute of limitations provision, see Frederick Road, 360 Md. at 94-95.

Thus, he contended, his cause of action did not “arise” until he was on inquiry notice of his

potential claim.

The Court of Appeals explicitly rejected this argument. Owens-Ill., 326 Md. at 121-22.

It reasoned that the plain meaning of the word “arise” was “to come into being; originate,” and,

therefore, a cause of action “arises when it first comes into existence.” Id. at 121 (citation

omitted). The court differentiated language from its previous opinion in Harig, which reasoned

that inquiry notice governs the accrual of certain claims, because the claimant cannot “be

charged with slumbering on his rights, for there [is] no notice of the existence of a cause of

action.” Id. at 121 (quoting Harig v. Johns-Manville Prods., 284 Md. 70, 83 (1978) (emphasis

added in Owens-Illinois)).9 The Legislature’s use of the word “arises” in the statute, the court

found, evidenced an intent to utilize a different means of determining when the statutory time

period began. Id.

Applying those principles here, even though Plaintiffs’ claims plausibly did not accrue

until 2017, the Court is compelled to conclude that their injury occurred, and thus, the LGTCA's

notice requirement was triggered, in April, 2010. All of the facts to support the elements of their

due process, negligence, and wrongful death claims existed once the accident occurred in April,

2010 (i.e., when Decedent and Cain suffered their injuries). Plaintiffs just had no knowledge of

all of the relevant facts at that time. Whether or not the Court views this result as absurd, the

Heron court’s interpretation of the phrase “after the injury” in the LGTCA’s notice provision is

presumptively what the Legislature intended, since the Legislature has amended section 5-304

multiple times since the Heron decision, without amending that key phrase. See Stewart v. State,

275 Md. 258, 270 (1975) (“Since the Legislature has elected, following these decisions, not to

amend the statute, but rather has acquiesced in its judicial construction[,] there is a strong

presumption that the intention of the Legislature and the words used by it have been correctly

interpreted[,] and such interpretation should not be disregarded.”). Accordingly, the Court

concludes that, whether the 180 day or one year time period for giving notice applies in this case,

Plaintiffs failed to provide timely notice of their state law claims.

9 Harig, decided in 1978, came before the Court of Appeals made the discovery rule the default

rule for accrual in Poffenberger, 290 Md. at 636. But, notably, the Owens-Illinois decision was

issued in 1992, eleven years after Poffenberger. Thus, the Owens-Illinois court’s distinction

between “accrues” and “arises” was made with full knowledge that, in most cases, accrual was

determined by when the plaintiff was on inquiry notice of his claim.

2. Plaintiffs Have Shown Good Cause for their Untimely Notice

This does not, however, per se require dismissal of Plaintiffs’ claims. Section 5-304(d)

provides that “unless the defendant can affirmatively show that its defense has been prejudiced

by lack of required notice, upon motion and for good cause shown the court may entertain the

suit even though the required notice was not given.” This provision “allows a court, in certain

circumstances, to avoid an unjust result” from strict application of the notice requirement.

Prince George’s County v. Longtin, 419 Md. 450, 467 (2011). Good cause exists if “the

claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person

would have exercised under the same or similar circumstances.” Heron, 361 Md. at 271 (quoting

Westfarm Assoc. v. Wash. Suburban Sanitary Comm’n, 66 F.3d 669, 676-77 (4th Cir. 1995)); see

also id. at 272 (listing as one category of good cause “excusable neglect or mistake (generally

determined in reference to a reasonably prudent person standard)”). Plaintiffs must first show

that good cause exists, see Longtin, 419 Md. at 467, and the determination of whether good cause

exists is in the trial court’s discretion, Westfarm, 66 F.3d at 676; Heron, 361 Md. at 270. If good

cause exists, the burden shifts to Defendants to demonstrate prejudice. Longtin, 419 Md. at 467.

