# Cunningham ex rel Gaines v. Baltimore Cnty.

> Court of Appeals of Maryland · June 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10464499

## Case

- **Court:** Court of Appeals of Maryland
- **Decided:** June 25, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Per Curiam
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10464499

## How later opinions describe it (automated extraction)

- holding that a bystander’s Fourteenth Amendment rights were not violated, but reasoning that there could be situations where that would not be the case

## Opinion text

Corey Cunningham, on behalf of Kodi Gaines, a minor v. Baltimore County, Maryland, et
al., No. 9, September Term, 2023.

WAIVER – APPELLATE PRESERVATION
A party that receives an adverse ruling from a trial court must appeal that ruling to properly
preserve their claim. Generally, when an aggrieved party fails to appeal a claim, that claim
is lost and that party is precluded from pursuing it. However, in specific circumstances,
when a trial court enters a ruling disposing of all claims and the Appellate Court reverses
in toto, reviving those claims, they are resurrected regardless of whether the claim was
properly preserved.

QUALIFIED IMMUNITY – FOURTEENTH AMENDMENT
Corporal Ruby is entitled to qualified immunity to Kodi’s excessive force claim brought
pursuant to the Substantive Due Process Clause of the Fourteenth Amendment. Qualified
immunity is proper unless the law “clearly established” that Corporal Ruby violated Kodi’s
Fourteenth Amendment rights when he ended an armed standoff with Ms. Gaines at her
apartment (with Kodi present) by shooting Ms. Gaines. Because the law was not clearly
established at the time, qualified immunity is proper.
Circuit Court for Baltimore County
Case No. 03-C-16-009435
Argued: December 4, 2023
IN THE SUPREME COURT

OF MARYLAND

No. 9

September Term, 2023

COREY CUNNINGHAM, ON BEHALF OF
KODI GAINES, A MINOR

v.

BALTIMORE COUNTY, MARYLAND, ET AL.

Fader, C.J.,
Watts,
* Hotten,
Booth,
Biran,
Gould,
Eaves,

JJ.

PER CURIAM
Watts, J., dissents.
Hotten, J., concurs and dissents.

Filed: June 25, 2024

Pursuant to the Maryland Uniform Electronic Legal *Hotten, J., participated in the hearing of the case
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
and in the conference in regard to its decision as an
2024.06.27
active judge. She retired from the Court and was
08:15:51 recalled to senior status prior to the adoption and
-04'00'
filing of the opinion.
Gregory Hilton, Clerk
This appeal comes to us in a challenging posture with a long and tortured procedural

history. At the center of the current appeal is petitioner Corey Cunningham’s claim on

behalf of his minor child, Kodi Gaines, 1 for a violation of Kodi’s right to substantive due

process under the Fourteenth Amendment to the United States Constitution, brought

pursuant to 42 U.S.C. § 1983 (the “Substantive Due Process Claim” 2). Although central

now, the parties and the trial court treated that claim as something ranging between a side

issue and a non-issue in the lead-up to trial, during the trial itself, and in post-trial motions

practice. As a result, Kodi’s Substantive Due Process Claim was not identified to the jury,

the jury was not instructed on the standards applicable to that claim, the jury was not

specifically asked to reach a verdict on that claim (as distinct from Kodi’s claims under the

Fourth Amendment to the United States Constitution), and the claim was addressed only

briefly and partially in motions for judgment at and following trial. That treatment

continued in the first appeal, in which the parties—and, as a result, the Appellate Court of

Maryland—treated Kodi’s Substantive Due Process Claim as a non-issue. Along the way,

the parties’ statements and arguments about Kodi’s Substantive Due Process Claim have

often appeared as ships passing in the night, failing to engage on the same terms and

resulting in substantial confusion, even in hindsight.

1
For clarity and ease of reference, we will refer to Mr. Cunningham, acting on
behalf of his son Kodi Gaines, as “Kodi,” and to his arguments and positions in this case
as those of Kodi.
2
For clarity and ease of reference, we will refer to Kodi’s Substantive Due Process
Claim in the singular. Although the claim is made in Counts VII and X of the complaint,
it is treated as a single excessive force claim.

1
The circuit court rendered the judgment currently on review in favor of the

respondents, Baltimore County and Corporal Royce Ruby, the defendants below (the

“Defendants”). The court found that the evidence at trial could not sustain a verdict on

Kodi’s Substantive Due Process Claim. Without ruling on sufficiency, the Appellate Court

affirmed on two different, independent grounds: (1) that Kodi had waived his Substantive

Due Process Claim by not pursuing that claim during the first round of appellate

proceedings; and (2) that qualified immunity barred Kodi’s Substantive Due Process

Claim. We disagree with the Appellate Court’s decision on waiver but agree that under

the standard established by the United States Supreme Court, qualified immunity precludes

Kodi’s Substantive Due Process Claim. Accordingly, we will affirm.

BACKGROUND

A. Legal Framework

We begin by identifying the basic legal framework applicable to excessive force

claims as they pertain to innocent bystanders. We do so because the seeming failure of all

parties to understand that framework at the trial stage—or if they understood it, the failure

to articulate it—is behind much of the confusion that has ensued.

As explained in Graham v. Connor, “claim[s] that law enforcement officials used

excessive force in the course of making an arrest, investigatory stop, or other ‘seizure’ of

[the] person . . . are properly analyzed under the Fourth Amendment’s ‘objective

reasonableness’ standard, rather than under a substantive due process standard.” 490 U.S.

386, 388 (1989). Thus, any claim of excessive force by the subject of a seizure—including

2
a seizure by a shooting—is analyzed as a Fourth Amendment claim. 3 Id. And although

the Fourth Amendment originally applied only to the United States government, the

protections of that amendment were subsequently incorporated as against the states through

the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643,

654-56 (1961).

The protections of the Fourth Amendment—either independently or through the

Fourteenth Amendment’s Due Process Clause—do not, however, extend to bystanders who

claim harm from the use of excessive force by a law enforcement officer that was intended

for someone else. That is because a “[v]iolation of the Fourth Amendment requires an

intentional acquisition of physical control.” Brower v. Cnty. of Inyo, 489 U.S. 593, 596

(1989). In other words, a Fourth Amendment excessive force claim is available only to a

person who an officer intentionally seizes. Id. at 596-97.

However, some courts have recognized that a bystander who lacks the ability to

bring a claim under the Fourth Amendment may be able to pursue an excessive force claim

directly under the substantive component of the Fourteenth Amendment’s Due Process

Clause. 4 See Rucker v. Harford Cnty., 946 F.2d 278, 281 (4th Cir. 1991) (“the substantive

3
The Fourth Amendment provides: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.” U.S. Const. amend. IV.
4
The Due Process Clause contains both procedural and substantive protections.
“Procedural due process imposes constraints on governmental decisions which deprive
individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause

3
protections of the due process clause may” “extend to unintentionally injured bystanders”

(internal quotations omitted)). Such claims, if recognized, would not be subject to the

“objectively reasonable” test applied to Fourth Amendment excessive force claims, but to

the more demanding “shocks the conscience” standard applicable to substantive due

process claims. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)

(recognizing the shocks the conscience standard).

The Due Process Clause of the Fourteenth Amendment thus plays a different role in

each type of excessive force claim. For claims brought by the object of a seizure under the

substantive protections of the Fourth Amendment, the Due Process Clause of the

Fourteenth Amendment is the vehicle by which such protections are applied to the states.

Graham, 490 U.S. at 388, 394-95. Such claims against state actors are still subject to the

Fourth Amendment substantive standard, even though they flow through the vehicle of the

Fourteenth Amendment. In contrast, with respect to claims brought by innocent

bystanders, the Due Process Clause of the Fourteenth Amendment is the source of whatever

of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
“Procedural due process ensures that individuals are not subject to arbitrary governmental
deprivation of their liberty and property interests by requiring that litigants ‘receive notice,
and an opportunity to be heard.’” Johnson v. Md. Dep’t of Health, 470 Md. 648, 686 (2020)
(quoting Pickett v. Sears, Roebuck & Co., 365 Md. 67, 81 (2001)). Substantive due
process, by contrast, refers “to the principle that there are certain liberties protected by the
due process clauses [of Article 24 and the United States Constitution] from legislative
restrictions, regardless of the procedures provided, unless those restrictions are narrowly
tailored to satisfy an important government interest.” Id. (alteration in original) (quoting
Allmond v. Dep’t of Health & Mental Hygiene, 448 Md. 592, 609-10 (2016)).

4
substantive protections may exist under the federal Constitution. 5 Such claims are pure

Fourteenth Amendment claims, subject to the Fourteenth Amendment standard.

Section 1983 of Article 42 of the United States Code is the statutory vehicle that

enables plaintiffs to pursue federal constitutional claims against state actors in certain

circumstances. 6 Thus, excessive force claims brought against state officials pursuant to

the United States Constitution are brought as § 1983 claims whether brought by the object

of a seizure under the Fourth Amendment (through the Fourteenth Amendment) or by a

bystander under the Fourteenth Amendment itself.

5
Although Kodi brought claims under both the federal and state constitutions, his
current appeal focuses solely on his claims under the United States Constitution. We
presume that is because his Maryland constitutional claims, unlike his federal claims, are
subject to the monetary limit on the State’s waiver of sovereign immunity under the
Maryland Tort Claims Act, Lee v. Cline, 384 Md. 245, 266 n.4 (2004), and he is already
entitled to recover the maximum available pursuant to that waiver because he prevailed on
his battery claim, which is not before us. As a result, we do not have occasion to consider
here either: (1) the proper standard for a bystander liability excessive force claim under
the Maryland Constitution and Declaration of Rights; or (2) whether any form of immunity
would apply to such a claim.
6
42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress[.]

5
B. Factual Background 7

The factual background to this appeal comes from the tragic events of August 16,

2016, when a six-hour standoff between Baltimore County police officers and Korryn

Gaines ended with Corporal Royce Ruby shooting and killing Ms. Gaines. Two of the

bullets that struck Ms. Gaines subsequently hit and injured Kodi Gaines, Ms. Gaines’s son

who was then five years old.

On the morning of the shooting, officers attempted to serve arrest warrants on

Ms. Gaines and Kareem Courtney at Ms. Gaines’s residence in Baltimore County.

Cunningham v. Baltimore Cnty., 246 Md. App. 630, 640 (2020) (“Cunningham I”). The

warrant for Ms. Gaines was for a misdemeanor offense. The officers heard movement

inside the apartment, but nobody opened the door when they knocked. Id. at 641. After

kicking the apartment door open, officers entered the apartment and saw Ms. Gaines seated

on the floor with a pistol grip shotgun in her hands. Id. The officers left the apartment and

called for back-up. Id. A hostage negotiation team and a SWAT unit, including Corporal

Ruby, were called in, and they took protected positions outside the apartment. A six-hour

standoff between Ms. Gaines and the officers ensued. Id.

During the standoff, officers were told that Ms. Gaines had a history of mental

illness and that she had been off her medication. Id. at 646-47. Officers testified that

Ms. Gaines acted erratically, sometimes negotiating with officers, at other times

threatening them and cutting off contact. Id. at 648-49, 690 n.41. Ms. Gaines’s boyfriend

7
We set forth the facts in the light most favorable to Kodi. See Yates v. Terry, 817
F.3d 877, 884 (4th Cir. 2016).

6
attempted to persuade her to allow Kodi to leave the apartment during the standoff, but Ms.

Gaines did not respond, and instead instructed Kodi to stay close to her, which he did. 8 Id.

at 646-49.

Through most of the standoff, Ms. Gaines remained in the same location within the

apartment, occasionally standing up to stretch her legs while keeping the shotgun pointed

at the door. Id. at 650. Approximately six hours after the standoff began, Ms. Gaines

moved to the kitchen, within sight of Corporal Ruby and still in possession of the shotgun. 9

Id. According to Corporal Ruby, he observed Ms. Gaines raise her shotgun into a firing

position and aim toward the hinge side of the front door, from which she could have hit

officers stationed on the other side. Id. at 650-52. Kodi contends that other evidence

contradicts that claim. Among other things, he points out that Corporal Ruby testified that

all he could see through his scope were Ms. Gaines’s braids and the barrel of the gun, and

that other witnesses testified that more of her body would have been visible had she been

aiming the gun as Corporal Ruby contended. Id. at 692-93. Resolving this discrepancy in

8
When the officers arrived, there were at least four people in the apartment:
Ms. Gaines, Kodi, Mr. Courtney, and a daughter of Mr. Courtney and Ms. Gaines.
Cunningham I, 246 Md. App. at 641. Upon the arrival of the back-up officers,
Mr. Courtney left the apartment with the daughter. Id.
9
The record does not disclose why Ms. Gaines went into the kitchen. At trial,
Mr. Cunningham, Kodi’s father, testified that Kodi had told a therapist that Ms. Gaines
was shot when she went to make him a sandwich in the kitchen. Cunningham I, 246 Md.
App. at 650. The record does not otherwise provide support for that or any other specific
theory about why Ms. Gaines was in the kitchen. For purposes of our qualified immunity
analysis, we accept Mr. Cunningham’s testimony as true.

