Ashton v. Brown

McAULIFFE, Judge,

concurring in part and dissenting in part.

I agree that the Frederick City ordinance in question is void for vagueness. I disagree, however, with certain holdings of the Court concerning the claims for damages.

I. Claims Pursuant to 42 U.S.C. § 1983 A.

The majority concludes that Ashton and Scalf “may” be entitled to summary judgment with respect to claims made against them under 42 U.S.C. § 1983 . This is not a sufficiently strong statement. Both officers are entitled to summary judgment on these claims by simply asserting the proper grounds on remand. To the extent that claims are made against them in their official capacities, these are nothing *125 more than claims against the City, and because the City is a party these claims are duplicitous. To the extent the officers are sued in their individual capacities, as I believe they are, they are entitled under Federal law to qualified immunity. As the majority concedes at 113, supra, n. 21, the officers had no reason to believe the ordinance was unconstitutional, and the officers acted reasonably in enforcing the ordinance.

B.

The majority suggests that in addition to a claim against the City for lack of due process resulting in unlawful detention, the plaintiffs have stated a claim for damages based on an alleged denial of the equal protection of laws because of racial discrimination in the enforcement of the ordinance. I do not agree that it is necessary or proper to recognize a tort action for damages for selective or discriminatory enforcement of laws.

It is well established that discriminatory prosecution can violate federal and state guarantees of equal protection. See, e.g., Snowden v. Hughes, 321 U.S. 1 , 64 S.Ct. 397 , 88 L.Ed. 497 (1944); Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886); In re: Laurence T., 285 Md. 621 , 403 A.2d 1256 (1979); Purohit v. State, 99 Md.App. 566 , 638 A.2d 1206 (1994). Although the “conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation,” the selection process cannot be deliberately “based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler v. Boles, 368 U.S. 448, 457 , 82 S.Ct. 501, 506 , 7 L.Ed.2d 446 (1962).

That is not to say, however, that the appropriate remedy for discriminatory prosecution is to allow an action for damages. The traditional remedy for constitutionally impermissible selective prosecution has been dismissal of the criminal prosecution, and that, I suggest, is an adequate remedy. What must be borne in mind is that this remedy of dismissal is available to persons who are clearly guilty of the offense with which they are charged. Although not “fair” because the guilty go *126 free, the relief is appropriate to redress the constitutional wrong, and to deter discriminatory prosecution. To further redress the wrong by allowing those guilty of a crime to receive money from the arresting officers is an expansion of remedies neither necessary nor appropriate.

If, as here, persons are detained when they should not have been because the underlying statute is unconstitutional, there will be a remedy. That the arrest may also have been the result of discriminatory prosecution adds nothing to the damages suffered in this case, but the recognition of a cause of action for damages for discriminatory enforcement invites a plethora of actions and a battle of statistics.

II. Maryland Constitutional Tort Claims

A.

For the reasons given in Part I B, supra, I would not recognize a state constitutional tort claim for damages based upon discriminatory prosecution.

B.

The majority holds that the police officers are not entitled to the defense of qualified immunity in connection with the constitutionally based claims for compensatory damages arising out of the officers’ enforcement of an ordinance later declared unconstitutional. I disagree. As noted above, and as conceded by the majority, police officers are entitled to the defense of qualified immunity under these circumstances when a claim of deprivation of constitutional rights is made pursuant to 42 U.S.C. § 1983 . In Pierson v. Ray, 386 U.S. 547, 557 , 87 S.Ct. 1213, 1219 , 18 L.Ed.2d 288 (1967) the Supreme Court said:

We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.... We agree that a police officer is not charged with predicting the future course of constitutional law.

*127 Unless a reasonably well-trained police officer would have known that the Frederick City ordinance was unconstitutional, that officer should be entitled to qualified immunity when damages are claimed against him for actions taken by him in accordance with the ordinance. See Malley v. Briggs, 475 U.S. 335 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986) (good faith of officer is important in qualified immunity determination— absence of probable cause for arrest will not support claim for damages unless, on objective basis, it is obvious that no reasonably competent officer would have concluded a warrant should issue).

In Harlow v. Fitzgerald, 457 U.S. 800, 807 , 102 S.Ct. 2727, 2732 , 73 L.Ed.2d 396 (1982), the Supreme Court noted that “[f]or executive officers in general, ... qualified immunity represents the norm.”

