Sulton v. Baltimore County

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

SHANNON SULTON, et al., *

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Plaintiffs, *

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v. * Civil Case No. SAG-18-2864

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BALTIMORE COUNTY, MARYLAND, *

et al., *

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Defendants. *

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

MEMORANDUM OPINION

This case arises out of an incident on June 25, 2015, in which officers from the Baltimore

County Police Department (“BCPD”) responded to the home of Spencer McCain in Owings Mills,

Maryland for an emergency call citing a disturbance. During the encounter, the officers discharged

their weapons, causing the death of Mr. McCain. Mr. McCain’s estate, Shannon Sulton, as mother

and next friend of Mr. McCain’s three minor children, and Sheila Smith, Mr. McCain’s mother,

(collectively, “Plaintiffs”), have filed this action against Baltimore County and three officers

involved in the incident, Officer Shenell Wilkes, Officer Jonathan Besaw, and Officer Shannon

Stargel (collectively, “Defendants”). Currently pending is Defendants’ Motion to Dismiss the

Second Amended Complaint (“the Motion”), ECF 54. Plaintiffs filed an opposition, ECF 55, and

Defendants filed a reply, ECF 56. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For

the reasons that follow, the Motion will be granted in part and denied in part.

I. FACTUAL BACKGROUND

The following facts from the Second Amended Complaint (“SAC”) 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. Incident at McCain Residence

On June 25, 2015, Baltimore County 911 received multiple emergency calls for a

disturbance at the McCain residence in Owings Mills, Maryland. ECF 53 ¶ 15. When officers

responded to the residence after the first call at approximately 12:25 a.m., they heard no noise

emanating from the residence and were unable to contact any of the occupants. Id. ¶ 19. However,

about 30 minutes later, officers were dispatched to the home again following a second emergency

call. Id. ¶ 20. The dispatcher advised that Mr. McCain “was a paranoid schizophrenic who has

been hospitalized multiple times.” Id. The dispatcher did not alert or send the Baltimore County

Crisis Response Unit or other officers with crisis intervention training. Id. ¶ 21.

Instead, Officers Besaw, Stargel, and Wilkes responded to the second emergency call and

congregated by the door to the home. Id. ¶ 22. They heard no sounds coming from the residence.

Id. Officer Besaw advised the other officers that he knew from prior service calls that Mr. McCain

was schizophrenic. Id. ¶ 17. After about fifteen minutes, during which they discussed Mr.

McCain’s mental health and prior calls for service, they attempted entry into the home. Id. ¶ 23.

Prior to entry, they requested additional units to be dispatched to the scene. Id. ¶ 26. The three

officers made entry with their guns drawn. Id. ¶ 27. As they entered the home, they saw Mr.

McCain standing in the living room area unarmed. Id. ¶¶ 29, 31. His minor daughter was also in

the living room area. Id. ¶ 30. Mr. McCain was “sufficiently far away from the Defendant officers

that he did not pose any threat to their safety and could not reasonably be perceived to pose any

threat to their safety.” Id. ¶ 31. However, almost immediately upon entry, the officers began

shooting at Mr. McCain, discharging at least eighteen rounds. Id. ¶ 35. Mr. McCain fell to the

ground. Id. ¶ 38. Officer Besaw notified dispatch that shots had been fired, just 26 seconds after

advising dispatch that they were entering the apartment. Id. ¶ 41.

Officer Wilkes was directed to cover Mr. McCain, who was alive but visibly injured and

lying on the ground. Id. ¶ 43. After walking past Mr. McCain and determining that Shannon

Sulton and her minor son were in a back bedroom, Officers Stargel and Besaw approached Mr.

McCain to place him in handcuffs. Id. ¶ 47. They directed Mr. McCain to produce his arms to be

handcuffed. Id. ¶ 51. However, when Mr. McCain raised his arms in response to the officers’

direction, Defendant Wilkes fired her weapon and shot him once in the chest. Id. ¶ 52.

When paramedics arrived at the scene, Mr. McCain was lying on his left side with his hands

handcuffed behind his back. Id. ¶ 57. Paramedics observed six actively bleeding gunshot wounds,

and they transported Mr. McCain by ambulance to the hospital. Id. ¶¶ 58-59. His condition

deteriorated en route, and he ultimately succumbed to his injuries at the hospital at approximately

6:38 a.m. Id. ¶¶ 60, 62.