7
Kodi’s favor, although Ms. Gaines may have raised her shotgun, she was not aiming it

directly toward officers stationed on the other side of the front door.

Corporal Ruby, who was by that time “hot” and “frustrated[,]” testified that he fired

“a head shot,” aiming high to avoid hitting Kodi, who he knew was somewhere in the

kitchen. Id. at 652. The shot passed through the corner of the kitchen drywall, struck

Ms. Gaines in her upper back, ricocheted off the refrigerator, and hit Kodi across the cheek.

Id. at 652-53. At some point between one and 30 seconds later, Ms. Gaines fired her

shotgun. Id. at 653 n.12. Corporal Ruby led a team of officers into the apartment, when

he heard the shotgun go off and being reloaded. Id. at 653. When he came into the kitchen

and saw Ms. Gaines begin to turn the shotgun toward him, Corporal Ruby fired three more

rounds into Ms. Gaines. Id. Ms. Gaines died from the gunshot wounds. Id. Kodi

underwent multiple surgeries to remove bullet fragments from his face, id. at 653-54, and

required multiple reconstructive surgeries on his elbow, id. at 654 n.14.

C. Procedural Background

As our resolution of the first issue in this appeal turns on the procedural background

of the case, we discuss that background in some detail.

1. The Complaint

Although the only dispute remaining in this case concerns Kodi’s Substantive Due

Process Claim against Corporal Ruby, it originally involved many other parties and claims.

In their third amended complaint, plaintiffs Rhanda Dormeus, individually and as personal

representative of the estate of Ms. Gaines; Ryan Gaines, Sr., as father of Ms. Gaines;

Mr. Courtney, individually and as next of kin to his minor child; and Mr. Cunningham, as

8
father, guardian, and next friend of Kodi (collectively, “Plaintiffs”), filed suit against

defendants Baltimore County, Corporal Ruby, and four other officers. Among the twelve

counts asserted were wrongful death and a survival action (Counts I and II); claims under

Articles 10, 24, 26, and 40 of the Maryland Declaration of Rights based on violations of

the Plaintiffs’ rights to freedom of speech and press, freedom from unreasonable searches

and seizures, freedom from excessive force, and equal protection of the law (Counts III,

IV, V, and VI); claims under 42 U.S.C. § 1983 for violations of the First, Fourth, Fifth,

Eighth, and Fourteenth Amendments to the United States Constitution based on violations

of the Plaintiffs’ rights to freedom of speech and press, freedom from unreasonable

searches and seizures, freedom from excessive force, and equal protection of the law

(Counts VII, VIII, IX, and X); and claims for common law battery (Count XI) and

negligence (Count XII).

Of particular relevance here are Counts VII and X, both of which alleged § 1983

claims for violating the Plaintiffs’ federal civil rights. In Count VII, the Plaintiffs sued the

Defendants for violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments due to

“force that was clearly excessive to the need, and [that] was objectively and subjectively

unreasonable.” The count further alleged that the Plaintiffs’ rights were violated because

the Defendants acted “in a way that was so reckless and/or irresponsible as to be shocking

to the consci[ence].” Notably, Count VII referenced the Fourteenth Amendment in two

ways, as among the amendments providing “rights, privileges, and immunities” to the

Plaintiffs and as the mechanism through which the substantive protections of other

amendments are incorporated against the states. In Count X, Ms. Gaines’s estate and Kodi

9
sued the Defendants for violating the First, Fourth, and Fourteenth Amendments, including

their “right under the Fourth Amendment to be secure in their person from unreasonable

seizure through excessive force” and their “right under the Fourteenth Amendment to

bodily integrity and to be free from excessive force by law enforcement.” The Plaintiffs

averred that the Defendants’ use of force was “objectively unreasonable,” was “malicious

and/or involved reckless, callous, and deliberate indifference,” and was accomplished “by

means of objectively unreasonable, excessive and consci[ence-]shocking physical force[.]”

2. Motion for Summary Judgment

Before trial, the Defendants filed a motion for summary judgment in which they

argued that there was no dispute as to the facts and they were entitled to judgment as a

matter of law. Notably, the Defendants argued that under Graham v. Connor, 490 U.S.

386 (1989), all excessive force claims must be analyzed under the Fourth Amendment’s

“reasonableness” standard, rather than the Fourteenth Amendment’s substantive due

process standard. Applying the Fourth Amendment standard, the Defendants argued that

Corporal Ruby’s actions were objectively reasonable and that he was entitled to judgment

as a matter of law.

Alternatively, the Defendants argued that Corporal Ruby was entitled to qualified

immunity on the excessive force claims “because his actions did not violate a clearly

established constitutional right.” The Defendants also argued that Corporal Ruby was

entitled to judgment with respect to Kodi’s claims because Fourth Amendment excessive

force claims may be made only by the person intended to be seized and so Kodi, who was

10
not the intended object of the shooting, had no claim for excessive force against Corporal

Ruby.

In opposing the Defendants’ motion, Kodi argued, among other things, that the

motion was necessarily only for partial summary judgment, even though it purported to

address all of the Plaintiffs’ claims, because the “Defendants have set forth no law or

relevant facts related to any of Plaintiffs’ Fourteenth Amendment Claims.” Kodi argued

that the Defendants’ failure to address his Fourteenth Amendment claims at all meant that

the court could not rule on them, and they would necessarily survive summary judgment.

Although Kodi did not use the phrase “substantive due process” in his summary judgment

filings, these arguments plainly referred to his Substantive Due Process Claim. Kodi

further argued that “the use of deadly force against Korryn Gaines and excessive force

against Kodi Gaines violated their federal constitutional rights under the Fourth and

Fourteenth Amendments,” and that the officers were not entitled to qualified immunity. 10

After a hearing, the circuit court granted in part and denied in part the Defendants’

motion. Siding with the Defendants’ view of the applicable legal framework, the court

determined that Corporal Ruby’s actions would be addressed under the Fourth

Amendment’s objective reasonableness standard and, therefore, the Defendants’ failure to

separately address the Fourteenth Amendment was not “persuasive.” On the merits, as

relevant here, the court denied the Defendants’ motion as to Counts VII and X. In its ruling,

Although Kodi stated in his summary judgment brief that the Fourteenth
10

Amendment’s Due Process Clause “includes both procedural and substantive
components,” he identified only the components of a claim for procedural due process.

11
the court mentioned neither substantive due process nor the Defendants’ argument that

Kodi lacked a Fourth Amendment claim because he was not the object of a seizure. The

case proceeded to trial.

3. Motions for Judgment at Trial and Jury Instructions

At the close of the Plaintiffs’ case, the Defendants moved for judgment. Addressing

the Plaintiffs’ excessive force claims as Fourth Amendment claims, the Defendants argued:

(1) that Corporal Ruby was entitled to qualified immunity “because he was acting as an

officer in his position under the law making a decision which he is allowed to make”; and

(2) that Kodi was not the intended object of the seizure and that the Defendants could not

be liable to Kodi as a bystander.

In response, Kodi argued that it was up to the jury to decide whether the officers

were in danger when Corporal Ruby acted and whether his actions were objectively

reasonable. Alternatively, Kodi argued that Corporal Ruby was not entitled to qualified

immunity because the officer used excessive force in violation of both the Fourth and

Fourteenth Amendments. Kodi contended that he could proceed under both constitutional

provisions. He argued that “under the [Fourteenth] Amendment and the [Fourth]

Amendment, Kodi can proceed because the law is clear that anyone who is injured by the

police if the force was excessive can proceed under the [Fourth] Amendment, and if not,

the [Fourteenth] Amendment.”

The court denied the motion for judgment as to the § 1983 claims, stating that

whether the officers were in danger from Corporal Ruby’s perspective was a fact to be left

up to the jury.

12
At the close of all the evidence, the Defendants renewed their motion for judgment.

The Defendants continued to argue that the Fourth Amendment’s objectively reasonable

test applied to Corporal Ruby’s actions and that Corporal Ruby was entitled to qualified

immunity on any Fourth Amendment excessive force claim. The court again denied the

Defendants’ motion.

When discussing the § 1983 jury instructions, the circuit court stated that it would

include an instruction on the Fourth Amendment. Kodi requested that the court reference

both the Fourth and Fourteenth Amendments. When the court refused and articulated its

view that the Fourteenth Amendment was just the vehicle by which the Fourth

Amendment’s protections applied in this case rather than an independent source of

protection, Kodi pressed the issue and again asked that the instruction also mention the

Fourteenth Amendment. When the court refused again, Kodi asked the court to replace the

specific reference to the Fourth Amendment with a generic reference to the “U.S.

Constitution.” The court ultimately agreed to reference just “the amendments to the United

States Constitution,” without identifying either the Fourth or the Fourteenth Amendments.

Relatedly, Kodi initially argued that the verdict sheet should reference both amendments.

When Kodi subsequently requested that the court modify the sheet to remove references to

either amendment, the court agreed.

Without referencing any federal constitutional amendment by number, the jury

instructions discussed only the Fourth Amendment’s objectively reasonable standard for

13
the excessive force claims. 11 The jury instructions did not identify the “shocks the

conscience” standard applicable to Fourteenth Amendment substantive due process claims,

nor did any party or the court suggest that they should.

11
As relevant here, the jury instructions on excessive force read:

The Maryland Declaration of Rights and the Fourth Amendment to the
United States Constitution protect persons from being subjected to excessive
force. Every person has the right not to be subjected to excessive or
unreasonable force.

In determining whether the force used was excessive, you should
consider: the need for application of force; the relationship between the need
and the amount of force that was used; the extent of the injury inflicted; and
whether a reasonable officer on the scene, without the benefit of hindsight,
would have used that much force under similar circumstances. You must
decide whether the officer’s actions were reasonable in light of the facts and
circumstances confronting the officer. The reasonableness of [the] police
officer’s actions must be judged objectively from the perspective of a
reasonable police officer in the position of the police officer at the time.

Factors that should be considered in determining reasonableness include
what the officer believed at the time of the incident. The calculus of
reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments in circumstances that are
uncertain. Therefore, in examining Plaintiff’s claims, you should look at the
situation from the perspective of the police officer on the scene, taking into
consideration all the circumstances that you find to have existed at the time
as the police officer knew them. However, you do not have to determine
whether the police officer had less intrusive alternatives available, for the
police officer Defendant need only to have acted within that range of conduct
identified as reasonable.

As the finders of fact in this case, when considering whether the actions
of the police officer were reasonable or unreasonable and excessive, you
should consider all of the testimony and evidence in the case, and it is your
task to decide the facts of the case where there are competing or disputed
renditions of the facts.

14
The jury returned a plaintiffs’ verdict on all counts. The first question on the verdict

sheet asked whether Corporal Ruby’s first shot was “objectively reasonable”—i.e., the

Fourth Amendment standard for excessive force—to which the jury answered no. 12 The

jury then answered yes to each of a series of questions asking whether the Defendants

violated the rights of Ms. Gaines and Kodi under the Maryland Declaration of Rights and

42 U.S.C. § 1983 (without specifying any particular constitutional amendment), and

whether they committed a battery against Ms. Gaines and Kodi. The jury awarded Kodi

more than $23,000 in past medical expenses and nearly $33 million in non-economic

damages. The jury made separate awards of damages to each of the other four plaintiffs,

ranging from $307,000 to over $4.5 million. The jury declined to award punitive damages

against the Defendants under either the Maryland Declaration of Rights or § 1983. The

verdict sheet did not ask the jury whether Corporal Ruby’s conduct shocked the conscience

of the jurors, nor did any party or the court suggest that it should.

The court further instructed the jury that the three elements required to establish a
§ 1983 claim were: (1) that the acts were committed under color of state law; (2) that the
law enforcement officer who committed the acts “intentionally or recklessly deprived the
Plaintiff of a federal right”; and (3) “that the Defendant’s acts were a proximate cause of
injuries sustained by the Plaintiff.” With respect to the second element, the court further
explained that “[a]n act is intentional if it is done voluntarily and deliberately and not
because of mistake, accident, negligence, or other innocent reason,” and that “[a]n act is
reckless if done in conscious disregard of its known probable consequences.”
12
The verdict sheet instructed the jury to stop and not proceed further if the jurors
found that Corporal Ruby’s first shot was objectively reasonable.

15
4. Post-Trial Motions

The Defendants filed post-trial motions, including motions for judgment

notwithstanding the verdict (“JNOV”), for a new trial, for remittitur, and for the court to

exercise revisory power over the judgment. The Defendants argued, among other things,

that Corporal Ruby’s first shot was objectively reasonable and, therefore, that he was

entitled to judgment as a matter of law on any excessive force claim. Alternatively, the

Defendants argued that Corporal Ruby was entitled to qualified immunity because he did

not violate clearly established law. In addition, the Defendants argued that there was no

violation of Kodi’s rights under § 1983 because there can be no Fourth Amendment claim

by an innocent bystander who is not the intended object of a seizure and it was “undisputed

that Kodi was not the intended target of the shooting[.]”

