noting that a trial court, as the fact-finder, is “entitled 17 to accept – or reject – all, part, or none of the testimony of any witness, whether that testimony was or was not contradicted or corroborated by any other evidence”
How later courts described this case
- noting that a trial court, as the fact-finder, is “entitled 17 to accept – or reject – all, part, or none of the testimony of any witness, whether that testimony was or was not contradicted or corroborated by any other evidence”
- noting that, to constitute the tort of false light invasion of privacy, the statement at issue must be false
- explaining that gross negligence requires “a deliberate and conscious choice”
- noting that the plaintiff bears the burden of proving falsity
Written by the judges who cited it.
The opinion
Mahdi Shabazz v. State of Maryland Department of Public Safety, et al., No. 1989
September Term, 2022. Opinion by Wright, Alexander, Jr.
CONSTITUTIONAL LAW – EX POST FACTO PROHIBITIONS – PARTICULAR
ISSUES AND APPLICATIONS – SEX OFFENDERS – REGISTRATION
Trial court did not err in finding that the Maryland Department of Public Safety and
Correctional Services (the “Department”) and two of its employees (collectively
“Appellees”) had not violated § 11-701, et seq. of the Criminal Procedure Article (“CP”)
of the Maryland Code in requiring Mahdi Shabazz, a Maryland resident, to register as a
sex offender in Maryland based on his conviction of misdemeanor sex abuse in the Superior
Court of the District of Columbia. At the time of Shabazz’s conviction, Maryland law
required registration for all “Tier I sex offenders.” The statute defined Tier I sex offenders
to include “a person who has been convicted of . . . a crime committed in a federal, military,
tribal, or other jurisdiction that, if committed in this State, would constitute [a violation of
§ 3-308 of the Criminal Law Article (“CR”) of the Maryland Code.]” CP § 11-701(o)(3)
(effective October 1, 2010). CR § 3-308(b)(1) prohibited “sexual contact with another
without the consent of the other,” and CR § 3-301 defined “sexual contact” to include the
intentional touching of another’s intimate area for sexual arousal or gratification, or for the
abuse of either party. CR § 3-301(f). On December 10, 2010, Shabazz was convicted in
Washington, D.C. of misdemeanor sex abuse after he bit a female bank employee on the
breast. That act, had it been committed in Maryland, would have constituted a violation of
CR § 3-308. Thus, Shabazz was required to register in Maryland as a Tier I sex offender.
TORTS – PRIVACY AND PUBLICITY – PRIVACY – PUBLICATIONS OR
COMMUNICATIONS IN GENERAL – FALSE LIGHT
Trial court did not err in entering judgment in favor of Appellees on Shabazz’s claim of
invasion of privacy, in which Shabazz had alleged that Appellees had committed the tort
by wrongly displaying his information on the sex-offender registration website and by
distributing flyers to his neighbors about his status as a sex offender. Shabazz presented
no evidence that Appellees were responsible for creating or distributing the flyers to his
neighbors regarding his status as a sex offender. As to the displaying of his information
on the sex-offender registration website, Shabazz failed to establish that that information
was false given that, at all times relevant, Shabazz was a sex-offender registrant. Moreover,
even if the information was “false,” there was no evidence that Appellees had knowledge
of or acted in reckless disregard to the falsity of the information.
PLEADING – RESPONSES OR RESPONSIVE PLEADINGS IN GENERAL –
DEFENSES IN GENERAL – NECESSITY FOR DEFENSE
PLEADING – AMENDED AND SUPPLEMENTAL PLEADINGS AND
REPLEADER – LEAVE OF COURT TO AMEND
Trial court did not abuse its discretion in denying Appellees leave to amend their original
answer to add the defense of res judicata, which was not included in Appellees’ original
answer. The court found that permitting the amendment would have prejudiced Shabazz
given that the amended pleading was filed at such a late stage – after the close of discovery
– and introduced a significant defense that had not previously been raised. The court also
found that Appellees had been given ample time to raise the defense and had failed to
provide a viable reason why the defense was not raised sooner. Under those circumstances,
the court did not abuse its discretion in denying Appellees leave to amend and striking their
amended answer. And, because Appellees’ original answer did not set forth the affirmative
defense of res judicata, that defense was waived. Campbell v. Lake Hallowell
Homeowners Ass’n, 157 Md. App. 504, 527 (2004).
LIMITATION OF ACTIONS – COMPUTATION OF PERIOD OF LIMITATION –
ACCRUAL OF RIGHT OF ACTION OR DEFENSE – TORTS – CONTINUING
INJURY IN GENERAL
Shabazz’s civil claims, all of which were based on Shabazz’s placement on the Maryland
sex offender registry on December 28, 2010, were not barred by Maryland’s general three-
year statute of limitations, despite the fact that Shabazz did not file his claims until July 18,
2019. When a plaintiff suffers a “continuing harm,” that is, when a defendant is accused
of committing an ongoing tort, “every repetition of the wrong creates further liability and
creates a new cause of action, and a new statute of limitations begins to run after each
wrong perpetuated.” Litz v. Maryland Dep’t of Env’t, 434 Md. 623, 646 (2013) (quotation
marks and citation omitted). In Shabazz’s case, although the “harm” began in December
2010, the harm did not abate until, at the earliest, August 24, 2016, when the Department
informed Shabazz that he was no longer required to register as a sex offender. Thus, under
the continuing harm doctrine, the statute of limitations did not begin to run until August
24, 2016. And, because Shabazz filed the instant complaint on July 18, 2019, his claim
was not barred by the three-year statute of limitations.
NEGLIGENCE – HEIGHTENED DEGREES OF NEGLIGENCE – GROSS
NEGLIGENCE
Trial court erred in granting judgment against the Department on Shabazz’s claim of gross
negligence. Although Shabazz presented evidence suggesting that the Department may
have erroneously required him to register as a sex offender in Maryland, Shabazz presented
no evidence suggesting that the Department intentionally failed to perform its duty or acted
wantonly and willfully in utter indifference to the rights of others.
