Lemp v. Majkrzak

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

MARIA MERCEDES LEMP, et al., *

Plaintiffs, *

v. * Civil Action No. MJM-23-691

OFFICER MATTHEW MAJKRZAK, et al., *

Defendants. *

* * * * * * *

MEMORANDUM

Plaintiffs Maria Mercedes Lemp, individually and as personal representative of the Estate

of Duncan Lemp; Kasey Jean Robinson, individually and as parent and guardian of Duncan

Lemp’s minor child; and Matthew Lemp (collectively, “Plaintiffs”) move for leave to file a Second

Amended Complaint (“SAC”). ECF No. 34 (the “Motion”); ECF No. 34-3 (SAC). Defendants

Montgomery County, Officer Matthew Majkrzak, Detective Tomasz Machon, and Detective

Kevin Baxter (collectively, “Defendants”) filed a response in opposition to the Motion. ECF No.

35. Plaintiffs filed a reply in support of the Motion. ECF No. 36. No hearing is necessary to resolve

the instant Motion.1 Loc. R. 105.6 (D. Md. 2023). The Motion will be granted in part and denied

in part.

I. BACKGROUND

Plaintiffs allege that in the early morning of March 12, 2020, a Montgomery County Police

Department (“MCPD”) SWAT team conducted a raid at their residence in Potomac, Maryland that

killed resident Duncan Lemp. SAC ¶ 5. The raid was conducted pursuant to a no-knock search

warrant on the basis of Duncan Lemp’s suspected unlawful possession of firearms. Id. ¶ 6.

1 The Court did conduct a hearing on Plaintiffs’ prior motion to amend their original complaint, on April

21, 2024.

Detectives Machon and Baxter sought and obtained the warrant. Id. According to Detective

Machon’s warrant affidavit, law enforcement relied in part on information received from two

confidential informants that Duncan Lemp possessed several firearms and was a member of an

anti-government militia. Id. According to the affidavit, Duncan Lemp had posted several pictures

of himself posing with guns and at a shooting range on social media. Id. The affidavit further states

that Duncan Lemp had a juvenile criminal history that prohibited him from possessing of regulated

firearms. Id. ¶ 9. During the execution of the warrant, the police threw a flashbang into Duncan

Lemp’s bedroom, disorienting him and his fiancée. Id. ¶ 12. Duncan Lemp then brandished a gun

and took a “standing position,” at which point Officer Majkrzak shot him five times through the

window. Id. ¶¶ 11–12. Kasey Robinson was pregnant at the time of the raid and gave birth to

Duncan Lemp’s child in October 2020. Id. ¶¶ 5, 18. Plaintiffs allege that, in March 2020,

Montgomery County policymakers failed to develop and maintain policies to avoid unreasonable

searches pursuant to no-knock warrants, which created substantial risks to the safety, lives,

property, and privacy of Montgomery County residents. Id. ¶¶ 36–40.2

Plaintiffs filed their initial Complaint on March 13, 2023. ECF No. 1. Defendants moved

to dismiss the Complaint, ECF Nos. 15 & 16, and Plaintiffs moved for leave to file an Amended

Complaint, ECF No. 24. Following a hearing on the motions, the Court granted in part and denied

in part Plaintiffs’ motion to amend and dismissed some of the claims. ECF No. 31.

Plaintiffs now move to file a Second Amended Complaint asserting claims in seven counts

against Defendants:

(1) Survival under 42 U.S.C. §§ 1983 and 1988;

(2) Survival under Md. Code, Estates & Trusts § 7-401(y);

2 Additional facts relevant to the Court’s analysis are described in the Part III infra.

(3) Wrongful death under 42 U.S.C. §§ 1983 and 1988;

(4) Wrongful death under Md. Code, Cts. & Jud. Proc. § 3-904;

(5) Fourth Amendment violation under 42 U.S.C. §§ 1983 and 1988;

(6) Violation of Maryland Declaration of Rights, Article 26;

(7) Monell liability under 42 U.S.C. § 1983;

ECF No. 34. The motion is full briefed and ripe for disposition.

