MEMORANDUM
Before the Court is a Motion for Summary Judgment, ECF No. 78, filed by Defendant Officer William Scott Kern and a Motion for Summary Judgment filed by Defendants Officer Efren Edwards and Major Eric Russell. ECF No. 86. The motio'ns are ripe. Upon a review of the pleadings and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, and Officer Kern’s Motion will be granted in part and denied in part, and Major Russell and Officer Edwards’ Motion will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a well-publicized shooting incident that occurred during a police training exercise in Baltimore County, Maryland.
The goal of the training—conducted by Officers Kern and Edwards in their capacity as Safety Officers—was to teach handling of police shields, known as bunkers, through replication of real-life scenarios using ’simulation firearms. The simulation firearm—or simunition—used in" this training was a pistol that was meant to recreate the feel and operation of a standard-issue Glock .22, was marked' with a blue handle, and fired non-léthal ammunition. Nonetheless, because simunition ammunition is capable of causing bodily injury, as a matter of policy, any participant in training involving simunition weapons is required to wear protective gear around
While simunition weapons were in use during training, live weapons were prohibited from the training site. Despite this prohibition, Officer Kern and Officer Edwards discussed in advance that each were to take turns carrying an unloaded sеrvice weapon.
Officer Kern stored his live weapon in an off-duty holster around his waist and placed the simunitions weapon in his pocket. Both the live weapon and the simunitions weapon were kept on Officer Kern’s dominant right hand side. Officer Kern unholstered his live weapon twice during the training before the incident in question. He first demonstrated how an officer knows that his service wéapon is empty of ammunition, in response to a trainee question. Then, in the afternoon, he used his live weapon to demonstrate how to load a weapon with one hand while holding a bunker. A trainee pointed out to Officer Kern that he was using his live weapon and not the simunitions weapon. Officer Kern apologized and said that he grabbed the live weapon from “muscle memory.”
After lunch, Officer Kern was conducting bunker training with three trainees inside a gymnasium. Mr. Gray stood with other trainees in a hallway outside the gymnasium while waiting to take a turn in the training exercise lead by Officer Kern. The gymnasium and the.hallway were separated by a closed door. The closed door was wooden and had a window through which Officer Kern could see Mr, Gray and the other trainees milling about while they waited. The site of the idling trainees reminded Officer Kem of the danger of “fatal funnels,” or doorways, hallways, stairways, and windows that can present a unique risk of attack to police officers.
Although the concept of “fatal funnels” was not an element of that day’s bunker training,
Officer Kern fired the weapon. Upon firing,. Officer Kern realized that he had discharged his live weapon and not the simunitions weapon. The bullet from his live weapon' traveled through the glass window of the door
Mr. Gray, joined by his wife Sheri Gray, subsequently filed a Complaint in the Circuit Court for Baltimore City on June 14, 2013, against Officer Kern, Major Russell, Officer Edwards, BPD Commissioner .Anthony Batts, the BPD, the Mayor and City Council of Baltimore City, Baltimore County, and the Baltimore County Police Department.
II. LEGAL STANDARDS
Summary judgment is appropriate if the record before the court “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
Ill DISCUSSION
A. Officer Kern’s Motion for Summary Judgment
a. Plaintiffs’Claims of Negligence and Ch'oss Negligence
i. Negligence
Plaintiffs bring claims that sound in negligence, (Count VII) and gross negligence (Count VI). As to the negligence claim, Officer Kern asserts that as a public official acting in a discretionary capacity, he is immune from claims of negligence. Further, as to gross negligence, Officer Kern reasserts that his conduct was not so reckless as to rise to liability. Plaintiffs counter that not only was Officer Kern acting recklessly to rise to the level of gross negligence, he acted with malice such that he is not protected from their negligence claim by the doctrine of sovereign immunity. In the alternative, Plaintiffs argue that immunity does not apply as Officer Kern had a special relationship to Mr. Gray.
