Carter v. Baltimore City Police Department

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

TERRENCE CARTER,

Plaintiff,

v. Civil No.: 1:24-cv-03057-JRR

BALTIMORE CITY POLICE

DEPARTMENT, et al.,

Defendants.

MEMORANDUM OPINION

Pending now before the court is Baltimore City Police Department (“BPD”) and former

Police Commissioner Michael Harrison’s (collectively, “BPD Defendants”) Motion to Dismiss

Plaintiff’s Complaint.1 (ECF No. 11; the “Motion.”) The court has reviewed all papers; no hearing

is necessary. Local Rule 105.6 (D. Md. 2025). For the reasons that follow, by accompanying

order, the Motion will be granted in part and denied in part.

I. BACKGROUND2

Plaintiff Terrence Carter brings this action alleging negligence and violation of his Fourth

Amendment rights by BPD Defendants. (ECF No. 4 ¶ 1.)

A. The Aerial Investigation Research Program

The Aerial Investigation Research (“AIR”) program is “a first-of-its-kind aerial

surveillance program operated by the Defendants—[BPD] and Commissioner Michael Harrison.”

1 At the initiation of this action, Plaintiff named BPD, Harrison, the Office of the State’s Attorney for Baltimore City,

and Marilyn Mosby as Defendants. (ECF No. 4.) The State’s Attorney for Baltimore City was subsequently dismissed

from this action pursuant to a stipulation of dismissal. (ECF Nos. 19, 20.) To the extent this action is brought against

Mosby in her individual capacity, there is no record before this court that she has been served or that Plaintiff has

made any efforts to prosecute this action against her.

2 For purposes of resolving the Motion, the court accepts as true all well-pled facts set forth in the Complaint. (ECF

No. 4.) Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

Leaders of a Beautiful Struggle v. Baltimore Police Dep’t, 2 F.4th 330, 333 (4th Cir. 2021)

(“Leaders of a Beautiful Struggle III”). More specifically:

The AIR program uses aerial photography to track movements

related to serious crimes. Multiple planes fly distinct orbits above

Baltimore, equipped with [Persistent Surveillance Systems’

(“PSS”)] camera technology known as the “Hawkeye Wide Area

Imaging System.” The cameras capture roughly 32 square miles per

image per second. The planes fly at least 40 hours a week, obtaining

an estimated twelve hours of coverage of around 90% of the city

each day, weather permitting. The [Professional Services

Agreement (“PSA”)] limits collection to daylight hours and limits

the photographic resolution to one pixel per person or vehicle,

though neither restriction is required by the technology. In other

words, any single AIR image—captured once per second—includes

around 32 square miles of Baltimore and can be magnified to a point

where people and cars are individually visible, but only as blurred

dots or blobs.

The planes transmit their photographs to PSS “ground stations”

where contractors use the data to “track individuals and vehicles

from a crime scene and extract information to assist BPD in the

investigation of Target Crimes.” “Target Crimes” are homicides and

attempted murder; shootings with injury; armed robbery; and

carjacking. Between 15 and 25 PSS contractors analyze the data,

working in two shifts per day, seven days per week. The AIR

program is not designed to provide real-time analysis when a crime

takes place, though.

Id. at 334 (record citations omitted). The AIR program was the product of a partnership between

BPD and private contractor PSS. Id. at 333. (ECF No. 4 ¶ 5.)

On April 9, 2020, a group of grassroots community advocates in Baltimore filed a lawsuit

challenging the constitutionality of the AIR program under the Fourth Amendment. Leaders of a

Beautiful Struggle III, 2 F.4th at 335. The plaintiffs sought a temporary restraining order and

preliminary injunction to enjoin operation of the AIR program. Id. On April 24, 2020, the

Honorable Judge Richard D. Bennett of this court denied the motion, concluding, inter alia, that

the plaintiffs had not established that they were likely to succeed in showing that the imagery data

captured by the AIR program violates the Fourth Amendment. Leaders of a Beautiful Struggle v.

Baltimore Police Dep’t, 456 F. Supp. 3d 699, 717 (D. Md.), aff’d, 979 F.3d 219 (4th Cir. 2020),

on reh’g en banc, 2 F.4th 330 (4th Cir. 2021), and rev’d and remanded, 2 F.4th 330 (4th Cir. 2021)

(“Leaders of a Beautiful Struggle I”). The plaintiffs appealed and, on November 5, 2020, the

Fourth Circuit affirmed the district court’s order, concluding that the AIR program did not invade

a reasonable expectation of privacy under the Fourth Amendment. Leaders of a Beautiful Struggle

v. Baltimore Police Dep’t, 979 F.3d 219, 229 (4th Cir. 2020), on reh’g en banc, 2 F.4th 330 (4th

Cir. 2021) (“Leaders of a Beautiful Struggle II”). In December of 2020, the Fourth Circuit granted

the petition for rehearing en banc. Leaders of a Beautiful Struggle v. Baltimore Police Dep’t, 831

F. App’x 662 (4th Cir. 2020). Then, finally, on June 24, 2021, the Fourth Circuit issued its decision

on rehearing, holding that “because the AIR program enables police to deduce from the whole of

individuals’ movements,” “accessing its data is a search, and its warrantless operation violates the

Fourth Amendment.” Leaders of a Beautiful Struggle III, 2 F.4th at 333.