The Court also observed in Harlow that it is “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.” Id. at 818, n. 30, 102 S.Ct. at 2738 , n. 30 (quoting Butz v. Economou, 438 U.S. 478, 504 , 98 S.Ct. 2894, 2909-2910 , 57 L.Ed.2d 895 (1978)). There is no mention of immunity, qualified or otherwise, in 42 U.S.C. § 1983 . The Supreme Court properly adopted the concept of immunity from the common law and applied it, with some selectivity, to the causes of action permitted by § 1983. Pierson v. Ray, supra, 386 U.S. at 557 , 87 S.Ct. at 1219 . When it recognized the availability of tort actions against federal officials for violation of certain provisions of the federal constitution, the Court was consistent in applying principles of immunity to those actions. Harlow v. Fitzgerald, supra, 457 U.S. at 818 , 102 S.Ct. at 2738 . This Court should do no less in recognizing the availability of the defense of qualified immunity to municipal officers.

The majority acknowledges that this Court has not previously been called upon to decide this question as it applies to local government officials. The majority points out, however, that we have said we will not recognize a qualified privilege in *128 favor of state officials in constitutionally based claims for damages for other than negligent conduct, and determines that we should do the same in the case of local government officials. Again, I disagree. This Court made it very plain in Clea v. City of Baltimore, 312 Md. 662, 685 , 541 A.2d 1303 (1988), that a principal reason for denying a state official qualified immunity was that the State could not be sued because of sovereign immunity, and unless the officer could be held liable the law would “leave an individual remediless when his constitutional rights are violated.” That reasoning is not applicable to municipal officers, because the municipality is not afforded sovereign immunity. The necessity for withholding qualified immunity that the Court perceived in the case of state officials simply does not exist here.

Finally, I would read § 5-321(b)(1) of the Courts and Judicial Proceedings Article, Maryland Code (1974, 1995 Rep.Vol.), referred to in the Court’s opinion at 116, n. 23, supra, as providing a clear indication of legislative intent to clothe municipal officials with common law immunity.

III. Nonconstitutional Tort Claims

I agree with the majority that judgment in favor of the officers was properly entered with respect to the claims of invasion of privacy, intentional infliction of emotional distress, and negligence. I further agree that the remaining claims of assault and battery and of false imprisonment are related, and that if the arrests were not tortious, neither was the physical force used to effectuate them. See note 24 of the majority opinion, supra, at 119. I do not agree that these counts should remain viable.

The majority concedes that an element of a cause of action for false imprisonment is the absence of legal justification, and that “legal justification to arrest may depend, in part, upon the arresting officer’s good faith and reasonable belief in his authority to arrest.” Majority opinion at 120. The majority further recognizes that the legislature has broadened the authority of a police officer to arrest without a warrant so that *129 “[a] police officer who has probable cause to believe that a ... misdemeanor is being committed in the officer’s presence or within the officer’s view, may arrest without a warrant any person whom the officer may reasonably believe to have committed such offense.” Article 27, § 594B(b), Maryland Code (1957, 1992 Rep.Vol, 1994 cum. supp.) Based on this legislative grant of authority, the majority concluded that the officers lawfully could have made an arrest of an operator of the establishment because there was probable cause to believe that a misdemeanor was being committed and reason to believe that the operator had committed it. The majority refuses to extend this reasoning to the detention of the plaintiffs, however, stating that as to them the ordinance did not create a misdemeanor, and that the detention of the plaintiffs was not an arrest. As I understand it, the majority holds that the legislature intended to extend the power of a police officer only when a true misdemeanor was involved, and not in the case of a police officer detaining a juvenile on reasonable suspicion of conduct that would constitute a misdemeanor if committed by an adult. I do not agree that the legislature intended this distinction. Section 3-814(a) of the Courts and Judicial Proceedings Article, Maryland Code (1974, 1995 Repl.Vol.) provides in pertinent part as follows:

(a) A child may be taken into custody by any of the following methods:

(1) ....

(2) By a law enforcement officer pursuant to the law of arrest;

(3) By a law enforcement officer or other person authorized by the court if he has reasonable grounds to believe that the child is in immediate danger form his surroundings and that his removal is necessary for his protection; ....

Given the reasonable belief of the officer that the City ordinance was valid and that the plaintiffs were in violation of the ordinance, this section of the code, particularly when read with Article 27, § 594B(b), provided legal justification for the detention. Accordingly, I agree with the determination of the *130 Court of Special Appeals that quite apart from any question of immunity, the officers are entitled to summary judgment in their favor on the remaining common law counts because there was “legal justification” for the arrests. Brown v. Ashton, 93 Md.App. 25, 53 , 611 A.2d 599 (1992).