II. STANDARD OF REVIEW

Amendment of pleadings is governed by Rule 15 of the Federal Rules of Civil Procedure.

Rule 15 states that “[a] party may amend its pleading once as a matter of course no later than: (A)

21 days after serving it, or (B), if the pleading is one to which a responsive pleading is required,

21 days after service of a responsive pleading or 21 days after service of a [Rule 12] motion,

whichever is earlier.” Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading

only with the opposing party’s written consent or the court’s leave. The court should freely give

leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Accordingly, the Fourth Circuit has

endorsed a liberal approach to granting motions for leave to amend. The court has “interpreted

Rule 15(a) to provide that leave to amend a pleading should be denied only when the amendment

would be prejudicial to the opposing party, there has been bad faith on the part of the moving party,

or the amendment would have been futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)

(internal citations omitted).

III. DISCUSSION

In their opposition, Defendants argue that Plaintiffs’ proposed amendments are futile. ECF

No. 35 at 4–17. A proposed amendment is futile when it “is clearly insufficient or frivolous on its

face.” Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir. 1986) (citation omitted). “Thus,

it may be within the trial court’s discretion to deny leave to amend when it is clear that a claim

cannot withstand a Rule 12(b)(6) motion.”3 Fox v. Statebridge Co., LLC, Civ. No. SAG-21-01972,

2023 WL 1928224, at *2 (D. Md. Feb. 10, 2023) (citations omitted).

A. Count Two

Plaintiffs seek to add in Count Two of the proposed SAC a survival claim under Md. Code,

Estates & Trusts Art. § 7-401(y). This statute provides that a personal representative may generally

prosecute claims or proceedings “the protection or benefit of the estate, including the

commencement of a personal action which the decedent might have commenced or prosecuted[.]”

Md. Code, Estates & Trusts § 7-401(y)(1). Here, Maria Mercedes Lemp, as personal representative

of the Estate of Duncan Lemp, seeks to recover for alleged violations of Duncan Lemp’s rights

under the Maryland Constitution’s Declaration of Rights by Officer Majkrzak and Montgomery

County. SAC ¶¶ 22–24.

First, Defendants argue that the proposed Count Two is barred by the applicable statute of

limitations. ECF No. 35 at 5–6. The applicable statute of limitations provides that Ms. Lemp’s

survival claim was required to have been filed within three years of the claim’s accrual date. See

Md. Code, Cts. & Jud. Proc. § 5-101. In reply, Plaintiffs argue that the survival claim in Count

Two relates back to the date their original Complaint was filed. ECF No. 36 at 1–4. Rule 15(c), as

Plaintiffs point out, provides that “[a]n amendment to a pleading relates back to the date of the

original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out—or attempted to be set out—in the original pleading[.]” Fed. R.

Civ. P. 15(c)(1)(B).

3 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant may file a motion to

dismiss a complaint for failure to state a claim upon which relief may be granted.

In Plaintiffs’ initial Complaint, Ms. Lemp asserted claims against Officer Majkrzak and

Montgomery County arising from their alleged roles in the death of Duncan Lemp on March 12,

2020. See generally ECF No. 1. The initial Complaint was filed on March 13, 2020. The proposed

survival claim in Count Two of the SAC appears to arise out of the conduct and occurrences “set

out—or attempted to be set out—in the original pleading” and therefore appears to relate back to

the date the original Complaint was filed. Fed. R. Civ. P. 15(c)(1)(B). At this stage of the litigation,

the Court cannot find that Plaintiffs’ filing of the original Complaint was untimely. Therefore, the

Court cannot find the proposed survival claim is clearly insufficient or subject to dismissal.