B. The Investigation and Prosecution of Plaintiff

On May 22, 2020, Steven Lamont Clark, Sr., was murdered in front of his home in the

Forest Park neighborhood of West Baltimore. (ECF No. 4 ¶ 4.) The suspect shooter left the scene

in a “blue pick-up style truck.” Id. In the course of investigating the suspect vehicle, BPD

Defendants used aerial surveillance by way of the AIR program to discover the suspect vehicle

was owned by Enterprise Rent-A-Car. Id. ¶ 5. In particular, BPD Detective Tavon McCoy

submitted a “supplemental request” to utilize the aerial surveillance footage, which Commissioner

Harrison approved, despite the fact that use of the footage violated a Memorandum of

Understanding (“MOU”) between Defendants and PSS, as a supplemental request was only to be

“utilized under extraordinary or exigent circumstances.” Id. ¶ 8. Importantly, “the footage from

the spy plane was utilized to surveil the blue truck days before the crime occurred and miles away

from where it took place.” Id. Ultimately, “[t]he evidence obtained from the spy plane indicated

that the vehicle had stopped at a location associated with a person of interest in regard to Clark’s

murder, three blocks away from where the incident took place.” (ECF No. 4 ¶ 8.)

On July 9, 2020, BPD Defendants arrested Plaintiff for Clark’s murder. Id. ¶ 4. Plaintiff

asserts that, upon his arrest, “Defendants did not provide a sufficient basis for their allegations that

Plaintiff had murdered Clark but based their allegations on unspecified information ascertained

from aerial surveillance conducted by [the] spy plane.” Id. ¶ 6. The basis was not disclosed to

Plaintiff in his charging documents; although the documents did include “a vague description of

‘video evidence.’” Id. ¶¶ 7, 9. Ultimately, Plaintiff was charged by indictment with first-degree

murder, use of a firearm in a violent crime, and possession of a firearm by a person with a felony

conviction. Id. ¶ 10.

Plaintiff’s trial was scheduled to begin on October 24, 2022. Id. ¶ 12. But on that day, the

Baltimore City State’s Attorney’s Office “suddenly dropped the case,” citing a “missing key

witness.” (ECF No. 4 ¶¶ 12, 14.) Defendants’ use of the “spy plane” had not been disclosed to

Plaintiff or his defense counsel prior to trial. Id. ¶ 13. It appears from the Complaint that Plaintiff

remained incarcerated from his arrest until dismissal of his charges, at which time he was released.

Id. ¶¶ 15, 18. On November 16, 2022, Defendants re-indicted Plaintiff, and he was placed on

house arrest until his trial in August 2023. Id.

On August 23, 2023, at the close of Plaintiff’s trial, the Honorable Judge John A. Howard

of the Circuit Court for Baltimore City, Maryland, granted Plaintiff’s motion for judgment of

acquittal, concluding “there had been no sufficient evidence presented by Defendants to identify

Plaintiff as the person who killed Steven Clark.” Id. ¶ 16. Plaintiff’s defense counsel remained

unaware of the aerial surveillance evidence against Plaintiff until he was contacted by media

related to a story. Id. ¶ 17.

As a result of Defendants’ actions, Plaintiff alleges he “spent two years incarcerated in the

Baltimore City Detention Center and another on home detention,” “lost his job,” “became

estranged from his young daughter,” “caught COVID-19 three times,” “remained estranged from

his family,” and “suffered serious mental health deterioration.” (ECF No. 4 ¶ 18.)

On August 19, 2024, Plaintiff initiated this action against Defendants in the Circuit Court

for Baltimore, City, Maryland, asserting the following counts:

Count I: Violation of the Maryland Local Government Tort Claims

Act (“LGTCA”) by all Defendants;

Count II: Negligence against all Defendants;

Count III: Violation of the Fourth Amendment—42 U.S.C. § 1983

against all Defendants; and

Count IV: Violation of the Sixth Amendment and Article 21 of the

Maryland Declaration of Rights—Speedy Trial against all

Defendants.

Id. ¶¶ 19–28.

With regard to Count I, Plaintiff alleges that he “complied with all notice requirements

under the LGTCA,” and that “Defendants are liable under the LGTCA for the tortious acts

committed by their employees under the LGTCA.” Id. ¶ 20.

With regard to Count II, Plaintiff alleges:

Defendants owed a duty to Plaintiff to act with reasonable care in

the execution of their duties and to ensure Plaintiff’s constitutional

rights were protected including Plaintiff’s reasonable expectation of

privacy in accordance with the Fourth Amendment and the right to

a speedy trial pursuant to Plaintiff’s Sixth Amendment rights.

Defendants breached this duty while in the scope of their

employment by fai1ing to properly disclose critical evidence. As a

direct and proximate result of Defendants’ conduct, Plaintiff has

suffered significant damages, including but not limited to loss of job,

income, mental and physical anguish, and loss of companionship

and relationships.

Id. ¶ 24. In particular, he avers that “Defendants failed to disclose relevant and material evidence

about which [he] only learned from a media source.” Id. ¶ 23.

With regard to Count III, Plaintiff alleges that Defendants’ actions constituted an

unreasonable search and seizure in violation of the Fourth Amendment. Citing to Leaders of a

Beautiful Struggle III, Plaintiff asserts that “the aerial surveillance program initiated and utilized

by Defendants . . . was deemed unconstitutional on the grounds the surveillance ascertained by the

spy planes violated a person’s reasonable expectation of privacy.” Id. ¶ 26.

Finally, with regard to Count IV, Plaintiff asserts that “Defendants, acting under color of

state law, violated Plaintiff’s right to a speedy trial by causing unreasonable delays in the

commencement of Plaintiff’s trial. As a direct and proximate result of Defendants’ actions and

omissions, Plaintiff has suffered irreparable and significant harm.” (ECF No. 4 ¶ 28.)

On October 21, 2024, then-Defendant the Office of the State’s Attorney for Baltimore City

removed Plaintiff’s suit to this court. (ECF No. 1). On December, 20, 2024, BPD Defendants

filed the instant Motion seeking to dismiss all of Plaintiff’s claims. (ECF No. 11.)

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

“Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes dismissal for lack of

subject matter jurisdiction.” Barnett v. United States, 193 F. Supp. 3d 515, 518 (D. Md. 2016).