Defendants initially argue that section 5-304(d) provides no protection to Plaintiffs,

because they have failed to make a separate motion for the Court to excuse their untimely notice.

ECF 74. This argument is unpersuasive. In Mitchell v. Housing Authority of Baltimore City, the

Court of Special Appeals undertook an in-depth review of the trial court’s finding of no good

cause to justify noncompliance with section 5-304, upon the Housing Authority’s motion for

summary judgment, even though the record demonstrated that the plaintiff only raised the good

cause argument in opposing the summary judgment motion. 200 Md. App. 176, 182-83, 204-12,

cert. denied, 423 Md. 452 (2011). Courts typically decline to address a good cause argument

only if the plaintiff fails to raise the argument altogether. See, e.g., Ross v. Prince George’s

County, No. DKC-11-1984, 2012 WL 1204087, at *5-8 & n.16 (D. Md. Apr. 10, 2012) (refusing

to address the good cause exception, because the plaintiff only argued that the LGTCA’s notice

provision did not apply to his state law claims); Luy v. Balt. Police Dep’t, 326 F. Supp. 2d 682,

693 (D. Md. 2004) (refusing to address the good cause exception because plaintiff had neither

made such request under section 5-304(c), “nor alleged any facts that would establish good

cause”). Indeed, it would be highly inefficient to require a plaintiff to file a separate motion

seeking excusal from the LGTCA’s notice provision for good cause, after the parties have fully

briefed the issue in the context of a motion to dismiss.

As to the merits, Defendants conclusorily argue that Plaintiffs have failed to demonstrate

good cause for their noncompliance with section 5-304. ECF 74 at 7. That argument fails. For

the same reasons that Plaintiffs’ claims plausibly did not accrue until 2017, Plaintiffs have also

alleged good cause for not timely complying with the notice requirement. The Officer

Defendants’ alleged actions in falsifying police reports and giving false statements regarding the

incident, mean that a reasonable plaintiff, exercising due diligence, would not have discovered

the facts giving rise to Plaintiffs’ instant state law claims against Defendants. See Rios v.

Montgomery County, 386 Md. 104, 141-42 (2005) (noting that good cause can exist “where

representations made by local government representatives are misleading”); cf. Moore v.

Norouzi, 371 Md. 154, 179-81 (2002) (finding that an entity’s misrepresentations that it was the

third party claims administrator for Montgomery County led the plaintiff to reasonably believe

that serving notice of his claim on that third party, demonstrating good cause for not serving

notice on the county). This conclusion is, once again, amplified by the fact that both Burley and

Matthews pled guilty to the criminal charges levied against them stemming from the April, 2010

incident. It is plausible, and indeed quite a logical inference, that no reasonable attorney would

have probed further into any claimed misconduct by the BPD, or its officers, in connection with

the accident in light of Burley’s and Matthews’s guilty pleas.

Indeed, Plaintiffs’ reason for giving delayed notice stands in stark contrast to other cases

where courts found a lack of good cause. See, e.g., Downey v. Collins, 866 F. Supp. 887, (D.

Md. 1994) (rejecting the claim that the government’s failure to timely respond to document

requests constituted good cause, because witness testimony that the plaintiff obtained three

months into the six-month notice period was itself sufficient “to suggest to plaintiff that a claim

might exist”); Ellis v. Hous. Auth. of Balt. City, 436 Md. 331, 351 (2013) (finding no good cause

because plaintiffs took no action to prosecute their claims); Heron, 361 Md. at 271-72 (finding

no good cause for delay caused by a claimant’s need to focus on his criminal defense). A finding

of good cause here is squarely in line with the provision’s purpose of allowing the Court to

prevent the notice requirement from working “an unjust result.” Longtin, 419 Md. at 467.

Plaintiffs have therefore plausibly alleged excusable neglect for not timely serving notice of their

claims, see Heron, 361 Md. at 272, providing, at this stage, good cause for their noncompliance

with the LGTCA.

