*1
Court 15, 2000.
Nov. *3 (Horn F. Albright, Bennett, P.A., David Jr. brief), & on Baltimore, for petitioner. Huskey,
Donald R. Legal Counsel, Associate Charles R. (Thurman Gayle, Legal Zollicoffer, Associate Counsel Jr., W. City Phelan, Jr., Solicitor William Counsel, and R. Principal on brief), Baltimore, respondent. Tabb, Greenbelt, Jeffrey
H. for Amicus Curiae Brief of Maryland Lawyers’ Trial Ass’n filed behalf of Taurrance Richardson. BELL,
Argued C.J., ELDRIDGE, before and RODOWSKY,* RAKER, WILNER, CATHELL and HARRELL, JJ.
WILNER, Judge. 12,1996, evening
On the
of January
petitioner
six of
friends broke
a vacant
apartment
into
the Middle Branch
Apartment development
City
Baltimore
had a party.
reported
Someone
police,
intrusion to the
aas
result of
which Officers McGriff and
responded. They
Catterton
en-
tered the
apartment
began
then-darkened
to search it.
We shall describe the ensuing
below,
events in greater detail
say
but suffice
petitioner
closet,
here that
in a
hid
kitchen
that he
out
refused to come
when the
announced their
presence
so,
upon
and called
him to do
that he
holding
was
hand,
vacuum
in his
pipe
cleaner
that it
extremely
dark
kitchen,
that when Officer Catterton quickly opened the
*4
closet
inside,
and Officer McGriff shined
flashlight
his
McGriff
appeared
saw what
to him to be a man holding
large
a
weapon
lowering
and
it into firing position,
that,
self-defense,
and
petitioner
fired at
severely
and
him.
wounded
*
J.,
retired,
Rodowsky,
participated
hearing
now
in the
and conference of
Court;
this case while an active
of
being
member
this
after
recalled
Constitution,
IV,
3A,
pursuant
the
to
participated
Article
Section
he also
adoption
opinion.
the decision and
of this
Catterton,
of
City
the
and
McGriff
sued Officers
Petitioner
the Police Commission
Baltimore,
Maryland,
of
and
the State
City,
Baltimore
Court for
in the Circuit
er of Baltimore
of
24 and 26
Articles
rights
of his
under
the violation
alleging
law
common
of
and several
Rights
Maryland Declaration
the
trial, with
during
winnowing
a
both before and
After
torts.
concerned,
Officer
against
claims
the
longer
we are no
which
rights
violation
battery, gross negligence, and
McGriff for
a
to
which returned
jury,
submitted
the
imder Article were
judg
the
appealed
favor. Petitioner
in the officer’s
verdict
claims, and,
unreported opinion,
in an
on those
ment entered
certiorari
granted
affirmed. We
Special Appeals
Court of
the
(1)
precluding
erred in
to
the trial court
consider whether
City
Baltimore
introducing
from
evidence of certain
petitioner
pertain
training procedures
guidelines,
regulations,
(2)
force,
to
instruction
supplemental
ing to the use
considering
precluded
jury
jury improperly
(3)
door,
closet
prior
opening
officer’s actions
to
opportunity
to examine
denying petitioner
court
erred
al
police training and reasonable
police sergeant concerning
(4)
actions,
court erred
ternatives to Officer McGriff s
under Batson
objection,
to
failing
petitioner’s
sustain
(1986),
79, 106
to
BACKGROUND disagree on of the inferences some Although parties it, presented was from most of the evidence be drawn note presented We shall recite that evidence dispute. significant dispute. there was those few instances where friends, lived in the immedi- all whom Petitioner and in the 9:00 gathered apartment in the around vicinity, ate apart- petitioner claimed entered evening. Although could have been achieved objective warm—an get ment respective apparent their they simply gone to had homes-their which, petition- marijuana according purpose was smoke *5 er, 20; all proceeded save himself to do. Petitioner was youngest two members of group were 13. The group congregated hour, the kitchen. After an about one of the outside, boys the police everyone noticed and panicked. After turning out the kitchen light, petitioner and three closet, friends in a folding petitioner hid taking with —door him a vacuum cleaner pipe with which he been playing. had event, During petitioner his recitation never mentioned any having apartment. shots been fired that, 10:00,
McGriff stated about he a call for received males, way it, “several I apart- that’s the in a vacant heard ment, shots fired.”1 He rear building went open, apartment, and, observed “an vacant which was dark know, you ajar.” the door was He did not enter the building that point, at but instead called for unit “another with flashlight,” and waited for that unit —Officer Catterton —to arrive. McGriff that he and explained Catterton were “side partners” who responded together, often calls each backing up, they other and that many apart- had canvassed vacant together. ments Catterton confirmed that he and McGriff had, apartment development were familiar on occasions, number of apartments discovered vacant there that had been broken into. Catterton that persons said homeless often into apartments, broke the vacant the usual procedure in investigating apparent break-ins was to enter the apartment, there, make certain that no one was and ensure plumbing said, that the Scrappers, was intact. he would come in and the copper pipes. steal If everything order, was in notify apartment would management had been into and keep eye broken it days. few
The officers first an upper apartment searched and then T, turned their attention to at Apartment level. terrace ajar McGriff noticed that the door was signs and that had males, 1. McGriff admitted that the bulletin have said "seven” but heard "several” rather than "seven.” Catterton recalled the message group juveniles as "a dwelling of black male inside the vacant discharging exactly dispatcher put firearms. That’s how the it to me.” thought that, first, he and Catterton He said entry. forced false, but none- probably call that was “average” this was an that, said, however, investigation. Catterton required theless *6 marijuana vestibule, odor of could smell the he even T, suggest- from coming Apartment to that seemed Catterton that be checked. apartment that ed to McGriff confront armed much to his intent was so that added any victims. were to whether there as determine individuals are often calls “discharging his that experience It had been discovery of a victim.” or lead to the followed an- that, apartment, he upon entering the McGriff said the odor Catterton said presence.2 nounced their they He also confirmed marijuana they entered. grew they began a response, no presence. Hearing their announced words, “to search, room-to-room Cattertoris systematic, aor secreting themselves if there was someone ascertain that, Catterton said possibly apartment.” inside victim dark, you “it wasn’t so dark that apartment was although the by,” noting enough navigate to light There was сouldn’t see. apartment through light that some street entered however, that, at time of the stipulated, It was windows. ex- “extremely Catterton shooting, the kitchen was dark.” because, in his for they light not look switches plained that did change not to the environment. it was better experience, dark, said, lights but when eyes, he become accustomed on, If it two takes “you’re temporarily.... blinded are turned detrimen- your eyes adjust, or to it’s seconds ten seconds for first, said, did not even enter they At McGriff tal.” kitchen, Seeing nothing, it.3 merely “flashlighted” but leave, from the room. “bump” to then come turned but heard any of their hearing 2. announcement Petitioner denied persons apartment reveal presence any for in the to direction apartment door was unlocked themselves. He also claimed that the dispute. his Those two matters were when he and friends entered. 18,000 flashlight was an candle 3. Officer Catterton testified that the flashlight flashlight. agreed that the power halogen Officer McGriff powerful enough the kitchen wall from distance illuminate feet. ten Petitioner confirmed that there kind was some of “boom” before the officers entered the kitchen.
Upon hearing the “bump,” McGriff arid Catterton walked inside the kitchen and place, noted there was no other closet, than person hide. McGriff obtained the flashlight Catterton, who moved out of line of possi- ble put fire and his hand at the top of where the closet door folded, preparing pull door open. got into a McGriff position where he would be able to see into the closet when the door was opened, pistol drew and aimed it at the center mast of right. the closet. He then “All announced: ready getting We’re open closet. Police. Come out.” Although petitioner hearing any denied warning, such warning, confirmed the second recalling that “we Catterton again said, presence announced our ‘Come out of the ” closet.’ Hearing no response, pulled Catterton the closet *7 and, door open, according McGriff, to “immediately my flash- light light object, struck the of I thought which was a a big weapon. barrel of And all I glimmer, saw was a and me, what I perceived coming as someone towards and I fired.” continued, He weapon “[a]nd the fell to the I ground. took my right me, foot I weapon and slid the just behind and I stood I covering there speak nothing. closet. couldn’t I just was and stopped everything. totally I was —heart afraid.” Catterton said that he did not know whether McGriff was the one who was shot—that he rigid, eyes being was “as big paper plates.” McGriff added later:
“[M]y immediately flashlight silhouetted off pipe, of the and I shot. But at the I time didn’t know it It pipe. was looked, in this position, somebody it looked like grasp- was I ing weapon, he thought ready and was to it getting lower upon and fire me. And that’s when I shot.” CONSIDERATION OF ANTECEDENT EVENTS The first three issues petitioner may raised be consid- together. ered As of part his contention that Officer McGriff acted negligently unnecessary, unreasonable, and used and force, petitioner urged excessive that McGriff was remiss dark, facing night, late at entering apartment men, back-up, and without additional of seven armed prospect light turning in not the kitchen remiss on that he was also of support closet. In those having open the before Catterton guidelines to certain he offer into evidence positions, desired City Department Police and of the Baltimore regulations and Wilson, оbjected Laron to testimony Sergeant it not to consid- jury directing supplemental instruction back-up have called for additional er whether McGriff should was excluded lights. or turned on the kitchen evidence shall recite the relevant given. and the instruction was We matters, each those procedural background respect jury for the hinge appropriate all on whether was but allowed, second-guess decisions essentially, to be apart- search the McGriff and Catterton to enter and Officers turning first open ment alone the closet door without issue, course, entirely light. kitchen The Batson separate. first
To three stage set the the discussion As to issues, mind the context. each important keep it is battery, gross against claims Officer the three McGriff— rights under Article 26 negligence, violation issue whether Officer Declaration of common was Rights—the opened when the door was reasonably McGriff acted closet man to fire regarded saw what he as an armed about and he that, by shooting no dispute petitioner, on him. was There touching intentionally a harmful and thus a McGriff caused touching battery. His was self-defense—that defense issue brought not unlawful-which into whether prove as a resort. To *8 only force was reasonable and used last required to that gross negligence, petitioner prove was s conduct amounted to a reckless and wanton disre McGriff rights of his gard of his and to establish violation rights,4 counterpart Article of the Fourth Amend- under 26—the State framed, regarding the we need light 4. of conclusion issue not our enjoy immunity public Officer official consider whether McGriff would jury properly grossly negligent. even if the had found him ment-petitioner had to show did not act with McGriff reasonableness, objective from the of perspective a reasonable on Clearly, by shooting petitioner, officer the scene. McGriff of him purposes effected “seizure” of Article 26. requisite showings, To to petitioner pres- make the wanted (1) to jury jury ent and have the determine that the entire confrontation could have if been avoided McGriff and Catter- had apartment ton not entered the in the first without place (2) back-up, and McGriff additional would have mistaken the unarmed for an armed on petitioner person had he turned light opening the kitchen before the closet. The reasonable- contended, conduct, of ness McGriffs had to take into account, governed by, and indeed this antecedent conduct which, view, in his violated police procedure. established He urges sought presented the evidence established violation and that the supplemental precluded instruction jury from considering it. Regulations
Police Guidelines and Officer McGriff filed a motion limine “any exclude any evidence of relating alleged violations procedure Plaintiff,” (1) preceding the arrest of on such grounds on probative evidence was not issue whether McGriff (2) force, used unreasonable and the evidence in question of police “guidelines,” consisted not commands or injunctions, left a deal great and of discretion in officer. Essentially, the motion was based lack The documentary relevance. sought to be excluded evidence consisted nine pages single-spaced guidelines issued City the Baltimore Police Department deadly on the use of 13 pages single- force and spaced regulations rules concerning а wide range of conduct and behavior. regulations, Most the rules and gamut conduct, which cover the entire of police being from courteous fulfilling obligations, financial superi- saluting officers, to refraining publicly offi- criticizing public cials, to gambling, drinking, the circumstances when smoking is not no permitted, have any discernible relevance to guidelines issue the case. Even the on the use of *9 wholly inapposite dealing with matters force include standards vehicles, shooting shooting on guidelines to this from case— animals, vehicles, chasing suspects. and killing dangerous police require to firearms regulations relating rules The and and, they duty although suitably to be armed when officers escape to prevent conditions on use firearms place escape prevent their use to of felons and prohibit to their misdemeanants, officers use they expressly permit guidelines dealing deadly in firearms self-defense. in provide, pertinent stressed petitioner particularly force that resort,” as a deadly “only use force last that officers part, putting to themselves a situation they try avoid that “should force,” they that option deadly no but to use they where have means,” that deadly less and “[t]ry should to use other handle number of officers to sufficient “[w]ait [a] should with the rules without force.” Consistent situation[s] undue allow use of guidelines expressly regulations, and officer that attacked “[t]he firearms self-defense and state seriousness of potential has to evaluate the person is the who of response,” level appropriate determine attack and response must being that and only “[t]he caveat evaluation perspective from the a reasonable be reasonable similarly officer situated.” that, used argued sought the context be
McGriff and were irrelevant petitioner, guidelines regulations these suggested petitioner jury He that wanted misleading. guide- McGriff had violated some those determine that urged petitioner had no that lines but that offered evidence were, fact, all any regard, violated. noted “and left guidelines petitioner discretionary cited were determination on the scene the events the officers’ that “if come in plaintiff unfold.” added could McGriff you’re here ... to a hard and fast rule where point C, D, A, B, to do supposed you’re supposed to do in and brings one But when he comes thing. that’s range things that the officers guidelines, give which are ... is not a violation of a hard and fast allowed do this rule.”