Subject matter jurisdiction challenges may proceed as “either a facial challenge, asserting that the

allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a

factual challenge, asserting ‘that the jurisdictional allegations of the complaint [are] not true.’”

Mayor & City Council of Balt. v. Trump, 416 F. Supp. 3d 452, 479 (D. Md. 2019) (quoting Kerns

v. United States, 585 F.3d 187, 192 (4th Cir. 2009)).

In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion

must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.”

Kerns, 585 F.3d at 192; see Ministry of Defence of State of Kuwait v. Naffa, 105 F.4th 154, 159

(4th Cir. 2024) (same). Conversely, in a factual challenge, “the presumption of truthfulness

normally accorded a complaint’s allegations does not apply, and the district court is entitled to

decide disputed issues of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192;

see Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 650 (4th Cir. 2018) (same).

“In that circumstance, the court ‘may regard the pleadings as mere evidence on the issue and may

consider evidence outside the pleadings without converting the proceeding to one for summary

judgment.’” Trump, 416 F. Supp. 3d at 479 (quoting Velasco v. Gov’t of Indon., 370 F.3d 392,

398 (4th Cir. 2004)). “The district court should apply the standard applicable to a motion for

summary judgment, under which the nonmoving party must set forth specific facts beyond the

pleadings to show that a genuine issue of material fact exists.” Richmond, Fredericksburg &

Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Trentacosta v. Frontier

Pacific Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987)).

BPD Defendants assert a facial challenge to the court’s subject matter jurisdiction, averring

that sovereign immunity bars Plaintiff’s state and common law claims against BPD. (ECF No.

11-1 at p. 4.)

B. Federal Rule of Civil Procedure 12(b)(6)

A motion asserted under Federal Rule of Civil Procedure 12(b)(6) “test[s] the sufficiency

of a complaint;” it does not “resolve contests surrounding the facts, the merits of a claim, or the

applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)

(quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Therefore, a “Rule

12(b)(6) motion should only be granted if, after accepting all well-pleaded allegations in the

plaintiff’s complaint as true and drawing all reasonable factual inferences from those facts in the

plaintiff’s favor, it appears certain that the plaintiff cannot prove any set of facts in support of his

claim entitling him to relief.” Edwards, 178 F.3d at 244.

“While legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “Factual

allegations must be enough to raise a right to relief above the speculative level on the assumption

that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (citations and footnote omitted). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

“[A] complaint that provides no more than ‘labels and conclusions,’ or ‘a formulaic recitation of

the elements of a cause of action,’ is insufficient.” Bourgeois v. Live Nation Ent., Inc., 3 F. Supp.

3d 423, 434 (D. Md. 2014) (quoting Twombly, 550 U.S. at 555). “The [c]ourt must be able to

deduce ‘more than the mere possibility of misconduct’; the facts of the complaint, accepted as true,

must demonstrate that the plaintiff is entitled to relief.” Evans v. 7520 Surratts Rd. Operations,

LLC, No. 8:21-CV-01637-PX, 2021 WL 5326463, at *2 (D. Md. Nov. 16, 2021) (quoting Ruffin

v. Lockheed Martin Corp., 126 F. Supp. 3d 521, 526 (D. Md. 2015)).

III. ANALYSIS

A. Counts II and IV: Negligence and Violation of Article 21 of the Maryland Declaration

of Rights3

The court turns first to BPD Defendants’ assertion of state sovereign immunity and public

official immunity. BPD Defendants seek dismissal of Plaintiff’s negligence claim against them

on the basis that (1) BPD is shielded from liability by the doctrine of sovereign immunity;4 and

(2) Harrison is similarly entitled to public official immunity.5 (ECF No. 11-1 at pp. 9–12.)

Plaintiff avers in response that immunity does not bar his claims against BPD Defendants because

he has sufficiently alleged gross negligence, reckless disregard for his constitutional rights, and

malice. (ECF No. 15 at pp. 2–5.)

1. State Sovereign Immunity

“State sovereign immunity . . . ‘bars all claims by private citizens against state governments

and their agencies, except where Congress has validly abrogated that immunity or the state has

waived it.’” Williams v. Morgan State Univ., 850 F. App’x 172, 174 (4th Cir. 2021) (quoting

Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir. 2019)). “[W]hen a governmental agency or actor

3 “When considering a State law claim, the Court must apply the law of the forum state (including as to choice of law),

whether proceeding under supplemental or diversity jurisdiction.” Doe v. Cmty. Coll. of Baltimore Cnty., 595 F. Supp.

3d 392, 418 n.17 (D. Md. 2022) (citing cases).

4 BPD Defendants make a cursory reference that to the extent Harrison is sued in his official capacity, he is similarly

entitled to State sovereign immunity. (ECF No. 11-1 at p. 10.) Because the court concludes Harrison is entitled to

public official immunity, it does not reach the question of State sovereign immunity. The court notes, however, that

as a matter of Maryland law, there is no distinction between individual and official capacities with regard to state

common law or state constitutional claims. See, e.g., Ritchie v. Donnelly, 324 Md. 344, 375 (1991) (explaining that

state law does not allow for “bifurcation” of state constitutional claims into official and individual capacity claims);

Graham v. Maryland, 738 F. Supp. 3d 644, 657 (D. Md. 2024) (“Maryland law does ‘not follow the federally

recognized distinction between official and individual capacity actions’ for tort actions against State officials.”);

Higginbotham v. Pub. Serv. Comm’n of Md., 412 Md. 112, 130 (2009) (noting that in the context of “intentional tort

actions asserted against Maryland public officials . . . it is of no consequence whether the Maryland public official is

sued in his or her ‘official’ capacity or ‘individual’ capacity”); Shriner v. City of Annapolis, No. CIV.A. ELH-11-

2633, 2012 WL 2317415, at *3 (D. Md. June 15, 2012) (“[T]he Maryland Court of Appeals has made clear that the

individual/official capacity dichotomy is not relevant to claims under Maryland state law” and therefore, “[i]t is not

meaningful under Maryland law to divide claims according to individual capacity and official capacity”).

