*1 A.3d Christopher John SCHREYER CHAPLAIN, Denise Webb-Cobb. William Term, Sept. 2008.
No. Maryland. Appeals Court Oct. *3 Potter, Nilson, (George City
Steven J. Chief Solicitor A. Solicitor, Phelan, Jr., Counsel, R. and David Principal William City, Ralph, Litigation, Department E. Chief Baltimore Baltimore, MD), brief, petitioner. Law of on for (Neil Lewis, P.A., Baltimore, MD), J. Diamond on Berry J. brief, respondents. C.J., HARRELL, BATTAGLIA, BELL,
Argued before GREENE, MURPHY, ADKINS, BARBERA, JJ.
BELL, C.J.
Christopher Schreyer, petitioner, John officer employed by Department, the Baltimore Police immuni- seeks Vol.) (1990, ty, pursuant Maryland Code 5- Repl. Article, Proceedings 6391 of the Courts and Judicial (1990, law, common pursuant Maryland under the Code *4 Vol.) (1990, § 1. Maryland Repl. Code 5-639 of the Courts and Proceedings Article—"Negligent operation emergency Judicial vehi- cle”—states, part: in relevant "(b) Liability operator.— "(1) vehicle, operator emergency An of an who is authorized to lessee, operate emergency by vehicle its owner or is immune from operator’s capacity damages resulting suit in the for from a individual negligent operating emergency act or omission while vehicle performance service. "(2) provide immunity This subsection does not from suit to an operator gross negligence for a malicious act or omission or for of the operator.” Vol.) Proceed- § 5-5072 of the Courts and Judicial Repl. Article, injuries from damages resulting for ings liability from Webb-Cobb, Chaplain and Denise sustained William an accident caused respondents, during duties, while, driving of his he was during the course granted petitioner’s Peti- emergency vehicle. This Court following questions: address the tion for of Certiorari Writ constitutes, a ‘[pjursuing “1. Petitioner’s conduct Whether law;’ thereby, qualify- violator of the violator or Trans. service’ under Md.Code ing ‘emergency Ann[ ]. as an 19—103(a)(3)? §Art. im- statutory governmental
“2. the Petitioner’s Whether § Proc. Art. 5- munity under Md.Code Cts & Jud. Ann[ ]. 639(b) Respondents’ him immune from the suit. renders ren- public immunity the Petitioner’s official “3. Whether negligence him immune claims.” Respondents’ ders from (1990, Vol.) Repl. Maryland 5-507 of the Courts Code Proceedings—"Immunity—Municipal corporations offi- Judicial cers”—states: "(a) in contract described under Contract actions.—In an action officer, 23A, Code, municipal corporation, § 1A of the or its Article commission, board, government, department, agency, or other unit of punitive damages. for is not liable "(b) Nonliability generally; involving vehi- torts motor officials cles.— "(1) acting municipal corporation, in a of a while An official malice, scope discretionary capacity, and within the without authority employment shall be immune as an official or official’s any liability performance of the action. from civil for the individual "(2) municipal corporation from is not immune An official of any arising operation liability negligence other tort from the for except any damages in excess of as to claim for of a motor vehicle liability any applicable policy of motor vehicle insur- the limits of ance. (ii) "(3)(i) municipal Subject subparagraph paragraph, a of this municipal corporation provide for an official of the shall a defense any arising scope corporation within the of the official’s for act authority. employment or "(ii) corporation only provide a for an municipal shall defense A any municipal corporation negligence or other for official of the any arising operation vehicle as to claim from the of a motor tort policy any applicable damages of the limits of in excess liability vehicle insurance.” motor *5 considered, thus, and, will, be issues are related The first two resolved, together. Statutory Immunity I. within petitioner conduct of the comes
Whether (1983, Repl.Vol.) Maryland of Code prescription upon Article is Transportation dependent § of the 19-1033 word, variant, “pursuit,”4 its as used “pursuing,” how the or service,” in “emergency engaged reference to officers 19—103(a)(3)(ii), Legis defined. Confident that the § under and, word, “pursuing,” purposeful choice of the lature’s therefore, curiosity on the investigatory demands more than officer, privilege this Court will not extend the part of the 5-639, shall petitioner. § to the Instead we immunity, see “pursuit” application or and its “pursuing” hold that the word be, and, at a point, limits more to the there must must have law, and minimum, or violator of the by suspect movement individual. apprehend the officer to said reactive movement 19—103(a)(3)(ii), therefore, that, § follows, pursuant It construed to actions of the cannot be investigative “pursuit”. or to constitute a “pursuing” amount to 5-639, § immunity petitioner, under To be entitled accident, “oper- must have been authorized to the time of the (1983, 19-103(a)(3) § Maryland Repl.Vol.) Trans- Code of the provides: portation Article “Emergency service” means: call; "(i) Responding emergency to an law; “(ii) Pursuing or a violator of the a violator from, to, "(iii) Responding returning not while a fire alarm.” but 19-103(b) 5—639(b)(1) § respect to authorized mirrors with Section engaged emergency operators emergency service. It vehicles provides: vehicle, "(b) Liability operator.—An operator emergency of an operate emergency is authorized to vehicle its owner who emergency performance operating vehicle in the lessee while (a) emergency shall service as defined in subsection of this section 9(b) liability § immunity described under 5-63 of the have the from Proceedings Judicial Article.” Courts and "pur- "pursuing,” is an inflected form of the root word 4. Given that word, sue,” e.g. "pursuit” applicable, will be when variations interchangeably. used performance vehicle in the “emergency ate” an 5—639(b)(1). that the parties agree peti- service.” See car was an vehicle.” See patrol “emergency tioner’s marked *6 (1957, RepLVol.) § 2006 11-1185 of the Trans- Maryland Code petitioner Article. also concede that the was portation They “emergency day to drive this vehicle” on the of the authorized issue, therefore, whether, only At question. accident accident, the the petitioner operating the time of was “emergency performance emergency vehicle of service.” 19-103(a)(3) issue, § provides: Relevant to this “ means: ‘Emergency service’
“(i) call; Responding emergency to an “(ii) law; Pursuing suspected a violator or a violator of the “(iii) to, from, returning but not while a fire Responding alarm.” 19-103(a)(3)(ii), and, §
The subsection in here is more dispute specifically, meaning “[p]ursuing suspect- a violator or a law,” ed violator of the as used therein. issue, Court,
In order to resolve this it is clear to this as it to the trial that this judge, case turns on what intended the word mean. that Legislature “pursuing” to Once (1957, Vol.) Maryland Repl. Transporta- Code 2006 11-118 of the provides: tion Article " 'Emergency any following vehicle' means of the vehicles that are designated by exemptions the Administration as entitled to the and privileges Maryland emergency set forth in the Vehicle Law for vehicles: federal, State, "(1) agencies; Vehicles of or local law enforcement "(2) companies, squads, Vehicles of volunteer fire rescue fire de- partments, Maryland Emergency Institute for Medical Services Institute; Systems, Maryland and the Fire and Rescue "(3) response State vehicles used in to oil or hazardous materials spills; "(4) designated emergency State vehicles use the Commis- Correction; sioner of Ambulances; "(5) federal, State, "(6) Special provided by vehicles funded or or local government purposes and used for or rescue in this State.”
