DEHN MOTOR SALES, LLC, et al. v. Joseph SCHULTZ, et al.
No. 94, Sept. Term, 2013.
Court of Appeals of Maryland.
July 22, 2014.
96 A.3d 221
Kara K. Lynch (Suzanne Sangree, City Solicitor‘s Office, Baltimore, MD), on brief, for Respondents.
Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, and LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.
BATTAGLIA, J.
In this case we are called upon to explore, once again, what actions may constitute substantial compliance with
- Whether the Court of Special Appeals erred in affirming the dismissal of the state law claims against the respondents because adequate notice was allegedly not given under the Local Government Tort Claims Act even though a replevin action filed by the petitioners gave
notice of constitutional violations by the police and where the City Solicitor litigated the replevin action for three years, thus ensuring an adequate investigation, and where the respondents cooperated with the City Solicitor during the course of the three year investigation prior to the filing of the underlying case in this matter?
- Whether the Court of Special Appeals committed error in affirming summary judgment when it concluded that the respondent police officers were constitutionally justified in seizing the petitioners’ 67 vehicles without a warrant or other court order because of an alleged emergency, when that fact was disputed as a pretext by the petitioners and where the trial court expressly stated that exigent circumstances were not present?
Dehn Motor v. Schultz, 435 Md. 266, 77 A.3d 1084 (2013).
The genesis of the instant matter occurred when Dehn Motor5 filed an action for replevin in the District Court of Maryland, sitting in Baltimore City, against Alford H. Foxx, the Director of the Baltimore City Department of Transportation; Richard Hooper, Acting Tow Manager of the Baltimore City Department of Transportation; and the Mayor and City Council of Baltimore. The complaint for replevin specifically alleged that Dehn Motor owned and operated a used car business at the address of 330-334 East Patapsco Avenue, Baltimore, Maryland and 3550-3554 Fourth Street, Baltimore, Maryland. On April 1, 2005, according to the complaint, ten to twenty Baltimore City police officers allegedly entered Dehn Motor‘s lots and initiated the towing of sixty-seven vehicles that Dehn Motor lawfully owned as part of the used car sales business, without a court order or warrant. The complaint further averred that the City would not return the vehicles unless Dehn Motor agreed to pay $6,600 for the cost of towing:
1. The Plaintiffs legally operate a used car business at the address of 330-334 East Patapsco Avenue, Baltimore, Maryland 21225 and 3550-3554 Fourth Street, Baltimore, Maryland 21225 . . . [sic]
2. The Plaintiffs’ location has been continuously used to sell used cars for more than fifty years.
3. The Plaintiffs’ two lots are private property. 3554 Fourth Street is surrounded by a chain link fence about eight feet high with lattice sheets.
4. On or about April 1, 2005, about 10 to 20 Baltimore City police officers came to the Plaintiffs’ place of business without a warrant and without a prior Court order and they, with the help of many tow trucks of the City of Baltimore, entered into the private property
of the Plaintiffs’ place of business and towed from the Plaintiffs’ place of business about sixty-seven (67) automobiles that were lawfully owned by the Plaintiff in the operation of it‘s [sic] business. Attached hereto and marked Plaintiffs’ Exhibit Number One is a list of the vehicles taken from the Plaintiffs’ place of business and vehicle identification number of the automobiles that were illegally seized. 5. The Defendants seized about six (6) more automobiles which they did not provide a list of to the Plaintiff.
6. The Baltimore City Police officers never showed a warrant and/or a Court order to Plaintiffs and/or its agents, servants or employees, that the police had a right in fact and in law, to enter on the private property of the Plaintiff and to forcibly seize sixty-seven (67) automobiles lawfully owned by the Plaintiff and lawfully stored on it‘s [sic] private property.
7. The Plaintiffs on April 1, 2005, was [sic] not served or given any citations of any alleged violation of the law concerning the sixty-seven (67) cars that the defendants illegally seized from the Plaintiffs’ place of business and unjustly detains.
8. The Plaintiffs made an effort to recover some of it‘s [sic] automobiles, but they were told they could not have the automobiles they requested without paying about $6,600.00.
9. The Defendants do not claim title and/or ownership of the seized automobiles.
10. The Defendants unjustly detain the automobiles of the Plaintiffs they illegally seized from the Plaintiffs.
(emphasis in original). As a result of the alleged unlawful detention of the vehicles, Dehn Motor sought return of the cars, as well as $60,000 to cover loss of use:
11. The Plaintiffs believe that the automobiles illegally seized by the Defendants have a value to the Plaintiffs of about Sixty Thousand Dollars ($60,000.00) plus the damages caused to the Plaintiffs by the loss of use of it‘s [sic] automobiles since these automobile have been unjustly detained by the Defendants. The Plaintiffs cannot sell or prepare the seized automobile for sale while they are unjustly detained by the Defendants.