Noting the force only statement should used resort, as a petitioner urged permitted last that he be to elicit acceptance proposition McGriff his of that and “that he just in, go doesn’t like a cowboy, and shoot first and ask *10 questions was, course, later.” There no evidence that any McGriff did thing. such Petitioner also said that he to wanted cross-examine McGriff about the to admonition a- “wait for sufficient number of officers to handle situations without undue At no during hearing, force.” time the howev- er, did that he was petitioner suggest prepared any offer (1) that back-up immediately available, evidence additional was (2) much how would have been in back-up light reasonable previous experience the officers’ they and what had been told (3) situation, whether, was given the the prospect there being a victim in it building, the would have been reasonable (4) wait, for two the officers to or how in the situation the аny kitchen would if played have out differently additional joined officers had the search of house. court granted the motion on grounds, noting relevance that there were no allegations complaint that suit was based orders, of any police violation or regulations, guidelines. Petitioner really suggest does not None of otherwise. certainly actions pled, and none that were submitted jury, orders, any regulations, were based on the violation of guidelines. Instead, argument at least as unfolded this Court, petitioner seeking this only use material as a claiming basis for that Officers McGriff and Catterton should not apartment have entered the in the place, first without or, there, some back-up, undefined additional once should have turned on lights. the kitchen The excluded evidence was relevant, all, only thus if regards. those
Testimony by Seryeant Wilson Wilson, Sergeant Laron Officer McGrifPs immediate super- event, night visor on the of the went to the upon scene report of the In a shooting. pre-trial deposition, he recalled that in post-event critique that he had with various squad members, McGriff, not including pointed out that an alter- wait the scene and been to secure native would have light “in unit and that and a canine officers additional apartment inside people out as seven fact that came fired, against shots seven that it came out light of the fact personal his When asked about very good not odds.” two is situations, Sergeant Wilson said in similar experiences “[sjometimes It on what depends I’ve forward. gone no order is,” general that “there’s adding situation specific continued, in deposition, He this.” specifically covers dealing with the was that only general relevant order acted accor- and that “Officer McGriff use of force general with the order.” dance during first at trial
Sergeant Wilson’s views surfaced an intent McGriff. Petitioner indicated testimony of Officer agreed whether he ask on cross-examination McGriff against good two are not Sergeant Wilson that “odds seven testified, deposition yet and neither his odds.” Wilson had *11 The court any nor other of his was evidence. report hearsay. was objection ground on the Wilson sustained an of his by as a McGriff. The substance later called fact witness McGriff, scene, testimony at the as was his observation of shaken, s to him that being recounting McGriff statement shotgun and thought pipe the vacuum cleaner was a McGriff to “I I was thought done.” Petitioner indicated intent offi- training police about the Sergeant cross-examine Wilson force, and get regard deadly with to the use of McGriff cers objected. objection The on the dual court sustained limine grounds that such an examination would violate the it ruling scope that would exceed the direct examina- s tion. Petitioner Wilson whether McGriff actions then asked objection, defending against reasonable. McGriffs were seven petitioner deposition testimony referenced Wilson’s that against is that an alternative would good two not odds and The await additional units. have been to secure scene and objection ground on the inquiry court sustained the that scope examination. exceeded the direct case-in-chief, which ended At the conclusion of the defense testimony, called Wil- Sergeant petitioner Wilson’s brief son as a rebuttal witness and offered to the court that Wilson would testify police officers are trained to use only force a last resort and to wait for a sufficient number of officers to handle situations without undue force. He also Sergeant indicated an intent to question as to whether Wilson there were entering reasonable alternatives “besides building evening.” The court sustained objec- McGrifPs grounds tion the dual that the proffered testimony would violate the in limine ruling rebuttal, was proper not purport did not any serve rebut new matter introduced by defense. the limine
Apart from ruling whether was cor rect, below, which we shall consider these evidentiary rulings were valid on the grounds more technical relied upon statement, court. Sergeant Wilson’s out-of-court recounted in deposition, against that two good seven not odds was not petitioner evidence when sought have McGriff confirm it cross-examination; through petitioner indirectly offering which, that out-of-court for its statement truth under the rule, hearsay permitted he is do. The proposed cross- examination Sergeant Wilson was properly disallowed be cause it scope examination, exceeded the of direct and that inquiry same was impermissible on rebuttal because it did not tend or purport any to rebut new matter introduced McGriff. Those calls were within the discretion accorded State, v. Smallwood 300, trial court. 307, 320 Md. 577 A.2d State, (1990); Huffington 295 Md. 452 A.2d (1982). 1211, 1217 Jury Instruction *12 objection,
Without the trial court jury instructed the that an officer use force when the officer has reason believe that person the is posing significant threat of death physical injury serious to the officer .or others and that reasonableness or “[t]he excessiveness of any force is a matter to be determined in light all of the they circumstances as appeared added, to the officer at the time.” The court again objection, without that reasonableness was to be on an judged police officer under a reasonable basis—“whether objective that the could have believed or similar circumstances the same essentially Those instructions was reasonable.” force used petition desired police guidelines particularly parroted the that, making then court advised objection, the er. Without reasonableness, look at jury the “must determination the %a, but hindsight, always which is by way judgment this mo at that they existed under the circumstances rather ment.” whether, in question deter- returned with jury
When the actions, it restrict- s was mining reasonableness McGriff the of the shoot- surrounding the instant “to the circumstances ed up general leading circumstances or could consider “the ing” (emphasis calling back-up, lights)” (e.g. the shooting for added) point, At counsel question. that the court revisited circumstances,” jury consider “all urged that the petitioner should jury “may that the conclude Officer McGriff noting building place the first apartment not have entered were outnum- Catterton of the fact Officer light The severity of the call was issue.” and where bered its that notion and iterated determination rejected court on hindsight but “the jury to base its decision on was not It at that moment.” that confronted officer situation continued: well, if said, you hindsight. say, I You don’t
“As don’t use back-up, and waited for more back-up called for more well, if they say, been You don’t might it have different. You might have been different. put light, had more is way. analyze You it that here analyze it that don’t was, situation, light was.” light that whatever
Analysis complaint petitioner’s about principal underlying issue ruling and the instruction supplemental in liminе objective reason- whether, necessity determining s conduct when the closet door ableness of Officer McGriff Catterton, per- been jury should have by Officer opened any police the officers violated mitted to consider whether *13 452
guidelines or in regulations entering apartment without in back-up additional to turn failing lights. and on the kitchen is question The thus one of permissible focus: is the jury considering only limited to contemporane- the circumstances ous with the immediately “seizure”—what faced McGriff when opened closet was it as entitled consider well —or the reasonableness of the officer’s antecedent conduct? Connor,
The touchstone of the
analysis Graham v.
is
490
386,
1865,
(1989),
U.S.
109 S.Ct.
“[t]he ‘reasonableness’ use force must be judged perspective from the aof reasonable officer scene, rather than hindsight____ with the vision of 20/20 The calculus of embody reasonableness must allowance for the fact officers split- are often forced to make tense, judgments second circumstances that are uncer- —in tain, evolving and rapidly the amount of force is —about necessary particular situation.” Id. at 396-97, 109 1872, 104 S.Ct. at L.Ed.2d 455-56.
That principle, § announced context of a 1983 claim for the violation of Federal Constitutional rights, appropriate apply one to petitioner’s well claim under Article 26 of the Maryland Rights Declaration of battery gross common law claims of negligence. We have pari 26 is long recognized that Article materia with the
453 Court Supreme Amendment and decisions Fourth respect great right are entitled to Federal interpreting the State, v. See Gadson counterpart. construing State Davis, (1995); 22, 26 DiPino 668 A.2d n. Md. n. *14 (1999). event, we 354, any In 18, 43, A.2d 367-68 729 Md. as a matter principle the same essentially adopted have 558, 589, State, 594 323 Md. Boyer v. State common law. (1991), police officer’s 121, recognized that “[a] 136 we A.2d but should be by hindsight not judged should be conduct officer would reasonably prudent a light in of how viewed emergency situation.” the same difficult respond faced with case, jurisprudence of this that In the circumstances negli for and battery gross petitioner’s also controls actions tort of to the common law gence. is a defense Self-defense Faulkner, 598, Md. v. 179 battery. Baltimore Transit Co. (1941) (“If a 485, by was done injury 20 A.2d self-defense, pun neither be justifiable in can defendant in a damages for civil responsible nor criminally ished held action”). petition against the which guidepost It is therefore claims must be examined. evidentiary jury er’s instruction case, may jury, in an excessive force The extent to which a of the to the seizure consider events antecedent Constitutional a cases, in number in a number of plaintiff has arisen v. All of courts look Graham different contexts. the on how disagreement guidance, for but there is some Connor To to be some pronouncements applied. in case are the extent, the of context product be more disagreement may the would be split than doctrinal and thus predicate and factual the test consistent with the observation Graham mechan capable precise definition or “is reasonableness to the facts “requires careful attention application” ical v. particular case.” Graham Con and circumstances each nor, at 104 L.Ed.2d at supra, 490 at 109 S.Ct. U.S. 455. (8th Long, F.3d point
The case closest Schulz of the Cir.1995), parents the called the where were hospitaliza- schizophrenic history with a plaintiff, paranoid a treatment, tions for mental health to deal with aberrant plaintiff. behavior the When the two officers arrived at the home, basement, parents’ plaintiff where he had erected a barricade. The officers at landing stood steps spoke basement with plaintiff, attempting him to go hospital. convince At some point, plaintiff and, while, picked up to, which, held on a hatchet when down, he laid it were able to seize. That caused incensed, plaintiff began to become and he throwing bricks ceased, the officers. When that attempted assault one officer get plaintiff, over the barricade to subdue believing the plaintiff posed then a threat to safety. their Unfortunate- ly, the entangled officer became plain- the barricade. The tiff, meanwhile, in the began obtained double-bladed axe and officer, advancing holding the axe with both hands officer, position. drawn, cocked The other gun ordered axe, plaintiff drop and when the plaintiff continued *15 his advance and was within six to eight feet of the trapped officer, partner fired. plaintiff §
The the officers sued under 1983 and complained appeal on about granting the a motion in excluding limine (1) officers, actions, evidence that their own created (2) force, need to use responded should have in a manner, (3) waiting team, different such as a for SWAT and they should have used a degree lesser force. trial evidence, case, court excluded the as the court did in this on ground that it was irrelevant to whether any seizure of the unreasonable, plaintiff and the court appellate found no error. As questioning evidence whether the officers had, themselves, force, court, created the need for deadly Graham, from quoting made clear that reasonableness must judged be perspective of a reasonable officer on the scene, rather than with hindsight. The Graham Court’s 20/20 language use of such “at the moment” “split-second judgment” “strong were inqui- indicia the reasonableness ry only extends to those facts known to officer at the Schulz, precise moment the officers effectuate the seizure.” supra, 44 F.3d Similarly, at 648. responding to complaint differently and used have proceeded that the officers should force, Fourth Amendment noted that the court lesser morning quarterback’ of ‘Monday type not allow this “does fall a the seizure within only requires that because it approach Id. at 649. The court objective reasonableness.” range held: on not what the inquiry focuses
“The Fourth Amendment or been whether of action have prudent most course available, instead whether other alternatives but there were range falls actually effectuated within the seizure Fourth objectively under the which is ‘reasonable’ conduct hindsight measures which Amendment. Alternative 20/20 (or such as prudent), intrusive more reveal to be less team, simply are for a the SWAT waiting supervisor inquiry.” relevant to the reasonableness Id. Second, Fourth, Sixth, for the Appeal
The U.S.
Courts
Ninth,
similar con-
Seventh,
Tenth Circuits have reached
clusions,
courts in South Dakota and Wash-
appellate
as have
(4th Cir.1991), a
Ruffin,
The Fourth
court
as contradicting
Circuit
read Graham
the
that,
plaintiffs
reasonableness,
claim
in determining
“the
ought
chain of events
to be traced backward to the officer’s
failing
misconduct of
with the
comply
standard
procedures
night-time
arrests,”
for
prostitution
concluding
instead that
which
“events
occurred before Officer Ruffin
opened the car door and identified herself to
passengers
the
probative of
are not
the reasonableness of
Ruffin’s decision
shot,”
fire the
those
“are not
events
relevant and are
inadmissible.”
Id. at
The
adopted
792.
court
the then-
view of the
existing
liability
Seventh Circuit court that
under
an objective reasonableness
standard must be determined
exclusively
upon
weighing
examination and
of the informa
tion
possessed
that the officer
immediately prior to and at the
shot,
Childers,
she
moment
fired the
Ford v.
855
citing
F.2d
(7th Cir.1988)
(7th
1271
v. Berry,
Sherrod
The Court of the Second Circuit affirmed the rejection of support hindsight analysis evidence (2d Cir.1996). Proulx, officer, Salim v. F.3d while attempting 14-year-old juvenile to arrest a delinquent who escaped had a training facility, group was attacked delinquent’s family. friends and As the officer delinquent ground, delinquent tussled removed the weapon officer’s and was holding barrel. Fearful that the youth fired, gain would control the gun, killing the officer Rejecting plaintiffs child. complaint that the officer created situation which use of force became necessary by violating various procedures, such as failing carry radio or call for back-up failing members, when disengage attacked the friends and family the court held that leading up officer’s actions shooting objective were “irrelevant to reasonableness of his conduct at the employ deadly moment decided to force” and that the inquiry only reasonableness “depends upon the
457
immediately
to and
prior
of circumstances
knowledge
officer’s
fоrce.”
employ deadly
he decided to
at the moment
denied,
(9th Cir.1994),
Henrich,
cert.
912
39 F.3d
In Scott v.
(1995), officers,
1159, 115
2612, 132
855
S.Ct.
L.Ed.2d
515 U.S.
motel, banged
being fired at a
a
of shots
responding
report
their
unit and announced
appropriate
door
man
a
the officers saw
opened,
the door
When
presence.
of
them. One
the officers
pointed
he
holding
gun,
which
summary judg
from a
man.
appeal
and killed the
On
fired
that,
officers,
police
under
plaintiff
contended
ment for the
to seize the
attempted
not have
the officers should
guidelines,
have
developed
should
immediately but
instead
plaintiff
him to
assistance,
get
tried
plan,
tactical
called
argument
rejected the
The Ninth Circuit court
surrender.
were irrelevant.
guidelines
that those kinds of
concluded
(6th
1151,
McClellan,
F.3d
1162
Dickerson v.
101
See also
claim,
Cir.1996) (“in
we
excessive force
reviewing plaintiffs
preceding
moments
inquiry
our
scope
limit the
of
(7th
Drinski,
Cir.),
1143
cert.
v.
19 F.3d
shooting”); Plakas
(1994)
81,
denied,
820, 115
A similar circumstance exists with respect lights. Officer explained Catterton why they did not turn on the Court, 5. argument petitioner At oral in this counsel for conceded that right building. officers had a Although be in the that concession negating could be taken as the contention that the officers should have back-up, waited for additional we shall decide the issue basis concession, such because issue is one lawof and is too important side-stepped to be in that manner. they temporarily on the would they lights, if turned lights: explanation, to believe jury did not have blinded. The No evidence was contrary. no there was evidence but in admitted, any offered, directive much less even to turn on the calling for officers regulations or guidelines lights that situation. evidentiary record this proper lack of a from the
Apart
antecedent circum-
jury to consider these
permit
case
stances,
an
would
approach
such
we need to consider where
fact,
lights
were
was,
building.
lead. McGriff
either of those circumstances
not turned on. Whether
imprudent,
hindsight
regarded
negligent
could be
and,
moment,
At
changed.
not be
at
crucial
could
existed
saw
opened the closet door and McGriff
the moment Catterton
lowering his
man
to him to be
armed
appeared
what
d,o?
petition-
was he to
Under
firing position,
what
weapon
been,
split-second
would have
approach,
er’s
McGriff
defending
moment,
choice of either
impossible
faced with the
*19
and,
liability
any
in
harm inflicted
doing, risking
himself
so
or decisions that were
of
events
petitioner
past
because
uncorrectable,
taking
putting
no
action and
then
defensive
in
his
danger
life in
and mortal
order
save
his
immediate
in that
reasonably put
cannot
officers
pocketbook. The law
situation.
(7th
Reich,
The
relies
v.
dissent
532,
Cir.),
denied,
1021,
145
528
120
L.Ed.2d
cert.
U.S.
