Kaur v. Baltimore County Police Department

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

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SIMARJEET KAUR *

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Plaintiff, *

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v. * Civil No. SAG-21-00292

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POLICE OFFICER POLLACK #5597, et al., *

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Defendants. *

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MEMORANDUM OPINION

Plaintiff Simarjeet Kaur, a former Sears, Roebuck & Co. (“Sears”) retail employee, was

detained by store management and arrested by police on suspicion of shoplifting. A prosecutor

later entered a nolle prosequi on the charges against her. Plaintiff has now sued various parties in

connection with her arrest, including Sears and a store security manager, Jeffrey Markowski

(collectively, the “Sears Defendants”); the two police officers who arrested her, Officers Stephanie

Pollack and Cameron Birkmaier (collectively, the “Police Officer Defendants”); and the Baltimore

County Police Department (“BCPD”). Plaintiff asserts numerous state and federal claims,

primarily stemming from her contention that Defendants lacked the requisite legal justification to

detain her without a warrant. In a prior Order, this Court granted in part and denied in part Sears’

motion to dismiss several claims. ECF 24. Discovery has now concluded, and the Sears and Police

Officer Defendants have moved for summary judgment on all remaining counts against them. ECF

47, 48. Plaintiff filed oppositions and cross-moved for partial summary judgment against both sets

of Defendants. ECF 63, 64. In addition, BCPD has filed an unopposed motion to bifurcate trial of

Plaintiff’s claims against it and to stay discovery. ECF 49. This Court has reviewed the parties’

motions, oppositions, replies, and the exhibits attached to them. ECF 65, 68, 70, 71, 74. No hearing

is necessary. See Loc. R. 105.6 (D. Md. 2021). For the reasons below, the Sears and Police Officer

Defendants’ motions will be granted, and Plaintiff’s cross motions will be denied. BCPD’s motion

to bifurcate and stay discovery will be denied as moot.

I. FACTUAL BACKGROUND

Plaintiff was hired as a retail employee at a Sears department store in White Marsh,

Maryland, in August, 2018. ECF 63-13 at 22:9-24:22. Shortly after she was hired, store

management began to suspect that Plaintiff and another retail employee, Amna Iman, were

engaged in a shoplifting scheme called “free bagging,” whereby an employee at a cash register

places unscanned (and thus unpaid for) merchandise into a shopping bag alongside other, scanned

items, making it appear as though all the items have been paid for. ECF 7 ¶¶ 96-97; ECF 63-3 at

33:14-36:10, 57:21-58:15. Defendant Markowski, a loss prevention officer at Sears, conducted an

investigation into the alleged shoplifting scheme. ECF 63-3 at 57:21-62:2.

On December 15, 2018, at the end of Plaintiff’s shift, a manager called Plaintiff into an

office in the back of the store. ECF 63-13 at 71:20-72:18. Two Sears employees were waiting there

for her. Id.1 Plaintiff testified at her deposition that after she arrived, the door to the office was

locked and the two employees began questioning her about the alleged theft scheme. Id. at 73:4-

76:7. During this questioning, the Sears employees refused to allow Plaintiff to leave the office or

make phone calls and told her that if she did not confess and write an apology letter she would go

1 Plaintiff’s Amended Complaint alleged that it was Markowski who locked her in the office,

questioned her, and attempted to coerce her into writing a confession. ECF 7 at ¶¶ 52-82. However,

Plaintiff acknowledged in her deposition testimony that she had no direct interaction with

Markowski during her detainment. ECF 63-13 at 264:22-265:9.

to jail. Id. Plaintiff eventually wrote a brief apology letter, though she continued to deny to the two

Sears employees that she had done anything wrong. Id. at 80:17-80:21.

While Plaintiff was being questioned, Markowski called BCPD to report a suspected felony

theft scheme. ECF 63-3 at 44:22-45:7. Birkmaier and Pollack responded to the scene. Id. at 45:14.

Prior to calling BCPD, Markowski separately contacted Birkmaier—who was assigned to patrol

the White Marsh mall—to give him notice that a felony theft would be reported. Id. at 52:4-52:9;

ECF 63-1 at 43:15-43:17. Markowski was familiar with Birkmaier, who had worked at Sears prior

to becoming a police officer. ECF 63-3 at 18:1-18:8. Pollack also knew Markowski from

responding to previous incidents at Sears. Id. at 18:7-18:8; ECF 63-2 at 27:7-27:11.

Upon arriving at the store, Birkmaier and Pollack met Markowski, who led them to a back

office where Plaintiff and Iman were being questioned. See ECF 63-11 at 0:10 (“Birkmaier

Video”); ECF 63-12 at 0:05 (“Pollack Video”). The officers then placed Plaintiff and Iman under

arrest. Birkmaier Video at 0:50-1:30. Plaintiff became increasingly distraught, insisting she was

innocent and yelling at Iman. Id. at 1:45-2:40, 3:20-3:40, 4:50-6:00. In her Amended Complaint,

Plaintiff alleged that Birkmaier then pushed her, causing her to fall to the floor, hit her head, and

suffer a seizure. ECF 7 ¶¶ 90-92. However, bodycam videos of the arrest from Birkmaier and

Pollack, which were provided during discovery, fail to show any such push. Rather, they show

Plaintiff collapse to the ground on her own and begin convulsing. Birkmaier Video at 6:15; Pollack

Video at 5:55. An ambulance was called, and emergency medical technicians (EMTs) rendered

care. See generally ECF 48-12. However, Plaintiff declined to be transported to the hospital, telling

EMTs she was “fine now.” Id. at 4.

After Plaintiff was taken to the White Marsh precinct, Birkmaier drafted and signed a

statement of probable cause. See ECF 47-9. The document included a detailed inventory of 48

items allegedly stolen by Plaintiff and Iman over five dates in 2018. Id. at 4-7. The inventory

reflected a total of $1,684.19 in suspected stolen merchandise. Id.; see also Md. Code. Ann., Crim.

Law § 7-104(g)(1)(i) (stating that the theft of property or services with a value of at least 1,500

constitutes a felony). Birkmaier testified at his deposition that the list of allegedly stolen items and

their value was provided by Markowski following the arrest. ECF 63-1 at 86:2-86:18. Markowski

also testified that he provided the inventory to Birkmaier. ECF 63-3 at 124:5. Plaintiff was charged

with one count of theft scheme and five counts of theft. ECF 7 ¶ 114. However, a prosecutor later

entered a nolle prosequi on all counts. Id. ¶ 120.