12. The Plaintiffs request that the sixty-seven (67) automobiles illegally seized by the Defendants be returned immediately to the Plaintiffs at the expense of the Defendants.
13. The Plaintiffs request damages, that are fair and reasonable, that the Plaintiffs suffered because of the illegal seizure of the sixty-seven (67) automobiles from the possession of the Plaintiffs and the illegal detention of said automobiles by the Defendants.
Subsequently, after the action was joined, District Court Judge Miriam B. Hutchins entered an order that the vehicles be returned to Dehn Motor, on the condition that they not be stored where the cars originally had been.
On March 28, 2008, almost three years after the vehicles were towed, Dehn Motor initiated another action in the Circuit Court for Baltimore City; this second action was instituted against Sergeant Proctor and Officer Schultz, inter alia,6
identifying them as the police officers
well as
17. The illegal seizure of the automobiles and automobile parts owned by the Plaintiffs and possessed by the Plaintiffs, violated the rights of the Plaintiffs as guaranteed by the Fourth Amendment and Fourteenth Amendment to the United States Constitution and 42 USC 1983 for which defendant police officers . . . are individually liable. . . . The Defendant police officers . . . also violated the rights of the Plaintiffs guaranteed to them under Articles 19, 24, and 26 of the Maryland Declaration of Rights and such other articles of the Maryland Declaration of Rights as may be implicated through the course of these proceedings.
* *
*
18. That at all times described herein Police Officer Joseph A. Schultz, Jr. and Sergeant A. Proctor of the Baltimore City Police Department and the Baltimore City Police Department, who were agents, servants, and employees of the Baltimore City Police Department and the Mayor and City Council of Baltimore City acted under the color of statutes, customs and usage of the State of Maryland and the City of Baltimore. . . .
19. As a direct and proximate result of the Defendants’ conduct and actions as alleged herein, the Plaintiff had to retain counsel to file suit in the District Court of Maryland
for Baltimore City to regain possession of the automobiles and the automobile parts of which they legally possess to the great and emotional upset and discomfort to Farzan Mohamed and to his great expense for attorneys fees and costs to prosecute said replevin action.
Officer Schultz and Sergeant Proctor, thereafter, generally denied the allegations and asserted, as affirmative defenses, that their “actions were privileged because the Defendant[s] w[ere] performing lawful duties as . . . member[s] of the Baltimore Police Department and [they are] entitled to and claims all common law, statutory, and qualified immunities.”13
After discovery was completed, the parties filed cross-motions for summary judgment. In its motion, Dehn Motor urged that the undisputed facts showed that Officer Schultz and Sergeant Proctor had entered private property without a
warrant or court order and towed Dehn Motor‘s vehicles, which entitled it to judgment as a matter of law on all claims.
Officer Schultz and Sergeant Proctor disagreed and filed a joint cross-motion for summary judgment, in which they asserted that they were entitled to judgment as a matter of law because the State constitutional claims were barred by the notice provision of the Local Government Tort Claims Act. They argued, specifically, that Dehn Motor had not filed a notice of claim with Baltimore City within 180 days of the date of the towing, and, moreover, that filing the replevin action was inadequate to constitute substantial compliance, because, inter alia, “Proctor and Schultz were not defendants or listed as parties to the Replevin action” and because the replevin
Officer Schultz and Sergeant Proctor posited that the federal constitutional claims also must fail, because the undisputed facts showed that many of the vehicles were towed to remedy environmental and fire hazards, and therefore, the police officers were not required to obtain a warrant because they were engaged in a “community caretaking function.”14 In
support of their assertion that the vehicles posed environmental and fire hazards, they attached portions of Officer Schultz‘s deposition in which he testified that, upon arriving at the Dehn Motor lots, there were a number of vehicles that were stored in a manner causing fluids to seep out of the cars and into the ground:
[OFFICER SCHULTZ]: [A] lot of them were like half cars, cars with the motor sticking out, leaking fluids. They were physically—you could see the fluids leaking out of the motors, you could see the antifreeze coming out of the radiators . . .
Officer Schultz also appended other portions of his deposition in which he stated that he was informed by a member of the “Environmental Crimes Unit”15 that the vehicles were “supposed to be parked on a hard surface, not on a grass or dirt area.”
