Cunningham v. Balt. Cty.

487 Md. 282

317 A.3d 1213

Corey CUNNINGHAM, ON BEHALF OF Kodi GAINES, a Minor

v.BALTIMORE COUNTY, Maryland, et al.

No. 9, September Term, 2023

Supreme Court of Maryland.

June 25, 2024

Circuit Court for Baltimore County, Case No. 03-C-16-009435, Mickey J. Norman, Judge

Argued by Leslie D. Hershfield (Schulman, Hershfield & Gilden, P.A., Baltimore, MD; Timothy F. Maloney, and Alyse L. Prawde of Joseph, Greenwald & Laake, P.A., Greenbelt, MD), on brief, for Petitioners.

Argued by Dorrell A. Brooks, Asst. Cnty. Atty. (Glenn T. Marrow, Deputy Cnty. Atty., James R. Benjamin, Jr., Baltimore Cnty. Atty,, and Bradley Neitzel, Asst. Cnty. Atty., of Baltimore County Office of Law, Towson, MD), and Chaz R. Ball, (Schlachman, Belsky, Weiner & Davey, P.A., Baltimore, MD), on brief, for Respondents.

Amici Curiae the American Civil Liberties Union of Maryland, Public Justice Center, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs: David R. Rocah, Esquire, Deborah Jeon, Esquire, Dara Johnson, Esquire, Sonia Kumar, Esquire, ACLU of Maryland Foundation, 3600 Clipper Mill Road, Suite 350, Baltimore, MD 21211, Richard A. Simpson, Esquire, Counsel of Record, Wiley Rein LLP, 2050 M St NW, Washington, DC 20036.

Amicus Curiae National Action Network and Rainbow/Push Coalition: José Felipé Anderson, Esquire, Professor of Law, 1420 N. Charles Street, Baltimore, Maryland 21201, Lewyn Scott Garrett, Esquire, 1 East University Parkway, Baltimore, Maryland 21201.

Amicus Curiae National Police Association: David A. Skomba, Esquire, Tamara B. Goorevitz, Esquire, Franklin & Prokopik, P.C., Two North Charles Street, Suite 600, Baltimore, MD 21201, Robert S. Lafferrandre, Esquire, Jeffrey C. Hendrickson, Esquire, Jacob N. Denne, Pierce Couch Hendrickson Baysinger & Green, L.L.P., 1109 North Francis Avenue, Oklahoma City, OK 73106.

Argued before: Fader, C.J., Watts, ^*Hotten, Booth, Biran, Gould, Eaves, JJ.

PER CURIAM

This appeal comes to us in a challenging posture with a long and tortured procedural history. At the center of the current appeal is petitioner Corey Cunningham's claim on behalf of his minor child, Kodi Gaines,¹ for a violation of Kodi’s right to substantive due process under the Fourteenth Amendment to the United States Constitution, brought pursuant to 42 U.S.C. § 1983 (the "Substantive Due Process Claim"²). Although central now, the parties and the trial court treated that claim as something ranging between a side issue and a non-issue in the lead-up to trial, during the trial itself, and in post-trial motions practice. As a result, Kodi’s Substantive Due Process Claim was not identified to the jury, the jury was not instructed on the standards applicable to that claim, the jury was not specifically asked to reach a verdict on that claim (as distinct from Kodi’s claims under the Fourth Amendment to the United States Constitution), and the claim was addressed only briefly and partially in motions for judgment at and following trial. That treatment continued in the first appeal, in which the parties—and, as a result, the Appellate Court of Maryland—treated Kodi’s Substantive Due Process Claim as a non-issue. Along the way, the parties’ statements and arguments about Kodi’s Substantive Due Process Claim have often appeared as ships passing in the night, failing to engage on the same terms and resulting in substantial confusion, even in hindsight.

The circuit court rendered the judgment currently on review in favor of the respondents, Baltimore County and Corporal Royce Ruby, the defendants below (the "Defendants"). The court found that the evidence at trial could not sustain a verdict on Kodi’s Substantive Due Process Claim. Without ruling on sufficiency, the Appellate Court affirmed on two different, independent grounds: (1) that Kodi had waived his Substantive Due Process Claim by not pursuing that claim during the first round of appellate proceedings; and (2) that qualified immunity barred Kodi’s Substantive Due Process Claim. We disagree with the Appellate Court’s decision on waiver but agree that under the standard established by the United States Supreme Court, qualified immunity precludes Kodi’s Substantive Due Process Claim. Accordingly, we will affirm.

BACKGROUND

A. Legal Framework

We begin by identifying the basic legal framework applicable to excessive force claims as they pertain to innocent bystanders. We do so because the seeming failure of all parties to understand that framework at the trial stage—or if they understood it, the failure to articulate it—is behind much of the confusion that has ensued.