5 BPD Defendants also seek dismissal of Count I on this basis. (ECF No. 11-1 at p. 11.) The court addresses Count I

infra.

can, and does, avail itself of the doctrine of sovereign immunity, no contract or tort suit can be

maintained thereafter against it unless the General Assembly has specifically waived the doctrine.”

Stern v. Bd. of Regents, Univ. Sys. of Md., 380 Md. 691, 701 (2004). At all times relevant to the

action here, BPD was an agency of the State.6 See Houghton v. Forrest, 412 Md. 578, 588 (2010)

(recognizing that BPD “was created as a state agency, through an act of the General Assembly,

and not as a municipal agency”).

The MTCA provides a limited waiver of the State’s sovereign immunity for tort actions.

Williams v. Morgan State Univ., 484 Md. 534, 554 (2023); see Nicholson v. Baltimore Police

Dep't, No. CV DKC 20-3146, 2021 WL 1541667, at *5 (D. Md. Apr. 20, 2021) (same). The

limited waiver “applies only to ‘tortious conduct . . . committed by ‘State personnel’– a defined

term.” Nicholson, 2021 WL 1541667, at *5 (quoting Estate of Burris v. State, 360 Md. 721, 737

(2000)); see MD. CODE ANN., STATE GOV’T § 12-104(a)). “Critically, the definition of ‘State

personnel’ does not include members of the Baltimore Police Department.”7 Nicholson, 2021

WL 1541667, at *5 (emphasis in original) (citing MD. CODE ANN., STATE GOV’T § 12-101(a)).

The Supreme Court of Maryland (then Court of Special Appeals of Maryland) recognized that, by

legislation, the State has “reaffirmed the preservation of its sovereign immunity for acts committed

by municipal police, including members of the [BPD].” Houghton v. Forrest, 412 Md. 578, 589–

90 (2010); see Baltimore Police Dep’t v. Cherkes, 140 Md. App. 282, 313–14 (2001) (recognizing

6 The court takes judicial notice that, at the end of 2024, voters approved a charter amendment to establish BPD as an

agency of the Mayor and City Council of Baltimore. See Official 2024 Presidential General Election Results for

Baltimore City, https://elections.maryland.gov/elections/2024/general_results/ gen_qresults_2024_by_county_3.html

(last visited July 31, 2025). Neither party argues that the subsequent legislation changes the analysis in this case, as

all of events occurred prior to passage of the amendment.

7 Citing to Clea v. Mayor & City Council of Balt., 312 Md. 662 (1988), Plaintiff contends that BPD officers are state

personnel. (ECF No. 15 at p. 2.) Plaintiff is incorrect. “[T]he General Assembly amended the [MTCA statute

enumerating classes of state personnel] after [its] decision in Clea . . . . The newly modified statute helped clarify that

the bounds of immunity and liability under the MTCA applied only to individuals directly paid by or otherwise under

direct control of the state itself.” Houghton v. Forrest, 412 Md. 578, 589 (2010) (citations omitted).

same). Accordingly, the MTCA does not waive BPD’s sovereign immunity as to Plaintiff’s state

law claims (Counts II and IV), and BPD thus properly invokes that immunity. The court will grant

the Motion on that basis. The court addresses indemnification under the LGTCA separately infra.

2. Public Official Immunity

Similarly, “Maryland courts have long recognized the common law doctrine of public

official immunity.” Johnson v. Balt. Police Dep’t, 452 F. Supp. 3d 283, 297 (D. Md. 2020). The

doctrine is “quite limited and is generally applicable only in negligence actions or defamation

actions based on allegedly negligent conduct.” Lee v. Cline, 384 Md. 245, 258–60 (2004) (citing

cases). The Supreme Court of Maryland “has consistently held that Maryland common law

qualified immunity in tort suits, for public officials performing discretionary acts, has no

application in tort actions based upon alleged violations of state constitutional rights or tort actions

based upon most so-called ‘intentional torts.’”8 Id. at 258 (emphasis in original); see Cooper v.

Rodriguez, 443 Md. 680, 713 (2015) (“Common law public official immunity applies to public

officials (as opposed to mere employees) who perform negligent acts during the course of their

discretionary (as opposed to ministerial) duties.” (footnote and citation omitted)).

“[T]hree prongs . . . must be satisfied in order for a government representative to qualify

for immunity: (1) he or she must be a public official; and (2) his or her tortious conduct must have

occurred while performing discretionary acts in furtherance of official duties; and (3) the acts must

be done without malice.” Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 140–41

(2000) (emphasis in original) (footnote omitted). Public official immunity is “defeated” if the

official acts with malice, gross negligence, or commits an intentional or state constitutional tort.

Johnson, 452 F. Supp. 3d at 297–98 (citations omitted).

8 To the extent BPD Defendants intend to assert Harris’s entitlement to public official immunity as to Plaintiff’s state

constitutional tort claim, their argument is thus unavailing.

As to Plaintiff’s negligence claim, there is no dispute that Harrison is a public official and

that the allegedly tortious conduct occurred while performing a discretionary act in furtherance of

his official duties. See Cooper, 443 Md. at 727 (explaining that “law enforcement officers are

public officials for purposes of common law public official immunity” (citation modified));

Robinson v. Bd. of Cnty. Comm’rs for Prince George’s Cnty., 262 Md. 342, 347 (1971) (holding

that “when they are within the scope of their law enforcement functions . . . police officers ‘are

clearly acting in a discretionary capacity’”). Plaintiff challenges the third prong, averring that he

has sufficiently alleged gross negligence and malice on the part of Harrison. (ECF No. 15 at p. 5.)