Officer Schultz and Sergeant Proctor also specifically urged that they acted with “actual justification” for the towing because of various provisions of the Baltimore City Code. Specifically, they relied on Officer Schultz‘s deposition testimony in which he stated that a number of vehicles
parked in a manner that obstructed an alleyway adjacent to the Dehn Motor lot. Accordingly, the officers posited that the cars were parked in violation of Article 19, Section 50-2(a) of the Baltimore City Code, prohibiting a person from obstructing an alley16 and Article 31, Section 6-3 of the Baltimore City Code, providing that, “no vehicle shall be so parked or otherwise stopped as to prevent the free passage of other vehicles or street cars in both directions at the same time“. To the joint motion also was appended Dehn Motor‘s “Permit Application” filed with the Baltimore City Department of Housing and Community Development that stated that 3550 Fourth Street was a “vacant” lot to be used for the “storage of licensed and unlicensed vehicles“, when, in fact, according to Officer Schultz and Sergeant Proctor, 3550 Fourth Street was actually a “grass lawn which abutted a home.” As a result, they argued, the vehicles were stored in violation of unspecified zoning regulations, permitting the City, pursuant to Article 31, Section 31-8(d)(2) of the Baltimore City Code,17 to tow the vehicles. Officer Schultz and Sergeant Proctor urged, finally, that they were entitled to “qualified immunity“, because, they argued, they did not violate any clearly established statutory or constitutional rights.18
Dehn Motor failed to file a response within the time set forth in the scheduling order in the case. Rather, when Dehn Motor filed its opposition on the day before the motions hearing, the Circuit Court judge struck the pleading. Judge Cannon also denied Dehn Motor‘s motion for summary judgment, but granted Sergeant Proctor‘s and Officer Schultz‘s joint motion for summary judgment.
In granting Sergeant Proctor‘s and Officer Schultz‘s motion for summary judgment, Judge Cannon concluded that the State constitutional claims were barred by the Local Government Tort Claims Act, reasoning that the filing of the replevin action did not constitute substantial compliance with the notice requirement, because it did not put the City on notice that a claim would be filed against the police officers for money damages:19
I am going to grant the defendants’ motion for summary judgment for several reasons. For one, plaintiff did not comply with
Section 5-304 of the Local Government Tort Claims Act . The filing of the replevin action against the City and the other individuals was not notice to anyone, certainly at all that there wasa claim against these two officers, a claim for money damages. It just simply—it does not work as a claim for that at all. And so there‘s no way that that filing of that answer, that could be working as substantial compliance.
Turning to the federal constitutional claims, the Circuit Court judge concluded that Officer Schultz and Sergeant Proctor were entitled to summary judgment because they had qualified immunity, as they were acting pursuant to various provisions of the Baltimore City Code:
I‘m not convinced that a claim has been stated. I mean what—again, and I don‘t have anything that—that addresses this from the other side.
I mean what the—what the officers have proffered and testified, I proffered they testified. And this is the evidence now, of course, that they were acting under the provisions of the City Code. The articles that were cited of the City Code are Article 19, Section 50-11, which talks about removing cars that are obstructing the passageways of streets, lanes, or alleys, Article 31, Section 31-6 which talks about that a person can‘t use a city street to park, stop, store, operate a car in such a way as to obstruct or impede the free flow of traffic. Now, I think that in fairness this would not apply, because the determination by the commissioner such a vehicle is actually obstructing traffic shall be considered prima facie evidence of a violation.
I don‘t know if that determination—it doesn‘t say a determination needs to be made in advance. But there are other sections, Article 31, Section 6-3 which talks about obstructing free passage.
And Article, I guess it‘s Section—oh, same section, 50-2 which talks about it also. And this may not have been the best way to go about doing it. And also this article—there‘s another one—Article 31, Section 31-8. I mean there‘s all of these articles.
And again, there‘s nothing—there‘s been no response that has addressed either one of those in any way, shape, or form to say that the Court should disregard that.
So I mean and I went through, and as far as I figured out, it‘s not saying that each one of them applied. But there‘s enough that‘s involved that it certainly raised it to qualified immunity, I mean to show that it was not clearly established.
She expressly declined, however, to determine that the police officers were acting as “community caretakers” that justified the warrantless seizure of the vehicles. The Circuit Court judge subsequently entered a written order in which she granted summary judgment in favor of Officer Schultz and Sergeant Proctor.20
Dehn Motor, thereafter, noted a timely appeal to the Court of Special Appeals, challenging the propriety of the trial court‘s decision to grant summary judgment. In a reported opinion, the Court of Special Appeals affirmed. Dehn Motor Sales, LLC v. Schultz, 212 Md.App. 374, 69 A.3d 61 (2013). The court first concluded
Our intermediate appellate court also concluded, with respect to the federal claims, that the Circuit Court did not err in granting summary judgment on the grounds that Sergeant Proctor and Officer Schultz were acting in accordance with the Baltimore City Code, because Dehn Motor had failed to address the argument:
Nonetheless, at the hearing on the parties’ cross-motions for summary judgment, the court asked Dehn Motor‘s counsel what his response was to the officers’ reliance on the Baltimore City Code in their joint motion, but no response specifically addressing that query was forthcoming. In the absence of a response, the circuit court found that the officers “were acting under the provisions of the City Code” when they towed the vehicles in question.