Plaintiff subsequently brought the instant suit, asserting 20 claims against all Defendants:

battery (Count I); false arrest and imprisonment (Counts II and III); intentional infliction of

emotional distress (Count IV); negligence and gross negligence (Counts V and XVI); malicious

prosecution (Count VI); invasion of privacy (Counts VII, VIII, and IX); civil conspiracy (Count

X); aiding and abetting (Count XI); violations of state and federal debt, wage, and labor laws

(Counts XII-XV); violations of Articles 24 and 26 of the Maryland Declaration of Rights (Counts

XVII and XVIII); and violations of the Fourth, Fifth, and Fourteenth Amendments to the United

States Constitution (Counts XIX and XX). ECF 7 ¶¶ 148-286.

Notably, the Amended Complaint largely rested on a theory that Plaintiff was not involved

in any shoplifting scheme, but rather had been falsely accused and detained by Defendants without

evidence. The Amended Complaint stated that Defendants possessed “no evidence” that Plaintiff

had shoplifted, ECF 7 ¶ 94, and it further asserted that “no video evidence existed showing that

Plaintiff Kaur committed any theft or participated in any theft scheme,” ECF 7 ¶ 118(b). Instead,

Plaintiff’s Amended Complaint claimed that Markowski, Birkmaier, and Pollack had conspired,

among other things, to withhold from the prosecutor that no evidence existed tying Plaintiff to the

alleged shoplifting scheme. Id. ¶¶ 118-19.

During discovery, however, the Sears Defendants produced three surveillance videos

which contradicted these aspects of the Amended Complaint. In particular, the videos show

Plaintiff standing in front of a cash register, while Iman or another Sears employee checks out

various merchandise. See ECF 47-6 at 23:51:20-00:01:00; ECF 47-7 at 04:08:36-04:12:11; ECF

47-8 at 02:12:00-02:21:20. In each video, Plaintiff places both scanned and unscanned items into

shopping bags. Id. She then “pays” for the merchandise and transports the shopping bags

(including the unscanned items) offscreen. Id. Plaintiff stated in deposition testimony that she was

“shocked” by the videos, ECF 63-13 at 95:6, and she acknowledged that they showed her

participating in a scheme to steal Sears merchandise. Id. at 173:10-173:13. However, Plaintiff

insisted that she was unaware that her colleagues were purposefully not scanning certain items. Id.

at 172:10. Rather, Plaintiff insisted that she had been “used” and “trap[ped] … in this case” by her

coworkers, who had asked Plaintiff to purchase the bags of scanned and unscanned items on their

behalf. Id. at 172:22. Furthermore, and as discussed at greater length below, Plaintiff now

maintains that the Sears and Police Officer Defendants are nonetheless civilly liable because they

lacked probable cause that she participated in a felony-level theft scheme, and therefore Defendants

did not have legal justification to detain and arrest her without a warrant.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate only “if

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” The moving party bears the burden of showing that there is no

genuine dispute of material facts. See Casey v. Geek Squad Subsidiary Best Buy Stores, L.P., 823

F. Supp. 2d 334, 348 (D. Md. 2011) (citing Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282,

1286 (4th Cir. 1987)). If the moving party establishes that there is no evidence to support the non-

moving party’s case, the burden then shifts to the non-moving party to proffer specific facts to

show a genuine issue exists for trial. Id. The non-moving party must provide enough admissible

evidence to “carry the burden of proof in [its] claim at trial.” Mitchell v. Data Gen. Corp., 12 F.3d

1310, 1316 (4th Cir. 1993)). The mere existence of a scintilla of evidence in support of the non-

moving party’s position will be insufficient; there must be evidence on which the jury could

reasonably find in its favor. Casey, 823 F. Supp. 2d at 348 (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251 (1986)). Moreover, a genuine issue of material fact cannot rest on “mere

speculation, or building one inference upon another.” Id. at 349 (quoting Miskin v. Baxter

Healthcare Corp., 107 F. Supp. 2d 669, 671 (D. Md. 1999)).

Summary judgment shall also be warranted if the non-moving party fails to provide

evidence that establishes an essential element of the case. Id. at 352. The non-moving party “must

produce competent evidence on each element of [its] claim.” Id. at 348-49 (quoting Miskin, 107 F.

Supp. 2d at 671). If the non-moving party fails to do so, “there can be no genuine issue as to any

material fact,” because the failure to prove an essential element of the case “necessarily renders all

other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Coleman v. United

States, 369 F. App’x 459, 461 (4th Cir. 2010) (unpublished)). In ruling on a motion for summary

judgment, a court must view all the facts, including reasonable inferences to be drawn from them,

“in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd.

v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369

U.S. 654, 655 (1962)).

Additionally, the bifurcation of trials is addressed in Federal Rule of Civil Procedure 42(b),

which provides:

For convenience, to avoid prejudice, or to expedite and economize, the court may

order a separate trial of one or more separate issues, claims, crossclaims,

counterclaims, or third-party claims. When ordering a separate trial, the court must

preserve any federal right to a jury trial.

The decision whether to bifurcate claims for trial is committed to the broad discretion of

the trial judge. See Dixon v. CSX Transp., Inc., 990 F.2d 1440, 1443 (4th Cir. 1993). Likewise,

with respect to the requested stay, decisions about the appropriate timing and sequence of

discovery lie within the discretion of the trial court. See Fed. R. Civ. P. 26(d)(1) (allowing

discovery rules, including those pertaining to scheduling, to be modified “by court order”).

III. ANALYSIS

This Court will begin by addressing the parties’ motions and cross motions for summary

judgment, before turning to BCPD’s motion to bifurcate and stay discovery.

A. Summary Judgment

Plaintiff’s Amended Complaint originally consisted of 20 counts against each Defendant.

Several of these counts were dismissed with respect to the Sears Defendants at prior stages of this

litigation. See ECF 24, 29. Furthermore, during summary judgment briefing, Plaintiff agreed to

dismiss its claims against the Police Officer Defendants for violation of state and federal debt

collection laws (Counts XII and XII), and its claims against all defendants for violations of the

Maryland Wage Payment and Collection Act (Count XIV) and the Fair Labor Standards Act

(Count XV). ECF 63 at 22, ECF 64-1 at 20. Still, that leaves 16 counts which remain contested as

to at least one defendant. This Court will analyze each count in turn.