101 whether, under the will inform established, meaning was, in- case, of this and circumstances facts as contem- violator” deed, a violator “[pursuing the statute. plated statutory interpreta question faced with
When legislature, intent of the tion, ascertain we must City Annapo Bowen v. inquiry. object of paramount (2007) Kushell (quoting 587, 613, A.2d 257 lis, 563, 576, Res., 870 A.2d Md. Natural Dep’t. v. 684, 688, State,
(2005)
Md.
);
Collins
plain
lan
(2004).
begins with
construction
“Statutory
understanding
statute,
ordinary, popular
guage
of its terminolo
interpretation
dictates
English language
Maryland Health Care
Inc. v.
Health Care
gy.” Adventist
*7
320,
13,
333 n. 13
103,
896 A.2d
Comm’n,
124 n.
392 Md.
text,
ordinary
its
and
(2006)
given
plain
the relevant
. Where
written,
statute as
unambiguous,
“apply
we
meaning, is
intent end there.”
legislature’s
to ascertain the
and our efforts
Ctr.,
& Mental
v.
Health
Dep’t
Inc.
Convalescent
Crofton
(2010).
1257,
“The
201, 216,
1266
991 A.2d
413 Md.
Hygiene,
term, however, does not
of a
definition
express
absence of
217,
Id. at
plain meaning.”
its
construing
us from
preclude
1266(2010).
language
of the
consider
“[W]e
991 A.2d at
the context of the
in isolation but within
relevant
not
provision
id.,
(2010),
whole,”
and
“If, considering plain after language the statu [of in tory its ordinary text] common sense meaning,” there remain or equally “two more plausible interpretations,” “the general purpose, legislative history,” and other extraneous interpretative resolve, aids are examined an effort or Employers’ Uninsured Fund v. Dan clarify, ambiguity. ner, 649, 659, 271, v. (2005); 388 Md. 882 A.2d Henriquez 278 Henriquez, 287, 297-98, 446, (2010); 413 Md. 992 A.2d see 453 State, also v. Haupt 462, 471, 179, 340 Md. 667 A.2d 183 (1995). “pursuing” “pursuit” word must also be construed
within its context and
Legislature’s
informed
intention.
Henriquez,
With of the Baltimore petitioner, the The a member rehearse facts. Team, focus Enforcement whose Department’s Special Police offenses, driving was drug crime detection is violent he what he believed to vehicle when observed patrol marked words, he a “bunch In his saw illegal drug be an transaction. one appeared an it up alley] [in individuals lined objects in line.” people small to the this handing individual was further, wishing in to “alert investigating Interested but activating without his presence, petitioner, to his them” siren, one-way made down lights or a u-turn street, traveling, against petition- traffic. While so going Chap- car collided with the car driven William patrol er’s lain, Webb-Cobb, injuring passenger, in which Denise was a both. filed a in the District respondents complaint Court sitting
Maryland seeking damages in Baltimore City, injuries they They alleged suffered the accident. personal the sole their petitioner’s negligence was cause of trial, the described his ac- injuries. Testifying violators, an attempt “pursue suspected tions as drug testimony prompted objec- That dealer.” respondents. emphasizing “the Focusing tion on and observed, “I didn’t pursue,” respondents’ counsel t[erm] They standing anybody say anybody running. hear were Although objection, court the re- there.” overruled the issue, when, to the on cross-examination of spondents returned they you pursuing asked: do define petitioner, “How colloquy line of work?” The then ensued: your following pursuit. It could be kinds of I mean all “[PETITIONER]: way you’re pursuing there’s that’s either—in that pursuing, violators, try you go to catch the narcotics which wouldn’t there, know, blazing, you you and sirens would use lights to pursue stealth that. a, that had person gun just
“If it was with with a robbed well, running, obviously someone and is that would be. *9 If run, “[RESPONDENTS’ those guys COUNSEL]: didn’t what you gonna were do? If they didn’t run?
“[PETITIONER]: Yeah, if they just “[RESPONDENTS’ stayed COUNSEL]: there? Then we would have approached
“[PETITIONER]: them investigations.” done our The petitioner also addressed the trial court’s concern that ... in “everything part else that ... section 19- [§ 103(a)(3) kind of exigent circumstances, ] talks about like an emergency they call is and talk about to a responding fire alarm.” argued He that his change direction “in order to at least stop or encounter” the suspects conformed with the statute. Countering argument, the respondents, consis- tent with the expressed court, concerns trial stressed that “pursuit” implied that there was an ongoing emergency, not cases, unlike the fourth amendment in particular those dealing with hot pursuit. They concluded that the petitioner was not “in acting performance of an emergency service” and, rather than engaging pursuit, “investigating suspected drug activity” while “cruising around looking drug activity.”