Circuit Court for Montgomery County
Case No. 469635V
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 1989
September Term, 2022
MAHDI SHABAZZ
v.
STATE OF MARYLAND DEPARTMENT OF
PUBLIC SAFETY, ET AL.
Nazarian,
Leahy,
Wright, Alexander, Jr.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Wright, J.
Filed: April 18, 2024
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State *Tang, Rosalyn, J., did not participate in the
Government Article) this document is authentic.
Court’s decision to designate this opinion for
2024.04.18
14:58:12
publication pursuant to Md. Rule 8-605.1.
-04'00'
Gregory Hilton, Clerk
In December 2010, Mahdi Shabazz, Appellant, was convicted, in the Superior Court
of the District of Columbia, of misdemeanor sex abuse based on allegations that, in May
2010, he bit a female bank employee on the breast while visiting her place of employment.
That act, had it been committed in Maryland, would have constituted a fourth-degree sexual
offense in violation of § 3-308 of the Criminal Law Article (“CR”) of the Maryland Code.
Shortly after his conviction, Shabazz, a Maryland resident, began registering as a sex
offender in Maryland pursuant to § 11-701, et seq. of the Criminal Procedure Article
(“CP”) of the Maryland Code. Under that law, which became effective after Shabazz
committed the D.C. offense but before he was convicted, individuals convicted of a crime
in another jurisdiction that, if committed in Maryland, would constitute a violation of CR
§ 3-308 were required to register as a sex offender in Maryland. CP § 11-701(o)(3) (2010).
Over the next several years, Shabazz engaged in a campaign to have his name
removed from the registry. In 2016, the Maryland Department of Public Safety and
Correctional Services (the “Department”) informed Shabazz that he was no longer required
to register.
In 2019, Shabazz filed, in the Circuit Court for Montgomery County, a civil
complaint against the Department and two State employees (collectively “Appellees”)
alleging, among other things, that requiring him to register as a sex offender in Maryland
constituted a violation of CP § 11-701, a violation of the prohibition on ex post facto laws
in Article 17 of the Maryland Declaration of Rights, gross negligence, and invasion of
privacy (false light). In 2022, following a bench trial, the court issued the following
rulings: 1) on Shabazz’s claim of a violation of CP § 11-701, the court entered judgment
in favor of Appellees; 2) on Shabazz’s claim of a violation of Article 17, the court entered
judgment in favor of Shabazz against the Department; 3) on Shabazz’s claim of gross
negligence, the court entered judgment in favor of Shabazz against the Department; 4) on
Shabazz’s claim of invasion of privacy, the court entered judgment in favor of Appellees;
and 5) for damages, the court ordered the Department to pay Shabazz $400,000.00.
Shabazz thereafter noted an appeal, and Appellees noted a cross-appeal. In his
appeal, Shabazz presents two questions, which we have rephrased for clarity:
1. Did the trial court err in finding that Appellees had not violated CP § 11-
701?
2. Did the trial court err in entering judgment in favor of Appellees on
Shabazz’s claim of invasion of privacy?
In their cross-appeal, Appellees present three questions, which we have rephrased
for clarity:
1. Were Shabazz’s claims barred by res judicata and the applicable statute
of limitations?
2. Did the trial court err in entering judgment against the Department on
Shabazz’s gross negligence claim?
3. Was the trial court’s award for damages excessive and unsupported by
the evidence?
As to Shabazz’s two questions, we hold that the trial court did not err. As to
Appellees’ first question, we hold that their res judicata argument was waived and that
their statute of limitations argument is without merit. As to Appellees’ second question,
we hold that the court erred in entering judgment in favor of Shabazz. We therefore reverse
that portion of the court’s judgment, along with its damages award, and remand the case
2
for further proceedings consistent with this opinion. Because we reverse, we need not
address Appellees’ third question. Otherwise, we affirm.
BACKGROUND
Relevant Law
In 1994, the United States Congress enacted the Jacob Wetterling Crimes Against
Children and Sexually Violent Offender Registration Act (the “Wetterling Act”), which
established guidelines for registering sex offenders. Pub. L. No. 103-322, 108 Stat. 1796
(1994). Under the Act, a person convicted of certain sexually-based offenses would be
required to register with a local law enforcement agency for up to ten years. Id. The Act
required each state to establish its own program for registering sex offenders that was
consistent with the Act’s guidelines. Id. Failure to comply with the Act would result in
the state losing certain federal funding. Id.
In 1995, in response to the mandates of the Wetterling Act, the Maryland General
Assembly enacted “The Maryland Crimes Against Children and Sexual Offender
Registration Law.” Graves v. State, 364 Md. 329, 336-37 (2001). That law required “child
sexual offenders” to register with the appropriate authorities for a period of ten years. Id.
at 337-38; see also Article 27, § 692B (1995). The law was later amended to include
additional classifications of offenders who were required to register. Graves, 364 Md. at
338.
In 2006, Congress enacted the Sex Offender Registration and Notification Act
(“SORNA”), which is now codified in Title 34, Chapter 209 of the United States Code.
Pub. L. No. 109-248, 120 Stat. 587 (2006); see also 34 U.S.C. § 20901, et seq. SORNA
3
replaced the previous federal sex-offender registration laws and established a new,
comprehensive national system for registering sex offenders. Pub. L. No. 109-248, 120
Stat. 587. Under the new law, sex offenders were categorized into “tiers” based on the
severity of the offense. 34 U.S.C. §§ 20911, 20915. As with the previous sex-offender
laws, states were required to establish a similar registration system or risk losing federal
funding. 34 U.S.C. § 20927.