1. Battery (Count I)

Plaintiff and the Police Officer Defendants both seek summary judgment on Plaintiff’s

battery claim. In Maryland, “[a] battery occurs when one intends a harmful or offensive contact

with another without that person’s consent.” Nelson v. Carroll, 735 A.2d. 1096, 1099 (Md. 1999).

In cases involving police officers, however, a necessary element of battery is “no legal authority

or justification for the arresting officer’s actions.” Hines v. French, 852 A.2d 1047, 1055 (Md. Ct.

Spec. App. 2004) (quotation omitted). Relevant here, a police officer in Maryland has legal

justification to conduct a warrantless arrest if the officer “has probable cause to believe that a

felony has been committed or attempted and the person has committed or attempted to commit the

felony whether or not in the presence or within the view of the police officer.” Md. Code Ann.,

Crim. Proc. § 2-202(c). Probable cause is “a reasonable ground of suspicion supported by

circumstances sufficiently strong in themselves to warrant a cautious man in believing that the

accused is guilty.” Palmer Ford, Inc. v. Wood, 471 A.2d 297, 302 (Md. 1984) (quotation omitted).

Where the facts regarding probable cause are undisputed, then the question of probable cause is

one of law for the court. Silvera v. Home Depot U.S.A., Inc., 189 F. Supp. 2d 304, 310 (D. Md.

2002) (citing Gladding Chevrolet, Inc. v. Fowler, 287 A.2d 280, 284 (Md. 1972)). Even when

legal justification exists, a police officer may be liable for battery if they use excessive force in

conducting an arrest. French v. Hines, 957 A.2d 1000, 1037 (Md. Ct. Spec. App. 2008); see also

Richardson v. McGriff, 762 A.2d 48, 56 (Md. 2000) (stating that an excessive force analysis is

applicable to “the common law claim[] of battery”).

With respect to legal justification, the record evidence establishes that the Police Officer

Defendants had probable cause to believe Plaintiff had participated in a felony theft scheme, which

in Maryland requires a scheme to steal more than $1,500 of merchandise. Md. Code Ann., Crim.

Law § 7-104(g)(1)(i). Specifically, Birkmaier and Pollack both testified that Markowski had

informed them prior to the arrest that he had conducted an investigation showing that Plaintiff and

Iman participated in a scheme to steal a felony amount of Sears merchandise. ECF 63-1 at 43:15;

ECF 63-3 at 36:18. Birkmaier and Markowski both testified that Markowski later provided

Birkmaier with detailed information from his investigation, which Birkmaier used to prepare his

statement of probable cause containing a detailed inventory of the items allegedly stolen. ECF 63-

1 at 86:2-86:18; ECF 63-3 at 124:5. While Plaintiff asserts that the Police Officer Defendants failed

to review the surveillance footage or conduct their own independent investigation to confirm the

felony amount prior to the arrest, they were under no obligation to do so in this instance. See

Torchinsky v. Siwinski, 942 F.2d 257, 264 (4th Cir. 1991) (stating that a police officer need not

“exhaust every potentially exculpatory lead or resolve every doubt about a suspect’s guilt before

probable cause is established”). Both officers were familiar with Markowski, see ECF 63-2 at 27:7,

ECF 63-3 at 18:1, and there was no reason to believe that his representations in this instance about

a felony theft scheme were inaccurate or untrustworthy. Under the circumstances, the officers were

entitled to rely on Markowski’s investigation as providing “reasonable grounds of suspicion” that

a felony had occurred. Palmer Ford, 471 A.2d at 302. The officers’ arrest of Plaintiff was therefore

legally justified.

Furthermore, the record evidence shows that the officers did not use excessive force in

conducting the arrest. In assessing whether an officer used excessive force, courts ask “whether

the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting

them.” Graham v. Connor, 490 U.S. 386, 397 (1989). While Plaintiff’s Amended Complaint

alleges that Birkmaier pushed her into a wall, ECF 7 ¶¶ 90-92, this assertion is clearly contradicted

by the police bodycam videos. Birkmaier’s video shows him speaking to Iman when he turns to

find that Plaintiff—who until that point had been at times hysterical and uncooperative—had

collapsed on the floor and started convulsing. Birkmaier Video at 6:15. Thus, contrary to the

Amended Complaint, Birkmaier was not near Plaintiff at the moment she fell and could not have

pushed her. While Pollack was next to Plaintiff during the relevant time period, her bodycam video

shows Plaintiff crying and pleading with officers before she suddenly collapses. Pollack Video at

5:55-6:05. There is no indication that Plaintiff was pushed or physically accosted prior to falling

to the ground. Furthermore, the officers immediately radioed for medical assistance following

Plaintiff’s collapse, removed her handcuffs, and monitored her until emergency personnel arrived.

See Birkmaier Video at 6:15-18:00; Pollack Video at 6:05-17:50. At no point did the officers use

any force, much less any force that could be considered excessive.

In sum, the officers’ actions during their legally justified arrest of Plaintiff were objectively

reasonable, and they are entitled to judgment as a matter of law on Plaintiff’s battery claim.

2. False Arrest and Imprisonment (Counts II and III)

The Police Officer and Sears Defendants both seek summary judgment on Plaintiff’s false

arrest and false imprisonment claims. Plaintiff opposes their motions and also seeks summary

judgment in her favor on these counts.

The elements of false arrest and false imprisonment are identical under Maryland law.

Heron v. Strader, 761 A.2d 56, 59 (Md. 2000). “Those elements are: 1) the deprivation of the

liberty of another; 2) without consent; and 3) without legal justification.” Id. The parties do not

appear to contest the fact that Plaintiff was deprived of her liberty without her consent when she

was detained and eventually arrested following her shift at Sears. They do contest, however,

whether that deprivation of liberty was legally justified. Like battery, the test of legal justification

in the context of false arrest and false imprisonment is determined “by the principles applicable to

the law of arrest.” Montgomery Ward v. Wilson, 664 A.2d 916, 926 (Md. 1995) (quoting Ashton

v. Brown, 660 A.2d 447, 472 (Md. 1995)).

As explained above, the Police Officer Defendants were legally justified in arresting

Plaintiff because they had probable cause to believe that she had participated in a felony theft

scheme. Accordingly, the Police Officer Defendants are also entitled to summary judgment on

Counts II and III.