The code provisions cited by the officers prohibited the obstruction of streets and alleys, authorized the towing of obstructing vehicles, and permitted the removal of vehicles stored on private property in violation of zoning laws. Given the failure of Dehn Motor to dispute the officers’ claim that they acted pursuant to the Baltimore City Code, the circuit court did not err in granting summary judgment as to Dehn Motor‘s Fourth and Fourteenth Amendment claims.
Id. at 390, 69 A.3d at 71 (footnotes omitted). The intermediate appellate court reasoned, alternatively, unlike the trial court, that the police officers’ actions did not violate the Fourth Amendment, because of its conclusion that Officer Schultz and Sergeant Proctor “were acting as community caretakers when they had Dehn Motor‘s vehicles towed. Their purpose in doing so, as the undisputed facts showed, was to safeguard the community from the immediate and significant fire and chemical hazards that the cars posed.” Id. at 391, 69 A.3d at 71-72. The Court of Special Appeals, finally, affirmed the judgment of the Circuit Court on the grounds that the officers were entitled to qualified immunity, reasoning that, Dehn Motor had failed to cite any “cases remotely suggest[ing] that officers must obtain a warrant or court order before towing vehicles that pose a danger to the community.” Id. at 396, 69 A.3d at 73.
We begin by addressing whether Dehn Motor‘s claims are barred by the notice provision of the Local Government Tort Claims Act. The Local Government Tort Claims Act, codified at
(b) When government liable.—(1) Except as provided in subsection (c) of this section, a local government shall be liable for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government.
(2) A local government may not assert governmental or sovereign immunity to avoid the duty to defend or indemnify an employee established in this subsection.
One of the necessary conditions to maintaining an action under the LGTCA is notice.
(b) Notice required.—Except as provided in subsections (a) and (d) of this section, an action for unliquidated dam-
ages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 180 days after the injury.
(c) Manner of giving notice.—(1) Except in Anne Arundel County, Baltimore County, Harford County, and Prince George‘s County, the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county commissioner, county council, or corporate authorities of a defendant local government, or:
- In Baltimore City, to the City Solicitor;
- In Howard County, to the County Executive; and
- In Montgomery County, to the County Executive.
(2) In Anne Arundel County, Baltimore County, Harford County, and Prince George‘s County, the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county solicitor or county attorney.
(3) The notice shall be in writing and shall state the time, place, and cause of the injury.
The notice requirement serves the purpose of apprising a local government “of its possible liability at a time when it could conduct its own investigation, i.e., while the evidence was still fresh and the recollection of the witnesses was undiminished by time, sufficient to ascertain the character and extent of the injury and its responsibility in connection with it.” Rios v. Montgomery Cnty., 386 Md. 104, 126, 872 A.2d 1, 14 (2005) (internal citations and quotations omitted). Filing notice is a
The failure to precisely conform with the statutory rubric has not necessarily barred a claimant‘s action, however. In Jackson v. Board of County Commissioners of Anne Arundel County, 233 Md. 164, 195 A.2d 693 (1963), in which we interpreted a predecessor statute to
In Jackson, the Petitioner, Ms. Jackson, who was an injured passenger in an automobile accident allegedly caused by a county employee operating a dump truck, through her attorney, “sent a letter by ordinary mail to the County Commissioners of Anne Arundel County“, which stated the time, place and cause of her injuries, providing:
We represent Phyllis and William A. Jackson, Jr., and their collision insurance carrier, Interstate Insurance Company, in a claim for damages against Anne Arundel County Public Works arising out of a collision occurring on January 18, 1962, at Solley Road and Powhatan Beach Road with a County Roads truck operated by Joseph Frank Havranek.
“Please contact us promptly or if you carry liability insurance, have your insurance carrier contact us concerning payment of our claim.”
Id. at 166-67, 195 A.2d at 694-95. After summary judgment had been granted in favor of Anne Arundel County by the trial court, we reversed, rejecting the local government‘s argument that the claim was barred for failure to comply with the notice requirement. We observed that Anne Arundel County had actually received the letter so that the purpose of the statute was served, that being that “the claimant furnish the municipal body with sufficient information to permit it to make an investigation in due time, sufficient to ascertain the character and extent of the injury and its responsibility in connection with it.” Id. at 167, 195 A.2d at 695. Examining what we described as the “great weight of authority” from our sister jurisdictions, we determined that “[i]f the purpose of the statute[] is fulfilled, the manner of the accomplishment of the fulfillment has not generally been tested too technically.” Id. at 168, 195 A.2d at 695. Accordingly, we concluded that Ms. Jackson had substantially complied with the notice requirement.