Officer Kern claims immunity from judgment on Plaintiffs’ claim of negligence under a common law theory of public official immunity. In order for public official immunity to apply, “the following independent factors must simultaneously exist: (1) the individual actor ... is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties.... [I]n the absence of malice, the individual involved is free from liability.” James v. Prince George’s Cnty.,
Common law public official immunity, however, is not inviolable. Plaintiffs make two arguments to defeat Officer Kern’s immunity: that Office Kern acted with malice and that a special rеlationship existed between Officer Kern and Mr. Gray. Immunity will not be available to a public official if he acted with actual malice. Thomas v. City of Annapolis,
The Plaintiffs argue that the factual record supports- a conclusion that Officer Kern’s conduct rises to the level of actual malice. Particularly, Plaintiffs point to Officer Kern’s duplicitоus affirmative answers when Officer Edwards asked throughout the day if he conducted a safety check as well as Officer Kern’s reluctance to hand over his weapon after the shooting. ECF 79-1 at 22. While this evidence points to Officer Kern’s reckless disregard for safety and lack of excuse or legal justification in engaging in the conduct under review, it does not give rise to the inference of “evil” conduct propelled by a “rancorous motive.” See Shoemaker v. Smith,
Plaintiffs’ proffered evidence is not legally sufficient to allow a trier of fact to conclude that Officer Kern maliciously and willfully targeted Mr. Gray when he shot his live weapon at the door. Cf. Hines v. French,
Nor will Plaintiffs’ alternative argument regarding'a “special relationship” between Officer Kern and Mr. Gray succeed in defeating Officer Kern’s public official immunity. Plaintiffs argue that “Officer Kern’s assertion that he carried his loaded service weapon that day out of an obligation to ensure the safety of himself and others during a training exercise established the existence of a special relationship with Plaintiff Gray.” ECF No. 79-1 at 22. Officer Kern counters that “[although [he] took affirmative steps to protect the trainees, Officer Edwards, and himself by continuing to wear his live service weapon in the unsecured training facility, [he] did not make any affirmative promise to Plaintiff-or any of the trainees that he would protect him.” ECF No. 82 at 6.
Here, the parties debate whether Officer Kern’s conduct created an affirmative duty to protect -Mr. Gray from harm. That argument, however, is'immaterial in the absence of a third person. When a special relationship exists, the duty to protect another-from harm is to protect another from harm by third persons.' Mr.' Gray was injured directly by Officer Kern, not a third party despite, an obligation by Officer Kern to Mr. Gray to protect him from that third party. As the ¡tort was allegedly directly committed by Officer Kern against Mr. Gray, the doctrine-of “special relationship” will not apply against Officer Kern’s claim of public official immunity. Accordingly, judgment on Plaintiffs’ negligence claim will be granted in favor,of Officer Kern and against Plaintiffs on the grounds of immunity.
ii. Gross Negligence
Gross negligence' is “something more than simple negligence and likely more akin to reckless conduct.” Taylor v. Harford Cnty. Dep’t of Soc. Servs.,
an intentional failure to perform a manifest duty in reekléss disregard of the consequences as affecting the life . of another, arid also implies a thoughtless disregard to the consequences without the exertion of any effort to avoid them. Stated conversely, 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.
Marriott Corp. v. Chesapeake & Potomac Telephone Co. of Md.,
Here, the facts are not “so clear” as to support Officer Kern’s position that they are insufficient to support a conclusion that his conduct constituted gross negligence. Officer Kern makes three fact-based arguments in support of his position that his acts or omissions did not rise to the level of reckless conduct: (1) that he did not knowingly point his live weapon at Mr. Gray, distinguishing his conduct from other cases before Maryland courts; (2) that the simunitions weapon he meant to use is essentially harmless; and (3) that the simunitions and live weapons were so similar that a reasonable officer would not have been able to tell the difference between the two. The facts underlying these arguments, however, could equally support a jury’s conclusion that Officer Kern’s conduct recklessly disregarded the risk of serious injury and warrant a finding of gross negligence.