However, the same legal justification analysis does not apply to the Sears Defendants. In

Maryland, “[d]ifferent considerations apply where the defendant in the false imprisonment action

is not a police officer, but is a private party who instigated the allegedly wrongful arrest.” Wilson,

664 A.2d at 926. The Court of Appeals of Maryland has clarified that, for the purposes of a false

imprisonment action, a warrantless arrest by a private person is legally justified in two scenarios:

“when [1] there is a felony being committed in his presence or when a felony has in fact been

committed whether or not in his presence, and the arrester has reasonable ground (probable cause)

to believe the person he arrests has committed it; or [2] a misdemeanor is being committed in the

presence or view of the arrester which amounts to a breach of the peace.” Great Atl. & Pac. Tea

Co. v. Paul, 261 A.2d 731, 738-39 (Md. 1970); see also Ashton, 660 A.2d at 472; McNair v. FedEx

Ground Package System, Civil No. PJM 04-2341, 2007 WL 9782499 at *1 (D. Md. Jan. 10, 2007).

The parties dispute whether the Sears Defendants can satisfy the test for private arrest set

forth in Paul. However, this Court need not decide this issue, because the Sears Defendants have

also asserted Maryland’s statutory merchant’s privilege. See ECF 70 at 5-6. That privilege states:

A merchant or an agent or employee of the merchant who detains or causes the

arrest of any person shall not be held civilly liable for detention, slander, malicious

prosecution, false imprisonment, or false arrest of the person detained or arrested,

whether the detention or arrest takes place by the merchant or by his agent or

employee, if in detaining or in causing the arrest of the person, the merchant or the

agent or employee of the merchant had, at the time of the detention or arrest,

probable cause to believe that the person committed the crime of “theft,” as

prohibited by § 7-104 of the Criminal Law Article, of property of the merchant

from the premises of the merchant.

Md. Code Ann., Cts. & Jud. Proc § 5-402(a). This statute provides “a retail merchant with probable

cause . . . a complete defense to false imprisonment.” Silvera, 189 F. Supp. 2d at 310; see also

Wilson, 664 A.2d at 931 (explaining that the statutory privilege “was simply designed, for reasons

of fairness and public policy, to insulate a particular category of defendants from specified tort

liability when they had probable cause to believe that the plaintiff had committed theft.”). Notably,

Maryland’s merchant’s privilege allows the agent of a merchant to detain a person upon probable

cause that they have committed theft, regardless of the value of goods suspected to have been

stolen. See Md. Code Ann., Crim. Law § 7-104(a).

The record evidence clearly establishes that the Sears Defendants had probable cause to

believe that Plaintiff had committed theft of Sears’ property from the store. Markowski testified

that he observed Plaintiff and other Sears employees on both recorded and live surveillance video

engaging in free bagging. ECF 64-3 at 58:5-60:15. The Sears Defendants produced some of these

surveillance videos during discovery, which show Plaintiff bagging items that her co-workers had

not scanned. See ECF 47-6 at 23:51:20-00:01:00; ECF 47-7 at 04:08:36-04:12:11; ECF 47-8 at

02:12:00-02:21:20. Plaintiff admitted during her deposition testimony that the videos showed her

engaging in free bagging—through she maintains she was tricked by her co-workers into

participating in the scheme. ECF 64-13 at 172:11-174:4. Instead, Plaintiff’s theory of liability is

that the Sears Defendants lacked probable cause that Plaintiff was involved in a felony theft

scheme, because they did not have sufficient evidence that she had helped steal more than $1,500

in merchandise. But Maryland’s merchant’s privilege only requires probable cause of theft,

regardless of the value of goods involved.2 Because the undisputed record evidence clearly

establishes that Markowski had probable cause to believe Plaintiff had engaged in theft, the Sears

Defendants may successfully avail themselves of the merchant’s privilege in this instance. They

are therefore entitled to summary judgment on Counts II and III.

3. Intentional Inflection of Emotional Distress (Count IV)

The Police and Sears Defendants have moved for summary judgment with respect to

Plaintiff’s claim for intentional infliction of emotional distress (“IIED”). Plaintiff opposes the

motions and has counter-moved for summary judgment on this claim with respect to the Sears

Defendants.

In Maryland, an IIED claim requires four elements: “(1) the conduct must be intentional or

reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection

between the wrongful conduct and the emotional distress; and (4) the emotional distress must be

severe.” Harris v. Jones, 380 A.2d 611, 614 (Md. 1977). Intentional or reckless conduct occurs

when the actor “desires to inflict severe emotional distress, and . . . knows that such distress is

certain, or substantially certain, to result from his conduct; or where the defendant acts recklessly

2 In response to the Sears Defendants’ merchant’s privilege defense, Plaintiff argues that the

statutory privilege only applies if the individual detained has the merchant’s property on their

person at the time of the arrest. But this argument finds no basis in the privilege’s text, which

imposes no such possession requirement. See Md. Code Ann., Cts. & Jud. Proc. § 5-402(a).

Furthermore, Plaintiff’s citations to pattern jury instructions and case law are unpersuasive. In

particular, Plaintiff attempts to rely on Caldor, Inc. v. Bowden, 625 A.2d 959 (Md. 1993), which

upheld a false imprisonment verdict in favor of a juvenile employee who was detained by a

shopkeeper and his agents, subjected to racially motivated comments, and forced to confess to

theft. On appeal, the shopkeeper and his agents argued that a juvenile court had previously

determined that they had probable cause to detain the employee, and that this determination was

entitled to preclusive effect. Id. at 970-72. The Court of Appeals of Maryland rejected this

argument, merely concluding that the juvenile court’s rulings in the previous case were not final

determinations on probable cause, and therefore that issue was properly submitted to the jury. Id.

at 972. The Court of Appeals did not impose any sort of possession requirement on the statutory

merchant’s privilege.

in deliberate disregard of a high degree of probability that the emotional distress will follow.” Id.

at 614. Furthermore, the extreme and outrageous element requires conduct “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.” Id. The IIED tort “is to be

used sparingly and only for opprobrious behavior that includes truly outrageous conduct.”

Kentucky Fried Chicken Nat’l Mgmt. Co. v. Weathersby, 607 A.2d 8, 11 (Md. 1992).