B. Allegations Regarding BCPD

The BCPD has General Order 1-3.18, “Mental Health/Emotional Crisis Related Issues,”

which requires its officers, upon encountering a person experiencing mental health issues, to “offer

aid,” including a request for a mobile crisis team to respond, and to “seek immediate medical

attention.” Id. ¶ 76. The General Order also provides that the officers should “de-escalate

situations through verbal and active listening skills.” Id. ¶ 77. Certain BCPD officers are provided

crisis intervention training, id. ¶ 78, but upon information and belief officers Wilkes, Besaw, and

Stargel have not received any training on the handling of emotionally disturbed persons. Id. ¶ 81.

BCPD also does not provide training to its 911 dispatchers to direct service calls for subjects

experiencing mental health crises to the mobile crisis teams or critical incident support teams. Id.

¶ 83.

The SAC cites to a number of police involved shootings of individuals suffering from

mental health issues or emotional crises, including one incident in 2009 and a series of incidents

in 2016 and 2019, after Mr. McCain’s death. Id. ¶ 85. It alleges a “de facto custom and policy

within the Baltimore County Police Department of unreasonably directing excessive force against

emotionally disturbed persons.” Id. ¶¶ 85-86. Moreover, it alleges that the BCPD condones such

use of excessive force by declining to take disciplinary action against the officers involved in such

incidents. Id. ¶¶ 87-89.

C. Plaintiffs’ Claims for Relief

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

attorneys’ fees based on five claims for relief. Count I alleges that the Officer Defendants deprived

Mr. McCain of his Fourth Amendment right to be free of unreasonable seizure and his Fourteenth

Amendment right to due process, in violation of 42 U.S.C. § 1983. ECF 53 ¶¶ 94-103. Count II

asserts the same constitutional claims under the Maryland Declaration of Rights, Articles 24 and

26. Id. ¶¶ 104-107. Count III alleges that Baltimore County is also liable under § 1983 for the

constitutional deprivations, pursuant to Monell v. Department of Social Services, 436 U.S. 658

(1978). Id. ¶¶ 108-116. Count IV asserts a state law wrongful death negligence action against all

Defendants. Id. ¶¶ 117-127. Count V is a survival action, brought only by Mr. McCain’s estate,

for the pain, suffering, and mental distress he experienced before death as a result of Defendants’

negligence. Id. ¶¶ 128-32.

II. LEGAL STANDARDS

Defendants have filed a motion to dismiss the SAC, in its entirety, under Federal Rule of

Civil Procedure 12(b)(6). ECF 54. 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. 10, 11 (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

A. Plaintiffs’ State and Federal Constitutional Claims in Counts One and Two

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.

Count One of the SAC advances two theories of constitutional violation: violation of the

Fourth Amendment, which guarantees “the right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,” and violation of the due process

clause of the Fourteenth Amendment. In Count Two, the SAC relies on the state analogs of those

constitutional provisions, Articles 24 (due process clause) and 26 (Fourth Amendment) of the

Maryland Declaration of Rights.

Defendants correctly note that “where a particular Amendment provides an explicit textual

source of constitutional protection, against a particular sort of government behavior, that

Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for

analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor,

490 U.S. 386, 395 (1989)). It is well established that unlawful arrest and excessive force claims

under § 1983 are properly asserted under the Fourth Amendment, not the Fourteenth Amendment.

See Albright, 510 U.S. at 725; Graham, 490 U.S. at 394 (“Where, as here, the excessive force

claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly

characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens

the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the person.”)

(citations omitted). Thus, dismissal of Plaintiffs’ claims is appropriate to the extent they assert

Fourteenth Amendment substantive due process claims and claims pursuant to Article 24 of the

Maryland Declaration of Rights.

Defendants also argue that Plaintiffs fail to state a plausible § 1983 Fourth Amendment

claim or a corresponding state constitutional claim pursuant to Article 26. ECF 54-2 at 10-13.

That argument is unpersuasive. Taking Plaintiffs’ allegations as true, there are ample facts

suggesting that the Officer Defendants’ rapid resort to shooting at an unarmed individual upon

their entry into the home, and Officer Wilkes’s subsequent decision to shoot an unarmed and

injured individual lying wounded on the floor, constituted an unreasonable use of excessive force.