S.Ct.
Laconia,
(1st
(1999),
71
20
412
Hilaire v.
F.3d
City
St.
2548,
Cir.1995),
denied,
135
116 S.Ct.
cert.
U.S.
(3d
Raso,
(1996),
F.3d 279
L.Ed.2d 1068
Abraham v.
Cir.1999), and,
County, 489
Inyo
to some
Brower v.
extent
(1989)
urge
In St.
decedent was killed
police officers
the execution of a
search warrant. The
had reason to
believe that St. Hilaire was armed and dangerous,
devised a
approach
scheme to
him when he left his
place
work, with a uniformed officer known to St. Hilaire in the
lead. The
awry
scheme went
when St. Hilaire was able to
building
get
leave the
into
car
before the officers could
approach.
Instead of the
lead,
uniformed officer
being
*20
officer
plain clothes ran
brandishing
toward the car
a
gun. There was a
dispute
fact
any
whether he or
of the
As,
other officers
words,
identified
themselves.
the court’s
Hilaire
St.
“looked up
stranger
jeans
and saw a
dressed in
and
6. The Brower Court remanded the
precisely
case for
that determination.
Inyo County,
(9th Cir.1989).
See Brower v.
The issue principal The § 1983 claim. immunity against enjoyed officers (1) officer that no reasonable arguments: made two plaintiff on suspect surprise him to that the law allowed could believe drawn, clothes, range, close gun dead-run, in with plain officer, when police himself as a identifying without (2) dispute genuine was a warrant, that there executing a Gunter, shooter, reasonably believed Detective whether Hilaire. when he shot St. acting in self-defense that he was summarily as appellate claim the court dismissed The second first, found trial court had merit. As to the being without Fourth Amendment the basis that St. Hilaire’s immunity on seizure, which was until the moment did not attach rights part shot, obligation no and that there was when he was the use of creating circumstances where avoid necessary. deadly force becomes rejected the defendants’ assertion appellate
The
court
only at
for reasonableness
to be examined
their actions need
earlier decision
shooting. Following
its
moment
(1st Cir.1995), the
County,
Abraham v. Raso also arose from summary
judgment.
Abraham,
suspected
shop-lifter,
was shot
Raso as he
attempted to leave
mall parking
lot in his car. Raso
self-defense,
that,
claimed that she
acted
while she was
of
standing
front
ordering
car
Abraham
stop,
run
attempted to
over her. There was some evidence that she
deliberately placed
car;
herself in front of the
there was other
evidence that she was not in front of the car
all
but instead
shot Abraham from the side. The trial
granted
court
summary judgment
regard
without
to the self-defense claim
on the ground that Raso’s action was objectively reasonable
because,
flee,
in attempting to
posed
Abraham
an immediate
threat
physical
harm to
public.
appellate
court
determined that there were genuine
disputes material fact
bearing on
posed
threat, and,
whether Abraham
such a
in the
analysis,
course of that
concluded that
could
limit
not
its
examination
very
moment when Abraham
was struck
Rather,
bullet
and thus seized.
it held that “all of the
events transpiring during the officers’
pursuit Abraham can
in evaluating
considered
the reasonableness of Raso’s
Raso,
shooting.” Abraham v.
“We are saying, that all preceding events are equally important, or any even of importance. Some events may have too attenuated a connection to the officer’s use force. But what makes prior these events of no conse- quence ordinary causation, are ideas of not doctrine about when the seizure occurred.” Hilaire,
Id. As in St. the circumstances at issue were contem- poraneous with the seizure.
In Deering,
victim, man
elderly
history
with some
problems,
emotional
backed his
motorcycle,
vehicle into a
tipping
cycle.
The damage was
cycle
minor and the
owner
that leaked
gasoline
for the cost
offered to settle
charged
refused and so
cycle,
Deering
but
appear
he failed
damage. When
property
misdemeanor
issued.
warrant was
bench
appearance,
for his initial
court
wearing bullet-
deputy sheriffs
night, three armed
*22
Later that
farmhouse,
in a rural
which was
Deering’s
proof vests drove
it, peered
county, stealthily approached
in a different
area
the
knocked on
sleeping,
and
Deering
inside and saw
there, the
who was
Deering awoke and asked
door. When
his
up
then
Deering
picked
themselves.
sheriffs identified
officers.
at one of the
yard,
into the
and fired
shotgun, went
down, another sheriff
gun
the
ordering Deering
put
After
repre-
him,
personal
him.
killing
Deering’s
fired 11 shots
against
§
The actions
1983.
the sheriffs under
sentative sued
dismissed;
the
found
favor
jury
were
of the officers
two
third,
Appeals
the Seventh Circuit Court
the
affirmed.
court was
appellate
broad issue considered
The
circum-
totality of the
jury could consider “the
whether the
were
actions
determining
whether the sheriff’s
stances”
could, but
only
reasonable,
jury
the court held that the
pre-
The more
effectively did,
those circumstances.
consider
consider—
jury
circumstances” the
could
was “what
cise issue
when
moment
beyond
precise
extended
whether
“the fact that
and would include
Deering
weapon
fired
in the middle of
to serve the warrant
deputies decided
a rural farmhouse.”
man
alone in
night
elderly
living
on an
law, the court
Deering did hold that knowledge the officer’s of antecedent *23 in circumstances was relevant determining the reasonableness of his actions. The dissent upon single seizes statement the Deering totality court that “[t]he of the circumstances cannot be precise limited moment Deering when dis Id. charged his weapon.” at 649. That statement needs to be context, read in however. The point the court was making was that Deputy “what Reich knew the time—about crime, Deering, warrant, and the and his perception of the danger he and the other deputies were in—was relevant to the evaluation of the his conduct.” Id. at 652. reasonableness context, Read in that totality determination that the of the circumstances must take account of the full knowledge pos remarkable, sessed the officers is not and it certainly cannot be taken as a authority broad for plaintiffs to invite 2%o hindsight second-guessing. The antecedent events at issue Deering were the circumstances that led the sheriffs to con front some Deering police guidelines dealing general —not fashion with avoiding need force whenever in Deering, possible. As there was no transgression of the underlying principle here. jury The was all informed of relevant leading antecedent events up shooting to the —how entering upon did and what there officers came not allowed do jury was building. What to enter hindsight, the officers’ decision second-guess, back-up and without without additional apartment search light. on the kitchen turning court did not err reasons, that the trial we hold
For these the in limine ruling, subject excluding the evidence Sergeant sought to be extracted excluding evidence instruction. Wilson, giving supplemental or in THE BATSON ISSUE Friday, May morning commenced on the Jury selection afternoon, after a lunch break. concluded 1998 and was not recorded. were proceeding and selection The voir dire following: only the transcript records “AFTERNOON SESSION upon resuming) in courtroom (Prospective jurors present afternoon, gentlemen. ladies THE COURT: Good afternoon, Your Honor. THE JURORS: Good (Voir jurors contin- prospective dire examination ued). Clerk, in at jury swear the you Madam
THE COURT: time, please. this
(A selected, duly impaneled).” sworn and jury was jurors not prospective the court excused those point, At that bench, an unrecorded where and called counsel selected conference, ex- the court Following ensued. conference *24 left, morning. jurors After the Monday until jurors cused the conference, that, at the unrecorded bench court recounted a wanted raise petitioner for “indicated that he counsel petition- The then heard Batson at this time.” court challenge African- striking of five objection McGriff er’s striking The found from the mere jurors. American court and jury with one African-American jurors, leaving those jurors, had petitioner present- that five non-African-American 466 a prima showing
ed facie “that require would defense counsel justify each their strikes.” Defense counsel then pro- to give facially ceeded race-neutral for reason each of those strikes, following which the court found that had a McGriff for valid basis each peremptory challenges five under review. complains
Petitioner that the in sustaining court erred peremptory challenges. problem is he waited too State, Stanley v. long objection. register 50, 313 Md. 69, (1988), 1267, 542 A.2d Batson 1276 we concluded that “[a] objection timely is if the defendant makes it no later than when juror the last has jury been seated before the has been Requiring objection sworn.” such to be made before v. jury See Ford permissible. is sworn is Georgia, 498 411, 422, 423, 850, 857, 935, U.S. 111 112 S.Ct. 948-49 L.Ed.2d (1991), declaring the requirement Batson any claim be raised before the administration of jurors the oath to to be “a holding sensible rule” “a state court adopt general rule that a Batson if untimely claim is it is raised the first time jury -... after is sworn.” The Federal a Batson consistently courts have held that objection is waived if not during process, made the voir dire and some have specified objection that the must be made before the is venire (USA), Inc., Morning excused. See v. Zapata Protein (4th Cir.1997) 213, 215-16 F.3d (upholding the trial court’s Batson dismissal of appellant’s challenge appellant because v. challenge raised the U.S. excused); after the venire Maseratti, (5th Cir.1993) (“To 1 F.3d timely, Batson objection must be made before the is venire dismissed Parham, commences”); and before the trial U.S. 16 F.3d (8th Cir.1994) (“[A] 844, 847 Batson objection must be at made the latest before the venire is dismissed before the trial commences”); Forte, Virgin Government Islands v. (3d Cir.1986) that, F.2d 75-76 (holding because the defen any objection dant failed to make dire, the close voir Inc., “waived” his Batson claim); see also Dias v. Sky Chefs, (9th Cir.1991) (“Batson 948 F.2d objections must occur as soon as possible, preferably jury before the *25 Cir.1993) (11th Chandler, 1073, 1102 sworn”); 996 F.2d U.S. v. during if is made voir it objection timely (noting “[a]n dire”). timely, not made claim was petitioner’s Batson
Because waived. has been AFFIRMED, COSTS. WITH
JUDGMENT HARRELL, JJ., part in concur ELDRIDGE and BELL, C.J., dissents. part; in dissent dissenting. HARRELL, concurring and Judge, part concur part I dissent respectfully in this Eldridge joins Judge in this case. majority opinion III, D. Part joins Bell all save Judge and Chief opinion I. majority’s recitation regarding the points
I first note a few Officer Despite trial. at facts adduced of the material defense, to what he during his testimony offered s McGriff that sent bulletin police dispatcher’s in the hearing recalled instance,1 ac- first he building apartment him the during trial, witness in the as an adverse earlier knowledged qualification, and without case-in-chief the Petitioner’s apartment, males in vacant seven responded “to call had acknowledgment with: He followed that fired.” shots So, report shots response Counsel]: [Petitioner’s building on dark apartment in a dark fired seven males confront went in alone to you and Officer Catterton evening, Is that correct? these seven individuals. is correct. That McGriff]:
[Officer Catterton had you And and Officer Counsel]: [Petitioner’s you, correct? the two only flashlight one between Yes. McGriff]: [Officer malеs, but that ‘seven’ the bulletin have
1. "McGriff admitted that Maj. op. at n. 1. ‘seven’.” ‘several’ rather than heard Upon confronting door, the closed kitchen closet Officer McGriff, again while testifying as an adverse witness during case-in-chief, acknowledged Petitioner’s that the leveling weapon and aiming “center mast” was how he was “trained *26 at the Police Academy.” He elaborated that the training to referred was: of deadly “[i]n use I force. didn’t know at the time I was to going I using deadly force. inwas ready trained, position, as we were inbe a ready position.” upon Called to estimate how much time passed between Officer opening Catterton the closet door the firing of his weapon abdomen,2 into Petitioner’s Officer McGriff stated “[a]nywhere from three to six seconds.”
Petitioner during testified his case-in-chief that he did not have the vacuum cleaner tube any his hands at time that he hiding was in the kitchen closet with his friends. After he was shot, someone, Petitioner recalled that presumably who had closet, hiding not been in the lights. turned on the kitchen introduce, sought Petitioner Respondent’s evidence of lack of Petitioner, reasonableness shooting the written guidelines regarding of deadly force, use as delin- eated in a Baltimore Department Police Training Bulletin (Vol.20, 1)No. issued the Police Commissioner on 2 May 1995. Although there was much in the Bulletin that had no claims, facial relevance to Petitioner’s the following points are so easily not dismissed:
II. General Rules for Using Deadly Force
A. Officers must deadly use only force as a last resort.
1. try Officers should to avoid putting themselves in a situation they where have option no but to deadly use force.
2. to Try use other less means: 2. Petitioner hospitalized twenty-eight days due to the wound inflict- ed. train consistent with in a manner to suspects
d. Talk orders[3] comply convince them to ingwhich will Confronting Suspect III. there is reasonable belief
A. If officers have a or themselves injury or serious threat of death others, weapons. may draw their they trigger off the keep fingers their B. Officers should prepared are until trigger guard below or the lives the threat to their lives shoot and potential IMMEDIATE and the else is someone death is IMMINENT. injury serious ... IV. firearms department of this shall use
D. Members *27 following duty, except discharge of their cases: (unlaw- self-defense, person or to another
1. defend attacked) injury.[ or fully ] from death serious to person is who has a. The attacked officer potential the attack and evaluate the seriousness response. appropriate determine an level must be reasonable response b. The evaluation officer from the reasonable perspective similarly situated. actual, specific that an requirement
c. There is no is, however, required It that the injury be inflicted. must potential injury present for such and the threat be immediate. everything officers have done
d. When deadly to and believe reasonably using can avoid force notes, that he majority opinion Petitioner testified 3. As the any given the officers at time before heard no verbal commands was shot. of deadly only the use is the way prevent force to else, serious or injury themselves someone justified. force is
2. []To effect the arrest or to prevent escape, insufficient, when other means are person whom probable officer has cause to believe: felony Has committed a involving the use or threat deadly force or physical injury; seriоus an imminent poses Who threat of death or serious physical injury the officer or others.[ ] a. When other means are insufficient can include but is not limited to:
(1) Using the radio to prevent direct other units to suspect’s escape;
(2) Knowing the suspect’s identity and that he/she poses no imminent anyone threat in the immediate vicinity of the area of escape; (3) Challenging suspect halt; (4) Pursuing suspects until it becomes obvious that capturing them is unlikely pursuit further and/or likely to endanger officer or others.
b. probable cause standard allows officers to act having situations without absolute knowledge that felony violent has occurred requires but their actions be based more than mere suspicion. c. Both the probable *28 element the officer’s to cause dangerous believe a felony has been committed and element that poses the offender an imminent to threat the officer or others the immediate vicinity crime must be present before an officer can use to force arrest the offender or prevent his escape. (1) Using deadly force to stop escaping suspect on specific must be based threat of danger imminent community because general on a threat to the and not of the crime. of the viciousness give verbal feasible, officer should Where [ JNOTE: are, There shooting at the felon. warning prior to warning however, when the issuance situations officers or safety of the would be detrimental case, not give need In such a the officer others. himself or the risk to if do so would increase warning to others. original).