Since Jackson, we have had occasion to explore the parameters of the substantial compliance doctrine. In Faulk v. Ewing, 371 Md. 284, 808 A.2d 1262 (2002), we concluded that a claimant who had been injured in a motor vehicle accident by an employee of the Town of Easton, and thereafter, had sent a letter detailing that injury and an expectation of compensation to a private insurance company, which provided
In Smith v. Danielczyk, 400 Md. 98, 928 A.2d 795 (2007), the claimant filed suit against members of the Baltimore City Police Department within 180 days of the alleged injury. After the City complained it had not received a notice of claim, the claimant sent a separate written notice of claim to the City, prior to the expiration of the 180-day window for filing the notice. The police officers who had been sued moved to dismiss the complaint, alleging that the claimants had not complied with the notice requirement. The Circuit Court judge dismissed the complaint and we reversed, concluding that, because the filing of the complaint and notice both occurred within the relevant 180-day window, the City had been informed of the necessary facts to conduct a proper investigation.
Substantial compliance, however, was not found in Ellis v. Housing Authority of Baltimore City, 436 Md. 331, 82 A.3d 161 (2013),25 involving a negligence claim brought against the Housing Authority of Baltimore City by one of the Petitioners, Tyairra Johnson, who had allegedly contracted lead-paint poisoning as a result of residing in housing owned and operated by the Housing Authority. Ms. Johnson‘s mother had orally complained to a Housing Authority property manager about chipping paint and threatened to sue the Housing Authority if the condition was not abated. The Circuit Court for Baltimore City granted summary judgment in favor of the Housing Authority, concluding that the mother‘s actions did not constitute substantial compliance with the notice requirement of the Local Government Tort Claims Act. We affirmed the judgment of the Circuit Court, agreeing that the oral threat to sue the Housing Authority as a result of the chipping and peeling paint was inadequate to constitute substantial compliance. In so concluding, we reasoned that the oral threat did not indicate, implicitly or otherwise, that a lead paint action seeking compensatory damages was forthcoming, but rather, threatened only a suit more akin to a landlord-tenant action in which the only relief sought was remediation of the chipping paint:
First, Johnson‘s mother threatened to sue HABC if it did not fix the chipping paint; thus, Johnson‘s mother essentially advised that the threatened action against HABC would be a landlord-tenant action (in which Johnson‘s mother sought that HABC fix the chipping paint), not a lead paint action (in which Johnson sought damages for her alleged injury resulting from exposure to lead paint). Simply
put, through her alleged oral complaint, Johnson‘s mother neither explicitly nor implicitly indicated that she intended to sue HABC regarding any injury. A plaintiff does not substantially comply with the LGTCA notice requirement where the plaintiff demands that a local government fix a defect, but neither explicitly nor implicitly indicates that the plaintiff intends to sue the local government regarding an injury resulting from the defect
Id. at 345, 82 A.3d at 169 (emphasis added). We further iterated that a plaintiff does not provide the requisite notice “where the plaintiff simply demands that the local government fix a defect.” Id. at 346 n. 8, 82 A.3d at 169 n. 8.
In Ellis, we relied upon the Court of Special Appeals‘s opinion in Halloran v. Montgomery County Department of Public Works, 185 Md.App. 171, 968 A.2d 1104 (2009), in which the appellant, Karen Halloran, wrote a letter to the Montgomery County Department of Public Works and Transportation, in which she detailed the date, time, and cause of her injury; stated the amount of time she missed at work; provided pictures of her injured ankle; and requested that the “pavement [be] repaired immediately to make the concave area flush with the rest of the roadway.” Id. at 178, 968 A.2d at 1109. The letter, according to the Court of Special Appeals, did not constitute substantial compliance, because “[n]owhere in the letter did Halloran state that she had a ‘claim’ against the County” and thus, “the County had no reason to, and did not in fact, start ‘an investigation into a tort claim for damages involv[ing] ... legal defenses, the nature and extent of the actual injuries sustained, the causal relationship of the injuries to the alleged misconduct, the likelihood of an award of compensatory and/or punitive damages, the necessity and cost of expert testimony, and litigation strategy.‘” Id. at 187–88, 968 A.2d at 1114, quoting Wilbon v. Hunsicker, 172 Md.App. 181, 204, 913 A.2d 678, 692 (2006).