[1–3] As explained in Graham v. Connor, "claim[s] that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other ‘seizure’ of [the] person … are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard, rather than under a substantive due process standard." 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Thus, any claim of excessive force by the subject of a seizure—including a seizure by a shooting—is analyzed as a Fourth Amendment claim.³ Id. And although the Fourth Amendment originally applied only to the United States government, the protections of that amendment were subsequently incorporated as against the states through the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 654-56, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

[4, 5] The protections of the Fourth Amendment—either independently or through the Fourteenth Amendment’s Due Process Clause—do not, however, extend to bystanders who claim harm from the use of excessive force by a law enforce- merit officer that was intended for someone else. That is because a "[v]iolation of the Fourth Amendment requires an intentional acquisition of physical control." Brower v. Cnty. of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). In other words, a Fourth Amendment excessive force claim is available only to a person who an officer intentionally seizes. Id. at 596-97, 109 S.Ct. 1378.

[6–9] However, some courts have recognized that a bystander who lacks the ability to bring a claim under the Fourth Amendment may be able to pursue an excessive force claim directly under the substantive component of the Fourteenth Amendment's Due Process Clause.⁴ See Rucker v. Harford Cnty., 946 F.2d 278, 281 (4th Cir. 1991) ("the substantive protections of the due process clause may" "extend to unintentionally injured bystanders" (internal quotations omitted)). Such claims, if recognized, would not be subject to the "objectively reasonable" test applied to Fourth Amendment excessive force claims, but to the more demanding "shocks the conscience" standard applicable to substantive due process claims. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-47, 118 S.Ct, 1708, 140 L.Ed.2d 1043 (1998) (recognizing the shocks the conscience standard).

[10, 11] The Due Process Clause of the Fourteenth Amendment thus plays a different role in each type of excessive force claim. For claims brought by the object of a seizure under the substantive protections of the Fourth Amendment, the Due Process Clause of the Fourteenth Amendment is the vehicle by which such protections are applied to the states. Graham, 490 U.S. at 388, 394-95, 109 S.Ct. 1865. Such claims against state actors are still subject to the Fourth Amendment substantive standard, even though they flow through the vehicle of the Fourteenth Amendment. In contrast, with respect to claims brought by innocent bystanders, the Due Process Clause of the Fourteenth Amendment is the source of whatever substantive protections may exist under the federal Constitution.⁵ Such claims are pure Fourteenth Amendment claims, subject to the Fourteenth Amendment standard.

[12] Section 1983 of Article 42 of the United States Code is the statutory vehicle that enables plaintiffs to pursue federal constitutional claims against state actors in certain circumstances.⁶ Thus, excessive force claims brought against state officials pursuant to the United States Constitution are brought as § 1983 claims whether brought by the object of a seizure under the Fourth Amendment (through the Fourteenth Amendment) or by a bystander under the Fourteenth Amendment itself.

B. Factual Background⁷

The factual background to this appeal comes from the tragic events of August 16, 2016, when a six-hour standoff between Baltimore County police officers and Korryn Gaines ended with Corporal Royce Ruby shooting and killing Ms. Gaines. Two of the bullets that struck Ms. Gaines subsequently hit and injured Kodi Gaines, Ms. Gaines’s son who was then five years old.

On the morning of the shooting, officers attempted to serve arrest warrants on Ms. Gaines and Kareem Courtney at Ms. Gaines’s residence in Baltimore County. Cunningham v. Baltimore Cnty., 246 Md. App. 630, 640, 232 A.3d 278 (2020) ("Cunningham I"). The warrant for Ms. Gaines was for a misdemeanor offense. The officers heard movement inside the apartment, but nobody opened the door when they knocked. Id. at 641, 232 A.3d 278. After kicking the apartment door open, officers entered the apartment and saw Ms. Gaines seated on the floor with a pistol grip shotgun in her hands. Id. The officers left the apartment and called for back-up. Id. A hostage negotiation team and a SWAT unit, including Corporal Ruby, were called in, and they took protected positions outside the apartment. A six-hour standoff between Ms. Gaines and the officers ensued. Id.

During the standoff, officers were told that Ms. Gaines had a history of mental illness and that she had been off her medication. Id. at 646-47, 232 A.3d 278. Officers testified that Ms. Gaines acted erratically, sometimes negotiating with officers, at other times threatening them and cutting off contact. Id. at 648-49, 690 n.41, 232 A.3d 278. Ms. Gaines’s boyfriend attempted to persuade her to allow Kodi to leave the apart- ment during the standoff,...