(Emphasis offer such attempt would that Petitioner Anticipating limine trial, pre-trial filed a motion Respondent at evidence introducing evidence prohibit Petitioner seeking writ- Respondent’s any police procedure. violations of alleged May the 2 motion, alluding to although specifically ten published Regulations Rules and Training Bulletin and “the 1988,” only to those request not limit its relief June did motion, reasoned: judge In the trial granting items. any I don’t see again complaint, I reviewed have upon a complaint suit is based allegations that this orders, police regulations, police guide- violation of lines, failing as a and that result the defendants’ orders, rules, guide- regulations, follow police observe and (sic) lines, be, had been they may the defendant whatever in the complaint. I don’t see that all harmed. fact, Paragraph final paragraph complaint,
23, says this: hereto, actions defendants all times relevant
“At (b) (a) Richardson, criminal assaulting filing false brutally (c) Richardson, subjecting Richardson charges against probable of a cause were humiliation on the face lack or justifica- warrant performed by defendants without all wanton, tion, negligent, cause and were probable without malicious and reckless.” *29 given
These are the reasons for -wrongful acts of the defendants, they that acted in this manner. There not is single count in the complaint labeled violation of orders, regulations, guidelines, et cetera.
I is, think what this comes to as I think has been counsel, acknowledged by an effort prove that the acts of wrongful defendants were simply they because didn’t comply certain orders. And that there is no emphasis case, I complaint what read the as being, that reason of the failure of the this, defendants to follow rule that, this, that, rule order order it caused harm to the defendаnt.
I in, think to try bring it in the manner that plaintiff be, proposes, all, would first causing a trial trial, within a get and that would very bogged we down into the whole history import of these regulations. orders and get And then we into guidelines, and plaintiffs counsel is suggesting that guidelines give any don’t discretion because they And, use the know, words “shall” you and “must.” are guidelines, guidelines implies as the or word does it mean nothing says it guidelines when because the words “shall” and “must” be used certain times. get And we into those semantics, and the importance and significance of those semantics. akin,
It me, is somewhat it seems to plaintiff that the is seeking to this situation, have be a res ipsa loquitur type of told, jury that the be gentlemen, ladies and this is an order from the Police Department; regulation, this is a you and if find that the defendants did file a report, and write a report exactly when and where they supposed to, were that proves guilt. their proves That they were negligent, were, know, you whatever the various counts be, told, jury failure obey regulations imposes orders liability defendants, on the and I think don’t that’s so.
I think to bring case, further this into the very could easily tend to jury confuse the and obfuscate the real issues these plaintiff, have been raised I the motion. grant reasons that 448-50), (Maj. Petitioner op. *30 Officer testimony from Officer McGriffs sought to adduce Laron Wilson. supervisor, Sergeant immediate Catterton’s informa- to the desired unsuccessfully attempting elicit After he testified when Sergeant Wilson cross-examination tion Wilson as defense,4 Sergeant later called Petitioner for backdrop full appreciate order to witness. rebuttal rebuttal, one Sergeant Wilson was called which against at efforts cross- Petitioner’s earlier appreciate to also needs during the he McGriff when testified Officer examination cross-examination, counsel Prior to that case-in-chief. defense counsel the bench. Petitioner’s approached for the parties Respondent ask to judge the trial intended informed “if First, he be- respondent he would ask questions. three January on the night actions reasonable lieved his were Second, if a reasonable “[alternative he would ask 1996.” additional to the scene wait would have been secure Third, would ask Petitioner’s counsel to arrive.” officers Wilson, “[wjould superior, Sergeant agree your you odds[?j” good two are not against odds seven to first two permitted Petitioner ask the judge The trial reasonableness, the issue of because addressed questions not The court reasoned: but the third. questions except objection any I see no
The Court: it to me Because seems Sergeant the one about Wilson. Sergeant evidence hearsay. You don’t have Wilson that’s report of any You don’t have here. He hasn’t testified. So, me just seems to Sergeant Wilson that’s evidence. nobody say here to that this hearsay, and that was that’s say. had Is that not true? Sergeant was Wilson what 450-51, judge’s evidentiary majority, explained As at trial 4. ruling point was at least one of the at this in the trial correct for i.e., scope Respondent’s questions beyond the given, went reasons Sgt. direct examination Wilson. [Petitioner’s Sergeant That’s true. will Counsel]: Wilson testifying.
The Court: He will be?
[Petitioner’s He will Counsel]: be. Well, well, The Court: I calling who’s him? don’t— I him, [Petitioner’s going [Respon- call but Counsel]: dent’s indicated that was going calling counsel] she to be So, him. I am going to examine him on those points. [Respondent’s will, I I Counsel]: do point intend this him, is, call point but thе it’s evidence now. The Court: The is point what?
[Respondent’s point Counsel]: The no that there’s evi- dence of that now.
The Court: Yes.
[Respondent’s going Counsel]: He’s to be referring to some- thing that no one has talked about.
The I question, Court: can not allow that have because we nothing in evidence now to question allow that to be asked. although Sergeant called, And may Wilson be I don’t know what going say, he’s to and maybe what the defense would like him say, to he’s not be going say. able to There objections or things So, that nature. I don’t think that I can allow that question but that’s the only one that I find with, fault because I think don’t it violates the I ruling made respect the motion in limine because the heart and soul of this is reasonableness. And I think the questions really address reasonableness. ensuing cross-examination of Officer McGriff Peti- proceeded
tioner’s counsel thusly: McGriff, [Petitioner’s Officer you Counsel]: that indicated call, you responded when you thought it was an average call.
[Officer McGriff]: Yes.
[Petitioner’s You Counsel]: also that you indicated had males; report received a of several shots fired. that Is correct? McGriff]: Yes.
[Officer you report Actually, wasn’t Counsel]: [Petitioner’s males, was, shots fired? seven received just saying that. I’m disputing I’m not McGriff]: [Officer I recall. what that to be And considered Okay. you Counsel]:
[Petitioner’s average call? McGriff]: Yes. [Officer your actions were you Did believe
[Petitioner’s Counsel]: 12,1996? night January reasonable Yes. McGriff]: [Officer reasonable any have other you Did
[Petitioner’s Counsel]: building apartment entering besides alternative evening? No. McGriff]:
[Officer have alternative Would reasonable [Petitioner’s Counsel]: officers wait for additional to secure the scene and been arrive? No. McGriff]:
[Officer males, of seven report with the [Petitioner’s Counsel]: Even shots fired? McGriff]: Yes.
[Officer you that when entered You testified [Petitioner’s Counsel]: were there you reasonably assumed apartment, switches, correct? light switches, you switches that Light actual
[Officer McGriff]: yeah. flip up, Did Catterton Okay. you Officer
[Petitioner’s Counsel]: *32 of switches? any light activate those any time No, we [Officer McGriff]: didn’t. Sergeant Wilson as ultimately called Petitioner
When witness, court, Respondent’s face of trial the rebuttal the to respond to objection, permit Sergeant Wilson refused training and the identification regarding police questions have taken. One Respondent might reasonable alternatives for restriction was by judge on the trial this grounds the relied proffer that Sergeant say Petitioner’s what Wilson would not proper testimony rebuttal evidence the because would to, of, unresponsive beyond the scope any matter presented by the defense its case-in-chief.5 The basis for aspect that, this of the Court’s ruling although seems to be the had Respondent permitted been answer ques- Petitioner’s on tions the during cross-examination defense case-in-chief as he thought any alternatives, whether he had reasonable defense counsel had not that inquiry initiated line her direct examination of Respondent.6 trial,
At the judge close the jury instructed three gross counts-battery, negligence, and violation of Petitioner’s rights constitutional Maryland under Article of the Consti- instructions, tution. in pertinent part, were as follows: With battery, respect gentlemen, ladies and under our battery law a is touching person the intentional aof without person’s that Touching consent. includes intentional motion putting anything into which per- touches another or something son touches connected with or in contact with another person. ground proffered testimony
5. The other was that the would violate the ruling court’s majority on motion limine. The is to be commend- least, ed, at sweeping important issues raised rug Petitioner purely evidentiary under of the technical bases for also, rulings. the trial court’s See n. 7 infra. evidence, explained 6. As to rebuttal this Court has that: any competent explains, [r]ebuttal evidence 'includes evidence which to, of, reply is a any direct or a contradiction new matter has brought into been the case the defense.’ Our cases are clear that question testimony of what constitutes rebuttal rests within the court, ruling sound discretion of the trial and that the court’s should only ‘manifestly wrong be reversed where shown to be both substantially injurious.' clearly Even if the trial court rules evidence, testimony certain is not rebuttal the court nonetheless vary proof part exercise its discretion to order of admit it as stage case chief at rebuttal in order to meet case, requirements particular long of a so this action does not impair ability of the defendant to answer and receive a otherwise trial. fair State, 1, 14, Huffington (1982) v. (citing Md. 452 A.2d 265, 270-72, Hepple, (1977)). State 279 Md. 368 A.2d 448-49 *33 harmful or battery, touching must be In order to be a the physical pain, touching A is harmful if it causes offensive. other if it offends the or illness. A touch is offensive injury personal dignity. sense of person’s reasonable the case, the has gentlemen, this defendant ladies the that he preponderance of evidence proof by burden plaintiff. on the committing battery justified is person gross negligence, the count respect With with person when that acts gross negligence for liable rights rights disregard for the or reckless human wanton for liability not immune from Police officers are others. negli- gross I that is the emphasize And gross negligence. and, you gross I that again, say is the count gence or reckless disre- when one acts with wanton negligence involved. or the individual gard rights for the others case, defen- gentlemen, because the In this ladies and as law enforcement acting capacity were their dants officers, protec- law certain are entitled under the they jobs liability civil them to do their against to enable tions un- liability them from protection This insulates properly. they maliciously. find that acted you less now, Now, remaining they. I one defendant say There’s it is the they, just he. If I now should be used so defendant, he. one
Therefore, award for you any before can consider defendants, find a fact that you must actions malice, must prove plaintiff malicious. To actions were showing acted without make a factual defendant excuse, but or rancorous justification or evil legal hate, willfully purpose being influenced motive injure plaintiff. over officer was you
Even if find defendant zealous, must in favor officer you still find defendant done out you further find that such actions were unless you. malice as I have defined for manner, in this you If not find the officer acted do If officer. must return a verdict the defendant you then you manner, do find that officer you acted this then must wrong consider the other elements of the with which charged; he is in this wrong negligence. case was claim, respect plaintiffs With count of violation *34 of the plaintiffs rights, particular provi- constitutional the sion of plaintiff claiming the Constitution that the is rights violation of and that his were violated is 26 of Article the And says Constitution. Article 26 of the Constitution this. as I say, And I’m about of talking the Constitution the Maryland. of You can State have violations of Federal rights, rights constitutional violations of State constitutional just or both. It’s in provision this one that’s this involved case. says
Article 26 this: That all warrants without or oath suspected places any affirmation search or to per- seize or son are property grievous oppressive, and and all general suspected warrants to search places apprehend or to sus- pected persons'without or naming describing place the or in person special illegal are and not to ought granted. be 26 of Maryland
Article Constitution protects individu- als from warrantless seizures. immunity
Police officers have no for violation Maryland plaintiff A may State Constitution. com- recover pensatory damages violation the State Constitution regardless of presence or absence of malice. Maryland
Article of the protects Mary- Constitution land residents unreasonable searches and seizures manner Amendment same as the Fourth of the United States Constitution. individual,
When a police officer shoots an he has seized the individual. Whether the shooting is under reasonable Maryland Declaration of Rights depends upon the facts case, and particular circumstances of each including severity issue, crime at whether suspect poses an others, safety immediate threat to the or officer whether is actively he resisting arrest or attempting by flight. evade arrest under gentlemen, that ladies and you, also advise
I would reason force when has use law an officer our threat significant plaintiff posing that the to believe officer or others. injury to the physical or serious death by any of force used determining whether the excessive, you, ladies I instruct would officers was performance officers gentlemen, force as reasonable entitled to use such duties are their lawful purpose. their accomplish necessary order a mat- any force is excessiveness reasonableness or circumstances of all of the light determined ter time. the officer appeared to gentlemen, you, advise ladies and I would further not, must you force was excessive whether determining is, whether a reason objective basis. That upon judge or similar circumstances the same police officer under able *35 was reasonable. that the force used have believed could that you, gentlemen, to I out ladies point And would by way hindsight, judgment not you must look at this as 2%, rather under the circumstances always which is but moment. they existed at that to these instructions were taken. exceptions
No pertinent deliberations, note judge trial received During jury the determining reason- asking the jury “[i]n from the whether actions, we our consid- defendant’s do restrict ableness the surrounding the instant circumstances eration general or we circumstances shooting, should also consider back-up, for (e.g. calling lights)?” leading up shooting instructions, trial reiterating earlier addition to further judge responded: your question, if I about specific, may,
To be very are really, I at one your question, point, think is directed you Do consider the surrounding circumstances. there for occurred outside calling back-up, matter of which Do consider what you the officers went in. house before on, lights they turn what used they or did not lights did is, not my you did usе. And answer to that do not consider particular you those factors that have enumerated. You look they at the circumstances as at the existed used, moment was which the force means posture Catterton, this case when Officer now Detective and then Catterton, opened Officer the closet door and what time, you circumstances were at that found them to be that opened, when door was because that is when the excessive force was used. Those were circumstances present. that were said, I say, well,
As don’t You if you hindsight. use don’t they back-up called for more back-up, waited more might well, it if say, have been different. You they don’t put on more light, might had it been different. You have analyze it You way. analyze don’t that here is the situation, was, the light light whatever And was. you are not guess respect second the officers with put on they light light; whether should have more or less they back-up; should have called for more they shouldn’t gone in they back-up, have the house until more but got situation, rather here are in that and when that door opened closet, was those were the circumstances and that when excessive force was And is what used. you are to consider.
The trial judge then summarized that his ap- clarification both to plied battery count and to the count relating to Rights. violation Article 26 of the Declaration of Petitioner excepted limiting the aforesaid instruction. ulti- jury mately Respondent any found that liable on counts. *36 appealed
Petitioner to the Court of Special Appeals arguing admitting that the trial court erred not by police guide- the force, regarding lines the use of not allowing Sergeant to testify Wilson that Respondent had reasonable alternatives to his conduct after he responded reported the call of police shootings, allowing not Petitioner’s counsel to examine Re- on spondent the issue of [against] whether the odds “two odds, limiting and, the instruc- good” giving “not are seven” any surrounding circum- not consider jury that the could tions deciding Respon- when shooting to the actual prior stances rights civil violating Petitioner’s liability battery for dent’s Rights. The Maryland Declaration of 26 of the under Article court, by a unreported opinion in appellate an intermediate dis- judgments. trial court’s The panel, affirmed the divided that the Appeals police in reasoned Special the sent Court erroneously. had been excluded guidelines granted we by this Court and sought Petitioner review sake, my 1 shall first views clarity’s For address certiorari. instructions, to jury supplemental trial on whether the court’s My were erroneous. discussion excepted, which Petitioner jury provide, instructions will the issues the presented my whether the legal background view large part, erroneously. guidelines were excluded II.