In the instant case, Dehn Motor does not contest that it had not sent a letter by certified mail to the Baltimore City Solicitor‘s office advising the City of its claims against Sergeant Proctor and Officer Schultz, but contends that the filing of its replevin action in District Court fulfilled the purpose of the Local Government Tort Claims Act notice requirement. Not only did the City Solicitor defend the replevin claim, Dehn Motor claims, but it further asserts that the replevin action set forth “the time, place and cause of injury“, and was litigated for almost three years. Dehn Motor concludes, therefore, that the City “had ample time to do the normal investigatory work to protect its interests and those of its employees.”
Officer Schultz and Sergeant Proctor, of course, disagree, because they were not named in the replevin action, and therefore, “there was no indication that Dehn Motor would assert constitutional claims, or any claims at all, against Proctor and Schultz.” They further argue that the replevin action could “neither address the manner in which property was seized, nor adjudicate complex issues of constitutional magnitude“, and thus, “did not forewarn, as a notice of claim must, that an action for unliquidated damages may follow.” The Circuit Court and the Court of Special Appeals both accepted this argument, concluding that the replevin complaint did not warn the City of a future suit for unliquidated damages, and moreover, did not identify Officer Schultz and Sergeant Proctor as potential parties. We agree with our sister courts that the replevin action did not act as substantial compliance, but do so on the basis that the replevin action
The replevin action filed in the District Court differed substantially from the constitutional tort claims filed against Officer Schultz and Sergeant Proctor in the Circuit Court. In a replevin action, a party seeks basically to recover specific goods and chattels to which he or she asserts an entitlement to possession. See Wallander v. Barnes, 341 Md. 553, 561, 671 A.2d 962, 966 (1996). “[W]hoever is entitled to possession, whatever may be his title in other respects, may maintain or defeat the action of replevin; his right to success in the action of replevin depends entirely on his right to possession.” Shorter v. Dail, 122 Md. 101, 104, 89 A. 329, 330 (1913).
To prevail under any claim alleging violations of Maryland constitutional rights, however, proof must be adduced:
- That the defendant-officer engaged in activity that violated a right protected under the Maryland Constitution; and
- The defendant-officer engaged in such activity with actual malice toward the plaintiff.
Paul Mark Sandler and James K. Archibald, Pleading Causes of Action in Maryland 538 (5th ed. 2013). Specifically, under
As we explained in Ellis, to substantially comply with the notice requirement, a claimant must provide some indication, either explicitly or implicitly, that a subsequent suit for unliquidated damages will follow. The replevin action did not do so. Rather, by filing a replevin complaint, Dehn Motor communicated to the City that it sought return of the vehicles and loss-of-use damages. The replevin action, thus, was much like the threat of a landlord-tenant action seeking remediation of chipping paint that we concluded was inadequate to constitute substantial compliance in Ellis; effectively, by filing the replevin complaint, Dehn Motor “demanded that the local government fix ...” a problem by returning the vehicles and making it whole through loss-of-use damages. See Ellis, 436 Md. at 345, 82 A.3d at 169.
Due to the narrow relief sought through the replevin action, the City had only reason to research the fact that cars had been removed and what use had been lost. It did not have any reason to investigate whether “actual malice” was in issue as well as the process afforded to Dehn Motor, all of which are crucial aspects of the constitutional tort claims asserted in the Circuit Court. In sum, as the Court of Special Appeals aptly described in Halloran, only asking for return of the vehicles did not put the City on notice to “start an
Having determined that the State law claims are barred by the Local Government Tort Claims Act, we turn now to the federal constitutional claims asserted pursuant to
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer‘s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Judge Cannon concluded that the officers were entitled to qualified immunity because of various provisions of the Baltimore City Code, which, she reasoned, may not have necessarily authorized the towing, but were sufficient to support such a finding. The Court of Special Appeals concluded that the federal claims were barred for three separate reasons—the community caretaking function justified the seizure of the vehicles, the Baltimore City Code authorized the towing, and the police officers did not violate any clearly established law, and therefore, were entitled to qualified immunity. We agree that Officer Schultz and Sergeant Proctor were entitled to qualified immunity and explain
Qualified immunity is a doctrine mired in federal law: “[m]ost public officials carry out executive and administrative functions for which they enjoy qualified immunity from personal liability for money damages.” Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Claims and Defenses, 338 (3d ed. 1997). The qualified immunity doctrine protects public officials from “personal monetary liability so long as their actions do not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known” and its application “turns on the objective legal reasonableness of the official‘s conduct.” Id. (alteration in original) (quotation, citations and footnotes omitted).