In May 2010, when the crime at issue in the instant case was committed, Maryland
had yet to adopt the “tier” system of classification established by SORNA. Instead, the
Maryland statute required registration for Maryland residents who had been convicted of
crimes in another state that, if committed in Maryland, would categorize them as “child
sexual offenders” or “offenders” under Maryland law. CP § 11-704(a) (effective October
1, 2009 to September 30, 2010). The statute defined “child sexual offender” to include a
person who “has been convicted of violating the fourth degree sexual offense statute under
§ 3-308 of the Criminal Law Article for a crime involving a child under the age of 15 years
and has been ordered by the court to register under this subtitle[.]” CP § 11-701(c)(3)
(effective October 1, 2009 to September 30, 2010). The statute defined “offender” to
include a person “who is ordered by a court to register under this subtitle and who . . . has
been convicted of violating . . . the fourth degree sexual offense statute under § 3-308 of
the Criminal Law Article, if the victim is under the age of 18 years[.]” CP § 11-701(h)(2)
(effective October 1, 2009 to September 30, 2010). At the time, CR § 3-308 prohibited
“sexual contact with another without the consent of the other[.]” CR § 3-308(b)(1) (2010).
The statute defined “sexual contact” to include “an intentional touching of the victim’s or
4
actor’s genital, anal, or other intimate area for sexual arousal or gratification, or for the
abuse of either party.” CR § 3-301(f)(1). The statute stated further that “‘[s]exual contact’
includes an act . . . that can reasonably be construed to be for sexual arousal or gratification,
or for the abuse of either party.” CR § 3-301(f)(2).
As of October 1, 2010, the General Assembly amended CP § 11-701, et seq. and
adopted the “tier” system of classification, as established by SORNA. 2010 Md. Laws ch.
174. The new law required registration for all “Tier I sex offenders,” which were defined
to include “a person who has been convicted of . . . conspiring to commit, attempting to
commit, or committing a violation of § 3-308 of the Criminal Law Article[.]” CP § 11-
701(o)(1) (effective October 1, 2010). The statute further defined Tier I sex offenders to
include “a person who has been convicted of . . . a crime committed in a federal, military,
tribal, or other jurisdiction that, if committed in this State, would constitute one of the
crimes listed in item (1) or (2) of this subsection[.]” CP § 11-701(o)(3) (effective October
1, 2010). CR § 3-308 was not changed.
In addition to the above changes, the new sex-offender registration statute included
a provision that required the law to be applied retroactively to any person who:
(1) is under the custody or supervision of a supervising authority on October
1, 2010;
(2) was subject to registration under this subtitle on September 30, 2010; or
(3) is convicted of any crime on or after October 1, 2010, and has a prior
conviction for an offense for which registration as a sex offender is required
under this subtitle.
CP § 11-702.1(a) (effective October 1, 2010).
5
In 2013, our courts decided two seminal cases involving the 2010 revisions to
Maryland’s sex-offender registration statute. In Doe v. Department of Public Safety and
Correctional Services, 430 Md. 535 (2013), the Supreme Court of Maryland considered
whether the sex-offender registration law violated the ex post facto provision of Article 17
of the Maryland Declaration of Rights. There, the petitioner was convicted in 2006 of child
sexual abuse based on acts that occurred over twenty years earlier. Id. at 538-39. When
the sex-offender registration law was amended in 2010, the petitioner was forced to register
as a “Tier III” sex offender. Id. at 540-41. The petitioner subsequently challenged that
requirement on appeal, and the Supreme Court of Maryland held that requiring the
petitioner to register as a sex offender under the new law for acts that occurred prior to the
law’s enactment violated Article 17’s ex post facto provision. Id. at 568.
Several months later, in Sanchez v. State, 215 Md. App. 42 (2013), this Court
considered a similar issue. There, the defendant was convicted in 2002 of a fourth-degree
sex offense after he engaged in unconsented sexual contact with someone who was over
the age of 18. Id. at 45. Because the sex-offender registration law in effect at the time of
the defendant’s conviction only required registration for a fourth-degree sex offense when
the victim was under the age of 18, the defendant was not required to register. Id. When
the Maryland General Assembly changed the law in 2010 and adopted the “tier” system,
the defendant was notified that he was now required to register as a sex offender. Id. at 45-
46. The defendant later challenged that requirement on appeal, and this Court held that,
under Doe, requiring the defendant to register under the new law for his 2002 conviction
violated Article 17’s ex post facto provision. Id. at 49-51.
6
The Instant Case
On May 20, 2010, Shabazz, a Maryland resident, went to a TD bank branch in
Washington, D.C. to open an account. Upon completing the transaction, Shabazz
approached a female bank employee and hugged her. When the employee backed away,
Shabazz advanced, placed his arms around the employee, and kissed her about the face and
neck. The employee then pushed Shabazz away, at which point Shabazz pulled the
employee toward him and bit her atop her left breast. Shabazz was subsequently arrested
and charged in the Superior Court of the District of Columbia with one count of
misdemeanor sex abuse and simple assault. On December 10, 2010, following a bench
trial, Shabazz was convicted on both counts.
Shortly thereafter, the Department informed Shabazz that, because his Washington,
D.C. conviction was substantially similar to a violation of CR § 3-308, he was required to
register as a Tier I sex offender under Maryland’s newly enacted sex-offender registration
law. Over the next several years, Shabazz sent various communications to the Department
challenging the requirement that he register as a sex offender.
In May 2016, Shabazz filed a complaint for declaratory relief in the circuit court.
In that complaint, Shabazz argued that he should not have been required to register as a
Tier I sex offender because that version of the statute did not become effective until
October 1, 2010, several months after he committed the act that served as the basis for his
Washington, D.C. conviction. He argued, therefore, that requiring him to register under
the new law violated Article 17’s ex post facto provision.