A. jury instructions argues supplemental Petitioner response trial to the note were too given jury court totality of the circumstances test limiting light Connor, 386, 109 v. 490 U.S. S.Ct. enunciated Graham (1989). He asserts: 104 L.Ed.2d against is that claim an What Graham Connor holds is upon officer based a violation of the Fourth Amendment “objective standard. analyzed under reasonableness” particular judged use of force is The reasonableness of from of a on the scene. perspective reasonable officer Supreme of time circumscribed Court’s No window decision; contrary, Court’s statement that the judged force used must be reasonableness of a scene perspective reasonable officer scene, on the implies that all facts known to the officer analysis. gathered, probative are whenever that the reasonableness Supreme Court does state *37 use of must judged force from the perspective of a reasonable on the officer scene at time the force is used. (Emphasis original). argues
He further instructing jury consider what from may only happened the moment opened door, Respondent’s partner jury the kitchen was to permitted consider reasonable and foreseeable alterna- tives that could taken Respondent shooting have to avoid Specifically, prohibited Petitioner. the trial court the jury considering Respondent whether should have turned on lights apartment kitchen before the door closet was him to opened enable better see whether Petitioner gun holding weapon Respondent or other and whether have additional police back-up should waited for before enter- apartment.7 ing the
Respondent majority and the of the Court reason that Graham and certain U.S. courts of appeal limit time frame events that be considered to determine whether the employed force was reasonable to the moment the force was goes, As that position pre-seizure leading used. events the use of force are deadly irrelevant to an excessive force analysis claim and, therefore, under the Fourth Amendment Article Maryland under 26 of the Declaration of Rights.8 Respondent majority and the further assert that a non-restric- tive application totality of the of the circumstances would distraction, translate into a potentially mental adverse consequences, judgment when a officer exercises the 458-59). An deadly (Maj. whether use force op. expan- totality circumstances, they claim, sive view allow jury inappropriate hindsight would exercise (at 5) agree opinion majority 7. I with the n. that we should not dispose by construing of this latter contention made statement argument Petitioner's counsel at oral us before as a concession of abandonment of the issue. reading largely 8. Respondent’s argument This of Graham formulated police guidelines per that the in this case are se I inadmissible. shall this discuss infra. reasonably used officer considering whether Id. force.
B. action that a common law recognized has “This Court *38 or her of his deprived individual is lies an damages when v. Maryland Constitution.” Okwa in violation of the liberty (2000) 118, 201, (citing 140 161, 757 A.2d 360 Md. Harper, (1999); Davis, 18, 354, 50, A.2d 371 Md. 729 DiPino v. 354 (1995); Brown, 70, 447, 462 101, 660 A.2d v. 339 Md. Ashton Center, 537-38, 520, 300 Hosp. v. Eastern Md. Widgeon Shore (1984)). of 921, the interpreting 930 Constitution 479 A.2d inter courts their look to the federal and Maryland, we com analogous pretation of the States Constitution’s United Here, Mary 26 any. Id. Article of the panion provisions, if It states: is at issue. Rights Declaration of land Article 26. Warrants. warrants, affirmation, search without or
That all oath or are property, to seize places, any person or suspected general all warrants and and [grievous] oppressive; suspected persons, or to suspected apprehend places, search or describing person the naming place, or without granted. ought are and not to be special, illegal, which counterpart is Fourth Amendment Its federal states: people persons, of be secure their right
The houses, effects, searches unreasonable papers, against seizures, violated, shall and no shall not be Warrant cause, or affir- issue, supported Oath upon probable but searched, mation, place to be particularly describing things to persons and the or be seized. 519, State, 272, 283, 525 v. 359 753 A.2d
In Cartnail Md. (2000),we noted: sacred, or right been is held more long “[n]o
It has said law, common than carefully guarded, by more of every of and control right possession individual others, of from all restraint or interference person, own free 484 authority
unless clear and of “To unquestionable law.” end, this main is the import protection against its invasions sanctity home, of of person, privacies one’s and the life.”
(Citations omitted).
interest,
this
Despite
privacy
we noted
Okwa Supreme
recognizes
right
Court
“the
of police
necessary
officers to take
measures and
some
degree
use
199,
force
arresting”
suspect.
when
In constructing judicial the limitations the exercise force, Supreme jurisprudence Court has sought balance an individual’s fundamental interest in his or right her to be from government free intrusion against govern- the See 3 LaFave, ment’s law. Wayne need enforce the R. (3d ed.1996). Gamer, 5.1(d), § Search at and Seizure 32 In the Court Supreme explained:
To constitutionality determine the of a seizure must “[w]e balance quality the nature and of the intrusion on the against individual’s Fourth Amendment interests the impor- governmental tance of the alleged interests to justify intrusion.” We have described balancing “the of competing interests” “the key principle of the Fourth Amendment.” Because one of the is the intrusion, factors extent of the isit plain that depends only reasonableness on not when made, seizure is but also it is how carried out.
485
(citations
1699,
at 7-8
8,
at
85 L.Ed.2d.
formulation
test of
recognized
“[t]he
Court
reasonableness. The
not capable
Amendment is
under the Fourth
reasonableness
Graham,
precise
application[.]”
definition or mechanical
455
396,
1872,
(citing
at
[t]he “reasonableness” officer the judged from the of a reasonable perspective scene, hindsight. than vision of rather 20/20 is not an arrest based on Fourth Amendment violated arrested, cause, wrong though person probable even nor mistaken execution of valid search warrant on wrong premises[.] respect With to a claim of excessive force, the same standard of reasonableness at the moment shove, applies: every push may “Not or even if it later seem unnecessary peace chambers,” judge’s of a violates Fourth Amendment. The calculus of reasonableness embody must allowance the fact that officers are split-second often forced to make judgments circum- —in tense, uncertain, stances are and rapidly evolving— about the amount force necessary particular that is in a situation. 396-97, at U.S. 109 S.Ct. at at L.Ed.2d 455-56
(citations omitted).
Okwa,
See also
C. establishing The issue frame” on “time the events that may be considered under totality Graham’s of the circum- test split stances seems to me to fundamentally have circuits, federal this Court majority’s rationalization notwith- (“the standing disagreement product more the predicate context and factual than split” Maj. doctrinal op. — 453): of appeal Several U.S. courts have pre- determined that seizure events leading up to the use of force are irrelevant to the determination of whether the force was reasonable under the Fourth Amendment. Salim v. (2d Proulx, Cir.1996), 93 F.3d rejected the Court plaintiffs contention that the leading up circumstances to police officer’s use of force were relevant to a determination excessive force. The Court stated:
Plaintiff faults [the for various of police Officer] violations procedure, failing such as carry radio or call for back- up, failing also for to disengage when the other children
487
However,
leading
actions
[the officer’s]
the fray.
entered
objective
to the
reasonable-
shooting
are irrelevant
up
employ
to
at the moment he decided
ness of
conduct
inquiry depends only
force. The reasonableness
deadly
immediately
knowledge
circumstances
upon the officer’s
split-second
made
to and
the moment
he
prior
at
deadly
force.
employ
decision
Leavitt,
640,
F.3d
Salim,
v.
99
These
that,
reasonableness,
recognition
determining
Court’s
must
to the situation
degree of deference
be accorded
decision
split-second
officer
be in when he or she makes a
Graham,
396-97, See
490 U.S. at
to use
force.
e.g., Greenidge
In Deering
Cir.1999),
One the issues Deering was what role the “pre-seizure” leading moments up to the use of force played under the reasonableness standard of the Fourth Amendment. The trial in judge, delivering his instructions to jury, prohibited the the jury considering virtually all pre- seizure Deering disagreed evidence. The Court with the interpretation District Court’s restrictive totality the circumstances test Graham. It stated: totality of the circumstances cannot be to limited the precise Deering discharged moment when weapon. his That Deering very factor; fired a shot is a important perhaps jury easily the could conclude that it was the factor, controlling only factor, but it relevant evaluating constitutionality response, Reich’s which as of ammunition discharge rounds we have noted was only Deering’s firing If a shot were Deering’s direction. fact, And, in the trial factor, need a trial. hardly we would view; testimony was not extreme did not take this judge Some evidence was admitted shooting alone. limited as shooting part prior that occurred about matters which, circumstances,” itself, a phrase “totality a good deal of ordinarily law enforcement officers gives fact, provide is most often used phrase discretion. action; totality of the usually the justification fact or another which some encompasses circumstances search, seizure, things reason- such validates a It carry out an arrest. includes force used ableness of actions, had at the time of information which the officer uncovered later. but not information Graham reason- Deering Id. at 649-50. The placed Court Supreme context of Court’s ableness standard recognition in Gamer the Fourth interests Amendment *43 necessi- be balanced with law enforcement the individual must Deering The Court elaborated: ty. pos- on the information the officer depends
Reasonableness shooting; to time prior and at immediate sesses to the offi- “knowledge, facts and circumstances known judgment split-second cer at the time he exercised deadly force warranted.” Reason- whether the use perspective from the officer’s at the ableness is evaluated time, Deputy Reich knew hindsight. What 20/20 Deering the basis for the warrant would seem to about and all, only can parameters. fall within After we assume these a a jaywalker cop do not arrest of approach killer the same fashion. (citations omitted).
Id. 650 balancing discussed Gamer then and its consid- The Court eration: constitutionality of a Court considered
[T]he [in Gamer] of which authorized use force Tennessee statute unarmed, In find- against nondangerous fleeing suspect. an 490 unconstitutional,
ing the statute
the Court specifically re
jected the idea that the Fourth
has nothing
Amendment
Rather,
say about how a seizure is made.
in language
over,
which is cited over and
the Court
said that
order to
seizure,
determine the
of a
constitutionality
one must “bal
the nature
quality
ance
the intrusion on the individu
al’s Fourth
against
importance
Amendment interests
governmental
interests alleged
justify
the intrusion.”
8, 105
Place,
At
quoting
S.Ct. 1694
United States v.
462 U.S.
696, 703,
(1983).
103 S.Ct.
L.Ed.2d
“it
balancing,
plain
depends
reasonableness
on not
only
made,
when a seizure is
but also how it is carried out.”
8, 105
Id. view, at 650-51. Deering Court substantiated this (9th examining County Inyo, 1316, 1318 Brower v. 884 F.2d Cir.1989), explained:
... Brower
a
involved roadblock
consisting of
18-wheel-
er set
across
up
sight
a 2-lane road out of
around a curve
headlights
with the
of a police car trained on the approach
Brower,
so as to
oncoming
blind an
driver.
fleeing
suspect, slammed into the
primary
roadblock. The
issue in
case
was whether the driver’s death
constituted
sei-
zure, and the unanimous conclusion was that it did. But the
issue remained as to whether the seizure was reasonable.
On
[from
remand
the Supreme Court in
v. County
Brower
Inyo,
U.S.
S.Ct.
Id. of of the execution the time and manner both [Deering], case Id. totality of the circumstances.” part of the warrant are Francisco, 29 County San City v. also Alexander See Cir.1994). (9th 1355, 1357 F.3d totality of the to restrict also refused Deering Court circuit, the same in other cases within because
сircumstances
factor
determin-
sometimes be a
underlying crime could
deadly force.
reasonably
using
police acted
ing whether the
the basis for
whether
the Court assessed
Deering,
Specific
misdemeanor, could
i.e.,
a
warrant,
issued for
that was
contemplated
that Graham
Noting
jury.
considered
crime, Deering
severity
underlying
of the
of the
consideration
stated:
(
1993),
[7th Cir.]
Estate Starks and the crime underlying the issue involved both Considering issues conduct. both police relevance of the immunity of qualified claim the context an officer’s deadly “only force suit, may an use we said that officer a violent crime fleeing felon who has committed seize officer or others.” danger presents who immediate protect force that officers use Recognizing action,” choosing course risky themselves after “even analysis that the it relevant to the we nevertheless found accom- underlying crime was not officers knew “that the pointed out that violently.” Again at] 233. we plished [Id. intrusion with the countervail- necessary it is to balance the In the context ing governmental interests stake. felons, very the not that meant to us was fleeing what against vio- deadly force allowed revolutionary idea that have forfeited fleeing part lent felons because fleeing felons who seizure and that right a less intrusive to less intrusive right to violence have a have resorted But seizures. we continued: “threatening” fleeing to a fleeing
If a felon is converted officer, actions solely based on the felon of intrusiveness. degree should not increase the words, countervailing governmental no other we have *45 492
interest
unreasonable
conduct that
justify
would
a greater intrusion on the
rights.
individual’s
234.
[Id. at]
A further
of our
sampling
cases illustrates our
of
usual view
totality
Redmond,
of the
In
circumstances.
v.
51
Jaffee
(7th Cir.1995),
F.3d 1346
Officer
Lu
Mary
re
Redmond
sponded to a
of a
report
fight
apartment
at an
complex.
scene,
When she arrived at the
Ricky Allen was
chasing
poised
stab another man with a butcher knife.
Because
life was in
person’s
danger,
fired,
Redmond
killing Allen. A
jury
family
awarded Allen’s surviving
$545,000.
members
Although we
remanded
case for a
new trial
other
grounds,
approved
we
an instruction which
said
jury should consider “all the facts and
with
circumstances
Mary
which
Lu Redmond was
In
confronted.”
Plakas v.
Drinski,
(7th Cir.1994)]
[19 F.3d
a deputy sheriff
with
[Drinski] was confronted
a man [Plakas]
him
menacing
a fireplace poker
him
threatening
with death. The
shot
deputy
and killed the man.
In evaluating the district
grant
court’s
of summary judgment,
relying on Tom v.
(7th
Voida,
Cir.1992),
Atlanta,
Cir.1994)
The Deering Court summarized Seventh precedent Circuit as follows:
These cases—and others too numerous to relate —mean that Deputy what Reich at the knew time-about Deering, his crime, warrant, and the and his perception danger deputies and the other were in—was relevant to the evalua- tion of the reasonableness addition, his conduct. In balancing required requires Gamer a look at the coun- tervailing governmental in serving interest the warrant on Deering, which would include the time and manner which course, it was Finally, served. all of the events that occurred around the shooting time are relevant. must words, circumstances what totality other jury, the evaluation a case is tried When be evaluаted. jury. to that must be left circumstances those Id. 652. (1st Laconia, 20, 26 *46 71 F.3d City v.