“Actual malice is established by proof that the defendant-officer intentionally performed

an act without legal justification or excuse, but with an evil or rancorous motive influenced by

hate, the purpose being to deliberately and willfully injure the plaintiff.” Johnson, 452 F. Supp.

3d at 298 (quoting Bord v. Baltimore County, 220 Md. App. 529, 557 (2014)); see Hines v. French,

157 Md. App. 536, 563 (2004) (same). “Actual malice does not always have to be shown with

specificity; it can be inferred.” Thacker v. City of Hyattsville, 135 Md. App. 268, 307 (2000)

(quoting Leese v. Baltimore Cnty., 64 Md. App. 442, 480 (1985), disapproved of on other grounds

by Harford Cnty. v. Town of Bel Air, 348 Md. 363 (1998)). A plaintiff, however, “cannot rely on

bare allegations that a particular act raises an inference of malice.” Rodwell v. Wicomico Cnty.,

Maryland, No. CV DKC 22-3014, 2024 WL 1178202, at *6 (D. Md. Mar. 19, 2024) (quoting Koon

as next friend of Glay v. Prince George’s Cnty., MD, No. 17-cv-2799-DKC, 2019 WL 1317401,

at *7 (D. Md. Mar. 22, 2019)). Maryland courts reject “attempts to rely on bare allegations that a

particular act raises an inference of malice.” Hines, 157 Md. App. at 563 (citation omitted).

“Because a defendant’s subjective intent is an element of the plaintiff’s claim, the plaintiff must

point to specific evidence that raises an inference that the defendant’s actions were improperly

motivated in order to defeat the motion.” Id. at 536 (quoting Lee, 149 Md. App. at 85).

Gross negligence, in turn, “is an intentional failure to perform a manifest duty in reckless

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

thoughtless disregard of the consequences without the exertion of any effort to avoid them.” Anne

Arundel Cnty. v. Reeves, 474 Md. 46, 73 (2021). While “a fine line exists between allegations of

negligence and gross negligence,” see Stracke v. Est. of Butler, 465 Md. 407, 420 (2019) (citation

omitted), gross negligence is “something more than simple negligence, and likely more akin to

reckless conduct.” Reeves, 474 Md. at 73 (emphasis in original) (quoting Barbre v. Pope, 402 Md.

157, 187 (2007)). “Gross negligence, like deliberate indifference, is rooted in intentionality.”

Walker v. Heavener, No. CV JKB-16-3136, 2019 WL 3017658, at *7 (D. Md. July 10, 2019).

Ultimately, “[a] wrongdoer is guilty of gross negligence or acts wantonly and willfully only when

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

such rights did not exist.” Stracke, 465 Md. at 421 (quoting Barbre, 402 Md. at 187). “Hindsight

is 20/20,” the court explained. Id. at 426. A “well-intended error” in judgment is not the same as

“wanton and reckless disregard” for life. See id. (quoting McCoy v. Hatmaker, 135 Md. App. 693,

713 (2000)).

Plaintiff’s claim of negligence is based on Defendants’ duty “to act with reasonable care

in the exercise of their duties and ensure Plaintiff’s constitutional rights were protected.” (ECF

No. 4 ¶ 24.) According to Plaintiff, “Defendants breached this duty while in the scope of their

employment by fai1ing to properly disclose critical evidence.” Id. Of Harrison, Plaintiff alleges

he acted with malice:

Defendants violated the Memorandum of Understanding (MOU)

between the City of Baltimore and Persistent Surveillance Systems

which ensured the spy plane’s flights would be disclosed to

residents, the data properly stored, and that the spy plane would only

be used to investigate murders, shootings, armed robberies, and

carjackings. The supplemental request as approved by then

Commissioner Harrison violated the MOU as such requests should

only be utilized under exigent circumstances, as addressed and

stated in the MOU. It was further noted that Defendants’

supplemental requests and use of the spy planes provided

Defendants unlimited ability to surveil its citizens. These acts in the

aggregate constitute deliberate and intentional performance of an

illegal act which indubitably demonstrates ‘malice’ under Maryland

law.

(ECF No. 4 ¶ 23.) Notably, as Defendants assert, Plaintiff makes no allegation of gross negligence

or reckless disregard of Plaintiff’s rights.

Plaintiff’s lone allegation that Harrison approved the supplemental request is not sufficient

to allege plausibly that he acted “deliberately and willfully” to injure Plaintiff. See Johnson, 452

F. Supp. 3d at 298, supra. Even assuming without deciding that Harrison’s approval of a request

that violated the MOU is indicative of gross negligence (notwithstanding Plaintiff’s failure to

characterize it as such), Harrison’s approval of the request is materially and wholly distinct from

the tortious act complained of here—the failure to disclose critical evidence. As to that tortious

act, Plaintiff offers no facts that BPD or Harrison, as opposed to the State’s Attorney’s Office, had

an obligation to provide “critical evidence” and, either with gross negligence or actual malice,

failed to do so.9 Accordingly, the court is persuaded that Harrison is entitled to public official

immunity as to Count II. The court will therefore grant the Motion on that basis.

B. Count III: 42 U.S.C. § 1983 Claim

9 Nor does Plaintiff allege that BPD or Harrison failed to fulfill the State’s Attorney’s Office request that it turn over

the video surveillance evidence (in its general request for all BPD files and evidence); quite to the contrary, Plaintiff’s

allegations are rooted in the wrongful failure of the State’s Attorney’s Office to turn over the footage and related

evidence it possessed. See ECF No. 4 at ¶ 9 (regarding reference to “video evidence” in charging documents). While

the State’s Attorney’s Office generally may not rely on a BPD failure to turn over evidence to try shield itself from a

defense motion to exclude (or other applicable motion) in a criminal case, the facts here suggest that BPD did turn

over what it had developed against Plaintiff, including the footage, and that the failure to turn over the footage was

that of the State’s Attorney’s Office. At least that is what Plaintiff alleges.