The motion to dismiss, therefore, will be denied as to the § 1983 Fourth Amendment and Article

26 claims.

B. Plaintiffs Plausibly Allege, in Count Three, a Claim of Monell Liability Under

§ 1983 as to Failure to Train and Condonation

Baltimore County contends that the SAC insufficiently alleges its liability to Plaintiffs

under the theory espoused in Monell v. Department of Social Services, 436 U.S. 658 (1978).1 ECF

54-2 at 14-24. 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.”

1 Baltimore County argues that the SAC has not stated a claim for supervisory liability. ECF 54-2

at 22-24. No supervisor is named as a defendant, and this Court does not read the SAC to assert

such a claim.

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.

Reading their allegations in a light most favorable to them, Plaintiffs appear to allege the

existence of an unconstitutional “custom or policy” in three ways: through establishment of a

policy or custom of use of excessive force towards mentally disturbed individuals; through a

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

unconstitutional conduct. See ECF 53 ¶¶ 71-93. Two of the three theories are properly alleged.

1. Plaintiffs Fail to Plausibly Allege that a Baltimore County 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 SAC’s allegations are insufficient to establish any official policy instituted by a

Baltimore County official with final policymaking authority. To the contrary, the SAC

acknowledges that the County maintains a General Order requiring its officers to take specific

actions when confronted with persons exhibiting mental health issues, although the date on which

the General Order became effective is not alleged. ECF 53 ¶¶ 76-77. Further, to the extent that

Plaintiffs have alleged an official policy advocating the use of excessive force when interacting

with emotionally disturbed persons, there are no allegations concerning (1) exactly who, within

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

policymaking authority. Accordingly, Plaintiffs have failed to allege a “decision of a person with

final policymaking authority” sufficient to sustain a viable Monell claim.

2. Plaintiffs Plausibly Allege a Custom Through the BCPD’s Failure to Train

Its 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).

Here, Plaintiffs specifically allege the type of training that should have been required and

was afforded to some, but not all, BCPD officers. They allege that the department provides crisis

intervention training to select officers, which “instructs officers on how to identify signs of mental

illness and substance abuse disorders and assist individual [sic] who are experiencing mental health

issues or emotional crises.” ECF 53 ¶ 78. They further allege that while the existence of that

training evidences Baltimore County’s knowledge that such training is needed “to safely and

successfully respond to encounters with people in crises,” “the Baltimore County Police

department has decided against training the majority of its officers on these policies.” Id. ¶¶ 79,

80. Those allegations suffice to meet the requirement that a plaintiff allege specific deficiencies

in the BCPD’s training in order to state a 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).

Moreover, Plaintiffs have plausibly alleged a causal link between the training deficiency

and the harm they suffered. They have alleged that the responding officers knew, prior to entering

the home, that Mr. McCain suffered from mental health issues and emotional disturbances, and

that the officers had a relatively significant period prior to entry during which they conferred about

their plans. Thus, Plaintiffs have plausibly linked the alleged failure to train these specific officers

in the appropriate methods for addressing a crisis involving a mentally ill person with the harm

that ensued. See, e.g., 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).

3. Plaintiffs Have Plausibly Alleged that Baltimore County Condoned the Use

of Excessive Force

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.

Here, it is true that the SAC alleges only one specific prior incident involving the BCPD’s

use of force against a mentally ill individual. That incident occurred roughly five years before the

incident involving Mr. McCain, with no apparent overlap in the officers involved. One prior,

somewhat dated, incident cannot constitute a “persistent and widespread practice of municipal

officials” and does not suggest that corrective conduct would have prevented the instant harm.

However, the SAC also includes more general allegations that the specified incidents are only

“some of the examples of deadly force” and that “there have been other occasions in which

members of the Baltimore County [P]olice Department have unreasonably directed deadly force

at emotionally disturbed persons.” ECF 53 ¶ 85. Those type of allegations have, in similar

contexts, been deemed sufficient to survive the low bar of a motion to dismiss. See McDowell,

208 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, Civ. No. ELH-14-2627, 2015 WL 4509871, at *5, *17 (D. Md. July 24, 2015).

Plaintiffs have also plausibly alleged 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).

