Cunningham v. Balt. Cnty.

1

COREY CUNNINGHAM v. BALTIMORE COUNTY, MARYLAND, ET AL.

No. 378-2022

Court of Special Appeals of Maryland^[*]

April 6, 2023

Circuit Court for Baltimore County Case No. 03-C-16-009435

Graeff, Beachley, McDonald, Robert N. (Senior Judge Specially Assigned), JJ.

OPINION ^[**]

Graeff, J.

This case comes before this Court for a second time. It involves the shooting of Korryn Gaines and her five-year-old son, Kodi Gaines ("Kodi"),^[1] by a Baltimore County police officer, and it requires us to apply concepts of preservation and waiver.

After a Baltimore County jury returned a verdict in favor of Kodi against appellees, Baltimore County and Corporal Royce Ruby, the circuit court granted appellees' motion for judgment notwithstanding the verdict ("JNOV"), or in the alternative, motion for new trial. On appeal, we affirmed, in part, and reversed/vacated, in part, and remanded for further proceedings. See Cunningham v. Baltimore County ("Cunningham I"), 246 Md.App. 630 (2020).

On remand, the circuit court addressed the claims relating to Kodi.^[2] The court dismissed the 42 U.S.C. § 1983 claim and the state constitutional claims, but it affirmed the verdict against appellees on the battery count. The court found that there was a cap on the damages awarded under Md. Code Ann., Cts. &Jud. Proc. Art. ("CJ") § 5-303 (2020 Repl. Vol.), and after applying that cap, it ordered Baltimore County to pay appellant, Corey Cunningham, Kodi's father, in the amount of $400,000, plus post-judgment interest of $160,000.

On appeal, appellant presents the following questions for this Court's review, which we have rephrased slightly, as follows:

1. Did the circuit court err by acting outside the scope of remand and in violation of this Court's opinion in Cunningham I?

2. Did the circuit court err in dismissing Kodi's § 1983 Fourteenth Amendment substantive due process claim against Corporal Ruby?

3. Did appellees waive their right to remittitur and a new trial?

4. Did the circuit court err in hearing and failing to grant appellant's motion to recuse?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts and proceedings have been detailed fully in Cunningham I, see 243 Md.App. at 643-59. We set forth here only the facts needed to address the issues on appeal.

On August 1, 2016, two Baltimore County police officers entered Ms. Gaines' apartment, attempting to serve arrest warrants on her and Kareem Courtney. When they entered, they found Ms. Gaines sitting on the floor holding a pistol-grip shotgun pointed at the front door. Officers retreated and called for back-up. Shortly after the police established a perimeter, Mr. Courtney and his daughter, Karsyn Courtney voluntarily exited the apartment. Mr. Courtney was arrested on an outstanding warrant. Ms. Gaines and Kodi remained in the apartment.

After a six-hour stand-off, Ms. Gaines retreated to the kitchen with Kodi.^[3] From the kitchen, Ms. Gaines was partially concealed from officers' view behind an interior wall. At trial, Corporal Ruby testified that he observed Ms. Gaines raise the shotgun to a firing position, and he was worried that she had taken a tactical advantage, which put her in a position to shoot at officers positioned outside the door. Corporal Ruby testified that, fearing for officer safety and not wanting to risk injuring Kodi, he aimed high and fired a "head shot." This bullet hit Ms. Gaines in the upper left back, exited through her body, ricocheted off the refrigerator, and struck Kodi's cheek.^[4] Ms. Gaines discharged a few shots, and Corporal Rudy fired an additional three shots into Ms. Gaines before she slumped to the floor. Ms. Gaines died from her injuries. Kodi ran from the kitchen where an officer grabbed him and brought him outside for medical attention. Kodi underwent numerous surgeries, and his wound later became infected.

Appellant disputed Corporal Ruby's testimony. He alleged that Ms. Gaines did not raise the shotgun into firing position, did not aim her shotgun at the officers, and even if she did, the officers were not in danger because they were protected by brick walls and protective equipment.