Officer Kern repeats in varying language that his conduct was not reckless and did not evince a conscious disregard for serious risk to others because “Officer Kern, or a reasonable officer in his position, would not think that firing a simunitions round at a door would cause any harm, much less death or serious injury.” ECF No. 78-1 at 9. A finder of fact, taking
everything submitted in favor of Plaintiffs as the nonmoving party, is not required to make such a conclusion, especially when considering that Officer Kern fired at the window, not the door, and noting that trainees are required to wear extra protective gear when using simunitions. Even if a fact-finder were to accept Officer Kern’s premise that a simunitions weapon was entirely harmless, that would not preclude a conclusion that Officer Kern consciously disregarded the risk of his actions. Given the lethal capabilities of a service weapon, a finder of fact could conclude that Officer Kern consciously disregarded the risk in keeping it in close proximity to his simunitions weapon.
Officer Kern argues “[d]ue to the simunitions gun and [the] live service weapon having identical weights, feeling the same in his hand, and looking nearly identical ... given that his hands were wrapped around the only obvious external differencе ... Officer Kern had no idea that he was firing his actual service weapon.” ECF No. 78-1 at 9. Kern further states that “adding further credibility to the lack of gross negligence is the fact that there is very little difference between the simunitions device and the five service weapon.” Id. He ultimately concludes that he “reasonably could not immediately tell he was holding the ‘wrong weapon’ ” and “could not tell he had withdrawn the ‘wrong’ weapon until it was too late.” Id. A finder of.fact could, from the underlying facts, conclude that the highly similar look and feel of the two weapons supports a finding of gross negligence considering that Officer Kern failed to take steps to sufficiently distinguish the two, and failed to exert any
Officer Kern places great weight in the fact that he did not “know” he had pulled and shot his live weapon rather than his simunitions weapon. In particular, Officer Kern points to Moulden v. State,
In Moulden, the defendant’s conviction for criminal recklessness was overturned on the ground that his act of brandishing and pointing a fake or inoperable firearm at another could not éupport a finding that he created a “substantial risk of death or serious physical injury to another.”
Ultimately, Officer Kern argues that key elements of the day were out of his control, such that he was compelled to carry his weapon to ensure that all present at the Rosewood facility were safe. Setting aside the question of whether reckless conduct equates with choosing to carry a live weapon to training in response to elements out of one’s control despite violating protocol and ignoring the recommendation of a fellow officer, Officer Kern was completely in control of the elements and decisions that directly led to Mr. Grajos injury. Officer Kern was in control of the placement of his live weapon and his simunition weapon, choosing to place both on his strong
From this volitional conduct and active decision making, a jury may conclude'that Officer Kern’s conduct was “so utterly indifferent” to the rights of Mr. Gray that he acted “as if such rights did not exist.” To conclude that Officer Kern' is entitled to judgment as a matter of law would be to conclude that a “reasonable police officer similarly situated” could act no other way than Officer Kern did. Such a conclusion is untenable., in the presence of facts that permit the conclusion that Officer Kern violated well-established safety protocol, failed’ to take preventive measures to preserve the well-being and safety of trainees, and decided to point and shoot a weapon— real or simunition—at the head of a trainee without a proper purpose. Officer Kern’s motion for summary judgment as to gross negligence will be denied.
b. Plaintiffs’ Intentional Tort Claims
Officer Kern argues that, because he believed he drew his simunitions weapon to “remind the Plaintiff and the other recruits to keep out of a dangerous area that could lead to harm in the future” he did not have .the requisite intent to sustain Plaintiffs’ intentional tort claims of-False Imprisonment (Count I), Assault (Count III), and Battery (Count IV). ECF No. 78-1 at 10. Plaintiffs counter that there are sufficient facts from which a jury could conclude that Officer Kern acted intentionally and “the fact that Defendant Kern deviated from his authorized duties in conducting a training class to engage in a prohibited activity demonstrates- that he intended the consequences of his acts.” ECF-No. 79-1 at 14.