Taking Plaintiffs’ allegations regarding a persistent and widespread practice as true, causation has

been plausibly alleged. This Court notes, however, that it agrees with Baltimore County that

consideration of specific incidents post-dating Mr. McCain’s death would be improper when

assessing causation. To the extent it eventually proves necessary for Plaintiffs to rely on

subsequent incidents to establish a “custom,” they will have an uphill battle in establishing that the

occurrence of this particular situation with Mr. McCain was made probable by the continuation of

a custom that had not yet arisen.

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). Plaintiffs have met that forgiving standard here.

C. Counts Four and Five State Law Negligence Claims/ Public Official Immunity

The individual Defendants—Officers Wilkes, Stargel, and Besaw—assert that they have

public official immunity as to the state law negligence claims asserted in Counts Four and Five.

ECF 24-26. 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, however, 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). The plaintiff “‘must allege with some

clarity and precision those facts which make the act malicious.’” Talley v. Farrell, 156 F.Supp.2d

534, 545 (D. Md. 2001) (internal citations omitted). 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).

The SAC contains an allegation that “Defendants Wilkes, Besaw, and Stargel knowingly

acted to deprive Decedent Spencer McCain of his Constitutional rights maliciously and with

reckless disregard.” ECF 53 ¶ 102. It is devoid, however, of facts suggesting “an evil or rancorous

motive influenced by hate,” such that it does not adequately plead “actual malice.” That said,

taking Plaintiffs’ factual allegations as true, they have presented a plausible claim that Defendants

acted with utter indifference to Mr. McCain’s rights to be free from unreasonable seizure and

deprivations of liberty; i.e., that they acted with gross negligence. Hence, while the evidence may

later refute Plaintiffs’ contentions, Defendants are not entitled to dismissal of Plaintiffs’ claims by

virtue of statutory immunity. The state law gross negligence claims against the Officer Defendants

will proceed to discovery.2

However, “counties are shielded from tort liability for governmental actions unless the

General Assembly has specifically waived the immunity of the municipality,” and Maryland law

contains “no blanket waiver of governmental immunity regarding local jurisdictions.” Williams v.

Prince George's Cnty., 685 A.2d 884, 887, 899 (Md. Ct. Spec. App. 1996). In particular, Maryland

courts have explained that governmental immunity can shield local governments from gross

negligence claims. See Williams, 685 A.2d at 899 (explaining that a county can invoke

governmental immunity in response to false arrest, false imprisonment, negligence, and gross

negligence claims). Plaintiffs’ apparent contention that Counts IV and V contain a cause of action

for respondeat superior for state constitutional torts is unavailing, as Counts IV and V are, as

described above, common law gross negligence claims. See ECF 55 at 23-24. Accordingly, those

counts will be dismissed against Baltimore County.

D. Dismissal of Plaintiffs’ Punitive Damages Demand Is Premature

Finally, Defendants seek dismissal of Plaintiffs’ request for punitive damages as one

potential remedy for their constitutional claims. Assessment of the types of damages that might

be available if Plaintiffs eventually prevail on their claims is not well-suited to the relevant

question presented in a Rule 12(b)(6) motion—whether Plaintiffs have adequately stated claims

2 Defendant’s contention that Count V should be dismissed, because it is captioned “Survival,”

lacks merit. While Defendants correctly note that “Survival” is not an independent cause of action

in Maryland, a reading of the Count clearly reflects that it is a gross negligence claim brought on

behalf of the Estate to recover for the pain and suffering Mr. McCain experienced before his death.

affording them some basis for relief. Because, as described above, Plaintiffs have stated certain

viable claims, this Court declines to address the propriety of punitive damages at this early stage

of the litigation. Defendants will be free to re-raise the issue as the litigation proceeds.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss, ECF 54, is GRANTED

IN PART and DENIED IN PART. Specifically, the Motion will be granted in part as to

Counts One and Two, in that the federal constitutional claims under the Fourteenth Amendment

and the state constitutional claim under Article 24 will be dismissed. The Motion will also be

granted in part to the extent it seeks dismissal of the gross negligence claims in Counts Four and

Five against Baltimore County only. The Motion will be denied as to all other constitutional and

state law claims, leaving at least some portion of each Count viable. A separate implementing

Order follows.

Dated: March 12, 2021 /s/

Stephanie A. Gallagher

United States District Judge