7
On August 24, 2016, prior to the resolution of Shabazz’s declaratory action, the
Department sent Shabazz a letter indicating that he was no longer required to register as a
sex offender in Maryland. The Department stated that Shabazz did not meet the criteria
for registration because he “did not meet the residency requirements at the time of the
offense.” The Department stated further that Shabazz’s registration information had been
removed from “the website and all associated databases.”
On July 18, 2019, Shabazz filed a civil complaint against the Department and two
State employees: Elizabeth Bartholomew, the former manager of Maryland’s sex-offender
registry, and Carole Shelton, the former director of Maryland’s central depository service
(collectively “Appellees”). 1 In that complaint, Shabazz set forth several counts, four of
which are relevant here.
In Count One, Shabazz claimed that Appellees violated CP § 11-701 by requiring
him to register as a sex offender. He argued that Washington, D.C. did not qualify as a
“jurisdiction” within the meaning of the statute.
In Count Two, Shabazz claimed that Appellees violated Article 17 of the Maryland
Declaration of Rights by forcing him to register as a sex offender. He argued that, because
the acts that served as the basis for his Washington, D.C. conviction were committed before
the effective date of the 2010 sex-offender registration law, requiring him to register
pursuant to that law was, under Doe, a violation of Article 17’s ex post facto provision.
1
There were other named defendants, none of whom is a party to the instant case.
8
In Count Three, Shabazz claimed that Appellees’ actions constituted gross
negligence. He argued that Appellees should have removed his name from the registry
immediately following the Doe decision. He argued that Appellees were grossly negligent
in keeping his name on the sex-offender registry for an additional three years.
Finally, in Count Six, Shabazz claimed that Appellees committed the tort of
invasion of privacy (false light). He argued that Appellees committed that tort by keeping
his name on the sex-offender registry and publishing that information to the public. He
also argued that Appellees were liable for the actions of a Montgomery County Police
officer who handed out flyers to Shabazz’s neighbors informing them that Shabazz was a
registered sex offender.
Bench Trial
At the bench trial that followed, Shabazz presented several witnesses in his case-in-
chief. Elizabeth Bartholomew testified that she was the former manager of Maryland’s
sex-offender registry and that her job included reviewing and responding to requests by
individual registrant’s who wished to be removed from the registry. Ms. Bartholomew
testified that she was familiar with the Doe decision and that, when the decision was issued
in 2013, she did not think it applied in Shabazz’s case.
Carole Shelton testified that she was the former director of the central depository
service and that part of her responsibilities included overseeing the sex-offender registry.
Ms. Shelton stated that she was aware that Shabazz had sent various communications to
the Department indicating that he objected to his being placed on the registry. Ms. Shelton
9
testified that those communications were considered by her unit, that her unit “met
extensively” to review his case, and that she consulted with the Department’s legal counsel.
Shabazz testified that, beginning shortly after he was placed on the registry in 2010,
he sent several communications to the Department contesting his status as a registrant.
Shabazz testified that, as a result of his being placed on the registry, he lost custody of his
son, lost his job, and was unable to gain employment.
Jerome Paige, a former government employee with a background in economics,
testified that he had been involved in preparing an “economic damages report” regarding
Shabazz’s case and that he had been “asked to estimate the costs of earnings and the loss
of fringe benefits due to the allegations in this particular matter.” According to Mr. Paige,
it was determined that Shabazz had suffered over $1 million in lost earnings.
In Appellees’ case-in-chief, David Wolinski, the former assistant director for the
Criminal Justice Information System, testified that he supervised Ms. Bartholomew for five
years while she was the manager of the sex-offender registry. Mr. Wolinski testified that
it was “a very difficult job” because, in part, the law and the registration requirements were
constantly changing. Mr. Wolinksi testified that Ms. Bartholomew was an excellent
employee and that she performed her job with due diligence.
Carole Shelton testified that she first became aware of Shabazz’s case after
receiving a letter from him concerning his registration. Ms. Shelton testified that she
received additional letters and that, for each letter, an investigation was conducted into
Shabazz’s case. Ms. Shelton testified that, every time they reviewed Shabazz’s case, “there
10
was no change that we could make.” Ms. Shelton testified that Shabazz was ultimately
removed from the registry in 2016.
Elizabeth Bartholomew testified that, as the manager of the Maryland Sex Offender
Registry in 2010, she was responsible for implementing the changes made by the Maryland
General Assembly to the sex-offender registration laws that year. Ms. Bartholomew
explained that Maryland’s old registration system was out of compliance with the federal
SORNA guidelines and that, as a result, Maryland was in danger of losing federal funding.
Ms. Bartholomew noted that there was a lot of confusion surrounding the law, particularly
with respect to how the changes should be implemented and who would be affected by
those changes. Ms. Bartholomew explained that in 2014, after the Doe and Sanchez
decisions were handed down, the Department began the process of removing certain
offenders from the database. At the time, there were between 7,500 and 8,000 registrants,
and Ms. Bartholomew, along with four staff members, were tasked with reviewing those
cases and determining whether they should be removed. Ms. Bartholomew testified that,
by 2017, they had removed around 3,196 people from the database.
Regarding Shabazz’s case, Ms. Bartholomew testified that he was initially required
to register because the 2010 law stated that, if an individual was convicted on or after
October 1, 2010, of a crime in another state that would require registration in Maryland,
then the individual was required to register in Maryland. Ms. Bartholomew explained that,
following Doe, the Department reviewed thousands of cases, including out-of-state cases
like Shabazz’s. Ms. Bartholomew stated that the out-of-state cases were the hardest
because it was difficult to get records and information from the various jurisdictions. Ms.
11
Bartholomew explained that they did not get to the out-of-state cases until 2016. Ms.
Bartholomew testified that it was ultimately determined that Shabazz did not qualify for
registration “based on all of these cases as they piled up.”