Liability for the tort of assault will lie when the defendant intentionally makes “an unlawful attempt to cause a harmful or offensive contact with the person of another or to cause an apprehension of such a contact.” Continental Cas. Co. v. Mirabile,
There are sufficient facts from which a fact-finder could conclude that Officer' Kern intended to place Mr. Gray in apprehension of harm or offensive contact when he fired at the door. Officer Kern’s stated reason for shooting at the door of the gymnasium was to “remind [the trainees] that ... [a fatal funnel] is an area in which you do not need to be. You need to learn to stay out of those areas, fatal funnels, at all times.” Kern Trial Test., ECF No. 78-3, 31:10-12. “Fatal funnels,” as the name implies, is a point of acute .danger for officers, where they may be ambushed and attacked, -or as Mr. Kern testified “those are the biggest areas that
Liability for the tort of false imprisonment will lie when there is some “direct restraint of the person..., Any exercise of force, or direct threat of force, by which in fact the other person is deprived of his liberty, compelled to remain where he does not wish to remain, or tо go where he does not wish to go, is an imprisonment.” Estate of Jones v. NMS Health Care of Hyattsville, LLC,
Liability for the tort of intentional infliction of emotional distress requires that “(1) the conduct must be intentional or reckless, (2) the conduct must be extreme and outrageous, (3) there must be a causal connection between the wrongful conduct and the emotional distress, and (4) the emotional distress must be severe.” Ford v. Douglas,
Conduct is deemed outrageous and extreme “only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Harris v. Jones,
Here, the Court concludes that reasonable jurors may differ as to whether Officer Kern’s conduct could be regarded as extreme and outrageous. Officer Kern was in a supervisory position over Mr. Gray and the other trainees, and was working in an environment in which safety and group cohesion was paramount. See Tyndall v. Berlin Fire Co.,
c. Plaintiffs’ Claims Under State and Federal Constitutions
Plaintiffs bring two counts under 42 U.S.C. § 1983 (Counts VIII and IX) along with a related Maryland constitutional claim (Count II). Although it is not
Plaintiffs argue that Officer Kern’s conduct constituted a seizure in violation of the Fourth Amendment, or, alternatively, the Fourteenth Amendment. Section 1983 provides “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be hable. ...” Section 1983, standing alone, does not provide substantive rights; rather, it is a “method for vindicating federal rights elsewhere conferred.” Baker v. McCollan,
Generally, courts are “reluctant to expand the concept of substantive due process.” Collins v. Harker Heights,
Here, the evidence does not support a conclusion that Officer Kern violated the Fourth Amendment’s prohibition on unreasonable seizures. A Fourth Amendment seizure occurs where a government actor has, “by means of physical force or show of authority, ... in some way restrained the liberty of a citizen.” Terry v. Ohio,
Moreover, even when viewed under the purview of substantive due process, judgment must still - be granted to Officer Kern. The Due Process Clause of the Fourteenth Amendment “protects a Set of interests—life, liberty, and property—that are also protected by state tort law.” Waybright v. Frederick Cnty., 528 F.3d 199, 204 (4th Cir.2008). It does not, however, “impose federal duties that are analogous to those traditionally imposed by state tort law,” Collins v. City of Harker Heights, 503 U.S. 115, 128-29,
Only the “most egregious official conduct can be said to be arbitrary in the constitutional sense” and thus run afoul of the substantive due process clause of the Fourteenth Amendment. Lewis,
Officer Kerris conduct can be considered reckless, wanton, thoughtless, and far below the expected conduct of an officer of the law. His conduct, howevei’, fails to rise to the necessary intent for a Fourteenth Amendment violation. Just as Officer Kerris stated—and again, undisputed—purpose of shooting in the direction of Mr. Gray was to alert Mr. Gray of his presence in a “fatal funnel” does not evince intent to seize, it also does not reveal an intent to injure Mr. Gray. And unlike assault and battery, where the intent to cause alarm can be imputed to the intent to cause harm, Officer Kerris intent cannot be stretched to fit the Fourteenth Amendment requirements. Accordingly, his conduct falls in the “uncertain middle ground” between mere negligence that never constitutes a Fourteenth Amendment violation and intentional conduct that may. See
The Court, cautioned as it is to “exercise utmost care” in considering an expansion of the applicability of the Fourteenth Amendment, Collins,
B. Major Russell and Officer Edwards’ Motion for Summary Judgment
Defendants Major Russell and Officer Edwards have moved for summary judgment on the grounds that there is no evidence showing (1) that either Defendant took an intentional. action to support a claim of assault, battery, "false imprisonment, or intentional infliction of emotional distress; (2) an intentional act of seizure or" force to support a claim under the Constitution or Maryland Declaration of Rights; and (3) a'failure to perform a manifest duty to support a claim of gross negligence. ECF No. 86-1 at 3. They also assert public official immunity against Plaintiffs’ claim- of negligence.