In his opposition, in addition to defending his verdict under the Fourth Amendment,

Kodi contended that he had properly pled and proceeded on his Substantive Due Process

Claim, which the Defendants had again ignored. Kodi asserted that he had “consistently

maintained that [he] can proceed and was proceeding on his § 1983 claims under the

Fourteenth Amendment as an independent basis from the Fourth Amendment at the time

of trial.” Kodi further argued that under the decision of the United States Court of Appeals

for the Fourth Circuit in Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991), an

innocent bystander can bring a substantive due process claim under the Fourteenth

Amendment if the person was physically injured, regardless of whether the injury was

intended. Kodi claimed that his reliance on the Fourteenth Amendment was proper and

that the court properly instructed the jury on what Kodi needed to prove to prevail on his

16
§ 1983 claim under both the Fourth and Fourteenth Amendments. He noted that the

Defendants had failed to object to the jury instructions regarding the § 1983 claim, and,

regardless, caselaw required a finding only that Corporal Ruby had acted recklessly or

irresponsibly to support Kodi’s Substantive Due Process Claim, which he argued was

covered by the jury instructions. Because evidence presented at trial supported a finding

that Corporal Ruby’s actions were reckless, Kodi argued that the evidence was sufficient

to sustain the verdict based on the Fourteenth Amendment.

In argument on the post-trial motions, the Defendants addressed Kodi’s contention

that he had presented a Fourteenth Amendment claim in addition to a Fourth Amendment

claim in three ways. First, the Defendants repeated their prior argument that the exclusive

analytical framework applicable to an excessive force claim is the objectively reasonable

standard under the Fourth Amendment, not the Fourteenth Amendment “shocks the

conscience” standard. Second, the Defendants argued that Kodi did not have a Substantive

Due Process Claim regardless “because substantive due process protects against agents of

the State acting irrationally and arbitrarily,” and there was “no evidence in this case that

the actions of Corporal Ruby in any way would amount to being so brutal and inhumane

as to shock the conscience of the judicial court.” Third, the Defendants contended that

Kodi’s Substantive Due Process Claim “just do[es]n’t appear” in the complaint.

In an opinion that exclusively employed a Fourth Amendment framework to review

the Plaintiffs’ § 1983 claims, the circuit court granted the Defendants’ JNOV motion on

17
the basis that Corporal Ruby was entitled to qualified immunity. 13 The circuit court did

not address either: (1) Kodi’s Substantive Due Process Claim, including the Defendants’

contention that it was not supported by the evidence; or (2) the Defendants’ contention that

Kodi had no Fourth Amendment claim because he was not the intended object of the

seizure. The Plaintiffs appealed.

At this point, it is worth pausing to summarize a few important points as of the time

the first appeal was taken. First, for our purposes here, the operative complaint adequately

provided notice that Kodi was proceeding on a substantive due process claim. Counts VII

and X of the complaint plainly identified the Due Process Clause of the Fourteenth

Amendment as a substantive basis for the Plaintiffs’ claims and alleged that the

Defendants’ conduct shocked the conscience. Any complaints about the adequacy of the

allegations to support Kodi’s Substantive Due Process Claim should have been addressed

in motions practice before trial.

Second, although adequately pled, none of the parties focused to any great extent

on the Substantive Due Process Claim before the first appeal. The Defendants consistently

took, and the court consistently accepted, the position that Kodi did not have a Substantive

Due Process Claim. Kodi raised the claim several times—including in opposing summary

judgment, in opposing the Defendants’ motion for judgment at trial, and in opposing the

Defendants’ JNOV motion—although never in great detail. Perhaps believing that he had

13
The circuit court also found that if the JNOV ruling were reversed on appeal, a
new trial was necessary due to a defective verdict. In Cunningham I, the Appellate Court
reversed on that issue. 246 Md. App. 630, 700-02 (2020).

18
a viable Fourth Amendment claim that was subject to a more permissive legal standard, it

seems that Kodi was content to focus primarily on the Fourth Amendment.

Third, as a result, the jury was never presented with the appropriate standard

applicable to Kodi’s Substantive Due Process Claim—whether the conduct “shocks the

conscience,” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)—and was never

asked whether Corporal Ruby’s conduct met that standard. Thus, the jury never found that

Corporal Ruby violated Kodi’s substantive due process rights.

Fourth, although the circuit court never analyzed or ruled expressly on the viability

of Kodi’s Substantive Due Process Claim, it entered judgment for the Defendants on all

counts, including the § 1983 count. That necessarily had the effect of resolving Kodi’s

Substantive Due Process Claim in favor of the Defendants. This last point will be

particularly critical to our waiver analysis.

5. Cunningham I

Before the Appellate Court, the Plaintiffs argued, among other things, that the circuit

court erred in granting the Defendants’ motion for JNOV based on qualified immunity.

Cunningham I, 246 Md. App. at 679. The Appellate Court affirmed in part,

reversed/vacated in part, and remanded for further proceedings. Id. at 706. In relevant

part, the parties’ arguments and the Appellate Court’s opinion focused exclusively on the

Fourth Amendment standard applicable to excessive force claims.

As relevant here, the Appellate Court held “that the [circuit] court erred in granting

the motion for JNOV, with the exception of its ruling dismissing the § 1983 claims against

the County.” Id. The Appellate Court rejected the circuit court’s conclusion that Corporal

19
Ruby did not violate clearly established Fourth Amendment law and so was entitled to

qualified immunity. Id. at 694. Instead, the court held that there were material factual

disputes concerning whether Corporal Ruby acted in an objectively reasonable manner in

firing the first shot. Id. Consequently, the Appellate Court held that the circuit court erred

in invalidating the jury’s finding that Corporal Ruby did not act reasonably. Id. The

Appellate Court therefore reversed the grant of JNOV with respect to the claims against

Corporal Ruby and remanded for further proceedings. Id. at 706.

Two other aspects of the Appellate Court’s decision in Cunningham I are

particularly notable for our purposes. First, the court stated in a footnote that Kodi argued

“that the Fourth and Fourteenth Amendment claims regarding Kodi are not properly before

this Court because they were not addressed in the circuit court’s opinion.” Id. at 689 n.38.

Because no one else raised Kodi’s Substantive Due Process Claim, and Kodi expressly told

the Appellate Court that the claim was not before it on appeal, that court quite reasonably

never addressed or considered that claim.

Second, the Appellate Court pointed out in another footnote that it was confining its

entire Fourth Amendment analysis—the only federal constitutional analysis in which it

engaged—to the claims related to Ms. Gaines “because . . . Fourth Amendment rights are

personal and cannot be vicariously asserted by the family.” Id. at 690 n.39. Thus, the court

observed, the Defendants were correct that Kodi “was an innocent bystander who was not

‘seized’ within the meaning of the Fourth Amendment” and had no claim under that

amendment. Id. Other than in those two footnotes and in relaying the procedural

20
background of the case, the Appellate Court’s opinion did not address Kodi’s § 1983

claims.

6. Proceedings on Remand

The Appellate Court remanded the case “to the circuit court for consideration of

remaining issues relating to damages. Those issues include, but are not limited to, the

damages cap and remittitur.” Id. at 706. In explaining the scope of its remand, the

intermediate appellate court stated that the circuit court could “address the applicability of

the damages cap, and if it determines that the verdict remains as it is, an amount that the

court found to be excessive, it can address the issue whether a remittitur or new trial is

warranted.” Id. at 704. On remand, the circuit court treated the Appellate Court’s use of

the phrase “if it determines that the verdict remains as it is” as a recognition that other

issues relevant to whether the verdict should remain as it was could still be addressed.

One of those issues turned out to be whether the Defendants had a right to argue that

Kodi had no Fourth or Fourteenth Amendment claims under § 1983. 14 The Defendants

continued to argue that Kodi lacked a viable Substantive Due Process Claim. They also

argued that (1) even if Kodi had such a claim, Corporal Ruby would be entitled to qualified

14
On remand, Kodi initially argued that the Appellate Court’s decision, which had
focused only on the claims related to Ms. Gaines, had not undermined the validity of his
judgment, which he argued should stand under both the Fourth and Fourteenth
Amendments notwithstanding the deficiency the Appellate Court had identified in his
Fourth Amendment claim. Kodi based that argument on his contention that the Appellate
Court had completely reinstated his entire § 1983 claim, which was premised on the Fourth
and Fourteenth Amendments, and that the Defendants had waived any argument
distinguishing between those amendments. As discussed below, Kodi eventually retreated
from that position.

21
immunity, and (2) any Substantive Due Process Claim would fail because the facts of this

case were not “a brutal and inhumane abuse of power shocking the consci[ence].” Among

other things, the Defendants argued that Corporal Ruby was entitled to qualified immunity

on the Substantive Due Process Claim because the law was not clearly established that he

violated Kodi’s substantive due process rights. Further, addressing the absence of an

objection on their part to the jury instructions for failing to adequately cover a substantive

due process claim, they argued that there was never any such claim on which such an

instruction was needed.

In response, Kodi eventually acquiesced to the fact that he did not have a Fourth

Amendment claim. However, he contended that he pled and argued a Fourteenth

Amendment Substantive Due Process Claim. Indeed, Kodi argued that the Appellate

Court’s ruling had the necessary effect of upholding the jury’s verdict on his Substantive

Due Process Claim. Kodi reasoned that because the Appellate Court did not disturb the

jury’s verdict in his favor on his § 1983 claim, while simultaneously observing that he

could not rely on the Fourth Amendment, the court must have found that claim supported

by the Fourteenth Amendment.

To the extent there was any error in proceeding at trial applying only the Fourth

Amendment standard, Kodi argued the error was invited because the Defendants had

argued, and the court had accepted over Kodi’s objection, that only the Fourth Amendment

standard applied to Kodi’s claims. Kodi acknowledged that the verdict sheet did not

differentiate between the amendments and that the jury instructions referenced only the

Fourth Amendment’s objective reasonableness standard, but argued that it was the

22
Defendants’ obligation to ask for a different instruction if they thought one was required.

He claimed the Defendants had waived that issue by not challenging the adequacy of the

jury instructions at trial. Finally, Kodi argued that the Defendants had waived a qualified

immunity defense with respect to the Substantive Due Process Claim by failing to raise it

previously. 15

After a hearing, the circuit court issued a written opinion again entering judgment

for the Defendants. 16 The court explained that, in its initial JNOV ruling, its determination

that Corporal Ruby was entitled to qualified immunity obviated the need to decide whether

Kodi might otherwise have a claim under either the Fourth Amendment or the Fourteenth

Amendment. The circuit court interpreted the Appellate Court’s decision in Cunningham

I as taking qualified immunity entirely off the table, 17 thus requiring it to decide, for the

first time, the nature and viability of Kodi’s claim.

15
Kodi pointed out that the Defendants had “raised qualified immunity arguments
five (5) times previously . . . . However, Defendants never raised a qualified immunity
argument against Kodi Gaines’ Fourteenth Amendment claim.” Kodi acknowledged that
this failure was likely attributable to the Defendants’ “false impression that Kodi Gaines’
42 U.S.C. § 1983 claim had to be decided under the Fourth Amendment objectively
reasonable standard,” but argued that it was nonetheless waived. Although Kodi made this
waiver argument before the circuit court, he has abandoned it on appeal by not raising it in
either the Appellate Court of Maryland or in this Court.
16
By the time the court ruled on remand, all plaintiffs other than Kodi had settled
with the Defendants.
17
As discussed below, the Appellate Court did not understand its opinion in
Cunningham I to have resolved any issues concerning Kodi’s claims, which it understood
had not been adjudicated in the circuit court’s original JNOV decision. See Cunningham
I, 246 Md. App. at 689 n.38. The circuit court, believing its initial JNOV decision had
adjudicated Kodi’s claims as well as those of Ms. Gaines—at least in part because it treated

23
The court concluded as a matter of law that Kodi did not have a viable § 1983 claim

under either amendment. First, consistent with the Appellate Court’s decision, and as Kodi

had by then conceded, the circuit court held that Kodi had no Fourth Amendment claim

because he was not the intended object of the seizure. Second, the court held that Kodi had

no Substantive Due Process Claim because (1) his injuries were unintentional, (2) mere

negligence cannot support a Fourteenth Amendment claim, and (3) the facts elicited at trial

did not meet the shocks the conscience standard. Kodi appealed once more.

7. Cunningham II

Before the Appellate Court for a second time, Kodi argued that the circuit court

erred in entering judgment for the Defendants on his Substantive Due Process Claim.

Among other things, he argued that in concluding that the evidence presented at trial did

not meet the Fourteenth Amendment’s shocks the conscience standard, the court

improperly relied on Corporal Ruby’s testimony about the shooting and did not recognize

competing evidence that created a dispute of fact that was for the jury to resolve.