Court’s Ruling
As to Shabazz’s claim that Appellees violated CP § 11-701, the court found in favor
of Appellees. The court noted that, when Shabazz committed the offense that led to his
Washington, D.C. conviction, he would not have been required to register in Maryland
because the victim was not under the age of 18. The court found that, when the law was
changed on October 1, 2010, Shabazz was required to register because of the law’s
retroactivity provision.
As to Shabazz’s claim that Appellees violated Article 17 of the Maryland
Declaration of Rights, the court found in favor of Shabazz. The court found that requiring
Shabazz to remain on the registry after 2013, that is, after Doe and Sanchez, was a violation
of Article 17’s ex post facto provision. The court also found that Appellees’ stated reason
for removing Shabazz from the registry – that he did not meet the residency requirements
at the time of the offense – was “specious.”
As to Shabazz’s gross negligence claim, the court found in favor of Shabazz and
against the Department:
This Court is troubled by Ms. Bartholomew and Ms. Shelton’s
somewhat laissez faire attitude towards the impact and importance of their
respective positions. There seems to be little appreciation of the impact of
being on the Sex Offender Registry one day longer than necessary, much less
years.
12
While the Court does not find that they acted with malice, there does
appear to be a degree of indifference as to the consequences of their failure
to act. The excuses of being overworked and understaffed are not acceptable
explanations and are disheartening when it literally affects the lives of others.
***
The Department had no process or system in place to review the status
of those on the Registry in light of legislative and appellate changes, changes
that these defendants, and individuals, and officials in charge testified
occurred yearly. The Department had a duty to act upon these annual
changes and failed to do so in thoughtless disregard or indifference to the
consequences of those affected. The differing letters generated by the
Department as to the basis of Mr. Shabazz’s removal from the Registry
reflect this indifference.
The Court finds that the Department’s failure to act, failure to
implement any type of process to conduct reviews of those on this Registry
affecting [sic] by these annual changes, and only taking action when served
with a declaratory judgment action essentially requiring citizens to have to
file a lawsuit against the Department for the Department to take action
constitutes gross negligence.
The Court finds that the individual defendants, Carole Shelton and
Elizabeth Bartholomew, were acting within the course and scope of their
employment. The Court finds that they had no personal animus or malice
towards Mr. Shabazz. Their actions on behalf of the state, as state
employees, constitute gross negligence, which is attribute [sic] to the state
and the Department.
As to Shabazz’s claim of invasion of privacy, the court found in favor of Appellees.
The court explained that the flyers labeling Shabazz as a sex offender were created and
distributed by the Montgomery County Police Department, not Appellees. The court
explained further that there was no evidence that the officer who distributed the flyers knew
that the information was false.
Finally, as to damages, the court found that Shabazz was entitled to be compensated
for the damages he had incurred as a result of Appellees’ actions. The court credited
13
Shabazz’s testimony regarding how he was affected, both personally and financially, by
being on the registry. Based on that evidence, the court entered judgment against the
Department in the amount of $400,000.00.
These timely appeals followed. Additional facts will be added below as needed.
STANDARD OF REVIEW
“When reviewing an action tried without a jury, we review the judgment of the trial
court ‘on both the law and evidence.’” Baltimore Police Dep’t v. Brooks, 247 Md. App.
193, 205 (2020) (quoting Banks v. Pusey, 393 Md. 688, 697 (2006)). We “will not set aside
the judgment of the trial court on the evidence unless clearly erroneous, and [we] will give
due regard to the opportunity of the trial court to judge the credibility of the witnesses.”
Md. Rule 8-131(c). Issues of law are reviewed de novo. Brooks, 247 Md. App. at 205.
DISCUSSION – SHABAZZ’S APPEAL
I.
Shabazz argues that the trial court erred in finding that Appellees did not violate CP
§ 11-701 in requiring him to register as a sex offender in Maryland based on his
Washington, D.C. conviction. He raises three primary arguments: that his D.C. conviction
would not have constituted a violation of CR § 3-308 within the meaning of CP § 11-701
because the victim was not a minor; that D.C. was not a “jurisdiction” within the meaning
of CP § 11-701; and, that CP § 11-701 did not apply to him because the law’s retroactivity
provision specifically excluded him.
14
Appellees contend that none of Shabazz’s arguments has merit. Appellees argue
that Shabazz was obligated to register as a Tier I sex offender pursuant to the version of
the statute that was in effect at the time of his conviction.
We hold that the court was correct in concluding that, at the time of his conviction,
Shabazz was required to register in Maryland as a Tier I sex offender. As discussed above,
the version of the statute at issue became effective on October 1, 2010, and the statute
required registration for all “Tier I sex offenders.” The statute defined Tier I sex offenders
to include “a person who has been convicted of . . . a crime committed in a federal, military,
tribal, or other jurisdiction that, if committed in this State, would constitute [a violation of
CR § 3-308.]” CP § 11-701(o)(3) (effective October 1, 2010). At the time, CR § 3-
308(b)(1) prohibited “sexual contact with another without the consent of the other,” and
CR § 3-301 defined “sexual contact” to include the intentional touching of another’s
intimate area for sexual arousal or gratification, or for the abuse of either party. CR § 3-
301(f). On December 10, 2010, two months after CP § 11-701 was amended, Shabazz was
convicted in Washington, D.C. of misdemeanor sex abuse after he bit a female bank
employee on the breast. That act, had it been committed in Maryland, would have
constituted a violation of CR § 3-308. Thus, Shabazz was required to register in Maryland
as a Tier I sex offender.
As to Shabazz’s arguments in support of his claim, we are not persuaded by any of
those arguments. First, there is nothing in the plain language of the statute or in the statute’s
legislative history to indicate that the registration requirements for violations of CR § 3-
308 were intended to be limited to convictions involving minors. In fact, the statute’s
15
legislative history suggests the opposite. Prior to the 2010 amendment, CP § 11-701
required registration for “child sexual offenders” and “offenders,” which were defined,
respectively, to include a person convicted of violating CR § 3-308 involving a victim
under the age of fifteen or eighteen. When the amended version of CP § 11-701 became
effective on October 1, 2010, and adopted the “tier” system of classification, the condition
regarding the victim’s age was removed, and registration was required for any violation of
CR § 3-308. In so doing, the General Assembly clearly signaled that the age of the victim
was of no moment in determining whether a violation of CR § 3-308 triggered registration
as a “Tier I sex offender.”