I. Complaint

On September 13, 2016, a civil complaint was filed in the Circuit Court for Baltimore County. Rhanda Dormeus (on behalf of Ms. Gaines' estate, and in her individual capacity as Ms. Gaines' mother), Mr. Cunningham (on behalf of Kodi), Mr. Courtney (on behalf of the minor child Karsyn), and Ryan Gaines (Ms. Gaines' father) brought numerous claims against appellees.^[5] These claims included, among other things, claims under § 1983, violations of the Maryland Declaration of Rights, battery, and other related claims.^[6]Because one of the issues on appeal relates to the extent to which a § 1983 claim based on a Fourteenth Amendment substantive due process claim was asserted, we will discuss in more detail how that claim was addressed below.

With respect to Count VII, plaintiffs alleged a § 1983 claim for violations of plaintiffs' civil rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. The complaint alleged that appellees violated plaintiffs' Fourth and Fourteenth Amendment rights by using force "excessive to the need," which was "objectively and subjectively unreasonable," and that appellees violated the plaintiffs' rights "[b]y acting in a way that was so reckless and/or irresponsible as to be shocking to the conscious."

In Count X, plaintiffs alleged a § 1983 claim for excessive force, asserting that appellees' use of force was "malicious and/or involved reckless, callous, and deliberate indifference" to plaintiffs' federally protected rights under the First, Fourth, and Fourteenth Amendments. This count alleged that the force was done with "willful indifference" and was "conscience shocking."

II. Motion for Summary Judgment

Appellees filed a motion for summary judgment, arguing that there was no dispute as to the facts, and they were entitled to judgment as a matter of law. Citing Graham v. Connor, 490 U.S. 386 (1989), appellees argued that all claims alleging that officers used excessive force, deadly or not, should be analyzed under the Fourth Amendment and the "reasonableness" standard, rather than under a "substantive due process" approach. They asserted that Corporal Ruby's actions were objectively reasonable, and all claims for excessive force should be dismissed. With respect to Kodi, they argued that, because Kodi was not the intended object of the shooting, any Fourth Amendment claim on his behalf was "directly foreclosed by Brower v. County of Inyo, 489 U.S. 593[, 596] (1989), which held that one is 'seized' within the Fourth Amendment's meaning only when one is the intended object of a physical restraint." Accordingly, they argued that Kodi's claims against Corporal Ruby should be dismissed.

Appellant filed an opposition to the motion for summary judgment. As relevant to this appeal, he argued that summary judgment could not be granted on his Fourteenth Amendment claims because appellees failed to make any arguments on the issue in their memorandum. He argued that appellees' motion was a partial motion for summary judgment because they set forth no law or relevant facts related to the Fourteenth Amendment claims, and therefore, summary judgment should be denied for Counts VII, VIII, and X. He alleged "that the use of deadly force against [Ms.] Gaines and excessive force against Kodi Gaines violated their federal constitutional rights under the Fourth and Fourteenth Amendments," and there were "multiple disputes of material fact" as to whether Corporal Ruby acted reasonably under the circumstances.

On January 26, 2018, the court held a hearing on the motion. Counsel for appellant reiterated that appellees failed to set forth any facts or law related to Kodi's Fourteenth Amendment substantive due process claim. He stated that the law was clear that Kodi could "proceed under the 14th Amendment for [a] substantive due process violation, for excessive force."

Appellees argued that the Fourteenth Amendment is the vehicle by which the Fourth Amendment applies to the States, and therefore, the analysis would be the same as under the Fourth Amendment. They stated that "excessive force claims are not substantive due process. They are the objectively reasonable analysis." "That is what the substantive due process argument means."

On January 29, 2018, the court ruled on the motion for summary judgment. As an initial matter, the court stated that the arguments related to the reasonableness of Corporal Ruby's actions would be dealt with by the Fourth Amendment, so the failure of appellees to address the Fourteenth Amendment was not persuasive. The court granted the motion in some respects, but as relevant to this appeal, it denied appellees' motion relating to the issue of excessive force.

III. Trial

Trial began on January 30, 2018. More than 25 witness were called, including the parties, medical professionals, ballistic and crime scene experts, family members, and other law enforcement officers.

Dr. Tyrone Powers, appellant's expert in the use of force, testified that Corporal Ruby's use of force was "excessive and unnecessary" and in violation of the Department's policy. He stated that there was no immediate threat of death or serious bodily injury at the time Corporal Ruby took the first shot.

Charles Key, appellees' expert in the use of force, police training, policy and procedures, firearms, incident reconstruction, crime scene analysis, and ballistics testified that Corporal Ruby's use of force was objectively reasonable and consistent with accepted standards of...