Cunningham v. Baltimore Cnty., No. 378, Sept. Term, 2022, 2023 WL 2806063, at *12

(Md. App. Ct. April 6, 2023) (“Cunningham II”).

The Defendants argued that Kodi had waived his Substantive Due Process Claim

for two reasons: (1) because he had not raised that claim in Cunningham I; and (2) because

those claims as being subject to the same standard and so resolved under the same qualified
immunity analysis—treated the Appellate Court’s decision as definitively resolving the
qualified immunity analysis as to Kodi as well as Ms. Gaines. In our view, although the
circuit court’s analysis in its original JNOV decision focused exclusively on the claims
related to Ms. Gaines, it applied that analysis to Kodi’s claims as well, and the judgment
the circuit court entered necessarily encompassed Kodi’s claims.

24
the jury instructions covered § 1983 claims only under the Fourth Amendment, and there

was no jury finding of a violation of Kodi’s Fourteenth Amendment rights. Id. The

Defendants further argued that even if the substantive due process arguments were not

waived: (1) the circuit court correctly determined that the evidence presented at trial did

not meet the shocks the conscience standard as a matter of law; and (2) Corporal Ruby

would have qualified immunity against any claim for excessive force. Id.

With respect to the Defendants’ reliance on the jury instructions, the Appellate

Court agreed with the Defendants that the instruction on excessive force discussed only the

Fourth Amendment’s reasonableness standard and did not cover the Fourteenth

Amendment’s shocks the conscience standard. Id. at *12-15. But the Appellate Court

agreed with Kodi that the Defendants had waived their right to argue that the jury was

improperly instructed by not objecting to the instructions at trial. Id. at *16.

The Appellate Court agreed with the Defendants, however, that Kodi had waived

his Substantive Due Process Claim. Id. at *16. As a preliminary matter, the Appellate

Court observed that the issue presented in Cunningham I was “whether Corporal Ruby was

entitled to qualified immunity with respect to a violation of Ms. Gaines’ and Kodi’s Fourth

Amendment rights.” 18 Id. at *11. The Appellate Court explained that the circuit court had

18
In footnote 38 of Cunningham I, the Appellate Court stated that Kodi had argued
that neither his Fourth nor Fourteenth Amendment claims were properly before that court
“because they were not addressed in the circuit court’s opinion.” 246 Md. App. at 689
n.38. That may have been a reference to Kodi’s reply brief in Cunningham I, in which he
took the position that neither the Defendants nor the circuit court had acknowledged the
distinction between his Fourth and Fourteenth Amendment claims at any point and,
therefore, any “discussion . . . concerning the distinction between the Fourth and Fourteenth

25
treated all of the § 1983 claims as excessive force claims under the Fourth Amendment and

that all parties had presented the claims that way on appeal, with Kodi expressly stating

that his Substantive Due Process Claim was not part of that appeal. Id. Therefore,

according to the Appellate Court, the limited issue in Cunningham I was whether the circuit

court erred in finding that Corporal Ruby was entitled to qualified immunity on the Fourth

Amendment claims. Id. at *11-12.

The problem for Kodi, according to the Appellate Court, was that although the

circuit court’s JNOV ruling was based exclusively on a Fourth Amendment analysis, the

court entered judgment for the Defendants with respect to the entirety of Kodi’s § 1983

claims. Id. at *17. The result of the JNOV ruling was therefore to dismiss all claims

against the Defendants, including the Substantive Due Process Claim. Id. As a result, to

preserve that claim, it was incumbent on Kodi to challenge the circuit court’s entry of

judgment on it during the first appeal. Id. at *17-18. By failing to do so, Kodi waived the

claim and was not entitled to “a second bite at the apple to raise [the Substantive Due

Process C]laim in the present appeal.” Id. at *18.

Amendment claims of Kodi Gaines . . . is not before th[e Appellate] Court.” Although
Kodi argued there that the distinction between his Fourth and Fourteenth Amendment
claims was not properly before the Appellate Court, we have not found anywhere in which
he took the position that his Fourth Amendment claim itself was not before the Appellate
Court in Cunningham I.

Regardless, before the Appellate Court in Cunningham II, Kodi took the position
that although his Fourth Amendment claim had been before that court in Cunningham I,
his Substantive Due Process Claim had not been. The Appellate Court agreed. See
Cunningham II, 2023 WL 2806063, at *11.

26
The Appellate Court held, in the alternative, that even if Kodi had not waived his

Substantive Due Process Claim, Corporal Ruby would be entitled to qualified immunity

on that claim because Kodi had not shown that, at the time of the shooting, “there was

clearly established law that Corporal Ruby’s conduct violated Kodi’s substantive due

process right as a bystander.” 19 Id. at *19. The Appellate Court found no precedent from

19
The Appellate Court observed in its opinion that Kodi, “even now, . . . is not
vigorously pursuing a substantive due process claim on the merits.” Cunningham II, 2023
WL 2806063, at *18. As proof of that, the Appellate Court discussed Kodi’s lack of
engagement with the Defendants’ argument for qualified immunity. Id. The Appellate
Court noted particularly that when qualified immunity was raised at oral argument in that
court, Kodi’s counsel “stated ‘that ship has sailed,’ arguing that this Court addressed this
issue in Cunningham I.” Id. To the contrary, the Appellate Court stated, it had not
addressed the Substantive Due Process Claim at all in Cunningham I, including with
respect to qualified immunity. Id.

In light of the different understandings of the parties, the circuit court, and the
Appellate Court concerning what was resolved in Cunningham I and what was before the
circuit court on remand after that decision, we interpret Kodi’s appellate arguments on this
issue differently. As we previously discussed, the circuit court believed that its initial
ruling on qualified immunity addressed the entirety of Kodi’s § 1983 claim, without regard
to the particular constitutional provision(s) underlying that claim, and that the Appellate
Court’s opinion in Cunningham I had rejected qualified immunity as to the entirety of
Kodi’s § 1983 claim. As a result, the circuit court’s ruling on remand did not address
qualified immunity at all. That ruling did, however, address Kodi’s Substantive Due
Process Claim, ruling that the evidence at trial was insufficient to support that claim. In
his appellate briefing in Cunningham II, Kodi addressed the circuit court’s ruling on the
sufficiency of the evidence for his Substantive Due Process Claim on the merits, arguing
at some length that the court erred in focusing only on certain evidence and ignoring other
evidence that, according to Kodi, supported his claim. The Defendants also focused their
appellate briefing primarily on the circuit court’s ruling on the merits, although they did
argue in the alternative that the Appellate Court should find that Corporal Ruby was
entitled to qualified immunity. It was in that context that Kodi answered that the “ship
ha[d] sailed” on the Defendants’ qualified immunity claim. Cunningham II, 2023 WL
2806063, at *18.

27
any relevant court “establishing that a police officer, who unintentionally shoots and injures

an innocent bystander under circumstances similar to this case violates the bystander’s

Fourteenth Amendment substantive due process rights.” Id. Accordingly, the Appellate

Court determined that even if Kodi had not waived his Substantive Due Process Claim, the

court would have rejected that claim based on qualified immunity. Id.

DISCUSSION

I. WAIVER

Although we agree with most of the Appellate Court’s waiver analysis, we disagree

with the final step of that analysis and its outcome. First, we agree with the Appellate

Court that even though the circuit court’s ruling on the JNOV motion did not mention

Kodi’s Substantive Due Process Claim, or provide any reason for rejecting it, the necessary

effect of the circuit court’s entry of judgment for the Defendants on Kodi’s § 1983 claims

was to enter judgment on the entirety of those counts, including his Substantive Due

Process Claim.

Second, we agree with the Appellate Court that if Kodi wanted to preserve his

Substantive Due Process Claim, it was incumbent upon him to challenge the circuit court’s

entry of judgment encompassing that claim as part of the first appeal. See Offutt v.

Montgomery Cnty. Bd. of Ed., 285 Md. 557, 564 n.4 (1979) (explaining that a party

As it turns out, of course, the Appellate Court believed that qualified immunity on
the Fourteenth Amendment claim was still a live issue that had not been resolved by its
opinion in Cunningham I. In sum, although we agree that Kodi failed to engage on the
issue of qualified immunity before the Appellate Court, based on his position that the issue
had already been definitively resolved in his favor, we do not agree that he failed to engage
in arguments about the merits of his Substantive Due Process Claim.

28
aggrieved by the trial court’s judgment may take an appeal). Had the Appellate Court

affirmed the circuit court in Cunningham I, with or without any discussion of the

Substantive Due Process Claim, it is beyond question that the affirmance would have

applied to the entire § 1983 claim. And had the Appellate Court reversed the circuit court

in Cunningham I only with respect to Kodi’s claim against Corporal Ruby under the Fourth

Amendment, it is similarly beyond question that Kodi would not have been able to resurrect

his Substantive Due Process Claim.

Third, we agree with the Appellate Court that Kodi’s failure to argue that the circuit

court erred in entering judgment against him on his Substantive Due Process Claim in

briefing in the first appeal waived his right to have the Appellate Court address that claim

and precludes him from arguing in any subsequent appeal that the court’s original JNOV

ruling on that claim was incorrect. See Fidelity-Baltimore Nat’l Bank & Tr. Co. v. John

Hancock Mut. Life Ins. Co., 217 Md. 367, 371-72 (1958) (stating that it “is the well-

established law of this state that litigants cannot try their cases piecemeal. . . . [T]hey

cannot, on the subsequent appeal of the same case raise any question that could have been

presented in the previous appeal on the then state of the record, as it existed in the court of

original jurisdiction.”). Had the Appellate Court’s judgment in Cunningham I failed to

revive the Substantive Due Process Claim or failed to reject the reasoning on which the

circuit court had resolved that claim against Kodi in the original JNOV ruling, Kodi would

have had no right to object and no legitimate contention that the claim survived.

Nevertheless, we do not find Kodi’s current claims to be precluded by waiver for

two reasons. First, the Appellate Court’s judgment in Cunningham I revived Kodi’s

29
Substantive Due Process Claim. The Appellate Court’s decision, much like the circuit

court’s decision before it, did not discuss the Substantive Due Process Claim in any way.

Nonetheless, in “revers[ing] the grant of JNOV with respect to the claims against Corporal

Ruby,” without identifying any carveout, the Appellate Court necessarily included the

Substantive Due Process Claim in its judgment. Cunningham I, 246 Md. at 706. The

Appellate Court’s opinion in Cunningham I, by its plain terms, revived all of the claims

against Corporal Ruby that had been rejected by the circuit court’s grant of the JNOV

motion. Thus, in the same way and to the same extent that the circuit court’s grant of the

JNOV motion necessarily rejected Kodi’s Substantive Due Process Claim, the Appellate

Court’s blanket reversal of the grant of that JNOV motion (with respect to the claims

against Corporal Ruby) necessarily revived Kodi’s Substantive Due Process Claim. Kodi

did not have a right to have the Appellate Court revive his Substantive Due Process Claim,

but the court did so anyway. 20

20
As we have discussed, Kodi adequately pled his Substantive Due Process Claim
in the complaint, and although that claim was not a primary focus of his arguments until
remand, he never abandoned it. However, Kodi failed to request that the jury be instructed
on the law applicable to his Substantive Due Process Claim. As a result, when the jury
was asked to rule on whether the Defendants violated Kodi’s rights under 42 U.S.C. § 1983,
the jury was never informed of the standard required to make such a finding with respect
to a substantive due process claim. Before the Appellate Court in Cunningham II, one of
the grounds on which the Defendants challenged the verdict was the failure of the circuit
court to instruct the jury on the standard applicable to Kodi’s Substantive Due Process
Claim. But the Appellate Court ruled against the Defendants on that issue, and the
Defendants have abandoned it before this Court. As a result, we do not have occasion here
to determine the effect of Kodi’s failure to ask the circuit court to instruct the jury on the
standard for the Substantive Due Process Claim and the resulting lack of a jury
determination that Kodi satisfied that standard.

30
Second, the argument Kodi failed to make in the first appeal, and so forever waived

the right to make in subsequent appeals, is not the same argument he is pursuing here. In

the first appeal, the circuit court had entered judgment on Kodi’s Substantive Due Process

Claim based on a Fourth Amendment-centered qualified immunity analysis, without

testing the evidentiary sufficiency of that claim. Kodi lost the right to challenge that

qualified immunity decision by failing to argue against it. Then, on remand, the circuit

court ruled, for the first time, on whether the evidence was sufficient to support the verdict,

finding that it was not. Because the circuit court did not rule on the sufficiency of the

evidence to support Kodi’s Substantive Due Process Claim until its decision on remand

from Cunningham I, Kodi was not barred from challenging that decision before the

Appellate Court in Cunningham II. Accordingly, based on the unique and convoluted

procedural history of this case, the Appellate Court erred in Cunningham II in holding that

Kodi was precluded from pursuing his Substantive Due Process Claim on remand and in

this appeal.