In Harlow v. Fitzgerald, 457 U.S. 800, 813, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396, 407 (1982),30 the United States Supreme Court determined that a former executive aide to President Nixon was entitled to qualified immunity, rather than absolute immunity, from constitutional Bivens claims31 asserted by an employee who had been terminated by the Department of the Air Force, according to the Court. In determining that the aide was entitled to qualified immunity, the Court explained the competing interests that the qualified immunity doctrine seeks to serve. See id. at 813-14, 102 S.Ct. at 2736, 73 L.Ed.2d at 407-08. On the one hand, civil actions may be the only recourse to vindicate violations of constitutional rights; on the other hand, such actions impose a number of burdens on government officials, including the expense of litigation and diversion of time from an official‘s public duties. Id. at 814, 102 S.Ct. at 2736, 73 L.Ed.2d at 407-08. Likewise, a civil suit may inhibit a public official from executing his or her job, because of fear of being sued:
In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees. Butz v. Economou, supra [438 U.S.], at 506, 98 S.Ct. [2894] at 2910 [57 L.Ed.2d 895 (1978)]; see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. at 410, 91 S.Ct. at 2011 (“For people in Bivens’ shoes, it is damages or nothing“). It is this recognition that has required the denial of absolute immunity to most public officers. At the same time, however, it cannot be disputed seriously that claims frequently run against the innocent as well as the guilty—at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will “dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579, 581 (C.A.2 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).
Id. To address these competing values, the Court announced an objective legal reasonableness standard, by which an official is entitled to immunity from suit if her conduct was reasonable in light of established constitutional and statutory law; “government officials performing discretionary functions generally are shielded 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.” Id. at 818, 102 S.Ct. at 2738, 73 L.Ed.2d at 410.32 Accordingly, even if a court determines that the conduct violated constitutional norms, if the unconstitutionality of the conduct was not “clearly established” at the time the official engaged in such conduct, the official is entitled to immunity from suit. See id. at 818, 102 S.Ct. at 2738, 73 L.Ed.2d at 410-11.
Because one of the goals of the qualified immunity defense is to limit the financial and time burdens attendant to a law suit, the Court has iterated that qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation” or “immunity from suit” itself, Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411, 425 (1985) (emphasis in original), so that the Supreme Court has “stressed the importance of resolving immunity questions at the earliest possible stage in litigation,” such as summary judgment. Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589, 595 (1991).
The gravamen of a qualified immunity analysis is whether the government official‘s conduct is reasonable in light of the state of the law in existence at the time of the conduct. See, e.g., Pearson v. Callahan, 555 U.S. 223, 244, 129 S.Ct. 808, 822, 172 L.Ed.2d 565, 580-81 (2009). Accordingly, when statutory law expressly authorizes the government actor‘s conduct, qualified immunity is generally appropriate. Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288, 295 (1967) (noting that a police officer would be “excus[ed] from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional on its face or as applied“)33; accord Swanson v. Powers, 937 F.2d 965, 969 (4th Cir.1991) (“Reliance upon the presumptive validity of state law may be ‘the paradigm’ of objectively reasonable conduct that the grant of immunity was designed to protect.“).
Should a government official have acted in contravention of “clearly established” statutory or constitutional rights, however, qualified immunity is not afforded. See Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817, 86 L.Ed.2d at 428; see, e.g., Hope v. Pelzer, 536 U.S. 730, 741-42, 122 S.Ct. 2508, 2516, 153 L.Ed.2d 666, 679-80 (2002) (concluding that prison guards who twice handcuffed a prisoner to a “hitching post” for disruptive conduct were not entitled to qualified immunity from claims asserted under
In the sarcomere between law expressly authorizing an act and that which would prohibit that act, the Supreme Court has, on a case-by-case basis, generally afforded qualified im-munity to government officials in both
Similarly, in Pearson, 555 U.S. at 227-28, 129 S.Ct. at 813, 172 L.Ed.2d at 570-71, in an undercover sting operation, police officers arrested the respondent, Alton Callahan, inside of his home and searched his home incident to arrest after he attempted to sell methamphetamine to a police informant. Callahan filed a
In another
In considering just where on the spectrum of qualified immunity the government official‘s actions have fallen, particularly in the context of alleged Fourth Amendment violations, the Supreme Court has recognized that consideration must be given to the factual circumstances the official confronted. Anderson v. Creighton, 483 U.S. 635, 640-41, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523, 531 (1987). In Anderson, a federal agent, Russell Anderson, conducted a warrantless search of the Creighton family home in search of a man suspected of committing a bank robbery. Id. at 637, 107 S.Ct. at 3037, 97 L.Ed.2d at 529. The Creightons, thereafter, filed a Bivens action against Anderson asserting a violation of their
Not surprisingly, in the instant case, the parties assert that the conduct in issue falls at different points on the qualified immunity spectrum. Officer Schultz and Sergeant Proctor not only assert that the Baltimore City Code affirmatively authorized their conduct, but they also contend that there is no clearly established law prohibiting “the seizure of vehicles when the vehicles are illegally parked and present multiple dangers to the environment and public safety.” Dehn Motor disagrees, arguing that the Baltimore City Code did not authorize the towing, and instead, takes the position that pursuant to Duncan v. State, 281 Md. 247, 378 A.2d 1108 (1977); Huemmer v. Mayor and City Council of Ocean City, 632 F.2d 371 (4th Cir.1980); and Associates Commercial Corp. v. Wood, 22 F.Supp.2d 502, 504 (D.Md.1998), “[i]t strains credulity that two police officers, presumably trained in the constitutional rights afforded under the
Judge Cannon concluded that the Officers’ actions fell in the sarcomere between law which expressly authorized the officers’ conduct and that which affirmatively prohibited it. While she referenced various Baltimore City Ordinances,34 she stated that she was not concluding that “each one of them applied.” Earlier in the hearing, she also stated that counsel for Dehn Motor had not directed her to any law “that says that a car can‘t be towed without a warrant.”