The trial agreed court with definition of “pursuit American Heritage Dictionary,” on which the respondents relied, to wit:
“1. pursue, overtake, to follow in order to kill capture, chase. follow, with,
“2. close upon, go attend. strive, seek, attain, “3. to to gain, to accomplish^.]” Accordingly, it was not convinced that the petitioner qualified § for immunity pursuant fact, In 5-639. the trial court determined that the petitioner was not “in acting the perform- service,” ance of because he was pursuing subject.
On appeal, the Circuit Court for Baltimore City affirmed so, ruling. relying To do on Torres v. Perth City of (N.J.Su N.J.Super. Amboy, “‘require it 5-639 interpreted per.Ct.App.Div.2000), *10 attain in order to pursuit high-speed engage to police per in the emergency the vehicle immunity operating while ” of services.’ formance clocked, Torres, officer, by patrol, on routine a police In direction, to be radar, opposite in the proceeding a van limit. As a miles the posted speed at 22 above traveling the result, after the van with proceeded made u-turn and he a the driver a presumably giving it of stopping intention Id. catching up 126. Before speeding. traffic citation injuring van, a pedestrian, the vehicle struck officer’s to in favor summary judgment of Id. Reviewing grant him. officer, interpreted Jersey Superior Court the New of statute, 59:5—2(b)(2), immunity cap- a of an section N.J.S.A. prison- between injuries escape prisoner; “Parole tioned or “[njeither section, entity nor public a to that ers.” Pursuant by ... any injury for: ... caused employee is liable public a Characterizing the “core escaped person.” or escaping an engaged a was police officer] [the issue” as “whether attaches,” id., con- the court immunity to which the ‘pursuit’ reasoned: he not. The court cluded that (Pursuit Policy Police Vehicular Pursuit Jersey New “The issue. It informs our consideration Policy) pursuit: defines a law enforcement attempt by is an active a driving
‘Pursuit utilizing emergency a vehicle and operating motor officer 59:5-2, entirety, provided: in its 6. N.J.S.A. entity public employee public a is liable for: a nor “Neither prisoner resulting parole or a or injury from the release “a. An parole from or release or and conditions his
from the terms release; parole of his or revocation any by: injury caused "b. “(1) escaped prisoner; escaping an or “(2) escaped person; escaping or an “(3) evading resisting person arrest’ a arrest “(4) any prisoner.;or prisoner to other law any resulting enforcement injury “c. from or caused pursuit person.” of a officer’s lights and device one or warning apprehend audible to occupants moving more of another vehicle when offi- cer reasonably fleeing believes that driver of the vehicle is aware officer’s the vehicle attempt stop resisting apprehension increasing speed, vehicle ignoring the officer or otherwise attempting to elude the officer.’
“The critical element in this definition is the reason officer’s able pursued belief that driver is aware of a attempt stop the vehicle and the pursued driver ‘is resisting apprehension by increasing speed, ignoring vehicle officer otherwise elude attempting to the officer.’ 2b(2) “We are persuaded immunity that section applies pursuit ], as defined in the Policy[ Pursuit but not Officer *11 attempt Montalvo’s to close the on the gap speeding van. Cramer, Tice In (1993) ], [v. 133 N.J. 627 1090 A.2d the Court, in the construing phrase person’ in section ‘escaping 2b(2), phrase that ‘fairly stated the describes someone who is from fleeing police pursuit by vehicle.’ 627 A.2d Tice defined the issue 1090. Additionally, the Court it as police before “whether officers in pursuit of a vehicle that has failed to heed their command stop are immune Id. at liability from for injuries resulting pursuit.’ from the Stonack, see Fielder 1090; also [v. N.J. (1995) ]. A.2d “... A pursuit involves at least two vehicles and often contrast, involves more In police than two. officer’s close attempt gap the on a is speeding vehicle that attempting flee does not the risk synergies involve of a pursuit.”
Torres,
“As or law were aware violators the that the tion to leave going or were police presence, about the concerned and Upon review the statute to flee. attempt the area or that District law, conclude the case we cannot relevant interpretation in its clearly erroneous Court was the lower the decision of statutory and therefore language, affirmed.” must be court its “pursuing” § 5-639 nor 19-103 defines
Neither however, have entered variant, The “pursuit.” parties, “Pursuit,” differing interpretations. and offered their breach aof “reason- urges, consequence is the natural the petitioner committed,” it is crime has been able belief that the emer- “create[ ] made officer which observations adds, exigency he regard, “[t]here In that gency.” illegal other evidence contraband or suspects and their suspects police pursue will be lost unless conduct Thus, favors an officer-centric petitioner moment.” intent subjective belief under which the officer’s approach, determinative; an actual need not be are there rejects knowledge a suspect’s He the notion that exigency. relevant, and dictates whether intention officer’s relies on the immunity. is entitled to officer (6th ed.1990) of “pur- definition Dictionary Black’s Law follow, as judicially, or enforce a matter prosecute, sue:” “[t]o party.” a complaining contrast, relying on the Merriam-Web- respondents, In *12 “ Online’s follow in Dictionary “pursue”: definition of ‘to ster ” defeat,’ overtake, as a listing kill or “chase” capture,
order to “pursuing” the was not synonym. They argue that submit, fact, anyone They when the accident occurred. instead, simply “approaching” suspects. the the petitioner, to,” Dictionary closer Merriam-Webster “Approach”—“draw submit, different; not they are are “pursue,” they Online—and clear, the because interchangeable. respondents, It is note suspect by both the or violator of the law and the movement officer, apprehend actively trying to the individual.