II. QUALIFIED IMMUNITY

The alternative ground on which the Appellate Court affirmed the circuit court on

remand was that Corporal Ruby was entitled to qualified immunity on Kodi’s Substantive

Due Process Claim. Cunningham II, 2023 WL 2806063, at *19. We agree with the

Appellate Court that under the governing standard provided by the United States Supreme

Court, Corporal Ruby is entitled to qualified immunity on Kodi’s Substantive Due Process

31
Claim. 21 The facts of the accidental shooting of Kodi are tragic and heartbreaking.

However, at the time of the shooting, no decision from any appellate court in the country—

much less a controlling decision or “a robust consensus of persuasive authority,” District

of Columbia v. Wesby, 583 U.S. 48, 63 (2018)—had held that an officer who took action

similar to that of Corporal Ruby violated the Fourteenth Amendment. Accordingly, we

cannot conclude that the law at the time “clearly established” that Corporal Ruby violated

Kodi’s Fourteenth Amendment rights when he ended an armed standoff with Ms. Gaines

at her apartment by shooting Ms. Gaines with Kodi present.

A full qualified immunity analysis would normally proceed in two steps. First, we

would assess Kodi’s underlying argument that the shooting violated his substantive right

to due process under the Fourteenth Amendment, taking the evidence at trial in the light

21
Our dissenting colleagues contend that the Defendants waived and/or failed to
preserve for appellate review their argument that Corporal Ruby is entitled to qualified
immunity with respect to Kodi’s Substantive Due Process Claim. See Dissenting Op. of
Watts, J. at 4-8; Dissenting Op. of Hotten, J. at 2-3 n.2. However, Kodi himself has waived
any argument that the Defendants waived or failed to preserve their argument concerning
qualified immunity. As noted above, see footnote 15 supra, on remand in the circuit court
Kodi argued that the Defendants had waived a challenge to the Substantive Due Process
Claim based on qualified immunity. However, in the Appellate Court of Maryland in
Cunningham II, Kodi abandoned that claim of waiver. Nor did Kodi raise any issue
concerning waiver or preservation in his petition for certiorari or make any such arguments
in his briefing or in oral argument to this Court. We conclude that Kodi made the strategic
decision not to raise any threshold claim of waiver or lack of preservation on the part of
the Defendants in this Court. In these circumstances, we decline to consider on our own
initiative whether the Defendants waived or failed to preserve for appellate review their
argument that Corporal Ruby is entitled to qualified immunity on Kodi’s Substantive Due
Process Claim. See, e.g., Madrid v. State, 474 Md. 273, 322 (2021) (declining State’s
invitation to consider non-preservation issues because the State did not file a cross-petition
for certiorari and did not raise the issues in the Appellate Court); State v. Williams, 392
Md. 194, 227 n.11 (2006) (“By not himself contesting the issue and its waiver ... in a cross-
petition, the respondent has not preserved the issue of waiver[.]”).

32
most favorable to him. Yates v. Terry, 817 F.3d 877, 884 (4th Cir. 2016). Second, if we

determined that there was a violation, we would then assess whether qualified immunity

was nevertheless warranted because it was not “clearly established” at the time that the

shot violated Kodi’s rights. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). The two

steps need not be taken in order, although doing so is “sometimes beneficial[.]” Camreta

v. Greene, 563 U.S. 692, 707 (2011). Rather, courts have discretion to invert the order and

to address only one step or the other, depending on the circumstances. Pearson, 555 U.S.

at 236. There are also times when it can be better to proceed out of order, such as when “it

is plain that a constitutional right is not clearly established but far from obvious whether in

fact there is such a right.” Rivera-Corraliza v. Morales, 794 F.3d 208, 215 (1st Cir. 2015)

(providing examples). Here, we will only undertake the second step of the analysis. We

hold that it was not clearly established that Corporal Ruby would violate Kodi’s right to

substantive due process under the Fourteenth Amendment when Corporal Ruby shot Ms.

Gaines. Accordingly, Corporal Ruby is entitled to qualified immunity. 22

Qualified immunity protects officers who operate in “the sometimes hazy border

between excessive and acceptable force”—shielding officers from suit in this gray area,

22
Admittedly, it is sometimes difficult to separate the two-step process. For
instance, it “may be difficult to decide whether a right is clearly established without
deciding precisely what the existing constitutional right happens to be.” Lyons v. City of
Xenia, 417 F.3d 565, 581 (6th Cir. 2005) (Sutton, J., concurring). Additionally, “[i]n some
cases, a discussion of why the relevant facts do not violate clearly established law may
make it apparent that in fact the relevant facts do not make out a constitutional violation at
all.” Pearson, 555 U.S. at 236. To be clear, however, we do not attempt to analyze the
first part of the test for qualified immunity here.

33
even when their use of force is later held to violate a constitutional protection. Brosseau

v. Haugen, 543 U.S. 194, 198 (2004) (cleaned up). Thus, officers are entitled to qualified

immunity unless the unlawfulness of their conduct as to a particular constitutional right

was “clearly established” at the time. Wesby, 583 U.S. at 63. To satisfy this standard, the

law must have been “sufficiently clear” such that “every reasonable official would have

understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011) (cleaned up). This is a high bar, and it typically requires either controlling

authority or “a robust consensus . . . of persuasive authority” that gives officers sufficiently

specific notice that their conduct violated a particular right. Wesby, 583 U.S. at 63 (internal

quotations omitted). Accordingly, the Supreme Court concluded that officers were entitled

to qualified immunity where there was only a “hazy legal backdrop[,]” Mullenix v. Luna,

577 U.S. 7, 14 (2015), as well as where there was no specific precedent finding a violation

under similar circumstances and a violation was not otherwise “obvious.” Wesby, 583 U.S.

at 65.

“Clearly established” does not mean that there must be a case with precisely

matching facts or that found a violation in the same specific context. Yates v. Terry, 817

F.3d 877, 887 (4th Cir. 2016); see also Williams v. Strickland, 917 F.3d 763, 770 (4th Cir.

2019) (“In some cases, government officials can be expected to know that if X is illegal,

then Y is also illegal, despite factual differences between the two.”). Nevertheless, the

robust consensus of authority at least must have “placed the . . . constitutional question

beyond debate” in the circumstances confronted by the officer. Kisela v. Hughes, 584 U.S.

100, 104 (2018). Mere general guidance in the law is not enough because it does not help

34
officials answer the “crucial question” of whether they “acted reasonably in the particular

circumstances[.]” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014). Indeed, specificity in

the law is “especially important” in circumstances where police officers—as opposed to

other officials—must confront and apply “relevant legal doctrine” in the field. See

Mullenix, 577 U.S. at 12 (explaining, in the Fourth Amendment context, the particular

importance of specificity because “it is sometimes difficult for an officer to determine how

the relevant legal doctrine, here excessive force, will apply to the factual situation”).

Under these principles, to determine whether Corporal Ruby’s conduct was “clearly

established” as unlawful under the Fourteenth Amendment, it is also necessary to consider

the requirements of that constitutional standard. As previously explained, bystanders like

Kodi, who are not the intended targets of police action, are not protected by the Fourth

Amendment and its “objective reasonableness” standard when they are harmed by

allegedly excessive police force. See Brower v. Cnty. of Inyo, 489 U.S. 593, 596-97 (1989);

Rucker v. Harford Cnty., 946 F.2d 278, 281 (4th Cir. 1991). Instead, their constitutional

protection stems from the due process protections of the Fourteenth Amendment—a

different source with a higher threshold. See Cnty. of Sacramento v. Lewis, 523 U.S. 833,

849 (1998). In a constitutional sense, these protections are only “residual[.]” Rucker, 946

F.2d at 281. That is, these safeguards serve as a safety net, affording protection only where

no other constitutional amendment supplies the analysis. See Lewis, 523 U.S. at 842-43.

The Supreme Court has “always been reluctant to expand the concept of substantive due

process,” resulting in these residual protections redressing “only the most egregious official

conduct[.]” Id. at 842, 846 (internal quotation marks and citations omitted).

35
Police action that injures a bystander will not violate substantive due process rights

under the Fourteenth Amendment unless it “amount[s] to a brutal and inhumane abuse of

official power literally shocking to the conscience.” Rucker, 946 F.2d at 281 (internal

quotation marks and citation omitted). Conduct that is merely “disturbing and lacking in

judgment” will fall short, Temkin v. Frederick Cnty. Comm’rs, 945 F.2d 716, 723 (4th Cir.

1991), as will conduct that is merely negligent, Rucker, 946 F.2d at 282. Indeed, although

it is “possible” that sufficiently “reckless and irresponsible” actions like “shooting into a

crowd at close range” could rise to the level of a Fourteenth Amendment violation, see

Rucker, 946 F.2d at 282 (speculating about the possibility in dicta), the parties have cited

no case decided by the time of the shooting here that had reached such a conclusion.

Thus, put in the correct Fourteenth Amendment terms, the relevant inquiry here is

whether it was clearly established that Corporal Ruby’s decision to shoot at Ms. Gaines

was a brutal and inhumane abuse of official power with respect to Kodi that shocks the

conscience. See Mullenix, 577 U.S. at 13; Rucker, 946 F.2d at 281. The difficulty of that

standard—and the differences between it and Fourth Amendment “objective

reasonableness” cases—forecasts the qualified immunity result here. The relevant cases

generally fall into a few different categories, none of which would put an officer in

Corporal Ruby’s position on notice that their conduct would violate Kodi’s Fourteenth

Amendment rights. 23

23
There are also cases that do not fall neatly into distinct categories, but that
nevertheless emphasize the difficulty of making out a violation of substantive due process.
For instance, in one extreme example, an officer did not violate a bystander’s Fourteenth

36
First, several cases involved traffic accidents and high-speed police chases, often

determining that officers did not violate bystanders’ Fourteenth Amendment rights. See,

e.g., Lewis, 523 U.S. at 855 (no violation when officer in pursuit of a motorcycle drove

approximately 100 miles per hour in a residential neighborhood and accidentally crashed

into the passenger on the motorcycle); Temkin, 945 F.2d at 718, 723 (no violation when

officer in pursuit drove approximately 60 miles per hour down a narrow road and crashed

into a bystander’s car); Rucker, 946 F.2d at 281-82 (no violation where officers in pursuit

fired upon the tires of a vehicle driven by a fleeing suspect and accidentally shot a bystander

when, among other things, officers did not know the bystander was in the line of fire).

Because the circumstances in these cases were so different from the situation facing

Corporal Ruby, these cases would have provided little practical guidance to Corporal Ruby

about whether his shot would violate Kodi’s rights. Simply put, it would be difficult for

officers in Corporal Ruby’s position to glean any guiding standards from these cases,

except possibly in the most general sense. High-speed pursuits present different

considerations from armed standoffs and hostage situations, and, moreover, these cases

found no Fourteenth Amendment violations. Indeed, the facts of one case did not even

“approach” such a violation. Rucker, 946 F.2d at 281. Thus, these cases would not put

Amendment rights when he instructed the bystander to assist with a suspect who was
struggling with the officer over the officer’s firearm—even when the officer subsequently
fled into the bushes, leaving the bystander behind to be shot by the suspect. This was the
case because the officer did not “inten[d] to harm” the bystander. Radecki v. Barela, 146
F.3d 1227, 1228, 1232 (10th Cir. 1998).

37
Corporal Ruby on sufficient notice that shooting at Ms. Gaines would violate Kodi’s

substantive due process rights.

Second, several cases involved shootouts with suspects. These cases are a

somewhat better fit for Corporal Ruby’s situation, because officers involved in shootouts

have little or “no opportunity to ponder or debate their reaction” to armed suspects. See

Claybrook v. Birchwell, 199 F.3d 350, 359-60 (6th Cir. 2000) (noting that such situations

can be “rapidly evolving, fluid, and dangerous predicament[s] [that] preclude[] the luxury

of calm and reflective pre-response deliberation”). In this context, courts have concluded

that police generally do not violate substantive due process protections when they fire their

weapons without “malice or sadism” toward bystanders—even when bystanders are

accidentally shot. Id. at 361. Indeed, some courts have concluded that bystanders’

Fourteenth Amendment rights are not violated in this context unless officers acted either

with “intent to harm” the bystander, or if officers (1) had a moment of reflection, (2) knew

a bystander was in “the line of fire[,]” and (3) consciously disregarded the risk that the

bystander would be shot. See Simpson v. City of Fort Smith, 389 Fed. Appx. 568, 570 (8th

Cir. 2010) (holding that a bystander’s Fourteenth Amendment rights were not violated, but

reasoning that there could be situations where that would not be the case). 24

24
Likewise, dicta from another case supports this same analysis. The Fourth Circuit
has speculated that firing into a crowd could “possibly” violate an innocent bystander’s
Fourteenth Amendment rights if the bystander is shot. See Rucker, 946 F.2d at 282. This
is because when officers fire into a crowd in hopes of shooting a suspect, innocent
bystanders are necessarily also in the line of fire. Of course, an acknowledgment in one
case of a possibility in dicta generally does not render a proposition “clearly established.”