1. BPD and Harrison in his Official Capacity

BPD Defendants also argue that Plaintiff improperly asserts a direct § 1983 claim against

BPD and Harrison in his official capacity. (ECF No. 11-1 at pp. 8–9.) In particular, they contend,

“because Plaintiff has alleged a direct Fourth Amendment violation against the BPD in Count III,

rather than plead a Monell claim, Plaintiff’s direct § 1983 claim must be dismissed.” Id. In

response, however, Plaintiff confirms that he brings a Monell claim on the basis that BPD

unconstitutional policy, implementation of the AIR Program, violated Plaintiff’s Fourth

Amendment rights.

In Monell v. Department of Social Services, the Supreme Court concluded that Congress

intended “municipalities and other local government units to be included among those persons to

whom § 1983 applies.” 436 U.S. 658, 690 (1978). The Court further explained that “[l]ocal

governing bodies [] can be sued directly under § 1983 for monetary, declaratory, or injunctive

relief, where . . . the action that is alleged to be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s

officers.” Id.

In asserting a Monell claim, a plaintiff must “adequately plead . . . the existence of an

official policy or custom that is fairly attributable to the municipality and that proximately caused

the deprivation of their rights.” Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994).

Such claims consist of two components: “(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.” Saltz v. City of Frederick, 538 F. Supp. 3d 510, 554 (D. Md. 2021) (citing

Bd. of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997)). Liability arising from a

policy or custom will “not, however, ‘be inferred merely from municipal inaction in the face of

isolated constitutional deprivations by municipal employees.’” Id. (quoting Milligan v. City of

Newport News, 743 F.2d 227, 230 (4th Cir. 1984)). The municipality’s conduct must demonstrate

“‘deliberate indifference’ to the rights of its inhabitants.” Id. (quoting Jones v. Wellham, 104 F.3d

620, 626 (4th Cir. 1997)). Municipal liability attaches only “when execution of a government’s

policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be

said to represent official policy, inflicts the injury.” Monell, 436 U.S. at 694.

BPD Defendants present no substantive argument that Plaintiff fails to allege a plausible

Monell claim, and instead focus solely on a possible direct § 1983 claim. Their reply makes no

mention of Plaintiff’s § 1983 claim or a Monell claim; rather, it focuses on qualified immunity and

whether the unconstitutionality of the AIR program was clearly established at the time of the

alleged violations here. (ECF No. 17 at pp. 2–4.) The court is unable to discern how, if at all,

BPD Defendants advance challenges to Plaintiff’s asserted Monell claim, which could proceed

(and prevail) despite a finding of qualified immunity. See Int’l Ground Transp. v. Mayor And City

Council Of Ocean City, MD, 475 F.3d 214, 219 (4th Cir. 2007) (“[B]ecause municipalities are not

entitled to assert a qualified immunity defense, a finding of a constitutional violation is conclusive

as to their liability. Thus, a jury could find that a constitutional violation has occurred but that the

individual defendants are entitled to qualified immunity.”). For the foregoing reasons, the court

will deny the Motion as to Count III as against BPD and Harrison in his official capacity.10

10 Plaintiff requests leave to amend if the court concludes that his Fourth Amendment claim fails to “suffice[] the

elements as addressed in Monell.” (ECF No. 15 at p. 9.) Because the court denies the Motion as to Count III, it does

not address Plaintiff’s request to amend. Plaintiff remains free to seek leave to amend, in accordance with Federal

Rule of Civil Procedure 15(a)(2), should he so choose.

2. Harrison in his Individual Capacity

As noted above, BPD Defendants also contend Harrison is entitled to qualified immunity

on Count III, because, at the time of the alleged violation of Plaintiff’s rights, the law did not

clearly establish that Harrison’s conduct violated the Fourth Amendment. (ECF No. 11-1 at pp.

12–14.) According to Plaintiff, the subsequent holding of the Fourth Circuit that the AIR program

is unconstitutional applies retroactively to Harrison’s actions. (ECF No. 15 at pp. 8–9.)

A government official sued in his individual capacity may invoke the protection afforded

by qualified immunity. Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013). “The doctrine of

qualified immunity protects government officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). The doctrine “balances two important interests—the need

to hold public officials accountable when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties reasonably.”

Id. “[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.’” D.C. v. Wesby, 583 U.S. 48, 62–63 (2018) (quoting Reichle v. Howards, 566 U.S.

658, 664 (2012)). “In the Fourth Circuit, we have a split burden of proof for the qualified-

immunity defense. The plaintiff bears the burden on the first prong, and the officer bears the

burden on the second prong.” Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022).

“Ordinarily, the question of qualified immunity should be decided at the summary

judgment stage.” Willingham v. Crooke, 412 F.3d 553, 558–59 (4th Cir. 2005). But because one

of the purposes of qualified immunity is to “protect public officials from the ‘broad-ranging

discovery’ that can be ‘peculiarly disruptive of effective government,’” the Supreme Court has

“emphasized that qualified immunity questions should be resolved at the earliest possible stage of

a litigation.” Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987) (quoting Harlow, 457 U.S. at

817). A defendant may therefore assert the defense of qualified immunity on a motion to dismiss,

“[s]o long as qualified immunity does not turn on disputed facts.” Raub v. Bowen, 960 F. Supp.

2d 602, 608 n.8 (E.D. Va. 2013) (emphasis in original). If the court determines that a government

official took action that a reasonable officer would have believed was lawful, the official is entitled

to dismissal before discovery. See Anderson, 483 U.S. at 646 n.6, supra.