108 were “in suspects stationary position,” the petitioner was or following chasing them. agree with the respondents. applica
We Where term, term not a ble is defined this looks plain Court to the and ordinary word. Pelican Nat’l Bank v. of the meaning Bank, Provident 336, 327, 475, (2004); 381 Md. 849 A.2d 480 Comptroller Treasury Kolzig, v. 562, 567, 375 Md. 826 of (2003). 467, A.2d It then considers the definition in the purpose object context with or of the statute so avoid as to any “absurd, interpretation is illogical, incompatible or Semsker, with common sense.” Lockshin v. 257, 412 Md. 276- 277, (2010). 18, 29 987 A.2d
For our purpose,
Black’s Law
only pertinent part,
of
Dictionary
“pursue”
Nevertheless,
definition of
is “follow.”
it
context,
must be reviewed in
interpreted
conformity
with
meaning
companion
its
“prosecute,
terms8—to
or en-
judicially,
definition,
force
complaining
as a
The
party.”
dictionary,
wit,
same
of “pursuit,” to
act
chasing
to
“[t]he
Black’s Law Dictionary
apprehend,”
1356,
overtake or
suggested meanings
"pursue”
provide
8. These other
guidance.
also
prosecution
against
While a
may
person
be initiated
his
without
continuation, and, thus,
knowledge, ordinarily
her
its
"prosecu
active
contemplates
knowledge.
judicial
tion”
such
same
true of
notice,
State,
requires
since it
presumed. Ayre
enforcement
actual or
155, 163,
1150,
("Article
(1981)
291 Md.
433 A.2d
21 of the
'[tjhat
Maryland
Rights
Declaration
prosecu
ensures
in all criminal
tions, every
right
man
to
against
hath a
be informed of the accusation
him;
Indictment,
copy
(if
charge,
to have a
in due time
required)
prepare
to
his
purposes
defence.’ The
served
these
organic requirements concerning
charge
(i)
the criminal
are several:
put the accused
upon
on notice of what he is called
to defend
conduct; (ii)
characterizing
describing
and
protect
crime
offense; (iii)
prosecution
accused from a future
for the same
to enable
trial; (iv)
prepare
provide
the defendant
for his
for the
basis
document;
legal sufficiency
charging
court to consider the
(v)
of the
that,
specific
charged
required,
to inform the court of the
crime
so
if
may
pronounced
be
right
sentence
case.”);
in accordance with the
States,
749, 763-69,
see Russell v. United
369 U.S.
S.Ct.
1038,
(1962);
Cruikshank,
542,
“3: or up b: follow to hobby> engage <pursue to “4a: <pursue argument> an proceed with by horrible pursued haunt <was continue afflict: “5: to > memories < of fans>” by dozens pursued chase
“6: (3rd College Dictionary Heritage American See also in an effort To follow ed.1997), as “1. “pursue” which defines as chase[,]” part, “pursuit,” capture; or overtake Further chasing pursuing.” or or an instance act “[t]he “pursue” are or “pursuit” the definition informing “chase,” “Chase” and “overtake.” synonyms, definitions of its Online, in Dictionary is defined in Merriam-Webster part, relevant as: with animals—used hunting
“la: wild chasing: pursuit “b: act de- something after seeking or frenzied
“c: earnest sired.” Dictionary College Heritage American by
It defined is ed.1997) (3rd as: seize, after chase. esp. “1. to capture snaring.” by by trapping if “2. To take as as: defines “overtake” dictionary That To with; even or level with. b. a. catch draw up “1. with. catching up after pass by surprise.” take unexpectedly; to come upon
“2.
Id. at 976. definitions, made clear each these striking about
What on move- terms, they premised are explicating pursuer movement part parties; ment on the *14 by person being sure, be a pursued. To non-moving may overtaken, target be but would not have been as a pursuit; result of a simply rather he she would have been albeit approached, stealthily. But a stealthy approach does equate being with or pursued. suspects chased Had the spotted the officer to attempting approach surreptitiously and fled, followed, chase, and the pursuit, officer a would then have occurred. This scenario then factual would fall within 19- 103’s definition of “pursuit.”
The need for purposeful by movement parties both also with comports police manuals which “pursuit” use the word to discuss a chase or active person. search for fleeing George’s County Manual, Prince Police General Order section (1993)—DEFINITIONS, for example, defines “Vehi- 4/234/10 cle police Pursuit” as: attempt by apprehend “[a]ctive to motorist who to apprehension exhibits clear intention avoid by high speed driving, evasive tactics [continuing [and/or] actions, driving normal but willfully failing stop to on police signal.” “Pursuit,” manual, to according may be initiated “anyone attempts who elude apprehension to for a violation of the law.” See Manual at Section It logically 4/234.20. follows that the same result would occur when the suspect law on foot. The Prince George’s County violator Police General Order Manual pursuits describes vehicle as “one of dangerous, the most risk potentially high situations facing the professional today.” law enforcement Section 4/234.05, 31, 1994; see also Howard County Depart- January ment Police General Order OPS-48—Vehicle Poli- Pursuit cy, 21, 2005, Effective March I. Section It Policy. unlikely that, when the Department Police spoke such severe risks it referring to initial investigations. Notably, the manual’s use of changes the word “pursuit” “apprehend” to when the flee. See Manual person discontinues his or to her efforts Section 4/234.50—APPREHENSION. §§
The enactment of 19-103 and 5-639 codified certain exceptions to general rule that police officers must abide road, laws as any lay would citizen. The Legislature that, recognized, situations, doing, so certain
HI of authorized and other drivers officers the norm to from ability to deviate vehicles must have the personal liability. fear of duties, without perform their 326, 418 A.2d County, 288 Md. George’s v. Prince James (1980) (“ authority the freedom and 1173, 1179 official has ‘the [State, Use, Ferling, v. Clark decisions and choices.’ make (1959) 109, 113, And Schneider ]. 220 Md. (1940)’ which Hawkins, 21, 25, 16 A.2d in the judgment to one’s according act ‘denotes freedom public applied a hard fast rule. When absence officials, upon them law conferred power ‘discretion’ is according officially under certain circumstances to act *15 ”). Given the judgment of their own and conscience.’ dictates disregarding the rules risk associated with enormous road, however, only excep carved out three Legislature 19-103(a)(3). Notably, § these These are found at tions. liability apply police do not when the officer is shields from County, II v. Anne Arundel grossly negligent. See Ashbum (1986). 1078, 617, 621-24, is 510 A.2d 1079-81 This 306 Md. because, encour officers should be only fitting while unnecessary without fear permitted, job and to do their aged, and sparingly only should be used liability, saving of this cloak James, 327, at at 1180 288 Md. 418 A.2d when appropriate. (1980). §in 19- case of of the situations delineated
In the two to fire—it is unmis- responding call and 103(a)(3)—emergency Assembly exception intended the takable that the General attention, emer- require situations that immediate only those a third—pursuing that the gency situations. To the extent point, on this its ambiguous violator—is violator clearly focused situations resolve inclusion with the other two too, it, subject to the and makes clear that is ambiguity Co., 363 e.g. Grey v. Ins. Md. See Allstate requirement. same (2001) 891, 445, 451, argument, (“Appellants’ A.2d 807(f) focused, said, (g), § and overlooks other as we have on with subsec- together §of must be read provisions (f) purpose of and in the context of the overall (g) tions restitution, the restitution and overlooks as well nature of of
judgment
rights
and
Allstate’s
and obligations under its
State,
Gargliano
436,
675,
policy.”);