By choosing to focus their opposition on the conduct of Officer Kern, Plaintiffs essentially concede the point that there is no evidence of an intentional action by either Major Russell or Officer Edwards to support a finding of direct liability with regards to the intentional torts and constitutional claims. In particular, Plaintiffs focus on Officer Edwards and Major Russell’s characterization of the shooting as “accidental,” despite the fact that, the movants use the word “accidental” once in the opening sentence of their motion and base the substance of their arguments on their own conduct and not on the nature of Officer Kern’s actions. Plaintiffs’ assertion that once Officer Kern’s conduct is examined, “the rest of the co-defendants Edwards and Russell’s attack on the respective Counts crumbles like a house of cards,” ECF No. 88, is misplaced, as Plaintiffs fail to demonstrate any direct action on the part of Officer Edwards and Major Russell that contributed in any way to Officer Gray’s injuries. As such, summary judgment must be granted to Officer Edwards and Majоr Russell as to Counts I-V and Counts VIII-IX unless there is an alternate ground upon which to impose liability.
Plaintiffs do inconsistently assert various concepts of vicarious liability
Plaintiffs do not attempt to extend aider and abettor liability to Officer Russell. They do, however, cursorily make reference to the doctrine of respondeat superior when they state that “Defendant Russell would be liable under the supervisory liability for his seeming indifference to abuses by officers under his command.” ECF No. 88-1 at 19. Plaintiffs offer no argument as to the standards of vicarious liability or facts meeting those standards and therefore fail to establish a ground upon which vicarious liability could be imputed to Major Russell.
Finally, Plaintiffs argue that sufficient evidence exists to find that both Officer Edwards and Major Russell’s conduct constitutes gross negligence. Plaintiffs characterize Officer Edwards’ gross negligence as “permitting] Officer Kern to exercise prohibited conduct, i.e., the reten
The evidence shows that Officer Edwards acquiesced to Officer Kern carrying his service weapon into training, asked Officer Kern repeatedly to conduct a safety check of his weapon, and may have observed Officer Kern use his weapon in demonstration prior to shooting. At no time, however, was Officer Edwards in a position of authority or supervision to order Officer Kern to leave his weapon outside of the training area. Nor did Officer Edwards have any indication that Officer Kern did not, in fact, conduct a weapons check in accord with Officer Edwards’ inquiry. Officer Edwards affirmatively asking Officer Kem if he was safely carrying his weapon does not evince an “utter[] indifferen[ee] to the rights of others” as if “those rights did not exist.” Liscombe v. Potomac Edison Co.,
Plaintiffs argue that Major Russell should be held liable for gross negligence because “although his duties clearly set forth the fact that he should have had knowledge and exercised control over the training exercise and the personnel conducting said exercise, he, by his own admission, had absolutely no personal knowledge of same,” ECF No. 88-1 at 19, and cite generally to Major Russell’s deposition for support. The Court finds that Major Russell’s deposition does not support Plaintiffs’ ground for gross negligence. An overview of Major Russell’s position as described in his resume shows that his job responsibilities were managerial in nature and did not involve leading or supervising training. See, Attach, to Russell Dep., ECF No. 88-12 at 13 (including duties such as “assessing existing training programs, ... assisting in policy development, ... formulating recommendations for improvement, ... researching methods to improve ... process, [and] advising department of current developmеnts in educational methodology”). As provided in his deposition, another of Major Russell’s duties is to “ensure that [training of recruits] is being done by certified instructors.” Russell Dep., ECF No. 8812, 17:9-10.
In order to accomplish this task, Major Russell brings in officers from different divisions in the Baltimore Police Department to train in their area of expertise. See Id. 17:2018:1 (“So, we have special officers come in to, like, teach traffic from the traffic division; that’s the expertise they’re qualified to train.”). Officers Kern and Edwards were “certified trained in firearms and certified trained in providing simunitions training.” Id. 35:6-8. Individual officers and divisions are responsible for seeking out relevant specialized training. Major Russell would normally be aware of the training conducted on any given day through a weekly calendar he printed. Major Russell, however, was not aware of the training conducted on the day in question, since he himself was out of the office for the week to receive training. Id.