38
This group of cases also would not have put Corporal Ruby on sufficient notice that

his conduct would violate Kodi’s substantive due process rights. These cases generally

found no Fourteenth Amendment violations, and they further noted that police did not

know bystanders were present or in the line of fire. E.g., Claybrook, 199 F.3d at 360-61;

Simpson, 389 Fed. Appx. at 570-71. Even though unawareness of a bystander’s presence

can preclude a constitutional violation, it does not necessarily follow that awareness of a

bystander’s presence can create a violation. Thus, at the very least, these cases do not

“clearly establish” that Corporal Ruby’s knowledge of Kodi’s presence in the kitchen,

somewhere outside the direct line of fire to Ms. Gaines, at the time he fired his shot meant

that he violated Kodi’s due process rights.

Third, several cases involve police faced with armed assailants and hostages. In this

context, sometimes, “the hostage is hit by a bullet intended for the hostage-taker[.]”

Medeiros v. O’Connell, 150 F.3d 164, 169 (2d Cir. 1998). Such was the case in Medeiros,

where officers fired upon a hostage-taker in a van who had been shooting at officers, and

accidentally shot the hostage (who was also in the line of fire) in the process. Id. at 166-67.

The court held that the officers did not violate the hostage’s Fourteenth Amendment rights,

reasoning that the officers’ attempt to rescue the hostage was “admirable” and so did not

shock the conscience as a matter of law—even though the hostage could have been in the

line of fire and officers knew it. Id. at 170. In these situations, courts have generally held

that officers do not violate hostages’ Fourteenth Amendment rights when they fire upon

the hostages’ captors and accidentally hit the hostages, so long as they did not intend to

harm the hostages or have actual knowledge that the hostages would be harmed. See

39
Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 797 (1st Cir. 1990) (“To hold that shooting

in such circumstances violates the constitutional rights of a hostage whom the officers are

trying to free would be to hamstring seriously law enforcement officers. . . . It is inevitable

that the police response to violent crime will at times create some risk of injury to others,

including innocent bystanders. We decline to hold that the mere presence of risk reflects

a callous indifference to the constitutional rights of those individuals[.]”); see also

Childress v. City of Arapaho, 210 F.3d 1154, 1158 (10th Cir. 2000) (officers did not violate

hostages’ Fourteenth Amendment rights as a matter of law when they fired 21 shots at their

captors’ van and hit the hostages, regardless whether the officers were “grossly negligent,

reckless and even deliberately indifferent to [the hostages’] plight[,]” because the hostages

did not allege that the officers “harbored an intent to harm them”). These cases suggest

that it is generally difficult to make out a Fourteenth Amendment substantive due process

claim in hostage situations because of the limited protection afforded by substantive due

process.

Here, there is no evidence that Corporal Ruby intended to harm Kodi or that he

knew that Kodi would be harmed, and indeed he aimed high to avoid hitting Kodi. It was

only after Corporal Ruby’s bullet hit and passed through Ms. Gaines’s upper back, hit a

refrigerator, and ricocheted that Kodi was harmed. In other words, it is undisputed that, in

fact, Kodi was not in the direct line of fire of the shot that Corporal Ruby took. 25 There

25
Justice Watts states that, taking the evidence in the light most favorable to Kodi,
leads “to the conclusion that Corporal Ruby saw neither Ms. Gaines’s braids nor the barrel
of her gun.” Dissenting Op. of Watts, J. at 14. The import of Justice Watts’s reading of

40
appears to be no case at the time of the shooting that held an officer liable under the

Fourteenth Amendment for a ricochet shot, and several cases in the hostage context that

did not hold officers liable in an even more serious context: accidentally shooting a hostage

when the officer had reason to believe that the hostage was in the line of fire.

Ms. Gaines was Kodi’s mother and undoubtedly loved him dearly. Still, it is

undisputed that Ms. Gaines, armed with a shotgun, declined an opportunity to let Kodi exit

the standoff. In addition, the officers were told that Ms. Gaines had a history of mental

illness and that she had been off her medication. At the time this shooting occurred, there

was no controlling authority or robust consensus of authority putting Corporal Ruby on

notice that, under these circumstances, it would violate Kodi’s substantive due process

rights to end the six-hour standoff by shooting at Ms. Gaines’s upper body. Qualified

immunity attaches unless the law and the circumstances clearly show that the question of

a constitutional violation is “beyond debate.” White v. Pauly, 580 U.S. 73, 79 (2017)

(internal quotation marks and citation omitted). Because the law at the time of the shooting

left the matter at least debatable, we hold that Corporal Ruby is entitled to qualified

immunity on Kodi’s Substantive Due Process Claim. 26

the record is that Corporal Ruby did not know Ms. Gaines’s location in the kitchen at the
time he fired, and that he randomly fired toward the kitchen with no reason to believe that
his shot would hit Ms. Gaines. In our view, it is not reasonable to conclude that the jury
found Corporal Ruby fired randomly into the kitchen. Corporal Ruby’s shot, in fact, hit
Ms. Gaines. Moreover, had the jury believed that Corporal Ruby was aiming blindly when
he fired, it is difficult to imagine that the jury would not have awarded punitive damages.
26
Amici assert that “[t]he ‘clearly established law’ standard has proven unworkable,
with the question of whether conduct has violated ‘clearly established’ law presenting ‘a

41
In reaching this conclusion, it is worth reiterating that the jury never determined that

Corporal Ruby’s conduct toward Kodi was shocking to the conscience and, therefore, in

violation of Kodi’s rights to substantive due process under the Fourteenth Amendment. As

discussed above, the jury was not instructed on the proper standard for a substantive due

process claim, and therefore never determined that Corporal Ruby’s conduct met that high

standard. The only verdict the jury ever reached with respect to Kodi’s constitutional rights

was based on the Fourth Amendment’s objective reasonableness standard, which all parties

now agree was inapplicable to Kodi.

In addition, our determination on qualified immunity with respect to Kodi’s

Substantive Due Process Claim is an entirely separate issue from whether Corporal Ruby

acted reasonably with respect to Ms. Gaines. The jury decided that Corporal Ruby violated

Ms. Gaines’s right to be free from excessive force based on well-settled Fourth

Amendment principles and awarded damages based on that verdict. Corporal Ruby was

held to account for what the jury determined was an excessive use of force and nothing in

our decision today implicates that decision or in any way gives license to officers to use

unreasonable or excessive force. The question we have decided in this case relates to

whether someone a law enforcement officer did not intend to harm has rights under the

Fourteenth Amendment when they are injured by a shot intended for someone else, despite

mare’s nest of complexity and confusion.’” Brief of Amici Curiae National Action
Network and Rainbow/PUSH Coalition at 14 (quoting John C. Jeffries, Jr., What’s Wrong
with Qualified Immunity?, 62 Fla. L. Rev. 851, 852 (2010)). However, this Court is duty
bound to follow the precedents of the United States Supreme Court regarding qualified
immunity, including the “clearly established law” requirement. We have no discretion to
do otherwise.

42
not being in the direct line of fire. 27 As discussed above, the law relating to that issue

(unlike the law concerning Ms. Gaines’s excessive force claim) is not well settled. To the

contrary, it is largely unsettled. Under governing precedent from the United States

Supreme Court, because the law was not clearly established that shooting at Ms. Gaines

where Kodi was not in the direct line of fire would violate Kodi’s Fourteenth Amendment

rights, Corporal Ruby is entitled to qualified immunity.

CONCLUSION

We hold:

1. Because the Appellate Court’s judgment in Cunningham I reversed in full

the circuit court’s JNOV grant with respect to claims against Corporal Ruby, Kodi Gaines

was not precluded from pursuing his Substantive Due Process Claim on remand and was

not precluded from pursuing that claim in this appeal; and

2. Corporal Ruby was entitled to qualified immunity with respect to Kodi

Gaines’s Substantive Due Process Claim. Accordingly, the Appellate Court properly

affirmed the circuit court’s judgment on that basis.

JUDGMENT OF THE APPELLATE
COURT OF MARYLAND AFFIRMED.
COSTS TO BE PAID BY PETITIONERS.

27
Justice Watts asserts that “[i]t would be an unsound premise to dispose of Kodi’s
§1983 Fourteenth Amendment substantive due process claims as if they were brought only
on the ground that he was a bystander subject to injury during the attempted seizure of his
mother.” Dissenting Op. of Watts, J. at 12. But the harm to Kodi, in fact, occurred during
the attempted seizure of Ms. Gaines. There was no other application of force by Corporal
Ruby that led to Kodi’s injuries, nor has Kodi suggested otherwise.

43
Circuit Court for Baltimore County
Case No. 03-C-16-009435

Argued: December 4, 2023
IN THE SUPREME COURT

OF MARYLAND

No. 9

September Term, 2023
______________________________________

COREY CUNNINGHAM, ON BEHALF OF
KODI GAINES, A MINOR

v.

BALTIMORE COUNTY, MARYLAND, ET
AL.
______________________________________

Fader, C.J.
Watts
*Hotten
Booth
Biran
Gould
Eaves,

JJ.
______________________________________

Dissenting Opinion by Watts, J.
______________________________________

Filed: June 25, 2024

*Hotten, J., participated in the hearing of the case
and in the conference in regard to its decision as
an active judge. She retired from the Court and
was recalled to senior status prior to the adoption
and filing of the opinion.
Respectfully, I dissent. The majority opinion 1 in this case is disappointing. The

opinion lets down the parties and the citizens of Maryland in that it reaches an incorrect

result with respect to the application of the doctrine of qualified immunity and sets

precedent that makes it next to impossible in this State for a Fourteenth Amendment

substantive due process claim alleging excessive force to avoid a determination that a law

enforcement officer is entitled to qualified immunity. In reaching this result, the majority

opinion engages in first-level factfinding (which is improper for appellate courts to do) and

appears to fault the minor child’s deceased mother for his injuries. Most importantly, the

Majority reaches the incorrect result by misapplying case law on qualified immunity.

I would conclude that Corporal Royce Ruby, Jr., is not entitled to qualified

immunity from Kodi’s substantive due process claims for three reasons. 2 First,

Respondents Baltimore County and Corporal Ruby failed to preserve for appellate review

the issue of whether qualified immunity applies to the claims under 42 U.S.C. § 1983

asserted by Petitioner Corey Cunningham, on behalf of his minor child, Kodi Gaines, based

on Kodi’s right to substantive due process under the Fourteenth Amendment. 3 Second,

because the ruling of the Circuit Court for Baltimore County on remand was not based on

qualified immunity, but rather the conclusion that Kodi lacked a claim under the Fourteenth

1
Although the opinion that the Majority has joined is labeled “PER CURIAM[,]” I
refer to it as a majority opinion.
2
I agree with the Majority’s determination that the Appellate Court erred “in holding
that Kodi was precluded from pursuing his Substantive Due Process Claim on remand and
in this appeal.” Maj. Slip Op. at 31.
3
Like the Majority, I will refer to Mr. Cunningham’s contentions on behalf his son
Kodi as those of Kodi.
Amendment due to insufficiency of the evidence, this Court cannot affirm the circuit

court’s judgment based on qualified immunity. Third, in addition to the issue not being

preserved or a valid ground for affirmance, Corporal Ruby is not entitled to qualified

immunity from Kodi’s Fourteenth Amendment substantive due process claims because he

violated a clearly established right. For these reasons, I would reverse the judgment of the

Appellate Court of Maryland, which affirmed the circuit court’s judgment (on an entirely

different ground) and remand the case to the Appellate Court with instruction for it to

reverse the circuit court’s judgment and remand the case to that court with instruction to

award damages plus post-judgment interest for the verdict in Kodi’s favor as to the claims

under 42 U.S.C. § 1983.

Section 1 of the Fourteenth Amendment states:

All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.

The first section of the Fourteenth Amendment is made up of several clauses, one

of which is the due process clause. It is well settled that the protections of the Fourth

Amendment are applied to the States through the Due Process Clause of the Fourteenth

Amendment. See Mapp v. Ohio, 367 U.S. 643, 656 (1961). Independent of incorporating

the Fourth Amendment and other amendments contained in the Bill of Rights, though, the

language of the Due Process Clause of the Fourteenth Amendment makes clear that a State

may not deprive a citizen of life, liberty, or property without fair procedures. See Honda

-2-
Motor Co. v. Oberg, 512 U.S. 415 (1994). In other words, the Due Process Clause acts as

a safeguard from arbitrary denial of life, liberty, or property by a State outside of the

sanction of law. See id. The Supreme Court of the United States has described due process

as “the protection of the individual against arbitrary action.” Ohio Bell Tel. Co. v. Public

Utilities Comm’n of Ohio, 301 U.S. 292 (1937).