334 Md.
639 A.2d
(1994) (“Interpretation
678-79
language
of this statute
(1957,
in full context further
requires
[Maryland Code
286(c)
27,] §
1992 RepLVol.) Article
be
in conjunction
read
§
with the other subsections of 286 so that
may give
we
effect
to the whole
all
provisions.”);
statute
harmonize
see
its
W.,
186, 190,
also In re Wallace
333 Md.
634 A.2d
55-56
(1993) (“
ejusdem
‘The doctrine of
when the
generis8 applies
(1)
following
exist:
conditions
statute
an enumer
contains
(2)
words;
specific
ation
the members of the enumeration
(3)
class;
suggest a
class
not exhausted
the enumer
(4)
ation;
enumeration,
reference
general
supplementing
(5)
usually following it;
clearly
there is not
manifested
general
intent that the
term be
given broader
than
meaning
requires.
generally
doctrine
It is
held that the rule of
ejusdem generis merely
rule
only
of construction and is
applicable
legislative
language
where
intent or
expressing that
47.18,
intent is unclear.’ 2A
Sutherland Stat. Const.
(5th ed.1992).”);
275, 295,
Rucker v.
County,
Harford
(“Under
(1989)
408-09
ejusdem
doctrine of
generis,
statute,
general
where ‘the
words in a
such as ‘other
things
value’ ...
designation
particular things
follow the
subjects,
general
classes
words
the statute will
*16
usually be
construed
include only
things
those
of the same
or general
class
nature
specifically antecedently
as those
”)
Sinclair,
646,
mentioned.’
v.
(quoting
658,
State
274 Md.
337
(1975)).
703,
A.2d
711
To read it
give
otherwise is to
illogical
statute an
interpretation.
v. Washington
Proctor
Auth.,
691, 706,
1048,
Metro. Area Transit
412 Md.
990 A.2d
Osborne,
(2010);
563, 573,
1057
Walzer v.
395 Md.
911 A.2d
427,
(2006);
Park,
707,
432
B.F. Saul
v.Co. West End
250 Md.
722,
591,
(1968);
246
601
A.2d
Truitt v. Board
Public
Works,
375, 394,
370,
(1966).
243 Md.
221 A.2d
here,
8.
certainly
While this is not the exact
situation
this situation
analogous.
must
exigent
circumstances
That,
apply,
for this statute
facts,
overlooked,
as
nor denied.
neither be
exist can
however,
exigent circum-
here,
not reflect such
do
presented
to characterize
this Court
unable
Consequently,
stances.
contemplated by
as a
as
“pursuit”
actions
petitioner’s
19-103(a)(3)(ii).
record,
on
this
while
petitioner,
On
offenders,
something
saw
drug
and violent
patrol
routine
The record
investigate
him to want
further.
that caused
mind
any,
requi-
never
support
the existence
does
intended to be
site,
an immediate arrest was
exigency, that
or
one could have
that
made on
basis
observation
fact,
testimony
petitioner’s
on
basis.
In
made
that
been
further.
investigate
he
wanted to
the situation
only
that
was
“pursuing.”
desire is
not tantamount
Acting
simply
on that
use of
interpreted
legislative
that
the word
Courts
have
contexts,
this,
similar,
provide
“pursuit”
“pursuing”
“pursuit,”
this Court
never defined
but
While
has
guidance.
(2008)7,
State,
A.2d
406 Md.
case law
see Bost
jurisdictions
“pursuing”
confirm that
more
from other
involves
State,
(2008),
this Court
In Bost v.
certain
obtained from the defendant
considered whether
evidence
George County
who entered Prince
District Columbia
officer
following
suspect
facts
pursuit the
was
On the
admissible.
them,
officers, wearing jackets
across
“three
with ‘Police’written
left
people
walked
about a
who were
their vehicle and
towards
dozen
no-loitering
drinking
alcohol on the sidewalk in
area. Officer
contact,’
time,
Phillip
that he 'conducted a
at which
one
testified
Bost,
left,
immediately
walking
people,
later identified as Robert
clutching
away
right
‘in a
manner’ while
his
waistband with
briskful
started!,]
right
picked up
Phillip
Officer
said that
his
his
elbow.
Bost
‘immediately
flight
crossing the
pace, and
took
on foot
street onto
County
Phillip
George’s
Officer
testified that he had
Prince
side.’
reasonable,
concealing something
suspicion
Bost
was
articulable
'trying
upon
experience,
Bost
his
he believed that
based
‘holding
weapon’
waist-
to conceal a
and because Bost was
his
area,
band, continuously looking
Bost ran into a wooded
back.'