This Court agrees with Defendants that the record evidence is devoid of facts that would

allow a reasonable jury to conclude that any of the Defendants’ conduct meets the “rigorous”

standard for IIED claims. Weathersby, 607 A.2d at 11. Plaintiff seems to argue that the Defendants

acted recklessly by detaining Plaintiff, interviewing her, and eventually causing her to be arrested

without conducting a more complete investigation, despite knowing that such actions would likely

cause emotional distress. See ECF 63-1 at 20-21; ECF 64-1 at 14-15. Even assuming arguendo

that this conduct could be considered reckless with respect to the Sears Defendants, it did not go

“beyond all possible bounds of decency” so as to satisfy the extreme and outrageous prong. Harris,

380 A.2d at 614. As discussed above, Markowski had video and other evidence of Plaintiff’s

involvement in a theft scheme involving a significant quantity of merchandise. Under such

circumstances, the decision to question Plaintiff and involve police can hardly be considered

extreme and outrageous. Furthermore, no reasonable juror could conclude that the Police

Defendants acted recklessly, extremely, or outrageously by making a legally justified arrest based

on Markowski’s representations. Accordingly, the Police Officer and Sears Defendants are entitled

to summary judgment on Count IV.

4. Gross Negligence and Negligence (Counts V and XVI)

Plaintiff’s state law claims for gross negligence and negligence have already been

dismissed as to Sears, ECF 24, but remain against the Police Officer Defendants and Markowski.

Under Maryland law, a plaintiff seeking to establish negligence must prove (1) a duty owed to the

plaintiff, (2) a breach of that duty, (3) a causal relationship between the breach and the harm, and

(4) damages suffered. See Jacques v. First Nat’l Bank, 515 A.2d 756, 758 (Md. 1986). Gross

negligence “sets the evidentiary hurdle at a higher elevation” and requires “an intentional failure

to perform a manifest duty in reckless disregard of the consequences as affecting the life or

property of another.” Beall v. Holloway-Johnson, 130 A.3d 406, 415 (Md. 2016) (quotation

omitted). “[A] wrongdoer is guilty of gross negligence or acts wantonly and willfully only when

he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if

such rights did not exist.” Id.; see also Stracke v. Estate of Butler, 214 A.3d 561, 569 (Md. 2019)

(“[A] claim of gross negligence must be supported by sufficient evidence that the defendant acted

with wanton or reckless disregard for the safety of others.” (quotations omitted)).

i. Police Officer Defendants

The Police Officer Defendants first assert that they are immune from Plaintiff’s ordinary

negligence claim. Under Maryland law, “police officers are public officials and therefore enjoy

the common law immunity possessed by such officials.” Smith v. Danielczyk, 928 A.2d 795, 813

(Md. 2007). This limited immunity “protects the officer from liability for non-malicious negligent

conduct committed in the performance of discretionary acts in furtherance of the officer’s official

duties.” Id.; see also DiPino v. Davis, 729 A.2d 354, 370 (Md. 1999); Muthukumarana v.

Montgomery County, 805 A.2d 372, 390-392 (Md. 2002). In its opposition, Plaintiff fails to

address this immunity defense and instead simply asserts that the officers breached a duty of

reasonable care by arresting Plaintiff without independently investigating the accusations against

her. For the reasons discussed above, Plaintiff’s argument is meritless and, in any event, cannot

overcome the common law immunity afforded to the Police Officer Defendants. The officers are

therefore entitled to summary judgment on Plaintiff’s negligence claim.

With respect to gross negligence, this Court has already explained that the record evidence

clearly establishes that the Police Officer Defendants had probable cause to arrest Plaintiff and did

not use excessive force in arresting her. Plaintiff has introduced no evidence that the officers

“inflict[ed] injury intentionally,” or were “so utterly indifferent to the rights” of the Plaintiff during

the course of the arrest, as is required to state a claim for gross negligence. Beall, 130 A.3d at 415.

As a result, no reasonable jury could conclude that the Police Officer Defendants were grossly

negligent, and the officers are entitled to summary judgment on this claim as well.

ii. Markowski

With respect to her negligence claim, Plaintiff argues that Markowski breached a duty of

ordinary and reasonable care “when he took actions to initiate criminal proceedings against

[Plaintiff] without first performing an adequate investigation into the allegations of criminal

activity.” ECF 64-1 at 15. However, the Sears Defendants have introduced ample evidence that

Markowski did undertake a thorough investigation into Plaintiff’s involvement in the alleged theft

scheme. Most notably, the Sears Defendants have produced three videos which show Plaintiff free

bagging items that her co-workers had scanned. See ECF 47-6, 47-7, 47-8. Markowski testified

that he observed these videos—along with other live and recorded surveillance footage of Plaintiff

engaging in free bagging—and that he compiled a detailed log of the items that appeared stolen,

based on his review of the videos and store purchasing records. ECF 47-5 at 60:5-62:2.

Additionally, the Sears Defendants produced a statement of probable cause drafted by Birkmaier,

which included a detailed inventory of the items suspected to have been stolen and their values

totaling $1,684.19. ECF 47-9. Both Markowski and Birkmaier testified that this inventory was

based on information that Markowski provided from his investigatory file. ECF 63-1 at 86:2-86:18;

ECF 63-3 at 124:5.

In response, Plaintiff has failed to establish a genuine issue of fact by pointing to non-

speculative evidence that would allow a reasonable jury to determine that Markowski acted

negligently. Notably, Plaintiff has abandoned the theory set forth in her Amended Complaint,

which alleged that Markowski lacked any evidence (video or otherwise) of Plaintiff’s involvement

in a theft scheme. Rather, Plaintiff now essentially argues that Markowski failed to act with

reasonable care in investigating the theft scheme. See ECF 64 at 15-16. In support of this

contention, she notes that the Sears Defendants have failed to produce the investigatory file

compiled by Markowski—who no longer works at Sears—which supposedly contained a detailed

accounting of the items allegedly stolen. ECF 68 at 3-5. But the absence of that file does not

support the inference that Markowski’s investigation was haphazard or (as Plaintiff implies)

fabricated. Id. at 4. As noted above, Defendants have produced the statement of probable cause,

which contained a detailed list of items stolen. ECF 47-9. Both Markowski and Officer Birkmaier

testified this list was based on information provided by Markowski, and it is unclear where else

such information could have come from. Beyond that absence of the investigatory file, Plaintiff

relies on minor discrepancies between the dates of alleged thefts listed on the statement of probable

cause and the surveillance videos produced in this case to argue that Markowski lacked evidence

that Plaintiff stole more than $1,500 of merchandise—the amount required to justify a warrantless

arrest in this case. See ECF 64 at 1-5. But it remains undisputed that Plaintiff—knowingly or not—

participated in a free bagging scheme across multiple dates that was captured on video

surveillance. Based on those surveillance videos and his investigatory findings, Markowski called

police to report the theft scheme. Id. at 22:16-22:21, 44:4-44:12. This Court concludes that no

reasonable jury could find that such conduct was unreasonable or violated a duty of care to

Plaintiff.