As the Supreme Court dictated in Anderson, to analyze a qualified immunity defense, we must consider the circumstances with which the officers were confronted. Anderson, 483 U.S. at 640-41, 107 S.Ct. at 3039, 97 L.Ed.2d at 531. Viewing the facts in a light most favorable to the nonmoving party, as we must on a motion for summary judgment, Jones v. Mid-Atl. Funding Co., 362 Md. 661, 667, 766 A.2d 617, 620 (2001), we note that both officers testified in their deposition that the vehicles were towed because they were illegally parked on the street and because the vehicles parked on the Dehn Motor lots posed environmental and fire hazards, as they were leaking fluids into the ground.35
Taking into consideration the circumstances about which the officers testified that they confronted and the absence of
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONERS.
96 A.3d 245
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, Petitioner
v.
Anthony Maurice HARMON, Respondent.
Misc. Docket AG, No. 79, Sept. Term, 2013.
Court of Appeals of Maryland.
July 24, 2014.
ORDER
Upon consideration of the Joint Petition for Disbarment by Consent filed herein and pursuant to Maryland Rule 16-772, it is this 24th day of July, 2014,
ORDERED by the Court of Appeals of Maryland that Anthony Maurice Harmon, be, and he is hereby, disbarred by consent from the further practice of law in the State of Maryland; and it is further
ORDERED, that the Clerk of this Court shall remove the name of Anthony Maurice Harmon from the register of attorneys in the Court and certify that fact to the Client Protection
Notes
(b) Notice required.—(1) Except as provided in subsections (a) and (d) of this section, an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 180 days after the injury.
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(3) The notice shall be in writing and shall state the time, place, and cause of the injury.
All references to the Maryland Code are to the Courts and Judicial Proceedings Article, Maryland Code (1974, 2006 Repl.Vol., 2008 Supp.), unless otherwise noted.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer‘s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land.
That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.
That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
While I suspect I‘ll hear more of that discussion in a moment, as to this, the court does not find that the city has indicated where there has been substantial harm to it in its ability to in fact properly prepare the case.
The court does note, if you would please, is that under the circumstances is that the activity and circumstances of the initiation of the claim, the aggravated circumstance, if you will, as to the calling of the tow trucks and the taking of the cars, were clearly notified as to potential defendants as to what plaintiffs’ actions may be, albeit if the initial—or initial action of plaintiff was in a replevin action; that under the circumstances the court does believe that there was substantial notice given the parties and that there was substantial compliance.
Judge Evelyn Omega Cannon concluded otherwise, however, when she granted Sergeant Proctor‘s and Officer Schultz‘s joint motion for summary judgment.
Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of
police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.Id. at 441, 93 S.Ct. at 2528, 37 L.Ed.2d at 714-15 (emphasis added). In Wilson v. State, 409 Md. 415, 435, 975 A.2d 877, 888 (2009), in which we embraced the community caretaking doctrine, we described its function, in part, as “as a general public welfare rule or what is sometimes known as the ‘public servant’ exception. When the police act to protect the public in a manner outside their normal law enforcement function, many courts have applied the doctrine to validate many warrantless searches and seizures, and in a variety of circumstances.”
(a) Prohibited conduct.
Except as specifically provided in this section, no person may in any manner obstruct any street, lane, sidewalk, footway, or alley in the City or any of their gutters.
The vehicle is deemed abandoned and may be towed or otherwise removed, as provided for vehicles found abandoned on public property, if:
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(iii) the storage of the vehicle is in violation of the zoning laws or regulations of the City.
No action shall be maintained and no claim shall be allowed ... for unliquidated damages for any injury or damage to person or property unless ... written notice thereof setting forth the time, place or cause of the alleged damage, loss, injury or death shall be presented ... to the county commissioners....
Prior to Harlow v. Fitzgerald, the civil rights claim under