“[W]hen asserted at this early stage in the proceedings, ‘the [qualified immunity] defense

faces a formidable hurdle’ and ‘is usually not successful.’” Owens v. Balt. City State’s Atty’s. Off.,

767 F.3d 379, 396 (4th Cir. 2014) (quoting Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 191–

92 (2d Cir. 2006)). Thus, where a plaintiff “has alleged facts violative of [his] constitutional right,”

and a right is clearly established, a quality immunity defense is “unavailing” at an early stage of

litigation. Summerville v. Neekson, No. CV ELH-23-1290, 2024 WL 3013169, at *6 (D. Md. June

14, 2024); see also Canty v. Bishop, No. CV SAG-21-3151, 2023 WL 284446, at *7 (D. Md. Jan.

18, 2023) (declining to decide the issue of qualified immunity based on disputed facts where a

defendant moved to dismiss or in the alternative for summary judgment); Clark v. Portmess, No.

CV SAG-20-1819, 2021 WL 5233560, at *6 (D. Md. Nov. 10, 2021) (same).

“Determining whether qualified immunity is appropriate is a two-step inquiry.” Jones v.

Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016) (citing Pearson, 555 U.S. at 232). “[T]he court

must examine (1) whether the facts illustrate that the officer violated the plaintiff’s constitutional

right to be free from unreasonable seizures, and (2) whether the right was clearly established at the

time of the alleged event such that ‘a reasonable officer would have understood that his conduct

violated the asserted right.’” Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546,

555 (4th Cir. 2017), as amended (Aug. 22, 2017) (quoting Miller v. Prince George’s Cnty., 475

F.3d 621, 627 (4th Cir. 2007)). “The answer to both questions must be in the affirmative to defeat

the officer’s entitlement to immunity.” Id. As explained above, “the plaintiff bears the burden on

the first prong, and the officer bears the burden on the second prong.” Stanton, 25 F.4th at 233,

supra.

BPD Defendants focus on the second prong—whether the right was clearly established at

the time of the alleged event. “For a constitutional right to be clearly established, its contours

‘must be sufficiently clear that a reasonable official would understand that what he is doing violates

that right.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson, 483 U.S. at 640). “The

unlawfulness of an official’s conduct must be ‘apparent in light of pre-existing law.’” Nazario v.

Gutierrez, 103 F.4th 213, 230 (4th Cir. 2024) (quoting Booker v. S.C. Dept. of Corrections, 855

F.3d 533, 538 (4th Cir. 2017)). “[E]xisting precedent must have placed the statutory or

constitutional question beyond debate.” Benton v. Layton, 139 F.4th 281, 292 (4th Cir. 2025)

(quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)).

Here, the relevant facts are undisputed. It is undisputed that BPD Defendants’ alleged use

of the AIR program at issue here occurred months after Judge Bennett’s decision finding that the

Fourth Amendment challenge to the program was unlikely to succeed, see Leaders of a Beautiful

Struggle I, 456 F. Supp. 3d at 717, months before the Fourth Circuit’s decision that the AIR

program did not invade a reasonable expectation of privacy under the Fourth Amendment, see

Leaders of a Beautiful Struggle II, 979 F.3d at 229, and almost a year before the Fourth Circuit

ultimately concluded the AIR program violated the Fourth Amendment, see Leaders of a Beautiful

Struggle III, 2 F.4th at 333.

According to Defendants, the procedural history of the Leaders of a Beautiful Struggle case

shows that the unconstitutionality of the AIR program was not clearly established at the time of

Harrison’s alleged action in this case. The court agrees. First, Plaintiff points to no Supreme Court

or Fourth Circuit caselaw in existence at the time of Harrison’s alleged actions that would have led

a reasonable official to know that his conduct violated the law. Further, “[i]f there exists a

‘legitimate question’ as to whether particular conduct violates a particular right then the right is

not clearly established and qualified immunity applies.” Korb v. Lehman, 919 F.2d 243, 247 (4th

Cir. 1990) (citation omitted). That a judge of this court determined that a Fourth Amendment claim

about the AIR program was not likely to succeed on its merits, and that the Fourth Circuit held the

AIR program did not violate the Fourth Amendment, support the conclusion that its

unconstitutionality was not clearly established at the time Harrison took the action at issue. Indeed,

as BPD Defendants contend, “[s]ince qualified immunity is appropriate if reasonable officers could

disagree on the relevant issue, . . . it surely must be appropriate when reasonable jurists can do so.”

Swanson v. Powers, 937 F.2d 965, 968 (4th Cir. 1991) (citing Sevigny v. Dicksey, 846 F.2d 953,

957 (4th Cir. 1988)); see also Potts v. DiPaola, No. CV RDB-21-1073, 2022 WL 616814, at *8

(D. Md. Mar. 2, 2022) (explaining that “[i]t stands to reason that where two different judicial

bodies come to opposing conclusions regarding a Fourth Amendment claim, there is a legitimate

question about the contours of the right under the circumstances presented”).

Plaintiff’s argument for retroactive application of the instant alleged constitutional

violation is not persuasive. As Defendants’ note, the very nature of the second qualified immunity

prong is to capture “whether the right was clearly established at the time of the alleged event such

that ‘a reasonable officer would have understood that his conduct violated the asserted right.’” See

Humbert, 866 F.3d at 555, supra. Retroactive application turns the test on its head. Plaintiff makes

much of the fact that the State’s Attorney’s office “was aware of the constitutional concerns of the

AIR program at the time it was used as surveillance over Plaintiff.” (ECF No. 14 at pp. 7 –8.) But

whether Harrison’s partner office was possibly “aware of constitutional concerns” is not the

standard; the inquiry is whether the law was clearly established at the time the officer acted such

that a reasonable officer would have understood the conduct was constitutionally unsound. See

Swanson v. Powers, 937 F.2d 965, 968 (4th Cir. 1991) (“The requirement, after all, is that the law

be clearly established, not simply possibly established or even probably established.”). For these

reasons, the court is unpersuaded by Plaintiff’s arguments regarding retroactive application and

“awareness” of “constitutional concerns.”