Accordingly, Markowski is entitled to summary judgment with respect to Plaintiff’s

negligence claim. Because Markowski is not liable for ordinary negligence, Plaintiff’s gross

negligence claim must also fail. This Court will therefore grant summary judgment to Markowski

with respect to Counts V and XVI.

5. Malicious Prosecution (Count VI)

All parties seek summary judgment on Plaintiff’s malicious prosecution claim. Under

Maryland law, to establish malicious prosecution, the plaintiff must prove (1) “that a criminal

proceeding was instituted or continued by the defendant against the plaintiff,” (2) “that the

proceeding terminated in favor of the plaintiff,” (3) “the absence of probable cause for the

proceeding,” and (4) “malice, meaning that a primary purpose in instituting the proceeding was

other than that of bringing the plaintiff to justice.” DiPino, 729 A.2d. at 373; Jannenga v. Libernini,

222 Md. 469, 472 (1960). A private party can initiate a prosecution for the purposes of a malicious

prosecution claim if it takes some affirmative act to “institute[], instigate[] or inspire[] in any

fashion” the state to bring criminal charges. Smithfield Packing Co., Inc. v. Evely, 905 A.2d 845,

854 (Md. Ct. Spec. App. 2006) (quotation omitted). It is undisputed that a criminal proceeding was

initiated against Plaintiff that terminated in her favor when the prosecutor entered a nolle prosequi.

Thus, only the third and fourth elements are at issue.

For the reasons explained above, this Court has already determined as a matter of law that

the Police Officer Defendants had probable cause to believe that Plaintiff had committed felony

theft. Therefore, the officers are entitled to summary judgment on Count VI.

With respect to the Sears Defendants, Plaintiff argues that the record evidence fails to show

that Markowski had probable cause to believe that Plaintiff had stolen more than $1,500 of

merchandise, as was required to constitute felony theft. Plaintiff further points to Maryland

caselaw stating that the fourth element of a malicious prosecution claim, malice, “may be inferred

from the lack of probable cause.” DiPino, 729 A.2d at 374. But even assuming arguendo that a

genuine dispute exists that Markowski lacked probable cause that Plaintiff had committed felony

theft, he undoubtedly had probable cause based on the surveillance videos that Plaintiff had stolen

some merchandise from the store. Thus, Plaintiff cannot as a matter of law satisfy the third element

requiring a lack of probable cause. See Nasim v. Tandy Corp., 726 F. Supp. 1021, 1027 (D. Md.

1989) (“[Store] employees had probable cause . . . to believe that some crime had been committed

. . . . That is all that is needed to negate the showing of lack of probable cause.”) Furthermore, the

presence of some probable cause means that the fourth element of malice cannot be inferred in this

instance. See DePino, 729 A.2d at 374. And Plaintiff has not otherwise pointed to any evidence

that Markowski “‘was actuated by an improper motive,’ a purpose ‘other than that of bringing [the

plaintiff] to justice.’” Id. (quoting Wilson, 664 A.2d at 925). Accordingly, the Sears Defendants

are likewise entitled to summary judgment on Plaintiff’s malicious prosecution claim.3

6. Invasion of Privacy (Counts VII, VIII, and IX)

The Police Officer Defendants next seek summary judgment on Plaintiff’s three invasion

of privacy claims for intrusion upon seclusion (Count VII), unreasonable publicity (Count VIII),

3 This Court also notes that Maryland’s statutory merchant’s privilege would also appear insulate

the Sears Defendants from Plaintiff’s malicious prosecution claim. See Md. Code Ann., Cts. &

Jud. Proc § 5-402(a) (stating that a merchant or its agent “shall not be held civilly liable for

detention, slander, malicious prosecution, false imprisonment, or false arrest” when the detaining

party had probable cause of a theft of store merchandise (emphasis added)). However, the Sears

Defendants have not asserted the privilege with respect to this claim.

and false light (Count IX). Specifically, the officers argue that, as with the ordinary negligence

claim discussed above, Maryland’s public official immunity shields them from these three claims.

As explained above, Maryland public officials have immunity from claims based on

negligent tortious conduct in furtherance of their official duties. Smith, 928 A.2d at 813. However,

Maryland courts have made clear that this immunity “is quite limited and is generally applicable

only in negligence actions or defamation actions based on allegedly negligent conduct.” Lee v.

Cline, 863 A.2d 297, 305 (2004); see also DePino, 729 A.2d at 370. Thus, the Court of Appeals

of Maryland has previously held that a police officer was not entitled to immunity against a general

claim for invasion of privacy. Ashton, 660 A.2d at 470-71 (holding the lower courts erred by

granting summary judgment on immunity grounds, but concluding that the plaintiff had

nonetheless failed to offer evidence showing an invasion of privacy). The Police Officer

Defendants have failed to explain why Plaintiff’s invasion of privacy claims in the instant case

should be treated differently. In particular, Count VII alleges intrusion upon seclusion, which is

defined as “[t]he intentional intrusion upon the solitude or seclusion of another or his private affairs

or concerns that would be highly offensive to a reasonable person.” Furman v. Sheppard, 130 Md.

App. 67, 73 (2000) (emphasis added) (quotation omitted). This tort cannot be satisfied by mere

negligence. Moreover, even assuming arguendo that unreasonable publicity and false light can be

committed via negligent conduct,4 the officers have failed to explain how Maryland’s limited

public official immunity applies to those claims under the facts of this case. As a result, this Court

concludes that the officers are not entitled to immunity from Plaintiff’s invasion of privacy claims.

4 Unlike intrusion upon seclusion, the torts of unreasonable publicity and false light do not have

an intent requirement, and merely require public disclosure by the accused of private or false

information. See Hollander v. Lubow, 351 A.2d 421, 426-427 (Md. 1976), superseded on other

grounds by Md. Rule 2-501(a), (e); Wimbush v. Kaiser Found. Health Plan of the Mid Atlantic

States, Inc., TDC-14-0525, 2015 WL 2090654, at *10 (D. Md. May 5, 2015).