The Court concludes from the facts asserted that Major Russell’s duties included coordinating training, but did not include exercising control over the training. The facts further disclose that, while Major Russell’s duties included knowledge of the training that was being conducted on a given day, his delegation of oversight on the day in question, in the absence of-evidence to the contrary, is not legally sufficient to support a finding of gross negligence, Summary judgment will be granted in Major Russell’s favor.
TV. CONCLUSION
For the above-stated reasons, the Court will grant in part and deny in part Officer Kern’s Mqtion for Summary Judgment, and will grant Major Edwards and Officer Russell’s Motion for Summary Judgment.
It appears that, with the resolution of the above motions, Plaintiffs’ remaining claims against Officer Kern are ready to proceed to trial. Accordingly, .counsel for Plaintiffs and Officer Kern shall. contact сhambers to arrange a date in the spring for-trial.
A separate order will issue.
. Whether this conversation occurred is disputed by Officer Edwards. The Court, however, for the purposes of this motion, accepts the facts in the light most favorable to Plaintiffs, as the non-moving party.
. In the words of Officer Kern, bunker drills consisted of the following:
Initially starting with one person behind the bunker moving with the bunker forward, backward, side to side, teaching them to maintain a crouched position, covering all the areas they need to. From that, we move to a single person moving forward, side to side, back and then forward again with the bunker and then taking a knee and putting rounds into a target on the wall. From there, we graduate up to a bunker person and a cover person behind them, teaching them how to react to making contact with a, an individual where the bunker man goes down to a knee, covers, the point man comes over top, how to safely transfer the weapon, transition the weapon over the top of the bunker, making sure that the weapon is in front of the bunker, not behind the bunker and then they’re the one that issue the verbal commands and then they walk through that and ... they actually do a'shoot, shooting with the targets.
Kern Trial Testimony; ECF No. 78-3, 29:6-22.
. Officer Kern includes in his statement of facts that “a simunition round would not have penetrated the wooden door and would not have caused, harm to any trainee” based on the testimony of his expert during his criminal trial. ECF No. 78-1 at 5. Officer Kern further states that it could be inferred from the expert testimony that a simunition round also could not have penetrated the window. The cited testimony makes no mention of a window, discussing the likelihood of a simunition round going through the door only.
. All Baltimore County entities and the Mayor and City Council of Baltimore City have been dismissed from the case. The Court granted BPD and Commissioner Batts’ motion to bifurcate. See ECF No. 56.
. Count X is a 42 U.S.C. § 1983 claim brought pursuant to Monell v. Dep’t of Soc. Svcs.,
. Officer Kern implicitly concedes as much elsewhere in his motion. ECF No. 78-1 at 6 (“Officer Kern carried both his live service weapon and simunitions gun on his right side, relatively close to one another, evidencing that one could be withdrawn accidentally in place of the other,'').
. Officer Kern also moved for summary judgment as to Plaintiffs’ Count XI—Lоss of Consortium. A "loss of consortium claim is. derivative of the injured spouse’s claim for personal injury.” Oaks v. Connors,
. Plaintiffs bring a cause of action under Articles 24 and 26 of the Maryland Constitution’s Declaration of Rights. These provisions are the state analog to the federal Fourteenth and Fourth Amendments respectively, and are analyzed in pari materia. Miller v. Prince George’s Cnty.,
. As the Court has granted summary judgment to Officer Kern for Plaintiffs’ constitutional claims, it need not address Plaintiffs’ argument that Major Russell could be held liable under supervisory liability and Officer Edwards under aider and abettor liability.
. Plaintiffs also fail to address Major Russell and Officer Edwards’ assertion of public official immunity as to negligence, except to posit that "Defendants Edwards and Russell would share in the same special relationship status” as Officer Kem that established a duty to protect Mr. Gray from harm. ECF No. 88-1 at 18. Plaintiffs fail to support this statement with any evidence of affirmative conduct on the part of Officer Edwards and Major Russell to protect Mr. Gray from Officer Kern.