In this case, in Counts VII and X of a Third Amended Complaint, Kodi brought

claims under 42 U.S.C. § 1983 and sued Respondents for violations of the Fourteenth

Amendment and other Amendments of the United States Constitution. In paragraph 88 of

Count VII, Kodi alleged that Respondents violated the Fourth Amendment by illegally

searching his home without “reasonable articulable facts” to believe that Ms. Gaines was

inside and violated “those rights, privileges, and immunities secured by the Fourteenth,

Fifth and/or Eighth Amendments to the Constitution as incorporated and applied to the

states through the Fourteenth Amendment.” In paragraph 90(A) of Count VII, Kodi alleged

that Respondents used excessive force while attempting to seize Ms. Gaines “in violation

of the Fourth, Fifth, Eighth and Fourteenth Amendments and their reasonableness standard

and all other applicable standards.”

In Count X, Kodi alleged both a violation of the Fourteenth Amendment based on

his right under the Fourth Amendment to be free of unreasonable seizure through excessive

force and a violation of the Fourteenth Amendment based on his right to “bodily integrity”

and “to be free from excessive force by law enforcement.” In other words, in Count X,

Kodi alleged a violation of the Fourteenth Amendment separate from the allegation that

excessive force was used in connection with the seizure of Ms. Gaines in violation of the

-3-
Fourth Amendment. In Paragraphs 120 and 121 of Count X , Kodi alleged:

120. At the time of the complained events, Plaintiffs Korryn Gaines and Kodi
Gaines had a clearly established constitutional right under the Fourth
Amendment to be secure in their person from unreasonable seizure through
excessive force.

121. Plaintiffs Korryn Gaines and Kodi Gaines also had the clearly
established Constitutional right under the Fourteenth Amendment to bodily
integrity and to be free from excessive force by law enforcement.

In addition, in Count X, Kodi alleged that his right to be free of such conduct was

clearly established, that Respondents used “conscience shocking force,” and that

Respondents were not entitled to qualified immunity. In Paragraphs 123, 129, and 135

Kodi averred:

123. Any reasonable police officer knew or should have known of these
rights at the time of the complained of conduct as they were clearly
established.

***

129. None of the Defendant officers took reasonable steps to protect five-
year-old Plaintiff Kodi Gaines from the objectively unreasonable, malicious,
grossly negligent, reckless and irresponsible and excessive force of other
Defendant officers or from the reckless and irresponsible and excessive force
of later responding officers despite being in a position to do so. They are
each therefore liable for the injuries and damages resulting from the
objectively unreasonable, reckless and irresponsible and conscience
shocking force of each other officer.

***

135. These individual Defendants are not entitled to qualified immunity for
the complained of conducts.

The issue of whether Corporal Ruby is entitled to qualified immunity is not

preserved for appellate review because, at trial, Respondents did not contend in their

-4-
motions for judgment or their motion for judgment notwithstanding the verdict (“JNOV”)

that qualified immunity applies to the claims under 42 U.S.C. § 1983 based on Kodi’s right

to substantive due process under the Fourteenth Amendment. 4 Under Maryland Rule 2-

532(a), “[i]n a jury trial, a party may move for judgment notwithstanding the verdict only

if that party made a motion for judgment at the close of all the evidence and only on the

grounds advanced in support of the earlier motion.” When making the motion for judgment

at the conclusion of the plaintiffs’ case, without mentioning Kodi’s substantive due process

claims, Respondents’ counsel argued that Corporal Ruby was entitled to judgment on the

Fourth Amendment excessive force claims and that “[q]ualified immunity applies here[.]”

At the close of all of the evidence in the case, Respondents renewed the motion for

judgment, arguing that Corporal Ruby was entitled to judgment on the Fourth Amendment

excessive force claims and reiterating that qualified immunity applies. Respondents did

not seek judgment with respect to Kodi’s Fourteenth Amendment claims. In an initial

memorandum and supplemental memorandum in support of the motion for JNOV, without

mentioning Kodi’s substantive due process claims, Respondents asserted that Corporal

Ruby was entitled to qualified immunity as to the claims under 42 U.S.C. § 1983.

4
The Majority does not purport to conclude that Respondents preserved for appellate
review the issue of whether Corporal Ruby is entitled to qualified immunity. Rather, after
concluding that Kodi waived the issue of non-preservation, the Majority states: “[W]e
decline to consider on our own initiative whether [Respondent]s waived or failed to
preserve for appellate review their argument that Corporal Ruby is entitled to qualified
immunity on Kodi’s Substantive Due Process Claim.” Maj. Slip Op. at 32 n.21 (citations
omitted). In essence, the Majority gives Respondents a pass for not preserving the issue,
but does not give Kodi a pass for what it deems to be Kodi’s failure to raise Respondents’
lack of preservation.

-5-
These general assertions by Respondents were insufficient to preserve the question

of whether qualified immunity applies to the claims under 42 U.S.C. § 1983 based on

Kodi’s right to substantive due process under the Fourteenth Amendment. Different

standards apply to the right to substantive due process under the Fourteenth Amendment

and the right to be free from excessive force under the Fourth Amendment, and

Respondents addressed only the Fourth Amendment right in the motions for judgment and

JNOV.

Significantly, after Respondents filed the initial memorandum in support of their

motion for JNOV and before they filed the supplemental memorandum, Kodi filed a

memorandum in opposition to the motion for JNOV, specifically contending that Kodi’s

right to substantive due process under the Fourteenth Amendment provided an independent

basis for the claims under 42 U.S.C. § 1983. Yet, Respondents failed to address Kodi’s

contention in the supplemental memorandum. When granting JNOV on the ground that

Corporal Ruby was entitled to qualified immunity, the circuit court did not address Kodi’s

substantive due process claims. It was not until after the Appellate Court remanded this

case to the circuit court in Cunningham v. Balt. Cnty., 246 Md. App. 630, 232 A.3d 278

(2020) (“Cunningham I”), that Respondents filed a Motion to Clarify Judgment and Motion

for Other Appropriate Relief and a memorandum in support thereof in which Respondents

argued that Corporal Ruby was entitled to qualified immunity as to any claim under 42

U.S.C. § 1983 based on substantive due process.

Respondents’ failure to raise the argument that qualified immunity applied to Kodi’s

substantive due process claim in the motion for judgment and motion for JNOV was fatal

-6-
to preservation of the issue. To preserve for appellate review a contention that JNOV was

warranted on a given ground, a party must have raised that ground in support of both a

motion for judgment and a motion for JNOV. “[A]n argument not raised in the motion for

judgment is waived in the motion for JNOV.” Town of Riverdale Park v. Ashkar, 474 Md.

581, 626, 255 A.3d 140, 166 (2021) (citation omitted).

When not raised in a motion for JNOV, a contention in support of JNOV is not

preserved for appellate review. In AXE Props. & Mgmt., LLC v. Merriman, 261 Md. App.

1, 52, 311 A.3d 376, 406 (2024), the Appellate Court held that the defendant “failed to

preserve” an issue where “neither motion for JNOV . . . actually raised” that issue. In a

motion for judgment, a renewed motion for judgment, a motion for JNOV, and a renewed

motion for JNOV, the defendant made various arguments, including the assertion that the

plaintiff “failed to meet his burden of proof on the issue of damages.” Id. at 14-16, 20-21,

311 A.3d at 383-84, 387-88. None of the motions, however, discussed “the one recovery

rule,” a case in which we addressed that rule, “or the general issue that the combined

compensatory award included duplicative damages.” Id. at 14-16, 49-50, 311 A.3d at 383-

84, 404-05 (footnote omitted). In the motions for JNOV, although the defendant “argued

that the combined compensatory award must be reduced, it did not argue that the award

must be modified for these reasons.” Id. at 50, 311 A.3d at 405 (emphasis in original).

The Appellate Court concluded that the issue was unpreserved because the defendant

“waited until the instant appeal to complain that the combined compensatory award ran

afoul of . . . the one recovery rule[.]” Id. at 52, 311 A.3d at 406.

The same result is required here. Just as the defendant in AXE Props. & Mgmt.

-7-
failed to contend in motions for judgment and motions for JNOV that the one recovery rule

had been violated, Respondents failed to argue in motions for judgment at the conclusion

of the plaintiff’s case and at the conclusion of all of the evidence and in the motion for

JNOV that qualified immunity applies to the claims under 42 U.S.C. § 1983 based on

Kodi’s right to substantive due process under the Fourteenth Amendment. As in AXE

Props. & Mgmt., the issue that was not raised in support of the motions for judgment and

JNOV is unpreserved for appellate review. The issue of whether Corporal Ruby is entitled

to qualified immunity to Kodi’s Fourteenth Amendment substantive due process claim was

not properly before the Appellate Court in the first or second appeal and is not properly

before us now.

In addition to being unpreserved, qualified immunity is not a valid ground for

affirming the circuit court’s ruling on remand because that ruling was not based on

qualified immunity. The circuit court’s ruling on remand was based on its reasoning that

Kodi lacked a valid claim under the Fourteenth Amendment because the evidence did not

satisfy the shocks the conscience standard. The circuit court mentioned qualified immunity

only when referring to its prior ruling on the motion for JNOV and the contentions of Kodi

and the other appellants in the first appeal.

The basis of the circuit court’s ruling is crucial because an appellate court may

affirm the grant of JNOV only on the grounds that the trial court relied on. “Ordinarily,

we may affirm the trial court only on the grounds upon which the trial court relied in

granting summary judgment.” Gambrill v. Bd. of Educ. of Dorchester Cnty., 481 Md. 274,

297, 281 A.3d 876, 889 (2022) (cleaned up). There is no valid reason not to apply the same

-8-
principle to affirming the grant of JNOV, especially given that there does not appear to be

any case in which we have affirmed a JNOV ruling on a ground different than the one that

the trial court relied on. Just as we cannot affirm the grant of JNOV based on an

unpreserved issue, we should not affirm the grant of JNOV on an issue that the trial court

did not rely on.

One reason for not affirming the grant of JNOV on grounds other than those relied

by the trial court is that doing so would sandbag parties, as this case demonstrates. On

remand, even though Respondents and the circuit court had never addressed qualified

immunity in the context of the substantive due process claim, Kodi was forced to deal with

Respondents’ contention that Corporal Ruby was entitled to qualified immunity as to any

claim under 42 U.S.C. § 1983 based on substantive due process when the argument was

first raised in the Respondents’ memorandum in support of the Motion to Clarify Judgment

and Motion for Other Appropriate Relief. It would be improper and inequitable to reward

Respondents for effectively coming up with a new ground for affirming the grant of JNOV

that they had not previously raised and that the circuit court had not relied on when granting

JNOV.

Putting aside that the issue of qualified immunity as to Kodi’s substantive due

process claims is unpreserved and not a valid ground for affirmance, it can readily be seen

that Corporal Ruby is not entitled to qualified immunity, i.e., the doctrine does not apply

here. The Supreme Court has held that the doctrine of qualified immunity “gives

government officials breathing room to make reasonable but mistaken judgments, and

protects all but the plainly incompetent or those who knowingly violate the law.”

-9-
Carroll v. Carman, 574 U.S. 13, 17 (2014) (per curiam) (cleaned up) . “[O]fficers are

entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their conduct was clearly established at the

time.” District of Columbia v. Wesby, 583 U.S. 48, 62-63 (2018) (cleaned up). “‘Clearly

established’ means that, at the time of the officer’s conduct, the law was sufficiently clear

that every reasonable official would understand that what he is doing is unlawful.” Id. at

63 (cleaned up). Stated otherwise, “existing law must have placed the constitutionality of

the officer’s conduct beyond debate.” Id. (cleaned up). The rule must be so well

established “that it is clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Id. (cleaned up). The United States Supreme Court has

“repeatedly stressed that courts must not define clearly established law at a high level of

generality, since doing so avoids the crucial question whether the official acted reasonably

in the circumstances that he or she faced.” District of Columbia v. Wesby, 583 U.S. 48,

63-64 (2018) (cleaned up).

Caselaw makes clear that the way to proceed in determining whether an officer is

entitled to qualified immunity is to first determine whether there has been a constitutional

violation and what the nature of that violation is—only then can a court determine whether

the officer violated a right that is clearly established. See id. at 62-63. This makes sense

because it would not be necessary to reach the issue of qualified immunity if there has been

no constitutional violation in the first place. In other words, an officer could not have

violated a clearly established constitutional right if there has been no constitutional

violation in the first place. The nature of the violation found informs the analysis as to

- 10 -
whether an officer has violated a right that was clearly established. See id. at 64.

In Graham v. Connor, 490 U.S. 386, 388 (1989), the Supreme Court of the United

States held that claims that law enforcement officials used excessive force during an arrest,

investigatory stop, or other “seizure” of a citizen “are properly analyzed under the Fourth

Amendment’s ‘objective reasonableness’ standard, rather than under a substantive due

process standard.” In Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998), the

Supreme Court explained that if a constitutional claim is covered by a more specific

constitutional provision the claim must be analyzed under the standard for that provision,

not under the substantive due process standard. In other words, where a claim is not

covered by a more specific standard, it would be handled under the substantive due process

standard. See id. Police misconduct violates the substantive due process standard where

it shocks the conscience or outrages a sense of decency. See id. at 846. In Lewis, id. at

836, the Supreme Court held that “a purpose to cause harm unrelated to the legitimate

object of arrest will satisfy the element of arbitrary conduct shocking to the conscience,

necessary for a due process violation.” So, while the “shocking to the conscience” standard

is a higher standard for establishing liability than the “objective reasonableness” standard,

if established, it points toward the absence of qualified immunity because the conduct is so

arbitrary and so shocking that the rule against it would be clearly established, even in the

absence of identifiable case law on the point.