While the officers are not immune from these claims, a district court may enter summary

judgment sua sponte on alternative grounds “so long as the losing party was on notice that she had

to come forward with all of her evidence.” Penley v. McDowell Cnty. Bd. of Educ., 876 F.3d 646,

661 (4th Cir. 2017) (quoting Celotex Corp., 477 U.S. at 326). The defending party must also be

afforded an opportunity to “defend against summary judgment on those specific grounds.” Alvarez

v. Getachew, No. 1:17-CV-0141-PX, 2021 WL 1561517, at *2 (D. Md. Apr. 21, 2021) (quoting

Adams Hous., LLC v. Cty. of Salisbury, 672 F. App'x 220, 222 (4th Cir. 2016)). After briefing was

completed in this case, this Court requested, and Plaintiff provided, a supplemental memorandum

identifying the facts and evidence she seeks to rely upon to establish her invasion of privacy claims.

See ECF 72, 74. For the reasons stated below, this Court concludes that Plaintiff has not introduced

competent evidence in support of these claims, and it will therefore grant summary judgment to

the Police Officer Defendants.

i. Intrusion Upon Seclusion (Count VII) and Unreasonable Publicity

(Count VIII)

Intrusion upon seclusion and unreasonable publicity are two related invasion of privacy

torts. Maryland law defines intrusion upon seclusion as “[t]he intentional intrusion upon the

solitude or seclusion of another or his private affairs or concerns that would be highly offensive to

a reasonable person.” Furman v. Sheppard, 744 A.2d 583, 585 (Md. Ct. Spec. App. 2000)

(quotation omitted). Unreasonable publicity, meanwhile, involves the highly objectionable

publication of a matter in one’s private life, even if it is true. Hollander, v. Lubow, 351 A.3d 421,

426 (Md. 1976), superseded on other grounds by Md. Rule 2-501(a),(e). These two torts “require

the invasion of something secret, secluded or private pertaining to the plaintiff.” Id. at 427. Thus,

with respect to intrusion upon seclusion, there is no liability for observing a person in a public

place “since [she] is not then in seclusion.” Furman, 744 A.2d at 585; see also Marrs v. Marriott

Corp., 830 F. Supp. 274, 283-84 (D. Md. 1992) (“[T]his type of invasion of privacy . . . generally

is inapplicable to most areas of the workplace because there can be no liability for observing an

employee at work since [s]he is then not in seclusion.” (quotation omitted)). Similarly, for

unreasonable publicity to lie, “the matter disclosed must be a private fact.” Pemberton v.

Bethlehem Steel Corp., 502 A.2d 1101, 1118 (Md. Ct. Spec. App. 1986).

In this case, all the interactions between the Police Officer Defendants and Plaintiff took

place in public or in the workplace, where Plaintiff did not have an expectation of privacy. Thus,

there was no “seclusion” for the officers to intrude upon. See Marrs, 830 F. Supp. at 283-84. While

Plaintiff argues that the officers “intrud[ed] into [her] personal space” by arresting her, ECF 74 at

4, this conduct is more appropriately addressed through her claims for battery or false arrest, which

this Court has already addressed. Furthermore, for the reasons discussed above, the Police Officer

Defendants had legal justification to arrest Plaintiff, and therefore cannot be held liable under an

invasion of privacy theory for effectuating that valid arrest.

Plaintiff’s unreasonable publicity claim fails for similar reasons. While Plaintiff argues that

the felony charges set forth in the public police incident report were false, see ECF 74 at 2-4, 48-

6 (incident report), the alleged falsity of that document is not grounds for an unreasonable publicity

claim. Rather, this tort is concerned with whether the defendant unreasonably publicized private

facts. See Hollander, 351 A.2d at 426. Here, the information in the incident report was based

entirely on alleged conduct that occurred in public. Thus, nothing in the report constituted a

“private fact.” Indeed, Plaintiff appears to base this claim not on the privacy of the alleged charges

described in the incident report, but rather their truth or falsity. While this theory may support a

claim for false light invasion of privacy, it cannot support a claim for unreasonable publicity.

Accordingly, this Court will grant summary judgment to the Police Officer Defendants with

respect to Counts VII and VIII.

ii. False Light (Counts IX)

“[T]o establish a successful claim for false light invasion of privacy, a plaintiff must prove

that the defendant 1) gave ‘publicity to a matter concerning another that places the other before

the public in a false light,’ 2) that “the false light in which the other person was placed would be

highly offensive to a reasonable person,’ and 3) that ‘the actor had knowledge of or acted in

reckless disregard as to the falsity of the publicized matter and the false light in which the other

would be placed.’” Hill v. Hunt, 2022 WL 704001, at *6 (D. Md. March 9, 2022) (quoting Bagwell

v. Peninsula Reg’l Med. Ctr., 665 A.2d 297, 318 (Md. Ct. Spec. App. 1995)). Essentially, Plaintiff

argues that the Police Officer Defendants are liable for arresting Plaintiff, filing a public incident

report, and charging her, even though they “were aware that the arrest was improper, and that Ms.

Kaur was falsely accused of felony theft.” ECF 74 at 2. But this Court has already concluded as a

matter of law that the Police Officer Defendants had probable cause to arrest Plaintiff for felony

theft, based on Markowski’s representations that his investigation had revealed a felony theft

scheme. There was no reason for the officers to believe that Markowski was untrustworthy, or that

the inventory of allegedly stolen goods that he provided—and that Officer Birkmaier relied on to

fill out the incident report—was somehow unreliable. Accordingly, even if Plaintiff could establish

that the accusations of felony theft were ultimately false, she cannot show that the officers acted

recklessly or with knowledge of that falsity in this case. See Hunt, 2022 WL 704001, at *6

(dismissing invasion of privacy claims, including false light, against a police officer where the

officer had probable cause to seek a warrant for the plaintiff’s arrest). Accordingly, this Court will

grant summary judgment to the Police Officer Defendants on Count IX, as well.

7. Civil Conspiracy (Count X)

The Sears Defendants, Police Officer Defendants, and Plaintiff all seek summary judgment

on Plaintiff’s claim for civil conspiracy. In Maryland, a civil conspiracy requires “[1] a

confederation of two or more persons, [2] some unlawful act done in furtherance of the conspiracy,

and [3] actual legal damage resulting to the victim-plaintiff.” Van Royen v. Lacey, 277 A.2d 13,

14 (Md. 1971). The Court of Appeals of Maryland “has consistently held that ‘conspiracy’ is not

a separate tort capable of independently sustaining an award of damages in the absence of other

tortious injury to the plaintiff.” Alleco Inc. v. Harry & Jeanette Weinberg Found., Inc., 665 A.2d

1038, 1045 (Md. 1995) (quotation omitted). This Court has already concluded, for the reasons

described above, that the Sears and Police Officer Defendants are entitled to summary judgment

on Plaintiff’s underlying tort claims. Absent any independent tortious conduct, Defendants cannot

be held liable for civil conspiracy. The Sears and Police Officer Defendants are therefore entitled

to summary judgment on Count X.