In St. Hilaire of frame Cir.1995), rejected setting a time expressly the Court test, stating: totality the circumstances on the officers’ analysis police that the reject defendants’ We ... under for “reasonableness” actions need be examined shooting. the moment of the only at Fourth Amendment Supreme Court is inconsistent We believe that view with, Supreme Circuit. the law of this The decisions 109 103 S.Ct. Inyo, v. 489 U.S. Court Brower (1989), it has been held that once established L.Ed.2d 628 occurred, the court should examine a has that seizure to the seizure. leading up officials government actions of the “seized” when petitioners’ decedent was The Court held that his up stop a order to police crashed into roadblock set a that enough person for a seizure flight. “We think in motion or very instrumentality put set stopped 599, 109 Id. at S.Ct. place in order to achieve that result.” the cause a determination at 1382. The Court remanded in light peti- the seizure was “unreasonable” whether up had that the been set allegations tioners’ roadblock ... to kill the decedent. Id. likely such a manner as to be (3rd Raso, Cir.1999), the Court In Abraham v. F.3d granting for the Circuit reversed the Appeals Third on the issue of excessive summary judgment police to officer Abraham, Abraham the estate of Robert sued force. Abraham a after she shot and killed Kimberly officer Raso caught escape being mall lot he tried to after parking Macy’s store. Raso claimed department from shoplifting to his only he tried hit her with she shot Abraham after that path. The estate claimed car as she tried block side, car, not the front of the Abraham was shot danger. not in demonstrating that the officer’s life was capture used to The claim that excessive force was was Abraham for evading arrest. The granted District Court summary judgment in favor of judge Raso because the trial determined that Abraham was a public threat and it deadly was reasonable for Raso to apprehend use force to him. explained Abraham Court required Graham con- sideration of whether suspect was a threat to the officer public. See 183 To F.3d 289. determine whether Abraham threat the officer or the public required analysis of leading up the events to the shooting. rejected The Court reasoning of its jurisdictions sister pre- have excluded leading seizure up events the use force: want to our express disagreement [W]e with those courts which analysis have held that of “reasonableness” under Fourth Amendment requires excluding any evidence of See, preceding events e.g., actual “seizure.” v. Cole (8th (“we Bone, 1328, 1333 Cir.1993) 993 F.2d only scrutinize the seizure Carter Buscher, itself, not the 973 F.2d events leading (7th Cir.1992) seizure”); [9] *47 (“pre-seizure conduct is subject not to Fourth Amendment scrutiny.”); Chamberlain, (10th Bella v. 24 F.3d Cir.1994) Carter). (quoting Bone and The District Court alluded similar cases the confining inquiry reasonableness to the moment the officer force. used cases,
Based on
apparently
these
we
should not consider
any of the
before the moment
circumstances
Abraham was
actually
because,
struck
Raso’s bullet
following Califor-
D.,
nia v.
Hodari
499 U.S.
111 S.Ct.
113 L.Ed.2d
(1991),
a suspect is not seized until he submits to the
Deering
9. The
subsequently
holding
Court
have
clarified the
Deering explains:
Carter. See
A more fundamental if events circumstances, any, are left to be considered when How is the shooting are excluded. leading up if striking of a bullet someone be assessed reasonableness Do examining you include what preceding not events? at trigger? Under least squeezed Raso saw when she Hodari, interpretations some Abraham evidently was not seized until after the bullet left the barrel actually D., struck him. See Hodari 499 U.S. at S.Ct. 1552 (dissenting opinion) (suggesting that under the majori- ty’s analysis, no there seizure when the police shoot miss). If accept interpretation we both this of Hodari as well as the rule that pre-seizure irrelevant, conduct is virtually every shooting then appear unjustified, would we would be unable to supply any rationale for the officer’s conduct.
Courts that disregard pre-seizure conduct no doubt think problem. could avoid this But even rejecting the Hodari, rigorous interpretation of courts are without left any way principled when explaining “pre-seizure” events and, start consequently, any will not have justifi- defensible why cation for prior conduct to that chosen moment should be excluded.
The Supreme Court has
prior
allowed events
to a seizure
to be
in analyzing
considered
the reasonableness of the
Brower,
seizure.
remanded for a
Court
determina-
tion of whether the police acted reasonably
constructing
roadblock
suspect
used
seize a
in a car chase. The
suspect’s
alleged
estate
that the police designed the road-
block in way
to kill
likely
by placing a tractor
trailer
behind a
directing
curve and
car headlights to blind the
suspect
Brower,
as he
rounded the curve.
We with the First Circuit which concluded that Bone, Carter, and other courts following their rule are
497 the case they suggest Hodari when and misread mistaken explained: Circuit rule. As the First their supports seizure whether the was not question [Hodari] [T]he of the reasonable, requires an examination which circumstances, there had been but whether totality of the forbidding not this case at all. We do read a seizure a leading up circumstances examining courts from been seizure, there has is established once Hodari, that the Fourth to hold We understand seizure. into there has play not come unless Amendment does ... a seizure been 4], sum, Hilaire, 26, n. In we think all F.3d at
St. [71 of pursuit Abraham during the officers’ transpiring events Raso’s evaluating reasonableness of can be considered (4th 173 Perry, F.3d Rowland v. shooting. Cf. Cir.1994) ( objective reason way “The better assess context, eye with an it in full is to view ableness force all the light of the force proportionality toward sequence in the of events Artificial circumstances. divisions reasonable objective evaluation not aid a court’s do ness.”).
Id. 291-92. pre-seizure recognize that all Abraham Court did and some equally important relevant or
events or facts are no connection to have may be so attenuated at 292. “But what makes 183 F.3d officer’s use force. See ordinary are ideas consequence of no prior these events Id. causation, the seizure occurred.” not doctrine about when (11th 1156, 1170 Cir.2000), Sauls, 206 F.3d In Jackson v. rejected a line rule: bright Court also jurispru- that “Fourth Amendment this Court has concluded forces as identifying line for bright has staked no dence excessive,” permissible border between hazy that “[t]he multifactored, case-by-ease by forbidden force is marked all the test,” requires weighing balancing test “[t]he (11th Mattox, 1416, v. Smith F.3d circumstances.” Cir.1997).
Despite circuits, the split within the federal the federal appeal courts of universally accord deference the nature of situations when a officer is called upon to determine and, therefore, whether force should used prohibit hindsight inquiry of those situations. Roy Inhabit 2%o *50 City Lewiston, ants the (1st 42 Cir.1994), F.3d 691 the Court affirmed District grant the Court’s of summary judg ment to a police defendant officer the § context of a 1983 claim of excessive force. facts were undisputed. Two officers, Whalen, police an including officer answered a domes tic violence call at the Roy. home Michael Roy’s wife told police they the Roy when arrived that had two knifes and that her he he told would use on them the officers if police they him. approached The police officers went backyard they where found on Roy lying ground. Roy, who was drunk, angry became when he learned from the officers on the scene that another officer was on his way Roy to serve with a summons based on a complaint filed another woman whom he allegedly struck earlier day. same The third police officer Miranda Roy arrived and read his rights. Roy re accept fused to so police summons pushed officer Roy’s pocket. into Roy got house, into upset went got two knives, steak out of came the house flailing arms, knives in hand. The officers gave retreated backwards and They warnings. made attempts Roy to distract and disarm- Roy lunged him. then toward Whalen and his fellow officer. Roy Whalen shot twice.
Roy did not
dispute
Rather,
these events happened.
police
claimed
officers were not properly trained in
alternative
of using non-deadly
methods
expert
force. An
police procedure submitted an
stating
affidavit
police
mace,
officers should have
used
but
not
did
because the
police force does not supply
mace
its officers. He went
say
further to
the police officers should
stayed
have
at least 20
feet
away
Roy, according
proper procedures, but that
they were
only
away.
few
In comparing
feet
common law
negligence to the Fourth Amendment
reasonableness
stan-
dard, the Court of Appeals stated:
compar
is
of reasonableness
Supreme Court’s standard
potential
in cases where
atively generous
exigent
or other
circum
emergency conditions
danger,
[Graham],
that the
the Court said
present.
stances are
must
“allowance” for
make
“calculus
reasonableness”
judgments
split
“to make
second
need
officers
—in
uncertain,
tense,
rapidly evolv
are
circumstances that
necessary
amount of force that
ing
—about
396-97,
at
What these
issue,
qualified immunity
Supreme
is at
liability
tive
on-
to surround the
who make these
Court intends
fairly
a
wide
the-spot
dangerous
choices in
situations with
from this circuit
in close cases. Decisions
protection
zone
And in
circuits are consistent with that view.
and other
cases,
automatically
get
a
does not
second-
jury
close
decisions,
though
plain-
even
guess these life and death
claim
situation
plausible
tiff has
and a
that the
expert
differently.
have
handled
could better
been
Roy,
After we think that the district court properly granted summary judgment the section 1983 claim in favor of Whalen. Perhaps jury a rationally could have found that Whalen job; could have done better in jury but our view a could not find that his conduct was so deficient that no reasonable officer could have made the same choice as Whalen —in assuredly “tense, circumstances that were uncertain, and Graham, rapidly evolving____” at U.S. S.Ct. at actions, 1872. Put differently, mistaken, Whalen’s if even were not unconstitutional.
Id. at 695-96. The Court then conceded:
We have labored this single point over Supreme —the objective Court’s reasonableness any standard —without hope articulating a precise more concrete or gloss of the Court’s can language. said "What be is that the term in reasonableness is used ways different con- different texts; this use one—the force the police dangerous situations —the Supreme Court has allowed latitude might more than customary simple tort case involving driving. careless Terms like “plainly incompe- tent” or concepts like what “a reasonable officer could have inherently general, believed” are but add nuance and provide a sense of direction.
Id. 696. by Roy
The standard set forth has been applied by the other federal States, See Katz v. United of appeal. courts Cir.1999) (9th (“To F.3d 968-69 resolve the merits of an claim, excessive force the question is whether reasonable officer could have believed that the necessary force used was under circumstances” or other words officer “[a]n *52 cannot objectively have an reasonable belief that the force necessary used was ... no when reasonable officer could have believed the force Scott v. District necessary”); used was Columbia, 748, (D.C.Cir.1996) (“[T]he 101 F.3d 759 proper for question the is jury whether ‘the excessiveness of the force
is apparent so that no reasonable officer could have believed in ”) (citations omitted); lawfulness his actions’ Lennon v.
501
(2d Cir.1995) (“no
jury
rational
could
Miller,
425
66 F.3d
no
was so excessive
the force used
found that
have
choice”).
made the same
officer would have
reasonable
strate
end,
that alternative
recognized
has
To this
it
been
deadly
effecting
officer could have used before
police
gies
was
strategy chosen
necessarily mean that the
not
force do
(whether the
F.3d at 650
Deering, 183
unreasonable. See
totality
of the circumstances
necessary under
force was
for the
reasonable
necessarily mean “whether was
not
does
police must
or that the
to create the circumstances”
deadly
engaging
before
all viable alternatives
consider
(“a
Scott,
demonstrate
cannot
force);
plaintiff
I of the circum- impractical think it confine the reality partiсular period of time. The is that stances” to confinement, appeal attempted U.S. courts of that have such taking only to assert circum- despite great pains when that are used to determine reasonableness dead- stances moment, to, just prior force used is at the ly facts and applied, rely pre-seizure being force nonetheless as to whether excessive activities to make their determination force Without reference to and consideration was used. events, evaluation pre-seizure no context reasonableness How can else totality of the circumstances be illustrated. *53 jury is the to understand the setting in which the force was ultimately? used How else is jury acquire the facts to, known or which should have by, been known defendant the. police at the officer moment the force was used? Those same facts are vital for the jury to determine whether a reasonable officer the ambient situation at issue would have used deadly Indeed, force. the shortsightedness majority’s of the Respondent’s position and readily is apparent light of the Deering recognition pre-seizure Court’s might events very well be aby needed defendant prove officer to deadly or her use of force totality was reasonable under the the circumstances.
Furthermore, a standardized time frame or line of demarca- tion for considering deadly force reasonableness would be contrary to of Graham in that spirit it would foreclose a myriad of other Graham factors contemplates apt as consideration, ie. assessing the suspect’s danger to the public officer, severity of the crime the suspect allegedly committed, and the suspect’s actions in his or her attempt evade arrest. Some of the facts necessary to make these determinations will not arise necessarily at the moment Indeed, force is used. as noted supra, Graham recog- nized that a strict definition for assessing reasonableness under the Fourth Amendment would be an in futility. exercise Rather, the numerous factors considered must be placed on a scale in order to balance the individual’s Fourth Amendment rights against law enforcement needs.
In deadly killed, force cases where individuals are obviously are unavailable to their give account of the circum- leading toup stances such, their “seizure.” As scrutiny of the facts pre-seizure is necessary events to reinforce the integrity legal of the process, well as law enforcement generally, justice to ensure that during served trial. Scott, See F.3d 915. This means the presentation of witnesses, physical evidence, medical reports, and other evi- dence will be credibility needed assess the surviving police officer’s account of the facts. See id. The courts simply accept cannot the circumstances of the incident as pur- id. The entire survivor. See by the defendant offered credibility and jury for the to determine of the trial is pose sides, make its by both presented of facts as weight under deadly force was reasonable of whether determination *54 totality of the circumstances. the in his hold, therefore, trial erred judge
I that the would by confining jury’s the consideration instructions supplemental the moment shot of the circumstances the totality of the fair prejudicially impacted that such instruction fired and was There be circum- оf Petitioner’s claims. consideration shoot- where, the transpired what before regardless stances just or at the moment suspect’s that a individual’s actions ing, an officer reason to believe shooting give would before necessary. e.g., City Fraire deadly force was See that (5th Cir.1992). Indeed, “[t]he 957 F.2d Arlington, officers wait require police Fourth Amendment does of harm suspect shoots to confirm that serious threat until a however, Elliott, determination, at 643. This 99 F.3d exists.” totality of the of the relevant upon is made consideration circumstances.
III.
A. granted argues erroneously trial court Petitioner guidelines because police in limine to exclude the the motion relevant, probative, are thus guidelines and whether to the violation of gross negligence, battery, counts of Declaration rights Maryland under Article 26 civil Instead, case, in this individually. Rights must be assessed in limine as a blanket judge trial the motion granted guidelines without first to the admission prohibition probity and relevance making an individual assessment “analy- I agree with Petitioner that to each cause of action.10 judge's ruling on the motion in limine became overrul- 10. The trial or ing evidentiary rulings on the same related basis for his substantive when at trial. evidence offered probative sis of the value of the excluded evidence for each is count different” judge the trial as- should have guidelines probative sessed whether the were as to each cause of action.
Respondent argued to this Court the Fourth Circuit has prohibited the of police procedures guide- introduction lines, position majority here appears accept (Maj. op. 455-56). that, argued light cases, He of these such guidelines are jury’s irrelevant assessment of whether force reasonable whether officer acted self-defense and that we hold that should such guidelines Moreover, are per inadmissible se. as to gross negligence claim, Respondent asserted that if even relevant, guidelines were immune from suit under the qualified public immunity official doctrine.
B.
Article 26
I
dispose
would
of this sub-issue with relative
in
brevity
light
II
of Part
of this dissent. This Court
has
frequently
police procedures
guidelines
considered
in determining
police activity
whether
given
reasonable under
circum-
e.g.,
stances.
See
v. Mayor
City
Williams
&
Council of
Baltimore,
101, 139-40,
41,
359 Md.
(2000);
753 A.2d
61-62
Albrecht,
502-03,
349-50;
Indeed,
the Supreme
holding
Court’s
in Gamer was based
partially on
police procedures.