Second, Defendants argue that the proposed Count Two is futile because it is “duplicative”

of the proposed Counts Five and Six. In the proposed Count Five, Plaintiffs assert a claim under

42 U.S.C. §§ 1983 and 1988 for Defendants’ allegedly obtaining and executing a search warrant

in violation of the Fourth Amendment to the U.S. Constitution. SAC ¶¶ 29–33. The proposed

Count Six is based on the same conduct but is claimed to violate Article 26 of the Maryland

Declaration of Rights. Id. ¶ 34. While it is apparent that the factual and legal bases for the claim

asserted in Count Two and those asserted in Counts Five and Six overlap, the Court does not find

Count Two to be entirely duplicative, such that dismissal would be clearly warranted.

Accordingly, the Motion is granted as to Count Two of the proposed SAC.

B. Counts Five and Six

As noted supra, Counts Five and Six of the proposed SAC contain claims for alleged

violations of the Fourth Amendment to the U.S. Constitution and Article 26 of the Maryland

Declaration of Rights. SAC ¶¶ 29–34. These counts are based in part on the defendant police

officers having allegedly obtained a search warrant without probable cause. See id. Defendants

argue that these claims are futile because the search warrant was supported by probable cause and,

alternatively, that the officers have qualified immunity. ECF No. 35 at 6–11. The parties’ dispute

over whether the warrant lacked probable cause turns on whether, under Maryland law, probable

cause for the warrant called for facts concerning Duncan Lemp’s knowledge that his possession of

regulated firearms was unlawful. See id.; ECF No. 34-1 at 6–9; ECF No. 36 at 5–7.

“Qualified immunity protects government officials who commit constitutional violations

but who, in light of clearly established law, could have reasonably believed that their actions were

lawful.” Knibbs v. Momphard, 30 F.4th 200, 214 (4th Cir. 2022) (quoting Henry v. Purnell, 652

F.3d 524, 531 (4th Cir. 2011) (en banc)). As discussed during the hearing on Plaintiff’s prior

motion to amend, the Court has reviewed the Maryland authorities cited by the parties and finds

that Plaintiffs’ claims based on lack of probable cause for the search warrant are barred by

Defendants’ qualified immunity.

The affidavit in support of the search warrant challenged in Counts Five and Six purport to

set forth probable cause Duncan Lemp illegally possessed an assault weapon in violation of Md.

Code Ann., Crim. L. § 4-303, and possessed regulated firearms as a prohibited person in violation

of Md. Code Ann., Pub. Safety §§ 5-133(b) and 5-144. Section 5-133(b) provides that “a person

may not possess a regulated firearm if the person” is “under the age of 30 years at the time of

possession [and] has been adjudicated delinquent by a juvenile court for an act that would be a

disqualifying crime if committed by an adult.” Md. Code Ann., Pub. Safety § 5-133(b)(15). Section

5-144 provides criminal penalties for a person who “knowingly participate[s] in the illegal sale,

rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this

subtitle[.]” Id. § 5-144(a)(1).

At the time Detectives Machon and Baxter obtained the warrant, in March 2020, it was not

clearly established that a criminal violation of § 5-133(b)(15) required proof that the person was

aware of his prohibited status. In 2015, the Maryland Court of Special Appeals (now Appellate

Court of Maryland) held that § 5-144(a)(1)’s provision that a person “may not ‘knowingly

participate in . . . possession . . . of a regulated firearm” did not require the person “to know that

he is disqualified.” Brice v. State, 126 A.3d 246, 263 (Md. Ct. Spec. App. 2015). The court cited

its prior decision in McNeal v. State, holding that, “to satisfy the mens rea requirement for a

violation of Section 5–133, the State was required to prove only that defendant knew that he was

in possession of a handgun.” Id. (citing McNeal v. State, 28 A.3d 88 (Md. Ct. Spec. App. 2011),

aff’d, 44 A.3d 982 (Md. 2012)); see also Hogan v. State, 205 A.3d 101, 127 (Md. Ct. Spec. App.