8. Aiding and Abetting (Count XI)

This Court previously dismissed Plaintiff’s aiding and abetting claim against the Sears

Defendants. See ECF 24, 29. The Police Officer Defendants have now moved, and Plaintiff has

counter-moved, for summary judgment on Plaintiff’s aiding and abetting claim against the officers.

Under Maryland law, a person who “encouraged, incited, aided or abetted the act of the direct

perpetrator of the tort” may be held liable for the underlying tortious conduct. Alleco Inc., 665

A.2d at 1049 (quoting Duke v. Feldman, 226 A.2d 345, 347 (Md. 1967)). To be held liable for

aiding and abetting, there must be a “direct perpetrator of the tort.” Id. (quoting Duke, 226 A.2d at

347). “Thus, civil aider and abettor liability, somewhat like civil conspiracy, requires that there

exist underlying tortious activity in order for the alleged aider and abettor to be held liable.” Id.;

see also Wright v. Audisio, Civ. No. CCB-21-809, 2022 WL 4608332, at *3 (D. Md. Sept. 30,

2022). Once again, this Court has concluded that the Sears Defendants are entitled to summary

judgment on all of Plaintiff’s underlying tort claims. Without an independent tort committed by a

principal, the Police Officer Defendants cannot by held liable for aiding and abetting. Accordingly,

the Police Officer Defendants are entitled to summary judgment on Count XI.

9. State and Federal Constitutional Claims (Counts XVII-XX)

Finally, the Police Officer Defendants and Plaintiff both seek summary judgment on

Plaintiff’s state and federal constitutional claims. Specifically, Plaintiff seeks damages under 42

U.S.C. § 1983 for violations of the Fourth, Fifth, and Fourteenth Amendments of the United States

Constitutions, and she also asserts violations of Articles 24 and 26 of the Maryland Declaration of

Rights. ECF 7 ¶ 237-286. Article 24 is Maryland’s constitutional guarantee of due process and

equal protection under the law, and it is generally construed in pari materia with the Fourteenth

Amendment. Tyler v. City of College Park, 3 A.3d 421, 434-35 (Md. 2010); Hawkins v. Leggett,

955 F. Supp. 2d 474, 496 (D. Md. 2013). Likewise, Article 26 is the State’s analog to the Fourth

Amendment and protects the same rights as its federal counterpart. Richardson, 762 A.2d at 56;

Dent v. Montgomery Cnty. Police Dep’t, 745 F. Supp. 2d 648, 661 (D. Md. 2010). In addition,

public officials (including police officers) are entitled to qualified immunity for federal

constitutional violations when “in light of clearly established law, [they] could reasonably believe

that their actions were lawful.” Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012) (quotation

omitted).

In this case, Plaintiff’s theory of relief for her constitutional claims mirrors her state

common law claims for battery, false arrest and imprisonment, and malicious prosecution. ECF 63

at 7-12. That is, Plaintiff contends that the Police Officer Defendants violated her constitutional

rights when they arrested her without probable cause. See, e.g., Brown v. Gilmore, 278 F.3d 362,

367 (4th Cir. 2022) (“To establish an unreasonable seizure under the Fourth Amendment,

[plaintiff] needs to show that the officers decided to arrest [them] . . . without probable cause.”);

Horner, 690 F.3d at 188 (stating that a malicious prosecution claim under § 1983 “is simply a

claim founded on a Fourth Amendment seizure that incorporates the elements of the analogous

common law tort” (quoting Snider v. Seung Lee, 584 F.3d 193, 199 (4th Cir. 2009)). As discussed

above, the record evidence, even when viewed in the light most favorable to Plaintiff, establishes

that the Police Officer Defendants had probable cause to arrest Plaintiff based on Markowski’s

representations regarding his investigation. The officers conducted that arrest legally and without

the use of excessive force. Furthermore, Plaintiff has introduced no evidence showing that the

officers violated her Fifth Amendment rights by depriving her of life, liberty, or property without

due process, or by jeopardizing her privilege against self-incrimination. Thus, there was no state

or federal constitutional violation in this case, and the officers are entitled to summary judgment

on Counts XVII, XVIII, XIX, and XX. Because the Court concludes that no constitutional

violation occurred in this case, it need not consider the officers’ argument that they are entitled to

qualified immunity for the federal constitutional claims.

B. Motion to Bifurcate and Stay Discovery

BCPD has filed a motion to (1) bifurcate the trial of Plaintiff’s claims against BCDP from

its claims against the Police Officer Defendants, and to (2) stay discovery against BCPD pending

the resolution of Plaintiff’s claims against the individual officers. However, this Court has

concluded, for the reasons explained above, that the Police Officer Defendants are entitled to

summary judgment on all of Plaintiff’s claims against them. Therefore, as a practical matter, the

motion to bifurcate and stay discovery is moot, because there are no remaining claims against the

Police Officer Defendants.

Because the individual defendants are entitled to summary judgment on all underlying

claims, it is unclear what, if any, basis remains for holding BCPD civilly liable. See, e.g., Grayson

v. Reed, 195 F.3d 692, 697 (4th Cir. 1999) (absent “underlying constitutional violations by any

individual, there can be no municipal liability” under 42 U.S.C. § 1983); Johnson v. Baltimore

Police Dep’t, 500 F. Supp. 3d 454, 460 (D. Md. 2020). However, because, BCPD has not moved

for summary judgment or dismissal of the claims against it, this Court will defer further

consideration of the matter pending receipt of a dispositive motion from BCPD. Any such motion

must be filed on or before January 9, 2023.

IV. CONCLUSION

For the foregoing reasons, the Sears Defendants’ motion for summary judgment, ECF 47,

and the Police Officer Defendants’ motion for summary judgment, ECF 48, will be GRANTED.

Plaintiff’s cross-motions for summary judgment, ECF 63, 64, will be DENIED. BCPD’s motion

to bifurcate trial and stay discovery, ECF 49, will be DENIED as moot. A separate order follows.

Dated: December 9, 2022 /s/

Stephanie A. Gallagher

United States District Judge