Gamer,
consideration of
In
the Court held that the common
enabling
law rule
officers
means,
use all necessary
force,
including deadly
an
effect
arrest of
fleeing
felon was unconstitutional
particularly
in light
policies
“when viewed
adopted by
police
department
which
themselves”
narrowed the circumstances of
deadly
when
force could be
compared
used as
to the common
18,
1705,
law. See 471
U.S.
505
determined,
in excessive
have
appeals
Federal courts
contexts,
deter-
are admissible
police procedures
force
Ludwig
See
actions were reasonable.
mining
police
whether
Cir.1995)
(8th
Anderson,
(“Although these
v.
54 F.3d
create a constitutional
guidelines do not
‘police department
constitutionally
analysis
to the
they are relevant
right,’
(citations
Scott,
force”)
omitted);
Neither
is settled on the issue
precedent
that Fourth Circuit
se in excessive
per
are inadmissible
police procedures
whether
791, 793
Court of
In
927 F.2d at
Greenidge,
force cases.
did
held that the District Court
for the Fourth Circuit
Appeals
from intro-
prohibiting
plaintiff
not abuse its discretion
police procedures
police
to show that the defendant
ducing
lead to the
procedures may
officer’s
have
police
deviance
procedures at
particular,
use of
force.
night
time
arrests.
prostitution
issue related to
act in
With her
illegal
progress.
sex
officer observed
she
the car door and identified
badge displayed,
opened
*56
occupants
two
police
She ordered the
herself as
officer.
The
complied.
police
place their hands
view. Neither
car,
revolver,
repeated
it into the
and
pointed
officer drew her
object
for an
instructions. The
then reached
plaintiff
her
shotgun
was a
object
thought
the seat. The
the officer
behind
nightstick. The officer fired
turned
later to be
out
a wooden
injury.
him
gun
plaintiff, causing
permanent
and shot the
her
have called
that the
officer should
plaintiff alleged
police
The
n forback-up
making
before
the arrest and should have used a
flashlight
police procedures.
accordance
In focusing on the
emphasis
Graham Court’s
the mo
ment
police
split-second
when the
officer makes the
judgment
force,
use
Court held
persuaded
the
“we are
opened
events which occurred before
door
[the officer]
the car
passengers
and identified herself to the
are
probative
not
the reasonableness of [the officer’s] decision to fire
shot.
Thus,
not
events are
relevant and are inadmissible.”
Elliott,
Greenidge,
507 jury The found author’s assertions. to be called to rebut the in of defendants. favor experts— her two plaintiff argued appeal,
On Knott, unit for the Baltimore a retired canine trainer Thomas diGrazia, County, Montgomery Robert former City police, and mod- that the of Police—-would have testified Maryland, Chief exces- officers were of force used alities of dogs on use light accepted police practices sive Appeals The Court of reversed: slapsticks. force standard— district court held that the excessive juror to a lay
“objective comprehensible reasonableness” —is not assist the testimony would therefore expert of fact ... trier “objective general
As a reasonableness” proposition, lay juror. to a On the may comprehensible be standard hand, the existence a any “objective” implies test other and, conduct, is not the standard defined standard where rather generic person reasonable by the —a —but likely is more that Rule specific reasonable officer—it —a line between Evidence] 702’s the Federal Rules [of been knowledge common has crossed. specialized a blanket rule The district court seems to have deduced generally excessive expert testimony inappropriate is (D.Md.1991). Smith, 7 F.Supp. from Wells v. 778 force cases testimony has been admitted contrary, expert To the often County, v. 927 F.2d such cases. Davis Mason denied, (9th Cir.), 899, 112 cert. 502 S.Ct. 1484-1485 U.S. Atlanta, (1991); v. City 227 Samples L.Ed.2d (11th Cir.1991[1990]); 1548, 1551-1552 City Kerr v. 916 F.2d (11th Cir.1989) Beach, 875 F.2d Palm West testimony expected dog bite ratios (expert concerning Brezek, (7th units); Cir. canine Kladis 823 F.2d 1987). Nonetheless, testimony expert a blanket rule that just be generally excessive force cases would admissible wrong as a blanket rule that is not. expert will whether every
The facts of case determine force is reduced to testimony jury. would assist Where its most primitive form—the bare expert testimony hands — handcuffs, might helpful. gun, slapjack, Add mace, tool, jury some other and the start ask itself: what is what training mace? is an officer’s using *58 gun? damage how much can a slapjack do? Answering questions may by these often expert testimony. be assisted dogA specialized a more tool than a or gun slapjack. to poodle How train a to sit or everyday roll over is not knowledge and could be an in explained by expert a case where it to was relevant. How train and use a police dog are even more obscure skills. Both Knott and diGrazia qualified testify were to knowledge about this specialized long their experience. testimony
diGrazia’s proffered about the use of slapjacks is a closer issue. A club the damage and it can cause when it strikes a head are person’s easily understood by most Still, diGrazia clearly permitted should have been laymen. testify to as to the prevailing standard of conduct for the if slapjacks, use of even had been precluded giving an opinion on the ultimate issue of whether the use in this case was reasonable. total, in
The limine exclusion of Knott and diGrazia’s testimony of was abuse discretion.
Kopf
While do not to reconcile these two I note Greenidge that both Kopf admissibility and with dealt facts that purported police show that conduct deviated from pоlice training operating procedures. Whether these facts were to be testimony introduced via witness or documents is not material to the issue whether police training or proce are per because, inadmissible se as the majority dures claim, Respondent they allow the in jury engage hind 2% sight analysis of how a officer police should have in acted ideal, rather than whether the police reasonably officer acted under the totality Here, the circumstances. the trial court seemingly granted Respondent’s in limine motion based not just on the guidelines belief that the were irrelevant mo at the necessary force was of whether the issue fired, court was also the trial the shot was but because ment that a attempting show Petitioner concerned that se. per was unreasonable guidelines from the deviation police guidelines and that Part II of this dissent light of determining the reasonable- factor are often considered conduct, I trial court erred conclude that the ness of offered, guide- to allow the refusing, at least for the reasons previously highlighted portions be lines to admitted. The sought to admit the case sub Petitioner guidelines of the issue whether judice probative were relevant procedures These Respondent. force was used reasonable ongoing training.11 officer’s City police are a Baltimore part molding City police department aid Baltimore They like the consider- guidelines, officer.” “reasonable re- pre-seizure supra, may events discussed ation of setting. to a In combination neatly temporal stricted field, they resonate with training experience *59 other or confronts a to use officer when he she decision police seconds, force, is ten three deadly whether that decision made (as period Respondent to six seconds estimated the critical here), such, they or shot fired. As be a nanosecond before a usually jury as a lay persons populate also aid —in —such police reasonably a in cases appraising whether officer acted reasonableness, is used. Part of that deadly where force police is for the officer to according guidelines, deter- mine, faces, use under the situation he she when to force. approach
A more restrictive would be unwise. While devi- procedures can be used as evidence to show police ance unreasonably, police may officer acted those that have procedures might also be used to show that he or she acted here, reasonably. may This well be the where the case Respondent part regarding explained 11. I note that that conduct assumption ready position, at weapon of the with his drawn and aimed closet, example training of the kitchen of his "center mast” Academy. Police guidelines provide police officers with wide discretion exigent under circumstances.
I share the trial court’s that concern Petitioner have show, through intended to guidelines, introduction of the police a deviation from procedures demonstrates per police unreasonably. officer se acted procedures Police necessarily gold are not determining standard for self- defense, nor is a police deviance from procedures itself a cause of action Maryland. proper The method of placing proper context the consideration jury police guidelines procedures is by instructing jury they are but many some of the factors to be considered and should not alone be dispositive question deemed of reasonableness.
I am not unaware of the many dangerous situations officers daily confront on a basis. The officer’s privilege force, however, use deadly must against be balanced right citizen’s from unjustified injury free or death. One way to balance these interests is jury weigh relevant evidence, fairly presented by both sides. These factors must weighed by jury, be balanced and judge. the trial determination reasonableness under the circumstances here is an issue for the of fact trier to decide. See Guerriero v. State, 545, 549, (1957); 213 Md. 132 A.2d Baltimore Faulkner, 598, 601, Transit Co. v. 179 Md. 20 A.2d (1941); State, 512, 521, Wilson v. 87 Md.App. 590 A.2d (1991).
C. Battery *60 Petitioner per asserts that se exclusion of the guidelines was error guidelines because those were relevant to Respondent’s the issue of assertion regard self-defense with to his battery argues: claim. He
In determining not whether or [Respondent’s] actions justifiable claim, were a battery self-defense to one cannot look his actions in a vacuum. One cannot claim he is which danger he creates in self-defense when acting claims is self-defense. the act which he necessitates Training Bulletin Department Police The Baltimore part pertinent in Force state Deadly on Use Guidelines resort,” only a last deadly must use force that “[o]fficers in a situa- themselves try putting should avoid “[o]fficers force,” and they option deadly no but to use tion where have to handle number of officers sufficient “[w]ait [a] should force.” situation without undue [the] considerably weakens claim self-defense [Respondent’s] [Respon- Clearly, light in of his violation the Guidelines. in a situation where putting not avoid himself dent] did did not wait for a deadly to use force and option had no but the situation without number of officers to handle sufficient indicated that The call the officers received undue force. two, had and shots been outnumbered seven were he was outnum- Entering a situation which fired. such that Officer increased the likelihood McGriff greatly bered would use himself a situation where he place would Ac- perceived for self-defense. deadly force due to need Guidelines, [Respondent] by his violation of cordingly, him to compelled which act created the circumstances Furthermore, [Respondent’s] failure turn “self-defense.” greatly kitchen also lights “extremely on in an dark” what was misperceive that he would increased likelihood [Respondent] discharging his in the closet and result turning lights on the weapon By in “self-defense.” kitchen, “extremely failed to avoid [Respondent] dark” had no but to option himself in a situation where he putting use force. are
Respondent argument guidelines relies per inadmissible se under Graham. immunity no if he public
It is official has fundamental Brown, tort. Ashton v. she an intentional See commits (1995); 70, 117, v. Prince George’s 660 A.2d Cox Md. (1983). 1038, 1041 Re- Md. 460 A.2d County, *61 512
spondent’s defense to the tort was it battery was justified by self-defense. State, 408, 422, 396, (2000), Jones v. 357 Md. 745 A.2d 403 majority
this Court noted that the of Maryland relating cases to self-defense have occurred in murder contexts. We delin- perfect eated elements of self-defense as follows: (1) actually the defendant believed that he or she was in harm; or danger immediate of bodily imminent (2) reasonable; the defendant’s belief was (3) the must nоt aggressor defendant have been the or conflict; provoked the
(4) the defendant no reasonably used more force than was necessary to himself or in light defend herself of the threat- ened actual harm.
Jones,
422,
357
atMd.
745
at 403. See
State
A.2d
also
v.
Faulkner,
482, 485-86,
759,
(1984);
301 Md.
483 A.2d
761
State,
(1957).
545, 549,
466,
Guerriero v.
213 Md.
132 A.2d
467
however,
This Court has recognized,
the doctrine of
perfect
crimes,
applies
self-defense also
such
non-murder
assault,
common
both
law
criminal and civil contexts. See
Jones,
425,
at
745
357 Md.
A.2d at 405 (perfect self-defense is
a defense to common law assault charges); Baltimore Transit
Co.,
(“If
600,
179
at
injury
Md.
While self-defense contains
subjective
both
elements,
objective
it is the
element of reasonable force that
argued
State,
both
v.
parties here. See Burch
346 Md.
253, 282,
(1997)
443,
Faulkner,
696 A.2d
458
(discussing
500,
subjective
Md.
One who
ground
seeks
assault on the
that acted
must
self-defense
show that he used no more force
The belief of
reasonably demanded.
exigency
than the
plaintiff intended
in an
for assault that the
action
defendant
self-defense
bodily
support
plea
harm cannot
do him
prudence
average
person
such a belief as
unless was
jury
under similar circumstances.
would entertain
*62
justify assault
instructed that to
accordingly
should
be
be such as
must
battery in
the circumstances
self-defense
prudence
average
a
man of
induced
reasonable
would have
order
himself.
protect
an assault in
to make such
Jones,
at
601,
357 Md.
A.2d at 487. See also
“The reasonable man, under the by what a reasonable uses is determined to know which actor knows has reason circumstances time, regard as permissible would view to exist at this, determining account threatening him. In danger put that the conduct has must be taken of the fact other’s a rapid in a in which he must make position the actor man such an The test is what reasonable decision. which, permissible and not emergency would believe emergency past, is reason- after the event and when sufficient.” recognize having man so been able would (2d al., 3.11, § 314 of Torts at Harper, V. et The Law Fowler (Second) 1986) 63, § j, Comment Restatement Torts (citing (1965)). officer, a lack of reasonableness alleging police
In cases light be objective analysis must determined officer, average reasonable police rather than the reasonable Albrecht, layman. In we reasoned: 514 circumstances,
Under almost all gratuitous of a pointing at deadly weapon one civilian another civilian would se, certainly negligence almost if per gross negli- A gence per officer, hand, on police se. the other is and, indeed, authorized frequently obligated to threaten force on a regular basis. The of conduct standard therefore, demanded of duty, officer on is of a similarly standard reasonable officer situated. State, (citing 336 Md. at 349 649 A.2d Albrecht v. 97 (1993)). 630, 642, Md.App. A.2d Wilson State, 512, 521, (1991), Md.App. 590 A.2d the Court of Special on Appeals elaborated the use of force reasonable when police make an arrest:
What part amounts to reasonable force on the of an officer making an usually depends arrest the facts in the particular case, and hence the question jury. for the reasonableness of the force used must be judged light *63 of they appeared the circumstances as to the officer at the acted, time he generally and the measure is considered to be that which an ordinarily prudent person, with intelligent officer, in of knowledge and the situation the arresting would have necessary deemed under the circumstances. mind, cannot, With this heightened standard I without sacrificing honesty, deny intellectual that the Fourth Amend- ment reasonableness standard is similar to the reasonableness standard under self-defense doctrine as to applies by police decline, however, conduct I equate officers. to two doctrines. Unlike the purely objective standard required Graham, by the self-defense doctrine subjective contains both Subjectiveness objective elements. has been excluded Supreme Court from excessive force evaluation under the Furthermore, Fourth Amendment. un- federal standards analysis der Fourth Amendment ways evolve might Maryland’s not comport evolution of the of law self-defense. I standards, While decline to equate two however, I myself do restrict looking not to federal to it makes sense where reasonable standards constitutional do so.12 Graham, example, resonate concepts
Some liability. In Boyer, civil officer police our cases that discuss pursuit emergency in an vehicle albeit explained, Court this a may owe context, that, police fact that officers despite the a chasing third individuals when party of to innocent duty care dangerous daily activity officer’s the nature a suspect, in an emer- to the officer’s conduct mandated some deference 589, 594 A.2d 136. We at at gency situation. See 323 Md. opined: officer’s conduct must be
It remembered hindsight but should be viewed not judged should be police officer would reasonably prudent of how a light situation. emergency the same difficult respond faced with be to the same coolness The officer is not to held in an emergency not involved accuracy judgment one officer, confronted with the situation Any pursuit. vehicle to poses a threat to others refuses where an individual who additionally purpose allowing a civil suit based on I note that the 12. compared rights, civil allegations, to violations of one’s differs. tort as Ashton, explained at we the distinc- 660 A.2d Md. public immunity tort why is accorded under some tion and official claims, Maryland: Constitution of but not for violations ordinary purpose negligence a or other tort action is The against government to specifically protect officials or individuals purpose government of these actions is restrain officials. individual, give against person one protect one individual another injured by person. wrongfully another Issues of remedy when he is whether, governmental immunity and what in this context concern extent, matter, entity governmental policy official is to ordinаry private party. treated like an hand, provisions 24 or 26 On constitutional like Articles the other III, *64 Rights, § Maryland or Article of the of the Declaration of Constitution, designed protect Maryland specifically to are citizens government against types by officials. To certain of unlawful acts officials, government responsible leave immunity to the accord violated, rights are an individual remediless when his constitutional provi- purpose of the constitutional would be inconsistent with the largely nugatory the It also ... render cause action sions. would rights recognized [Maryland]. for violation constitutional Clea, 684-85, 1314) (other (citing at Md. at 541 A.2d citations 312 omitted). quotations and internal 516
stop, and to at a attempts high speed, instead flee rate of (cid:127) must make a split-second respond. decision as how to Risks are pursue attendant the officer’s upon decision to pursue. his decision not to A high-speed may aggra- chase vate an already dangerous by causing situation who driver appears operating dangerously be so vehicle to do hand, if higher speeds. On the other the officer does not pursue road, an dangerous individual believed be on the driver, such as an intoxicated nonethe- may individual dangerous less continue on a course conduct and serious- ly injure someone. (citations
Boyer, 589-90, 594 323 Md. at A.2d at 136-37 omitted). situations, recognized,
We
in vehicular
a police
chase
officer
factors,
“must take into account a number of
such as road
conditions,
traffic,
traffic,
pedestrian
vehicular
of day,
time
weather, dangerousness
person
fleeing, and make what
an
virtually
is
judgment.” Boyer,
instantaneous
517
States,
United
See
litigation’).