2019) (“A crime of simple possession does not require any specific intent nor does it require any

special scienter. . . . The mens rea of simple unlawful possession requires only the defendant’s

awareness that he is in actual possession of the item he is not permitted to possess.”) (citing

McNeal, 28 A.3d 88).

In support of their argument that knowledge of prohibited status was required, Plaintiffs

rely upon Chow v. State, where the Maryland Court of Appeals (now Supreme Court of Maryland)

held that a conviction for an illegal sale under the predecessor statute to § 5-144 requires

knowledge that the person is committing an illegal sale. 903 A.2d 388, 408–12 (Md. 2006). Chow,

however, involved an illegal sale of a regulated firearm rather than illegal possession under § 5-

133. Maryland’s intermediate appellate court decided McNeal, Brice, and Hogan after the Chow

decision and made no reference to its holding.

In consideration of the foregoing precedents, the Court cannot find that it was clearly

established in March 2020 that a § 5-133(b) violation required proof of the person’s knowledge of

their prohibited status. A legal rule is clearly established when it is “particularized” to the facts of

the case. Anderson v. Creighton, 483 U.S. 635, 640 (1987). “It is not enough that the rule is

suggested by then-existing precedent. The precedent must be clear enough that every reasonable

official would interpret it to establish the particular rule the plaintiff seeks to apply.” District of

Columbia v. Wesby, 583 U.S. 48, 64 (2018). Given the holdings in McNeal, Brice, and Hogan

(cases involving illegal gun possession under § 5-133(b)), the Court does find that a reasonable

officer would necessarily interpret Chow (a case involving an illegal gun sale) to establish a rule

that unlawful possession of a regulated firearm under § 5-133(b) requires knowledge of prohibited

status.4 Accordingly, in the instant case, Plaintiffs’ claims based upon the search warrant’s lack of

probable cause are clearly insufficient and would not survive a motion to dismiss.

Counts Five and Six of the proposed SAC also contain claims based upon the execution of

the challenged warrant, which Plaintiffs allege involved an unconstitutional failure to knock and

announce, breaking of windows, and use of flashbang grenades. Both counts are asserted against

Detective Machon, Detective Baxter, and Officer Majkrzak.5 Defendants argue that these counts

are futile as to Detectives Machon and Baxter because the proposed SAC does not allege their

involvement in any use of force. ECF No. 35 at 11–12. Plaintiffs do not respond to this argument

in their reply. The proposed SAC adds an allegation that Detectives Machon and Baxter were

present when the warrant was executed, SAC ¶ 31, but does not allege any facts to support a

reasonable inference that either defendant personally participated in the no-knock entry or used

any force at the scene—much less unconstitutionally excessive force. Thus, any claims against

4 Even today, it may not be clearly established that § 5-133(b) violations require knowledge of prohibited

status. In 2022, in a case involving a § 5-133(c) violation, Maryland’s highest court held that knowledge of

prohibited status was not required for this offense. Howling v. State, 274 A.3d 1124, 1136–43 (Md. 2022).

Notably, in so holding, the Howling court cited McNeal, Brice, and Hogan approvingly, stating, “Maryland

appellate courts have repeatedly recognized that the General Assembly intended to only require the mens

rea element of knowledge of possession pursuant to Pub. Safety § 5-133.”). The Court of Appeals also

relied upon its own prior decision in Parker v. State, 936 A.2d 862, 883 (2007), a case that pre-dates the

search warrant challenged in the instant case.

5 The Maryland constitutional claim in Count Six is also asserted against Montgomery County.

Detectives Machon and Baxter for unconstitutional use of force are clearly insufficient and would

not survive a motion to dismiss. See Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir. 1977) (holding that

liability under § 1983 “will only lie where it is affirmatively shown that the official charged acted

personally in the deprivation of the plaintiffs’ rights”) (citation omitted).