3. Defendants Fail to Demonstrate Prejudice from the Untimely Notice

The burden then shifts to Defendants to “affirmatively show that [their] defense has been

prejudiced by lack of required notice.” § 5-304(d). On this point, Defendants assert:

Plaintiffs’ arguments that BPD and Palmere were not prejudiced by the lack of

notice are unavailing under Maryland case law. See Dehn Motor Sales, LLC v.

Schultz, 439 Md. 460, 487 n.28 (2014) (“We need not address the issue of

prejudice because prejudice only becomes relevant if the issue being addressed is

good cause for failing to file a notice of claim, . . . .”). Even if Plaintiffs’ lack of

prejudice argument were relevant, it actually supports BPD and Palmere’s

position that notice was untimely and that the claims are barred by limitations.

Plaintiffs state that “BPD and Palmere were not prejudiced by any lack of

statutory notice because they actually and constructively had notice of Decedent’s

and Ms. Cain’s injuries when their employees responded to the scene of the

injury.” ECF No. 71 at 17. Assuming arguendo that BPD and Palmere had notice

of Plaintiffs’ injuries, it obviously follows that Plaintiffs would have had notice of

their injuries as well.

ECF 74 at 7-8. To the extent these assertions make any affirmative showing of prejudice at all,

they fall far short of showing that, as a matter of law, Defendants have been so prejudiced such

that Plaintiffs’ state law claims cannot proceed to discovery. Accordingly, Defendants’ Motions

will be denied on this ground.

I. Plaintiffs’ Instant Suit May Not Constitute a Double Recovery

Defendants next posit that Plaintiffs’ instant suit is a “blatant attempt to get a second bite

at the apple.” ECF 63-1 at 20.10 They argue that because Plaintiffs already obtained a judgment

for monetary damages against Burley in 2014, they are barred from recovering again from

Defendants “under different legal theories for the same injury.” Id. (quoting Gordon v. Pete’s

Auto Serv. of Denbigh, Inc., 637 F.3d 454, 460-61 (4th Cir. 2011)). However, Burley is

currently appealing the Order in the state court suit against him, denying his motion to vacate

that judgment. See Notice of Appeal, Johnson, No. 24-c-13-002083 (Cir. Ct. Balt. City Dec. 3,

2019), Docket Entry No. 33/0. At this stage, it would premature to dismiss Plaintiffs’ entire

Complaint on double recovery grounds. If this Court were to dismiss Plaintiffs’ suit on this

ground now, and the state court judgment against Burley is vacated, Plaintiffs may face even

more substantial statute of limitations issues. Conversely, if the judgment is vacated and this

action remains pending, then any concern regarding a double recovery will be vitiated. The

10 As noted, Palmere and the BPD’s briefing contains multiple extreme characterizations of

Plaintiffs’ claims. Especially in cases like this, such hyperbolic statements do nothing to help

this Court’s adjudication of these difficult issues.

Court will therefore deny this ground for dismissal, without prejudice to reconsidering the issue

if the appeal pending in state court is denied.

J. Dismissal of Plaintiffs’ Indemnification Claim Against the BPD Is Premature

Finally, the BPD argues that Plaintiffs’ indemnification claim against it in Count VIII,

ECF 57, ¶¶ 302-07, must be dismissed for three reasons: (1) only a BPD employee has a right to

indemnification; (2) Plaintiffs have not yet obtained a judgment against any individual BPD

officer; and (3) there has been no finding that any individual officer was acting within the scope

of his employment. ECF 63-1 at 29-31. Each argument lacks merit.

The LGTCA provides that any “local government,” which includes the BPD, “shall be

liable for any judgment against its employee for damages resulting from tortious acts or

omissions committed by the employee within the scope of employment.” Md. Code Ann., Cts.