We likewise reject Shabazz’s claim that Washington, D.C. was not a “jurisdiction.”
CP § 11-701(g) defines jurisdiction as “a state or a Native American tribe that elects to
function as a registration jurisdiction under federal law.” At all times relevant,
Washington, D.C. was a “registration jurisdiction.” See D.C. Code Ann. § 22-4001, et
seq.; see also 2006 District of Columbia Laws 13-306; 2000 District of Columbia Laws
13-137.
Finally, we find Shabazz’s reliance on the law’s retroactivity provision to be
misplaced. The retroactivity provision was designed to bring all sex offenders within the
purview of the law as enacted on October 1, 2010, even if the offender was convicted prior
to the law’s enactment. As discussed, Shabazz was convicted after the law was enacted,
so the retroactivity provision would not apply to him. To the extent that Shabazz is
claiming that the law should not have applied to him because the acts that served as the
basis for his conviction occurred prior to the law’s enactment, such an argument would go
16
toward his ex post facto claim and has nothing to do with whether the law, as written,
applied to him.
II.
Shabazz argues that the trial court erred in entering judgment in favor of Appellees
on his claim of invasion of privacy (false light). Shabazz contends that Appellees
committed the tort by displaying his information on the sex-offender registration website
and by distributing flyers to his neighbors about his status as a sex offender. Appellees
contend that the court correctly entered judgment in their favor.
The tort of false light invasion of privacy has been explained as follows:
“One who gives publicity to a matter concerning another that places the other
before the public in a false light is subject to liability to the other for invasion
of privacy, if (a) the false light in which the other person was placed would
be highly offensive to a reasonable person, and (b) the actor had knowledge
of or acted in reckless disregard as to the falsity of the publicized matter and
the false light in which the other would be placed.”
Furman v. Sheppard, 130 Md. App. 67, 77 (2000) (quoting Bagwell v. Peninsula Reg’l
Med. Ctr., 106 Md. App. 470, 513-14 (1995)).
We hold that the trial court did not err in entering judgment in favor of Appellees.
As the court correctly found, Shabazz presented no evidence that Appellees were
responsible for creating or distributing the flyers to his neighbors regarding his status as a
sex offender. The court was well within its discretion in choosing to credit the evidence in
support of Appellees’ claim that they were not responsible for the flyers. See Omayaka v.
Omayaka, 417 Md. 643, 659 (2011) (noting that a trial court, as the fact-finder, is “entitled
17
to accept – or reject – all, part, or none of the testimony of any witness, whether that
testimony was or was not contradicted or corroborated by any other evidence”).
As to the displaying of his information on the sex-offender registration website,
Shabazz failed to establish that that information was false. See Lindenmuth v. McCreer,
233 Md. App. 343, 367 (2017) (noting that, to constitute the tort of false light invasion of
privacy, the statement at issue must be false); see also Piscatelli v. Van Smith, 424 Md.
294, 306 (2012) (noting that the plaintiff bears the burden of proving falsity). Shabazz was
a sex-offender registrant up until he was removed in August 2016; thus, it cannot be said
that Appellees placed Shabazz in a false light by informing the public that he was on the
registry. See Piscatelli, 424 Md. at 306 (noting that a statement is false if it is “not
substantially correct” (quotation marks and citation omitted)).
Assuming, arguendo, that Shabazz’s status as a sex offender was, at some point,
“false” and that Appellees’ act of continuing to display that status to the public placed
Shabazz in a false light, there was no evidence that Appellees “had knowledge of or acted
in reckless disregard as to the falsity of the publicized matter and the false light in which
the other would be placed.” Furman, 130 Md. App. at 77 (quotation marks and citation
omitted). Although Shabazz presented evidence establishing that he had engaged in some
effort to have his name removed from the registry, Appellees presented evidence
suggesting that they reasonably believed that Shabazz was required to register. Again, the
court was well within its discretion in crediting Appellees’ evidence in their favor.
18
DISCUSSION – APPELLEES’ CROSS-APPEAL
I.
In their cross-appeal, Appellees argue, preliminarily, that all of Shabazz’s claims
were barred by res judicata and Maryland’s general three-year statute of limitations for
civil claims. As discussed in greater detail below, we reject both arguments.
A.
Appellees’ res judicata claim is based on two lawsuits Shabazz filed in the United
States District Court for the District of Columbia, in which Shabazz raised virtually
identical claims to the ones raised in the instant case. The first lawsuit was filed in 2017
and was voluntarily dismissed that same year. The second lawsuit was filed in 2019 and
was voluntarily dismissed that same year. Appellees note that, under Federal Rule of Civil
Procedure 41(a)(1), when a plaintiff voluntarily dismisses an action and then subsequently
dismisses a second action based on the same claim, the second action must be dismissed
with prejudice. Appellees argue, therefore, that the principle of res judicata precluded
Shabazz from bringing the instant action.
Upon reviewing the record, it is clear that Appellees’ argument was properly
considered and rejected by the court. Shabazz filed the instant action in July 2019, and, in
October 2020, Appellees filed their answer. Then, in June 2021, one day after the close of
discovery, Appellees filed an amended answer in which they raised, for the first time, the
res judicata issue. Shabazz subsequently filed a motion to strike the amended answer,
arguing that both the answer and the res judicata claim were untimely. Following a
hearing, the court granted Shabazz’s motion. The court struck the amended answer because
19
Appellees had not sought leave to amend. The court found that Appellees had been given
ample time to raise their res judicata claim and that introducing it at such a late stage of
the proceedings would prejudice Shabazz. The court found that Appellees had not
provided an adequate explanation for why the defense was not raised sooner.