times,
falling
clutching
right
each
at his
side. The
several
time
pursuit, eventually crossing
George's
Prince
officers followed in
into
County, Maryland,”
345-46,
958 A.2d at
the divided court concluded that the
id. at
and,
lawfully
pursuit
was in
officer
fresh
so
seized
defendant
*17
360,
weapon. Id. at
than an to another with the intention of approach conducting investigation. further ie. hot pursuit, variously “pursuit,”
Courts have labeled and pursuit, investigative pursuit. fresh or immediate What iterations, may ever difference there between the be various movement, and, what is characteristics of each is purposeful movement, by evasive the perhaps, pursued, usually the chase, consisting form of a of the officer police trying to apprehend suspect suspect or violator and the or violator Harris, v. avoid it. Scott 372, 375, 127 attempting 550 U.S. (2007) 1769, 1773, 686, S.Ct 167 L.Ed.2d 690-91 (“Following respondent’s shopping center which resulted in maneuvering car, damage to slight police Scott’s Scott took over as the lead Lewis, vehicle.”); Sacramento County v. pursuit 523 U.S. 833, 1715, (1998) 844, 1708, 1043, 118 S.Ct. 140 L.Ed.2d 1056 (“We by illustrated the Fourth point saying that no Amend ment seizure would take where a place ‘pursuing police car sought stop suspect only by the show of authority represented continuing and flashing lights pursuit,’ but accidentally stopped into him. [Brow suspect crashing County Inyo, er v. 593, 597, 1378, 1381, 489 U.S. 109 S.Ct. States, (1989) ].”); Welch v. United 103 L.Ed.2d 635 (7th Cir.2010) (“If F.3d report offender fails to beyond security, leaves while presence there is no pursuit immediate or other attempt apprehend____ By contrast, a police one who flees a officer in vehicle draws himself, attention to challenges authority immediate police give officer and calls on the officer immediate City Farmington, chase.”); Southers 263 S.W.3d (Mo.2008) (“The Farmington Police Department alert robbery ed to given description suspect and the vehicle in which he fled. Police Lindell Officer Barton saw on suspect traveling Maple Valley south Drive. He acti lights pursued suspect vated his and siren high- chase, speed reporting over radio that he inwas Denver, Tidwell v. (Co.2003) (“Offi pursuit.”); P.3d cer McAleer was as that engaged ‘pursuit’ term is Here, ordinarily understood. the driver of the Oldsmobile fled
115 avoid initial in a clear arrest stop attempt scene of the the hurriedly McAleer fol- investigation.... further Officer or Accordingly, him. apprehend the order to lowed driver 42- engaged purposes in a ‘pursuit’ McAleer was Officer 568, 715, Briseno, 4-108.”); Cal.Rptr.2d 22 93 Cruz v. Cal.4th (2000) (Officer a 986, speed- Briseno followed P.2d 987-88 994 a issuing the intention of the driver citation ing vehicle “with signal, at a the Failing stop light red speed.” for excessive car, driver. On the oncoming killing into an its vehicle crashed court, “the al- the determined that facts immunity, issue of that, occurred, clearly indicate the time the accident leged pursuit” “suspect[] Briseno was in immediate because following whom Briseno had traffic offender been a] [was earlier, who, light presence.”); had run a red in his moments Lambert, 699, Mich.App. 436 N.W.2d 701 Michigan (1989)(“ or ‘chases’ also been pursuits’ up- have ‘Investigative conduct----”); Connecticut v. held as lawful State police (1988) (“At Oliver, A.2d this Conn.App. man dashed off suddenly and the other point, defendant to chase of them on foot. each officer one prompting chase, the which was During dropped pouch defendant a officer.”). All these cases have a up by pursuing picked case, pursued, person theme. In each underlying similar not, was approach moving10 of the officer’s or whether aware moving the officer was also his or her direction. that, contrary findings It should also be noted petition position espoused by of the Circuit and the Court (“The er, violator the law pursuit of violator or present the officer’s of the by police perception created crime, or the officer’s belief that a commission of reasonable committed.”), hold that crime has been this Court will what address, accurately subjectively, may the officer believes determine, “pursuit;” tend to whether there has been a always for the intent cannot reflect or account actions such "pursue” likely 19-103—contemplates in—§ 10. While it is as used pursuit, necessary pursued be aware it is not to so also that the legislative hold to resolve this case consistent with intent. said, all of parties. That perception officer’s situation, not, ie. whether he or in pursuit she is may help inform the occurred, court as whether a pursuit but is not dispositive change and cannot what is pursuit, not a into one. how the While officer characterizes the situation and his or her intent properly part of the inquiry, the true nature of situation, chase, stakeout, e.g. or investigation, ultimately 19—103(a)(3)(ii) controls whether it falls squarely within the exceptions. otherwise,
If it were if factor, intent is the decisive not only *19 inconsistent, would the but, results be and more important, the determination subject would not be to objective evaluation and verification. Immunity subject would be to abuse. What prevent from, would officer after-the-fact, categorizing his or her “pursuit” conduct as in order to shield him or herself liability? from In order occur, for to “pursuit” the law, suspect minimum, or violator of the at a moving. has to be If standing still that person subject is not to being followed. that, The most that can be said is when contact is made with her, him or he or she will have been approached and appre- hended.
Sections 19-103 and 5-639 were enacted by the General Assembly to provide immunity to police officers under certain clearly delineated circumstances. One those circumstances is when the officer is the pursuing perpetrator or suspected perpetrator of a crime. Under this exception, “pursuit” 19—103(a)(3)(ii) the must underway. be Section re- quires that the officer be in engaged trying to overtake or apprehend pursue a suspect.