For the foregoing reasons, Plaintiffs’ Motion is denied as to their proposed claims in Counts

Five and Six based upon the challenged search warrant’s lack of probable cause and any other

claims in these counts against Detectives Machon and Baxter.

C. Count Seven

The proposed SAC includes, in Count Seven, amendments to Plaintiffs’ previously

asserted Monell claim against Montgomery County. SAC ¶¶ 35–40. “[A] Monell claim must aver

sufficient facts to make plausible that (1) the municipality had an unconstitutional policy or

custom; and (2) the unconstitutional policy or custom caused a violation of the plaintiff’s

constitutional rights.” Palma v. Montgomery Cnty., Maryland, 598 F. Supp. 3d 288, 296 (D. Md.

2022) (cleaned up). Plaintiffs’ amendments include allegations that Montgomery County “failed

to develop and maintain policies or customs to ensure against unreasonable searches pursuant to

no-knock warrants”; that 108 of 140 search warrants (77%) executed by the MCPD in 2019 were

no-knock warrants; that Montgomery County “failed to adopt policies and training to stop the

practice of no-knock warrants”; that Montgomery County policymakers were aware in March 2020

that the lack of adequate policies and training “posed a substantial risk to the safety, property,

lives, and privacy rights” of County residents; and it was not until July 2020 that policymakers

“enacted legislation establishing minimum procedures for obtaining and executing no-knock

warrants.” Id. ¶¶ 36–39. These allegations are similar to those supporting the Monell claim asserted

in Palma, 598 F. Supp. 3d at 296–99, which survived a motion to dismiss. This Court finds Palma

persuasive and its reasoning applicable here. Thus, the Court cannot find that Plaintiffs’ amended

Monell claim is clearly insufficient or would not survive a motion to dismiss. Defendants’ futility

arguments fail.

Defendants further argue that the amendments to the Monell claim should be rejected based

on what they characterize as “disingenuous rewording” of Plaintiffs’ allegations as to Montgomery

County’s policies and customs and “inaccurate” allegation about the number of no-knock warrants

executed by MCPD. ECF No. 35 at 14–15. Defendants point out that, in their first proposed

Amended Complaint, Plaintiffs’ allegation about the high proportion of no-knock search warrants

was specific to those executed by Montgomery County SWAT teams. At the hearing on Plaintiffs’

previous motion to amend, the Court found this statistic insufficient to sustain Plaintiffs’ Monell

claim because search warrants executed by SWAT teams may be expected to include a high

proportion of no-knock warrants, in consideration of SWAT teams’ specialization in handling

high-risk situations. Hrg. Tr. at 106–07. Defendants characterize Plaintiffs’ modified allegation as

a misrepresentation because defense counsel confirmed at the hearing that the statistic cited by

Plaintiffs’ only addressed warrants executed by SWAT teams. ECF No. 35 at 14–15 (citing Hrg.

Tr. at 16). In reply, Plaintiffs cite and attach in support of their modified allegation a media report

stating, “In 2019, 140 search warrants were executed, which included 108 no-knock warrants.”

ECF No. 36 at 8; ECF No. 36-1 at 3. The statement in the article is not specific or restricted to

SWAT teams. At the pleading stage, the Court must accept allegations in a challenged pleading as

true and draw all reasonable inferences in favor of the pleading party. See King v. Rubenstein, 825

F.3d 206, 212 (4th Cir. 2016). On the record before me, this Court cannot find that Plaintiffs have

recast their Monell allegations in bad faith.

Plaintiffs’ Motion is granted as to Count Seven.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Leave to File Second Amended Complaint

is granted in part and denied in part. The proposed Second Amended Complaint will be accepted

as Plaintiffs’ operative pleading, but their claims for lack of probable cause in Counts Five and Six

will be dismissed, and Detectives Machon and Baxter will be terminated as defendants.

DATE: 1/6/25 /S/ _____

Matthew J. Maddox

United States District Judge