Kodi pled §1983 claims alleging not just that he was injured as a result of excessive

force used during the seizure of Ms. Gaines but also that he had a right under the Fourteenth

Amendment to be free from excessive force, i.e., conduct against him that was arbitrary

- 11 -
and shocking to the conscience. 5 It would be an unsound premise to dispose of Kodi’s

§1983 Fourteenth Amendment substantive due process claims as if they were brought only

on the ground that he was a bystander subject to injury during the attempted seizure of his

mother. 6

That the case is unusual does not make the violation of a clearly established right

any less identifiable. It would have been clear to any reasonable officer that, in these

circumstances, taking a head shot at an adult with a child behind a wall (where the child

could not be seen) would have violated the child’s clearly established right to be free of

arbitrary and unlawful police conduct. Indeed, under these circumstances, that right was

clearly established—i.e., any reasonable officer would have known that Corporal Ruby’s

conduct violated the right.

5
The Majority states: “[T]he harm to Kodi, in fact, occurred during the attempted
seizure of Ms. Gaines. There was no other application of force by Corporal Ruby that led
to Kodi’s injuries, nor has Kodi suggested otherwise.” Maj. Slip Op. at 43 n.27. It goes
without saying that the same conduct may violate multiple constitutional provisions, just
as the same conduct may violate multiple criminal statutes (although the sentences may
merge). Here, Kodi has alleged that the excessive force used by Corporal Ruby constituted
an independent violation of the Fourth Amendment, the Fourteenth Amendment, and other
amendments.
6
In Chavez v. Martinez, 538 U.S. 760, 773 n.5 (2003), the Supreme Court of the
United States explained: “Graham foreclosed the use of substantive due process analysis
in claims involving the use of excessive force in effecting an arrest and held that such
claims are governed solely by the Fourth Amendment’s prohibitions against ‘unreasonable’
seizures, because the Fourth Amendment provided the explicit source of constitutional
protection against such conduct.” (Citing Graham, 490 U.S. at 394-95) (emphasis in
original). In paragraph 121 of the complaint, Kodi alleges that he and his mother had “the
clearly established Constitutional right under the Fourteenth Amendment to bodily
integrity and to be free from excessive force by law enforcement.” In this paragraph, unlike
in paragraph 120 of the complaint, Kodi’s Fourteenth Amendment claim is not limited to
excessive force used in an unreasonable seizure.

- 12 -
The tragic circumstances of this case make inescapably clear that Corporal Ruby

blindly fired his gun into a room that, as he knew, contained both Korryn Gaines and Kodi,

her five-year-old child, and that he could not see where Kodi was. For all Corporal Ruby

knew, Kodi could have been in Ms. Gaines’s arms and directly in his line of fire. At trial,

Corporal Ruby acknowledged that, when he fired his first shot, he knew that Kodi was in

the kitchen behind drywall, he knew that drywall would not stop bullets from his gun, and

he knew that, if he fired his gun, it was possible that he would shoot Kodi. And, that is

exactly what happened—Corporal Ruby fatally shot Ms. Gaines, shot Kodi in the face and

arm, and caused him to suffer serious physical injuries in addition to the traumatic loss of

his mother.

The verdicts and the testimony of Respondents’ own expert establish that the jury

did not believe Corporal Ruby’s self-serving testimony that the reason why he fired his

first shot was that he saw Ms. Gaines raise her gun into a firing position and that he became

concerned that she had gained a tactical advantage, in that she was able to shoot the officers

outside the front door. Other witnesses—including Charles Key, Respondents’ expert in

use of force and other fields—indicated that, had Ms. Gaines been able to shoot the officers

outside the front door, then she would have been pointing her gun at the side of the front

door with hinges, and Corporal Ruby would have been able to see her hands and other parts

of her body. Yet, according to Corporal Ruby, he could see the barrel of Ms. Gaines’s gun

and the braids in her hair.

That Corporal Ruby could see Ms. Gaines’s braids is not a fact that has been found

by the trier of fact, i.e., the jury. It was simply Corporal Ruby’s self-serving testimony.

- 13 -
Taking the evidence in the light most favorable to Kodi would lead to the conclusion that

Corporal Ruby saw neither Ms. Gaines’s braids nor the barrel of her gun. As the Appellate

Court explained in Cunningham I, 246 Md. App. at 657, 232 A.3d at 294:

Mr. Key[] testified that, if [Ms. Gaines] had been pointing the gun at the
hinge side of the door, her hands and another part of her body would have
been exposed. Accordingly, based on Corporal Ruby’s testimony, that
meant that Ms. Gaines could not have been pointing the gun at the hinge
side of the door, and therefore, no one was subject to an imminent threat
of death or serious bodily injury when the shot was taken.[7]

Yet, the Majority finds as a fact that “there is no evidence that Corporal Ruby intended to

harm Kodi or that he knew that Kodi would be harmed[.]” Maj. Slip Op. at 41. The

Majority’s finding is inconsistent with the testimony of multiple witnesses and with

Corporal Ruby’s own testimony that he knew that, if he fired his gun, it was possible that

he would shoot Kodi. Taking the evidence in the light most favorable to Kodi would result

in a conclusion that Corporal Ruby fired a M6 rifle through a kitchen wall when there was

7
In addition, the Appellate Court pointed out that, at trial, in closing argument,
Petitioners’ counsel argued:

Corporal Ruby testified that he saw only the ends of Ms. Gaines’ hair
braids and the barrel of the muzzle of the gun protruding from the kitchen,
but several witnesses, including Corporal Ruby’s expert, Mr. Key, and a
fellow officer, Officer Callahan, testified that, if Ms. Gaines had been
pointing her weapon at the door, her hands, arms, and “potentially a slight
shoulder,” would have to be exposed outside the kitchen wall.
Additionally, the evidence showed that the first fatal shot entered Ms.
Gaines’ back on the left side, which Dr. Powers said was consistent with
Ms. Gaines being behind the wall and not pointing the weapon toward the
hinge side of the door.

Cunningham I, 246 Md. App. at 693, 232 A.3d at 316.

- 14 -
no imminent threat and he knew that five-year-old Kodi was in the kitchen but he did not

know where. 8

By answering “No” to the question on the verdict sheet of whether the first shot that

Corporal Ruby fired was objectively reasonable, the jury demonstrated that it did not

believe his version of events. It is evident that the jury instead credited Ms. Gaines’s

cousin’s testimony that, right after the shootings, Corporal Ruby told him that he fired his

first shot because he was “hot” and “frustrated.” 9

Reasoning that Corporal Ruby is entitled to qualified immunity leads to the perverse

result that the federal constitution protected Kodi less than it did Ms. Gaines simply

because she was the suspect, and he was an innocent bystander. The jury found that

Respondents violated the rights of both Ms. Gaines and Kodi under 42 U.S.C. § 1983.

Given that Respondents and Ms. Gaines’s estate reached a settlement before the hearing in

the circuit court on remand, no court has conclusively determined the basis of the verdict

in Ms. Gaines’s estate’s favor as to the claim under 42 U.S.C. § 1983. Kodi has

8
Perplexingly, the Majority states that, “had the jury believed that Corporal Ruby
was aiming blindly when he fired, it is difficult to imagine that the jury would not have
awarded punitive damages.” Maj. Slip Op. at 41 n.25. The jury awarded damages to Kodi
as follows: $23,542.29 for past medical expenses and $32,850,000.00 in noneconomic
damages. Enough said.
9
The Majority’s observations that “Ms. Gaines’s boyfriend attempted to convince
her to allow Kodi to leave the apartment during the standoff, but Ms. Gaines did not
respond, and instead instructed Kodi to stay close to her, which he did[,]” and “it is
undisputed that Ms. Gaines, armed with a shotgun, declined an opportunity to let Kodi exit
the standoff” add no value to the analysis. Maj. Slip Op. at 6-7, 41 (cleaned up). These
statements appear intended to give the impression that, because Ms. Gaines was a mother
with mental health issues who did not respond to requests to send her child to safety, this
somehow made Corporal Ruby’s conduct in shooting her through a wall and injuring her
child more reasonable or less shocking.

- 15 -
acknowledged that the Fourth Amendment cannot properly be a basis for the verdict in his

favor as to the claim under 42 U.S.C. § 1983 because he was a bystander and thus, unlike

Ms. Gaines, was not seized by Corporal Ruby. It would strain logic, basic notions of

fairness, and our veneration of the liberties safeguarded by the federal constitution to

reason that, although the Fourth Amendment protected Ms. Gaines as a suspect, the

Fourteenth Amendment did not protect Kodi either as a completely innocent bystander to

a seizure or as a five-year-old child with a separate due process right.

I would conclude that Corporal Ruby violated Kodi’s Fourteenth Amendment

substantive due process right and that Kodi’s right not to be shot by Corporal Ruby was

clearly established—i.e., any reasonable officer would have known that blindly firing a

gun into a room that contained a five-year-old child when he could not see the child and

there was no visible imminent threat to the officer would violate the child’s right to

substantive due process. Even if Kodi had only pled a substantive due process claim based

solely on excessive force being used in the seizure of Ms. Gaines (which, the complaint

demonstrates, was not his sole substantive due process claim claim), the Fourth Circuit has

repeatedly “conclude[d] that [] the due process clause provides substantive protection to []

a bystander against the infliction of personal injury by police conduct sufficiently

outrageous to constitute completely arbitrary state action[.]” Rucker v. Harford Cnty., Md.,

946 F.2d 278, 279 (4th Cir. 1991). In Rucker, id. at 280, one of the defendant officers

repeatedly fired a gun at the tires of a vehicle in which a suspect was fleeing, and one of

the bullets hit a bystander—namely, the plaintiff’s son. The Fourth Circuit determined

that, although the circumstances of the case did not shock the conscience, “in appropriate

- 16 -
circumstances, substantive due process protections might extend to an ‘innocent bystander’

such as” the plaintiff’s son. Id. at 281. The Fourth Circuit observed that, in Temkin v.

Frederick Cnty. Comm’rs, 945 F.2d 716 (4th Cir. 1991), it had “held in a case of first

impression in this circuit” that an “innocent ‘bystander’ injured in [a] high speed auto chase

by police may have [a] substantive due process claim[,]” though that was “not established

on [the] facts of” Temkin. Rucker, 946 F.2d at 281. Rucker and Temkin clearly establish

that an officer can violate an innocent bystander’s right to substantive due process where,

as here, the officer injures the bystander in a manner so outrageous that it is completely

arbitrary and shocking to the conscience.

A reasonable officer would have realized this obvious principle even without the

benefit of Rucker and Temkin. As the Fourth Circuit has observed, “[s]ome things are so

obviously unlawful that they don’t require detailed explanation[,] and sometimes the most

obviously unlawful things happen so rarely that a case on point is itself an unusual thing.”

Dean for & on behalf of Harkness v. McKinney, 976 F.3d 407, 417-18 (4th Cir. 2020)

(citation omitted). “Indeed, it would be remarkable if the most obviously unconstitutional

conduct should be the most immune from liability only because it is so flagrantly unlawful

that few dare its attempt.” Id. at 418 (citation omitted). Respondents should not be

absolved where Corporal Ruby violated the federal constitution by firing a gun through a

wall into a room with a kindergarten-age child in it simply because this is apparently the

first case in which such shocking conduct has come up.

For the above reasons, respectfully, I dissent.

- 17 -
Circuit Court for Baltimore County
Case No. 03-C-16-009435
Argued: December 4, 2023 IN THE SUPREME COURT

OF MARYLAND

No. 9

September Term, 2023
__________________________________

COREY CUNNINGHAM, ON BEHALF
OF KODI GAINES, A MINOR

v.

BALTIMORE COUNTY, MARYLAND,
ET AL.
__________________________________

Fader, C.J.,
Watts,
Hotten,*
Booth,
Biran,
Gould,
Eaves,
JJ.
__________________________________

Concurring and Dissenting Opinion by
Hotten, J.
__________________________________

Filed: June 25, 2024

*Hotten, J., participated in the hearing of
the case and in the conference in regard to
its decision as an active judge. She retired
from the Court and was recalled to senior
status prior to the adoption and filing of the
opinion.
I concur in part and dissent in part to the per curiam. The facts surrounding the

killing of Ms. Korryn Gaines (“Ms. Gaines”) and the shooting of her minor son must not

be abstracted or diminished. In 2016, Kodi Gaines (“Kodi”), 1 then only five years old,

suffer

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10464499. Public record. Not legal advice.