West
challenged
actions
(C.D.Cal.1985), affirmed, 807
1015, 1017-1018
F.Supp.
Cir.1986) (in
(9th
under
of the circumstances
light
F.2d 178
negligent
not
they were
operating,
were
the officers
which
violators);
law
suspected
pursuit
conducting
high-speed
Foundation,
Ind.App.
Charitable
Bailey v. L.W. Edison
(1972) (‘Thus,
of life
141,
protection
284 N.E.2d
who, by not
fleeing
offender
by capturing
property
vehicle,
wilfully
public
endangers
wantonly
stopping
endangering
against
possibility
safety
weighed
must be
continuing
pursuit’)”).
by commencing
property
life and
principle
this Court adheres
glean
Boyer
I
that
not to be determined
of a
officer are
police
the actions
that
retrospect,
or in
but rather
through hindsight
unreasonable
into consideration the
taking
must be evaluated
they
to,
known
facts
occurred
under which
circumstances
officer when
police
known
by,
have been
or which should
at 137.
594 A.2d
Boyer,
See
323 Md.
or she acted.
the rea
Furthermorе,
evaluating
no hard rules
there are
depends upon its
and “each case
conduct
police
sonableness
at 137.
D. Negligence Gross relevant to the guidelines were argues Petitioner prove Respon- in that tend claim gross negligence disregard to wanton and reckless actions amounted dent’s Petitioner states: rights of others. [Respondent] Guidelines, Not did only violate the infor- mation contained the Guidelines is what all are officers taught academy. Simply, at the [Respondent] knew Guidelines, about the consciously but them. failed follow certainly violation the Guidelines could be considered *66 of a disregard evidence wanton or reckless rights for the others.
Respondent counters that we
need
resolve whether the
guidelines
gross
are admissible because
claim
negligence
against Respondent
is
by public
immunity.
barred
official
Respondent cites to cases
com-
addressing
statutory
both
and
mon
public
immunity
argues
law
official
and
that he is immune
from
gross
suit on the
count.
negligence
majority,
The Court
holding
because of its
as to the inadmissibility of the guide-
lines, does not reach Respondent’s immunity argument.
I
agree
would
Respondent.
reach
and
This
repeatedly explained
Maryland
Court has
public
officials—both at common law and under certain statutes —are
qualified immunity
liability
entitled to
from tort
for conduct
negligent
have been
performance
of his or her
State,
job
271, 285,
duties. See
Parker
337 Md.
653 A.2d
436,
(1995);
443
Ashburn v. Anne Arundel County, 306 Md.
617, 621,
1078,
(1986);
510 A.2d
1080
v. Prince George’s
James
315,
(1980).
336,
1173,
County, 288 Md.
418 A.2d
1184
Under
law,
common
police
officer is
public
considered a
official
encompassed by
immunity
this tort
if he or she acts within the
scope of law enforcement functions. See
v. Mayor
Clea
Baltimore,
City
662, 672,
1303,
Council
312 Md.
541 A.2d
(1988);
1308
George’s
Bradshaw v. Prince
County, 284 Md.
294, 302-03,
255,
(1979),
396 A.2d
260-61
overruled in
on
part
James,
grounds,
336,
other
Ashburn, 1081. 623, 510 A.2d at atMd. tort liability immunity certain
Qualified as well practical perspective both a necessary from officers is George’s v. Prince Coun- Williams public policy. sound (1996), 526, 543, the Court 685 A.2d ty, Md.App. explained: of Special Appeals aptly *67 functions, the discretionary perform officers police When all abus- against flagrant but insulating rationale in officers officers, permit police necessity position, es of their is work, the appro- in context make especially police uncertainty. great in an atmosphere priate decisions in for hindsight theory holding police officers liable is would paralyze of their actions every injurious consequence Moreover, permitting functions of law enforcement. against officers would entail substan- unwarranted lawsuits including potential inhibition fear of social costs and tial liability and would further consume among peace officers him or her from preventing much of the officer’s time consider- his or her duties. Because these performing ations, reasonably, is to officers act immunity granted who in law light clearly established mistakenly, albeit hindsight, without the benefit of they possessed information (citations omitted). however, immunity has tort suggests, qualified
As its name James, prong a its identified three test limitations. we determining immunity whether attaches:
520 representative a governmental
Before this is re- State acts, for his it liability negligent lieved must be deter- following mined that the independent simultaneously factors (1) actor, alleged exist: whose negligent individual con- issue, public duct is at is a official rather than mere (2) government agent; employee his tortious conduct discretionary, occurred while he was performing opposed ministerial, acts furtherance of his official duties. Once it is established that the is a public individual official and the tort was performing duty committed while which discretion, involves the exercise of a qualified immunity attaches; malice, namely, the absence of the individual liability. involved free is The rationale this underlying grant of is immunity public purpose served protecting when officials act an exercise of their discretion. (citations 323-24,
288 Md. at at 1178 A.2d and internal omitted). quotations Davis, 18, See also DiPino v. 354 Md. 48-49, (1999); Ashton, 116-17, 729 A.2d 339 Md. only way pierce A.2d at 470. The the shield is showing that the officer’s negligent conduct was com- mitted with actual malice. argument
Petitioner’s
if
suggests
gross negligence,
proven, would lead to Petitioner piercing public official immu-
nity.
case,
Under the circumstances of this
not.
would
immunity
Public official
is a defense to a negligence suit. See
Ashton,
521
Owens-Illinois,
v. Zeno
Inc.
conduct. See
negligent
grossly
(1992) (discussing
633,
451-52,
648
bia,
420,
A.2d
601
325 Md.
as “constructive
arising
negligence
from gross
implied malice
knowledge”
the “actual
supply
does not
knowledge” which
damages).
Implied
receipt of punitive
for the
requirement
of actual
however,
subjective
from the
element
malice,
differs
143,
Smith,
163,
Md.
v.
353
See Shoemaker
tort law.
malice
Owens-Illinois,
Inc.,
at
(1999);
325 Md.
549, 559
725 A.2d
in civil
“malice” as used
461-63,
The term
The General Assembly knows how to express itself when it public wishes withdraw official for immunity acts of gross negligence. For example, Baltimore City Police Officer not immunity would be entitled to for grossly negligent acts occurring outside the officer’s jurisdiction. Md.Code (1974, RepLVol.), Courts & Judicial Proceedings Article (CJP), 5-605, § states:
§ 5-605. Law enforcement officer acting jurisdic- outside tion.
(a) When not civilly liable.—A law enforcement officer acting jurisdiction outside the in State, officer’s but is civilly liable, except to the extent that he would ifbe acting jurisdiction, in his any own for or act omission or preventing crime, attempting prevent a or in effectuat- arrest, in ing protect order property life or if: (1) The grossly action is not negligent; and (2) The action is taken at the scene of the or crime attempted crime.
(b) by employer. law enforcement officer Defense —A (a) for acting sued under subsection of this section shall be any defended in civil action the law enforcement officer’s as if the employer incident had occurred the officer’s jurisdiction.
(c) law injured enforcement officer who is Benefits. —A (a) taking action under subsection of this section entitled compensation, benefits, workers’ disability, death life insurance and all other benefits to the same extent as if the injury had been jurisdiction.[13] sustained the officer’s example Another legislative similar intent is found within the scheme of the Maryland Tort Claims Act. See Md.Code (1999 RepLVol.), Article, 12-101, §§ State Government et seq. The immunity from tort liability of one qualifies who as “State personnel,” Act, defined or her tortious act or § inapplicable 13. CJP 5-605 is Respondent on its face to as he was acting alleged at the time Complaint in Petitioner’s within the bound- aries of Baltimore. is made or omission when the act waived omission is (1998 Repl.Vol., negligence. Md.Code gross malice 5-522(b).14 CJP, § Supp.), for as a expressly provided been negligence has gross
That public officials certain liability against civil of action for cause *70 others, with comports not under and provisions, under certain conceived Legislature that “the recognition Shoemaker our or wanton merely reckless beyond the something of malice as negligence.” gross embodied within that would be conduct therefore, conclude, I 560. 725 A.2d at Md. at mal- of actual requirements law common on traditional based gross negligence ice, malice derived implied that the necessary requirement malice satisfy not tort law does law. the common immunity official under public pierce guidelines police argues that admission Petitioner grossly negligent in a Respondent acted proving aids guidelines that the argument mounts no Petitioner manner. hold, therefore, I of actual malice. would probative would admitting erred not if Circuit Court that even regard Petitioner with prejudice error did not guidelines, such gross negligence count. to the reasoning majority’s
Although quarrel I have no (Maj. at 465- op. issue of Petitioner’s Batson disposition and my of other 67), it under view the I not reach or decide would supra. explained issues indicate that he has authorized me to
Judge ELDRIDGE concurring part dissenting in entirely part, with this agrees opinion, with this Judge agrees BELL also Chief opinion. (Gross to the III, D the reference Negligence) and save Part issue, upon which writes of the Batson majority’s resolution separately.
BELL, Judge, dissenting. Chief Judge D of in all Part enthusiastically but join
I most and, thus, share his opinion reasoned stated Harrell’s well argued or parties the instant suit have not briefed 14. The 5-522(b). application § of CJP Judge rejection of Eldridge’s the majority’s refusal allow petitioner violation, to offer evidence respondent officer, departmental guidelines bearing evidence on the respondent’s liability civil for the actions, injuries petitioner to the that his alleged by the petitioner grossly to have been negligent, caused him to suffer. This separate opinion prompted by majority’s disposal of petitioner’s respon- Batson1 challenge dent’s peremptory exercise challenges procedural purely ground. technical ground decision not raised, argued, either party and was not the for basis the Court of Special Appeals’ Moreover, decision. the Batson issue certiorari; was one the issues on which granted we although it was specifically argued in the petitioner’s Petition Certiorari, we did exclude it from our grant of the petition.
The majority refuses to petitioner’s review the merits challenge Batson because it was made after the jury was *71 sworn, opining, problem
“The is that petitioner] long [the waited too register objection. State, 50, 69, In Stanley v. 313 Md. 1267, (1988), 542 A.2d we that concluded Batson ‘[a] objection if is timely the defendant it makes no later than juror when the last has been seated and before the jury has ” been sworn.’ (2000). 437, 466, 361 Md. 762 A.2d 8-131, Maryland Rule in pertinent part, provides:
H* 4* “(b) In Court of Appeals Limitations. —Additional
“(1)
Appellate
Prior
Decision. Unless otherwise provid-
by
ed
the order
granting
certiorari,
the writ
in review-
ing
a decision
Special
rendered
the Court of
Appeals
or by a circuit court
in an
acting
appellate capacity, the
Kentucky,
1. Batson v.
476 U.S.
106 S.Ct.
raisable even for the first time in this Court. But, already. necessary, mentioned more times than I suspect, was this Court that decided to very issue .review majority to really now wants avoid on this technical ground.
I would reverse judgment the Court of Special Batson issue. Appeals latest cases explicate State, are Gilchrist v. Maryland subject law on the 340 Md. 606, (1995) State, v. 395, 667 876 Harley A.2d 341 Md. 671 (1996). Elem, v. See also Purkett 765, A.2d 15 514 U.S. 115 1769, 131 (1995), S.Ct. both Gilchrist L.Ed.2d 834 discussed and Harley. Neither case cited, discussed, not mention by the fact, intermediate court. In Batson appellate only State, case Stanley 50, mentioned was 313 Md. 542 A.2d (1988). 1267 important, More the court’s discussion of the issue provides any court, no basis for belief that the trial or the court, appellate matter, intermediate for that were aware or Purkett to the facts of the case.3 appreciated the application that, It is clear me whether the reasons offered not, respondent were race neutral trial court simply did appreciate not its process role in the certainly did Purkett, see 514 U.S. at properly apply explicated the test 767-68, 1770-71, 115 839, S.Ct. at 131 L.Ed.2d at clarified in Gilchrist, this State’s Batson jurisprudence the context of see 340 619-20, at (Chasanow, Md. 667 at A.2d 885-86 J. Harley, see 341 Md. at concurring) and applied 402, 671 A.2d at 19. Indeed, (1958). "Juridically, jurisdiction quite refers to two distinct (i) concepts: power decree, (ii) of a court render a valid
propriety
sought.”
granting
(citing
Pomeroy, Equity
relief
Id.
1
(5th ed.1941),
129-31);
Jurisprudence
§§
Commodity
First Federated
Corp.
329,
Trust
Maryland,
v. Commissioner
Securities
272 Md.
334,
539,
(1974).
322
Maryland
A.2d
543
Nursing Nechay,
See
Bd.
v..
396, 405,
Kaouris,
(1997);
347 Md.
701 A.2d
410
Kaouris v.
687, 708,
(1991).
Md.
A.2d
concept
The former
McAllister,
jurisdiction
involves
in its fundamental
See
sense.
Md.