The court did not abuse its discretion in its decision. Res judicata is an affirmative
defense that must be raised in a party’s answer. Md. Rule 2-323(g). Failure to do so “‘bars
the defendant from relying on the defense to obtain judgment in its favor.’” Campbell v.
Lake Hallowell Homeowners Ass’n, 157 Md. App. 504, 527 (2004) (quoting Gooch v.
Maryland Mech. Sys., Inc., 81 Md. App. 376, 385 (1990)). Because Appellees did not raise
the defense in their original answer, the defense was waived.
To be sure, a party may cure that defect by filing an amended answer and including
the defense in the amended answer. Samuels v. Tschechtelin, 135 Md. App. 483, 542
(2000). Although a court should generally permit such an amendment, a court may deny
the amendment if a plaintiff shows “prejudice, unfair surprise, or lack of fairness.” Id.
(quotation marks and citation omitted). “The decision whether ‘to allow amendments to
pleadings or to grant leave to amend pleadings is within the sound discretion of the trial
judge,’ and the decision in that regard will be reversed only on a showing of ‘a clear abuse
of discretion.’” Norino Props., LLC v. Balsamo, 253 Md. App. 226, 260-61 (2021)
(quoting Schmerling v. Injured Workers’ Ins. Fund, 368 Md. 434, 443-44 (2002)).
Here, the court did not permit Appellees to amend their pleading and add the
affirmative defense of res judicata. The court found that permitting the amendment would
have prejudiced Shabazz given that the amended pleading was filed at such a late stage –
20
after the close of discovery – and introduced a significant defense that had not previously
been raised. The court noted that Appellees had been given ample time to raise the defense
and had failed to provide a viable reason why the defense was not raised sooner. Given
those considerations, we cannot say that the court abused its discretion in denying
Appellees leave to amend and striking their amended answer. And, because Appellees’
original answer did not set forth the affirmative defense of res judicata, that defense was
waived.
B.
Appellees’ other argument is that Shabazz’s claims were barred by Maryland’s
general three-year statute of limitations. Appellees contend that Shabazz’s claim “accrued”
on December 28, 2010, when he was first required to register in Maryland, and that,
consequently, he had three years from that date to file the instant claim.
Appellees are mistaken. Indeed, a civil action ordinarily must be filed within three
years from the date it accrues, see Md. Code Ann., Cts. & Jud. Proc. § 5-101, and an action
is generally considered to have “accrued” when the wrong is discovered, which, in this
case, would have occurred when Shabazz was first required to register. Supik v. Bodie,
Nagle, Dolina, Smith & Hobbs, P.A., 152 Md. App. 698, 716-17 (2003). But, when a
plaintiff suffers a “continuing harm,” that is, when a defendant is accused of committing
an ongoing tort, “every repetition of the wrong creates further liability and creates a new
cause of action, and a new statute of limitations begins to run after each wrong
perpetuated.” Litz v. Maryland Dep’t of Env’t, 434 Md. 623, 646 (2013) (quotation marks
and citation omitted). “Therefore, violations that are continuing in nature are not barred
21
by the statute of limitations merely because one or more of them occurred earlier in time.”
Id. (quotation marks and citation omitted).
Here, the “harm” was Shabazz’s placement on the sex-offender registry, which
began in December 2010. That harm did not abate until, at the earliest, August 24, 2016,
when the Department informed Shabazz that he was no longer required to register. Thus,
under the continuing harm doctrine, the statute of limitations did not begin to run until
August 24, 2016, despite the fact that the harm was discovered well before that date. And,
because Shabazz filed the instant complaint on July 18, 2019, his claim was not barred by
the three-year statute of limitations.
That said, when a plaintiff relies on the continuing harm doctrine to toll the statute
of limitations, “damages for such causes of action are limited to those occurring within the
three year period prior to the filing of the action.” Id. (quotation marks and citation
omitted). Thus, any damages awarded to Shabazz must have been incurred within three
years of the commencement of his action.
II.
Appellees next argue that the trial court erred in entering judgment against the
Department on Shabazz’s gross negligence claim. Appellees contend that Shabazz failed
to produce “any evidence that the Department acted with the kind of wanton, willful, or
malicious conduct that would support a finding of gross negligence.” Shabazz disagrees,
arguing that the court had ample evidence from which to conclude that the Department was
grossly negligent in requiring him to continue registering as a sex offender in Maryland for
years despite his repeated efforts to have his name removed from the registry.
22
We agree with Appellees and hold that the court erred in finding that the Department
was grossly negligent. “Ordinary, simple negligence is ‘any conduct, except conduct
recklessly disregardful of an interest of others, which falls below the standard established
by law for protection of others against unreasonable risk of harm.’” Stracke v. Est. of
Butler, 465 Md. 407, 420 (2019) (quoting Barbre v. Pope, 402 Md. 157, 187 (2007)). Gross
negligence, on the other hand, is “something more than simple negligence, and likely more
akin to reckless conduct[.]” Barbre, 402 Md. at 187 (quotation marks and citation omitted).
“It 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) (quotation marks and citation omitted).
“A wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he
inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as
if such rights did not exist.” Stracke, 465 Md. at 421 (cleaned up). As such, the acts that
serve as the basis for a gross negligence claim, “must be sufficient to establish that the
defendant had a wanton or reckless disregard for human life[.]” Id. (cleaned up). “Only
conduct that is of extraordinary or outrageous character will be sufficient to imply this state
of mind.” Id. (quotation marks and citations omitted).