& Jud. Proc. § 5-303(b)(1); see id. § 5-301(d)(21) (including the BPD in the LGTCA’s definition

of “local government”). Importantly, the LGTCA bars the relevant entity from asserting

sovereign immunity as a defense to its indemnification obligation. See id. § 5-303(b)(2);

Cherkes, 140 Md. App. at 323.

The BPD’s first argument is plainly contradicted by binding precedent. In Johnson v.

Francis, the Maryland Court of Special Appeals considered, and rejected, the argument that no

individual plaintiff may sue the BPD directly for indemnification. 239 Md. App. 530, 549, 554-

55 (2018), cert. denied, 463 Md. 155 (2019). The Court of Special Appeals reasoned that

“[w]hen read in the context with the statute, the local government’s obligation under § 5-

303(b)(1) unambiguously runs directly to the underlying plaintiff.” Id. at 551. The court

therefore specifically held that the LGTCA permits plaintiffs to sue local government agencies

directly for indemnification of harms caused by one of the agency’s employees acting within the

scope of the employment. Id. at 555. Thus, the BPD’s argument here is patently unfounded.

As to the BPD’s final two arguments, the decision of the court in Johnson v. Baltimore

Police Department, No. ELH-19-00698, 2020 WL 1169739 (D. Md. Mar. 10, 2020), is on all

fours. In that case, an exonerated Baltimore City prisoner, Jerome Johnson, sued the BPD and

four BPD detectives for his wrongful murder conviction. Id. at *1. Mr. Johnson brought § 1983

claims against the detectives, and a Monell claim against the BPD. Id. Mr. Johnson also pled an

indemnification claim against the BPD. Id. The BPD argued that the indemnification claim was

premature, because there was no judgment against any detective, or a finding that any detective

was acting within the scope of their employment with the BPD. Id. at *37.

The court rejected these arguments. Id. at *38. Collecting a number of cases from

Maryland’s appellate courts, the court first concluded that there is no case law “preclud[ing] a

plaintiff from pleading an indemnification claim before final judgment.” Id. (citations omitted).

Next, the court found that, while some courts have dismissed indemnification claims against the

BPD as premature, under the circumstances of Mr. Johnson’s case, “permitting [him] to plead an

indemnification claim against the BPD at the outset avoids the possibility of redundant litigation,

thereby facilitating the efficient resolution of this case.” Id. The court continued:

Indeed, for that reason, courts in this District have permitted the BPD to file a

cross-claim for indemnification against an officer under [Federal Rule of Civil

Procedure] 13(g), seeking a declaration that it has no duty to indemnify despite

the officer’s liability not having been established. See Bumgardner v. Taylor,

GLR-18-1438, 2019 WL 4115414, at *11 (D. Md. Aug. 29, 2019) (finding that

“permitting BPD’s Cross-Claim to proceed directly behind [the plaintiff’s] claims

serves the purposes of Rule 13(g)”); Harrod v. Mayor & City Council of Balt.,

GLR-18-2542, 2019 WL 5636392, at *4 (D. Md. July 24, 2019) (same). That

approach makes good sense where, as here, “[d]etermining whether [the] Officer

Defendants were acting within the scope of their employment will, in turn,

determine whether BPD is liable for [the] Officer Defendants’ actions.”

Bumgardner, 2019 WL 4115414, at *11.

Id.

Similarly, here, Plaintiffs have lodged a Monell claim directly against the BPD, as well as

a number of federal and state law claims against individuals allegedly employed by the BPD at

the time of the April, 2010 incident. Thus, to facilitate an efficient resolution of this case, and to

avoid “the possibility of redundant litigation,” the Court concludes that dismissal of Plaintiffs’

indemnification claim would be improper at this time. Id.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motions to Dismiss, ECF 63, 65, and 66, are

all GRANTED IN PART and DENIED IN PART. A separate implementing Order follows.

Dated: April 7, 2020 /s/

Stephanie A. Gallagher

United States District Judge