The court is persuaded that this case presents a circumstance where qualified immunity is

properly asserted, and should be considered on, a motion to dismiss. The court will grant the

Motion on this basis.

C. Count IV: Violation of Sixth Amendment and Article 21 of the Maryland Declaration

of Rights

BPD Defendants further argue that Plaintiff’s Count IV against them fails because Plaintiff

does not allege any facts describing how BPD and Harrison caused the asserted violations. (ECF

No. 11-1 at pp. 14–15.) Plaintiff does not respond to this argument, effectively conceding the

point. See Stenlund v. Marriott Int’l, Inc., 172 F. Supp. 3d 874, 887 (D. Md. 2016) (“In failing to

respond to [defendant’s] argument, Plaintiff concedes the point.”); Ferdinand-Davenport v.

Children’s Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010) (explaining that a plaintiff “abandon[s]”

her claim where she failed to respond to argument). Moreover, the court agrees that Plaintiff

asserts no facts upon which a reasonable conclusion could be based that BPD Defendants violated

his rights under the Sixth Amendment and Article 21 of the Maryland Declaration of Rights. The

court will grant the Motion as to Count IV.

D. Count I: LGTCA

Finally, BPD Defendants move for dismissal of Plaintiff’s Count I, which asserts a claim

of violation of the LGTCA. BPD Defendants argue the claim fails as a matter of law because the

LGTCA does not give rise to an independent cause of action. (ECF No. 11-1 at pp. 7–8.) Plaintiff

offers no response to this argument, again, effectively conceding the point. See Stenlund, 172 F.

Supp. 3d at 887 and Ferdinand-Davenport, 742 F. Supp. 2d at 777, supra.

“The LGTCA limits liability, provides for indemnification, and establishes procedural

requirements relating to suits against officials of local government authorities. It expressly applies

to suits against employees of [BPD].”11 Houghton v. Forrest, 412 Md. 578, 591–92 (2010) (citing

CJ § 5–301(d)(21)). Of import here, “the LGTCA [does] not serve to create a cause of action

against the local governments or their employees.” Rounds v. Maryland-Nat. Cap. Park & Plan.

Comm’n, 441 Md. 621, 640 (2015); see Myers v. Town of Elkton, Maryland, No. BPG-22-803,

2023 WL 2242870, at *9 (D. Md. Feb. 24, 2023) (citation omitted) (recognizing same); Johnson

v. Baltimore Police Dep’t, No. CV ELH-19-00698, 2020 WL 1169739, at *37 (D. Md. Mar. 10,

2020) (recognizing same); Grim v. Baltimore Police Dep’t, No. CV ELH-18-3864, 2019 WL

5865561, at *27 (D. Md. Nov. 8, 2019) (recognizing same). Instead, “[t]he only actions which

can be brought directly against a local government are those authorized by law which is separate

and distinct from the LGTCA.” Rounds, 441 Md. at 640 (2015) (alterations in original) (quoting

Williams v. Maynard, 359 Md. 379, 394 (2000)).

In any event, the LGTCA does not “authorize suit against the local government for its

employee’s actions.” Holloway-Johnson v. Beall, 220 Md. App. 195, 207–208 (2014), aff’d in

11 The LGTCA “prohibits the BPD from claiming ‘governmental or sovereign immunity to avoid [its] duty to defend

or indemnify an employee.’” Middleton v. Baltimore City Police Dep’t, No. CV ELH-20-3536, 2022 WL 268765, at

*15 (D. Md. Jan. 28, 2022). That has not been challenged here.

part, rev’d in part, 446 Md. 48 (2016); see Beall v. Holloway-Johnson, 446 Md. 48, 76–77 (2016)

(“[T]he LGTCA does not allow a plaintiff to bring suit directly against the local government.”);

Williams v. Maynard, 359 Md. 379, 394 (2000) (“[T]he LGTCA does not waive governmental

immunity or otherwise authorize any actions directly against local governments.”); Boyd v.

Armstrong, No. CV ELH-17-2849, 2019 WL 1440876, at *35 (D. Md. Mar. 29, 2019) (“[T]he

LGTCA does not permit plaintiffs to name the County directly in a common law tort suit.”). “Put

simply, the LGTCA only prohibits the BPD from asserting sovereign immunity to avoid its

statutorily imposed duty to defend or indemnify its employees. Even under the LGTCA, plaintiffs

cannot bring state law claims directly against the BPD for the actions of Baltimore police officers

acting within the scope of their employment.” Nicholson v. Baltimore Police Dep’t, No. CV DKC

20-3146, 2021 WL 1541667, at *9 n.8 (D. Md. Apr. 20, 2021).

Even assuming Plaintiff’s claim is based solely on indemnification, it is subject to dismissal

inasmuch as the court dismisses all claims as against Harrison as the individual employee. In view

of the foregoing, the court will grant the Motion to the extent it seeks dismissal of Count I.

IV. CONCLUSION

For the reasons set forth herein, by separate order, the Motion will be granted as to Counts

I, II, III as against Harrison in his individual capacity, and IV; and denied as to Count III as against

BPD and Harrison in his official capacity.12

12 BPD Defendants seek dismissal with prejudice. The court declines to dismiss this action with prejudice. See Adbul-

Mumit v. Alexandria Hyundai, LLC, 896 F.3d 278, 292 (4th Cir. 2018) (stating that “the nature of dismissal” is left to

“the sound discretion of the district court”). Relatedly, to the extent the dismissal is based on subject matter

jurisdiction, a dismissal for a defect in subject matter jurisdiction “must be one without prejudice, because a court that

lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.” Goldman v. Brink, 41 F.4th 366,

369 (4th Cir. 2022) (quoting S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713

F.3d 175, 185 (4th Cir. 2013)).

August 4, 2025 /S/

_______________________________

Julie R. Rubin

United States District Judge