If the “pursuing” § word in 5-639 is to have meaning, it cannot encompass every non-emergency situation in which police officer patrols or undertakes investigate suspicious behavior. Surely, Maryland Legislature did not intend to convert all routine police officer investigations into “emergen- cy service.” specifically Section 19-103 is reserved for emer- gency situations. Accordingly, construing taking 19—103(a)(3)(ii) §§ word as “pursuing,” 5-639, used
H7 context, enacting intention in the stat- Legislature’s with law, the is not ute, petitioner eligible case and the relevant seen, When, as we that statute. have immunity by afforded occurred, not petitioner was question the accident § of the law” as 19- violator “[p]ursuing 103(a)(3)(ii) suspi- petitioner, having The observed requires. and, indeed, behavior, to, investigate began cious intended enable further; designed maneuver which was he made a suspects. petitioner’s intended approach him to move, buttressing the characterization of targets did respondents, petitioner that the was actions petitioner’s than, as targets, rather a result acting approach his holding recognizes them. Our the bound- exigency, “pursue” it 19- Legislature out when enacted aries carved 103(a)(3). Official,Immunity
II. CommonLaw Public who, official, when Asserting public he is a the accident occurred, exercising acting scope discretion and within the functions, argues law that he his enforcement public immunity. being entitled to law official That common so, urges, negligence brought he he immune from the claims *20 him to the of against by respondents. viability Critical § 5-507 to of argument applicability that is the members link, Department. the Baltimore Police To establish that City Brown, v. 70, 23, cites Ashton petitioner 339 Md. 116 n. 447, (1995), § A.2d 469 23 for 5-507 proposition 660 n. that “[s]afeguard[ com- Assembly was enacted the General ] immunity” and, that public conceding mon law official while Department agency, the Baltimore Police is a State City the point makes government’ purposes
“it is defined as a ‘local LGTCA.[11] Thus, re- employees Department are (1987, 5-301(d)(21) Maryland Repl.Vol.) § 2006 of the Courts Code 11. Article, Proceedings Government Claims and Judicial Local Tort Act. garded as local government employees. City police officers therefore protection LGTCA,” have the provided by Smith v. Danielczyk, (quoting 98, 6, 400 Md. 111 n. 928 A.2d (2007)), 803 n. it status shares with municipalities and See municipal corporations. Maryland (1987, Code 2006 Repl. Vol.) 5-301(d)(5) § of the Courts and Judicial Proceedings Article. From these premises, argues: he
“Based on MD.Code Anno. Cts. and Jud.
§
Proc. Art.
5-
507(b)(1),1[12]
Schreyer
Officer
possesses common
public
law
official immunity from suit from negligence committed in
the course of his
stop
efforts to
the suspected
violators
the law that he had observed.”
petitioner
is wrong
First,
for two
reasons.
5-
507(b) is,
terms,
very
its
applicable to municipal corpora
tions and officers of those corporations;
it does not extend to
interesting
(b)(1),
It is
that the
relies on subsection
rather
(b)(2),
specifically
than subsection
which
immunity
addresses the
from
liability
"negligence
of an official as a result of
arising
or other tort
and,
fact,
operation
from the
suggest
of motor vehicle”
seems to
general provision
that this more
subsumes the narrower one. That
approach
opposite
statutory
is the
jurispru-
direct
of our
construction
Comm’r,
248, 268,
dence. Lumbermen’s Mut. Cas. Co. v. Ins.
302 Md.
(1985) ("It
487 A.2d
repeated
is an
principle
often
specific statutory provision governs
general
over a
one. Director Fin.,
Cole,
607, 635,
George’s
(1983);
Pr.
Co. v.
296 Md.
“[M]unicipal official
as a state
BCPD was created
because the
apply
does not
and not as
Assembly,
an act of the General
through
agency,
(establish
761-74
agency. See
1867 Md. Laws
municipal
&
Mayor
see also
duties);
defining
and
its
the BCPD
ing
Clark,
13, 28, 944 A.2d
Balt. v.
404 Md.
City Council of
(2008)
‘notwithstanding
Mayor’s
1122, 1131
(holding that
Commis
City’s
Police
removing
and
appointing
role
a state
sioner,
City
Department
Baltimore
Police
time,
held
consistently
has
that
‘this Court
agency.’). Since
employer
as the
City
regarded
not be
that Baltimore
should
liability.’
of tort
purposes
for
members of
[BCPD]
Balt.,
662, 668, 541 A.2d
Mayor
Clea
(1988).
liability, Hough
of tort
Thus,
the purposes
for
municipal
and not a
agency
a state
employee
ton is
municipal
offi
claim to be
He therefore cannot
agency.
immunity.”
official
cial,
municipal
cannot claim
that,
588-89,
consistently,
Id.
entitled to 5-507(b) and, particularly, more immunity as codified (b)(1). the issue had we not addressed Even subsection bring poses head-on, which path by him logically get § 5-507 does not the ambit of himself within statutes, § 5-304 are different Section 5-507 and there. overlap, generally apply which, conceding degree sure, City the Baltimore Police To be both different officials. included corporations have been municipal Department *22 Assembly the General in the definition of “Local Government.” decision, however, legislative That did not render them identi- cal; despite being legislatively placed under the broad defini- government,” tion of “Local rather than one and the becoming same, thus, interchangeable, City both the Baltimore Police and Department municipal corporations retained their distinct separate and identities. Municipal corporations were not thereby transformed to a local government entity; they re- municipal mained The corporations. City Baltimore Police Department thereby was not possessed of the attributes of a municipal corporation, addition to its status as local short, In government. that the Baltimore City Depart- Police and, thus, LGTCA, ment government, subject is a local to the does not make it a municipal corporation § also to which 5-507 applies.
Since the viability petitioner’s argument is dependent §on 5-507 and being applicable we have concluded that City connection between it and the Baltimore Police Depart- made, logically ment cannot be we hold that is immunity, claims, § not entitled to common law as he under 5- JUDGMENT OF THE BALTI- CIRCUIT COURT FOR AFFIRMED, MORE CITY WITH COSTS.
HARRELL, BARBERA, JJ., BATTAGLIA and dissent. BARBERA, J., in which HARRELL dissenting, and BATTAGLIA, JJ., join.
I dissent. I would hold that Petitioner’s conduct entitles him immunity under Maryland (1977, Code 2009 Repl.Vol.), 19-103(a)(3)(ii) (hereafter § of the Transportation Article (2006 19-103(a)(3)(ii)”), “§ and Maryland RepLVol., Code Supp.), 5-639 of the Courts and Judicial Proceedings Article (hereafter 5-639”). “§ Petitioner, I majority agree at the time
accident, was authorized to
an
operate
emergency vehicle.