Here, the trial court found that the Department was grossly negligent in requiring
Shabazz to register as a sex offender. The court based that decision on the following
findings: that Ms. Bartholomew and Ms. Shelton had a “laissez faire attitude towards the
impact and importance of their respective positions”; that there appeared to be “a degree
23
of indifference as to the consequences of their failure to act”; that the Department “had no
process or system in place to review the status of those on the Registry in light of legislative
and appellate changes”; that the Department failed to act on those changes “in thoughtless
disregard or indifference to the consequences of those affected”; and that the Department
took action in Shabazz’s case only “when served with a declaratory judgment action
essentially requiring citizens to have to file a lawsuit against the Department for the
Department to take action[.]”
Those findings do not support a claim of gross negligence. First, several of the
court’s findings are unsupported or belied by the record. Ms. Bartholomew testified that,
following the Doe and Sanchez decisions, the Department implemented a plan to review
the status of each registrant, approximately 8,000 in total, to determine if the changes in
the law would affect the registrant’s status. Ms. Bartholomew testified that that process
had resulted in the removal of around 3,196 people from the database. Clearly, the
Department had some process or system in place to review the status of those on the registry
in light of legislative and appellate changes.
Moreover, there was absolutely no evidence that the Department, in implementing
that process, acted in thoughtless disregard or indifference to the consequences of those
affected. There was no evidence that Shabazz was kept on the registry intentionally or in
utter indifference to his rights. In fact, there was no evidence that Shabazz’s removal from
the registry was delayed for any reason other than that the Department had thousands of
cases to review and was understaffed. As discussed in greater detail above, the Department
had a reasonable basis to believe that Shabazz was required to register in December 2010,
24
and it was reasonable for the Department to assume the legitimacy of that basis until several
years later, when the Doe and Sanchez decisions were handed down. As Ms. Bartholomew
explained, it was at that point that the Department began its review process, which involved
considering not just the interests of the thousands of individuals on the registry, but also
the competing interest of ensuring that the registry was being implemented in compliance
with Maryland and federal law. That Shabazz’s registration status languished while the
Department reviewed other cases is not evidence of gross negligence. Nor is it evidence
of gross negligence that Shabazz’s removal from the registry coincided with his declaratory
judgment action and was premised on the somewhat perplexing grounds that he did not
meet the residency requirements for registration in Maryland. Although those acts, and the
inferences drawn therefrom, may be evidence of negligence, they are not, without any
evidence of deliberateness on the part of the Department, evidence of gross negligence.
See Stracke, 465 Md. at 421-24 (explaining that gross negligence requires “a deliberate and
conscious choice”).
Beyond that, the record is devoid of any evidence that the Department intentionally
failed to perform its duty or acted wantonly and willfully in utter indifference to the rights
of others. Consequently, Shabazz failed to establish his claim of gross negligence, and the
court erred in entering judgment in his favor.
CONCLUSION
In sum, we hold that the trial court did not err in finding that Appellees had not
violated CP § 11-701 or in entering judgment in favor of Appellees on Shabazz’s claim of
invasion of privacy. In addition, we hold that Appellees’ res judicata argument was waived
25
and that Shabazz’s claims were not barred by the applicable statute of limitations.
Accordingly, we affirm those portions of the court’s judgment.
Conversely, we hold that the court erred in entering judgment in favor of Shabazz
on his gross negligence claim. We therefore reverse that portion of the court’s judgment.
Moreover, because it is unclear from the record whether the court’s damages award
stemmed from its judgment on Shabazz’s gross negligence claim, we must also reverse the
court’s damages award and remand the case so that the court can determine if Shabazz is
entitled to damages for his only remaining claim, i.e., Appellees’ violation of Article 17 of
the Maryland Declaration of Rights. 2 If the court does determine that such an award is
2
After considering the initial briefs filed in the instant appeal, we ordered the parties
to submit supplemental briefs to address whether Shabazz could recover damages for a
violation of Article 17 of the Maryland Declaration of Rights. In their responsive brief,
Appellees conceded that Shabazz could recover such damages. We agree. Generally, a
court may award damages for a violation of the Maryland Constitution if: 1) the
constitutional provision is “self-executing;” and 2) a common law action exists to remedy
the violation or, if none exists, such an action should be judicially recognized. Benson v.
State, 389 Md. 615, 628-31 (2005). As to the first prong, a constitutional provision is “self-
executing” if it ‘“supplies a sufficient rule by means of which the right given may be
enjoyed and protected, or the duty imposed may be enforced[.]”’ Id. at 628 (quoting Davis
v. Burke, 179 U.S. 399, 403 (1900)). As to the second prong, a right of action for monetary
damages to remedy a constitutional violation may be recognized when the constitutional
provision at issue conveys an individual right, imposes a corresponding duty on the
government, and fails to provide an express remedy. Id. at 630-31. Article 17 satisfies
both prongs. That provision states: “That retrospective Laws, punishing acts committed
before the existences of such Laws, and by them only declared criminal are oppressive,
unjust and incompatible with liberty; wherefore, no ex post facto Law ought to be made;
nor any retrospective oath or restriction be imposed, or required.” Md. Decl. of Rts. Art.
17. The provision is “self-executing” because it supplies a rule by which the right at issue,
the prohibition against ex post facto laws, may be enjoyed and protected. See Doe, 430
Md. 535 (recognizing an individual’s right to injunctive and declaratory relief for a
violation of Article 17). The provision also conveys an individual right, imposes a duty on
(continued…)
26
justified, the court should be mindful that any damages awarded must have been incurred
within three years of the filing of Shabazz’s complaint. 3
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
REVERSED IN PART AND AFFIRMED IN
PART; CASE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION; COSTS TO BE PAID 1/2
BY APPELLANT/CROSS-APPELLEE AND
1/2 BY APPELLEES/CROSS-
APPELLANTS.
the government, and fails to provide an express remedy. Thus, monetary damages may be
awarded for a violation of that provision.
3
Given that we are reversing for a reassessment of damages, we need not address
Appellees’ claim that the court’s damages award was excessive.
27