See Md.Code
(1957,
RepLVol.), §
Transpor-
11-118 of the
agree
only
tation Article. We also
that the
form of “emergen-
could come
this case
Petitioner’s conduct
cy service”
19—103(a)(3)(ii),
“[pursuing
§in
that described
within
Maj. op. at
law.” See
violator of the
suspected
or a
violator
99-100,
Where
violator
a violator or a
“pursuing
phrase
tion of the
Assembly did
I
that the General
persuaded
am
of the law.”
officers
immunity
grant
to restrict its
not intend
only to those circumstances
vehicle
operating
*23
law,
or violator of
by
suspect
“movement
a
when there is
said
apprehend
by the officer
and reactive movement
99,
Maj.
at
5 A.3d at
individual,”
op.
holds.
majority
as the
statutory
view,
of the rules of
proper application
In my
1057.
broader,
19—103(a)(3)(ii)
more
a
dictates
construction
construction,
ap-
that includes an officer’s
one
commonsense
to be
at
that moment
an individual
proach
and, if
law,
of investigating
the intention
breaking the
with
suspect.
intervening
apprehending
and
appropriate,
statutory
pertinent
of the
rules
I need not recount all
I
it.
construction,
thorough job
a
majority
does
as
constru-
several of them. When
repeat,
emphasis,
for
simply
effectu-
statute,
objective is to ascertain and
primary
ing
See, e.g., Magnetti v. Univer-
legislature.
intent of the
ate the
564,
219,
548,
228-29
402
937 A.2d
Maryland,
Md.
sity of
(2007).
intent,
first to
“we look
legislature’s
To ascertain the
statute,
if that
is clear
language
of the
and
plain language
of the
no further than the text
unambiguous,
and
we look
Runnels,
578, 640,
729,
407 Md.
Newell v.
statute.”
omitted).
(internal
(2009)
marks and citations
quotation
interpreted
provision
of a
is not
plain language
“The
Rather,
as a whole
statutory
scheme
analyze
isolation.
we
dealing with the same
provisions
to harmonize
attempt
402 Md.
given
Magnetti
each
be
effect.”
subject
may
so that
(internal
564-65,
quotation marks
I, like the
turn
majority,
dictionary
first to the
to define the
and,
“pursue,”
completeness,
verb
the noun “pursuit.”
Dictionary
English
The Random House
Language,
part,
“pursue”
relevant
defines
as “1. to follow in order to
overtake,
Mil, etc.;
capture,
upon; go
chase.
to follow close
with; attend,”
“pursuit”
and it defines
as: “1. the act of
attain;
pursuing”;
quest[.]”
and “2. an effort to secure or
(2d ed.1987).
version
Dictionary
The current
of Black’s Law
however,
pursue;
“pursuit,”
does not define
it defines
as: “1.
An
2. The
occupation
pastime.
chasing
act of
to overtake or
(8th ed.2004).
Dictionary
apprehend.”
Black’s
Law
definitions,
by
majority, Maj.
These
and those offered
op.
106-10,
I 115— disagree majority, Maj. op. with the see 1066-67, 1062-63, approach 5 A.3d at that the officer’s (or violator) the crime must some suspect triggered be herself, part movement on the of the individual before the immunity purposes. can be deemed a approach “pursuit,” scenario, Returning to the bank it makes no sense to robbery me that not have intended to Assembly General would immunity negligent afford to an officer who commits a act robbers, if, pursuing while bank even at the time *25 standing pursuit, suspects officer launched the were view, In my pursuit still. Petitioner was no less alley dealer he in the than he would suspected drug spotted away in a direction from suspect have been had the moved Petitioner, to that movement. and Petitioner reacted trial, way the most effective to
At Petitioner testified ... violators” is to use stealth. or “catch narcotics pursue confirm, scene, arrival at the upon intended to his Petitioner (I illegal narcotics sales and suspects engaged that the were one more of them. Before appropriate, if arrest or presume), however, vehicle suspects, he could confront Petitioner’s Respondents traveling, in which were collided with vehicle though suspects Even es- suspects dispersed. and contact, Petitioner could initiate these facts caped before that Petitioner’s conduct before the accident was demonstrate attempt intercept activity appre- an immediate to criminal and appre- It is the officer’s decision to perpetrators. hend the suspect’s hend a not a awareness of law enforcement suspect, efforts, “trying whether the officer is that determines suspect within the apprehend,” “pursuing,” overtake meaning operative immunity of the statute. Petitioner’s con- duct, it, just as we described fits the bill. 110-111, acknowledges, Maj. op. 5 A.3d at majority §§ and purpose protect
1063-64 that the 19-103 5-639 is emergency officers who vehicles furtherance operate See, Local performance e.g., of their duties. Public 16-2(a) City (establishing of Baltimore that the Balti- Laws specific duty responsi- officers have “the and City police more ... detect and the commission of crime bility prevent [ ] and who apprehend persons and arrest criminals [and] the Mayor City laws of this State or of Council [the violate lawfully violating or are accused of such laws Baltimore] ordinances”). any ambiguity Rather than leave as to under other statutes or protected whether the officers are incurred while principles liability operating common law vehicles, §§ officers with provide 19-103 and 5-639 Furthermore, official just public as the specific protection. (to I simply point doctrine which refer as a immunity reference) liability officials from incurred while protects public §§ authority, 19-103 and 5-639 exercising discretionary their officers have “the freedom and ensure that law enforcement *26 to make authority operating decisions and choices” while service,” emergency “emergency vehicles without fear of Cline, personal responsibility. economic Lee v. (internal quotation marks and citations
omitted). interpretation majority gives The narrow 19-103(a)(3)(ii), §in “pursuing,” as used seriously undermines that function. sum,
In I judgment would reverse the of the Circuit Court on the ground that Petitioner is entitled immunity under § 5-639 for service he performed pursuing a person suspected violating the law. I would remand the case to the Circuit City Court Baltimore with directions to judgment vacate the of the District Court and judgment enter in favor of Petitioner.
Judges HARRELL and BATTAGLIA have authorized me join to state that they opinion. this
5 A3d 1072 Hayward T. HENDERSON Maryland.
STATE of 20, Sept. Term, No. 2009. Appeals
Court of Maryland.
7,Oct.