Williams v. Baltimore

736 A.2d 1084

128 Md. App. 1

Mary WILLIAMS, Individually, etc., et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.

No. 672, Sept. Term, 1998.

Court of Special Appeals of Maryland.

September 7, 1999.

Howard J. Schulman and Joseph S. Kaufman (Schulman & Kaufman, L.L.C., on brief), Baltimore, for appellants.

William R. Phelan, Jr. (Frank C. Derr and Justin J. King, on the brief), Baltimore, for appellee, Mayor and City Council.

Bernard Ilkhanoff (Frank C. Derr, Eileen A. Carpenter, on the brief), Baltimore, for appellee, Edward Colbert.

Argued before MOYLAN, HARRELL and HOLLANDER, JJ.

MOYLAN, Judge.

The appellants, Mary Williams, et al.,¹ challenge two Orders of the Circuit Court for Baltimore City issued by Judge John C. Themelis and Judge Gary I. Strausberg, respectively, whereby 1) the appellants' claim against the Mayor and City Council of Baltimore was dismissed and 2) summary judgment was granted in favor of Baltimore City Police Officer Edward Colbert. On appeal, the appellants contend:

1. that the trial court erred in granting summary judgment in favor of Officer Colbert based on its finding that Officer Colbert was entitled to qualified immunity; and

2. that the Mayor and City Council of Baltimore are subject to suit for the actions of Baltimore City police officers under the Local Government Tort Claims Act.

The Factual Background

The factual circumstances giving rise to this case are that as of July of 1995, eighteen-year-old Valerie Williams had been involved for approximately four years in an abusive relationship with Gerald Watkins. On the morning of July 19, Mary Williams, the mother of Valerie Williams, was at work when she received a frantic telephone call from her daughter. Arriving home and finding that Valerie had again been beaten by Watkins, Mary Williams called 911. Officer Colbert responded.

After arriving at the scene, Officer Colbert took statements from both Mary and Valerie Williams and was informed by both of a history of abuse suffered by Valerie at the hands of Watkins. Even as Officer Colbert was interviewing Valerie, Watkins telephoned the house and spoke to both Valerie and to her mother. At that point in the narrative, the parties' versions of events diverge dramatically. Because we are reviewing the trial court's granting of summary judgment in favor of Officer Colbert, we shall recount only Mary Williams's version of events, as we are required to view the facts, including all reasonable inferences deducible therefrom, in the light most favorable to the party against whom the court granted the judgment, to wit, in the light most favorable to the appellants.

According to the deposition of Mary Williams, Valerie informed her that in the course of Watkins's first telephone conversation, he threatened to come back to the house. He called a second time and Mary Williams herself picked up the phone. After learning that the caller was Watkins, Mary Williams briefly expressed her anger to him and then hung up the phone. By looking at the Caller I.D. box, she ascertained that he had called from the Alameda Liquor Store. She reported that fact to Officer Colbert, who dispatched a police car to that location. According to Mary Williams, Officer Colbert said to Valerie, "You stay here, I've got to call for a camera."

Mary Williams had a brief conversation with Officer Colbert about going to a neighboring house, that of the baby-sitter, so that she could pick up her grandson, Valerie's son by Gerald Watkins. With Officer Colbert's approval, she went and picked up the baby and then returned to 622 Melville Avenue. When she got back to the house with the baby, she noticed that Officer Colbert was no longer there. Valerie informed her that the officer "went out to the car." Mary Williams went out and spoke briefly to the officer, who was sitting in the police cruiser. After she said, "What's next?," he replied that he had to "write the report."

Mary Williams returned to the house. A few minutes later, she glanced out the window and saw Watkins running up the front steps. At that same time, she noticed that Officer Colbert was no longer parked in front of the house. Watkins kicked open the door and shot both Valerie and Mary Williams before turning the gun on and killing himself. Valerie Williams was killed as a result of the gunshot wounds. Mary Williams survived but is partially paralyzed. Myreq Williams, Valerie's infant son by Watkins, was also present but was not injured in the course of the shooting.

The Procedural Background

On November 6, 1996, the appellants filed a Complaint in the Circuit Court for Baltimore City against (1) the State of Maryland under the Maryland Tort Claims Act; (2) the Mayor and City Council of Baltimore under the Local Government Tort Claims Act; and (3) Officer Colbert. The Complaint specifically alleged that Article 27, § 11F and Baltimore City Police Department General Order 10-93 divested Officer Colbert of any discretion in carrying out his statutory duty to protect Valerie and Mary Williams and Myreq Watkins and mandated that he do so. The Complaint also alleged that Officer Colbert, through his actions and his express promise of protection, had established a "special relationship" with the appellants that imposed upon him a duty of protection beyond that which he would ordinarily owe to citizens threatened by crime.

On January 17, 1997, a hearing was held in the Circuit Court for Baltimore City, at the conclusion of which Judge Themelis dismissed the Complaints against both the State of Maryland² and the Mayor and City Council of Baltimore, ruling that neither could be sued under the respective tort claims acts.

On January 30, 1998, a hearing was held before Judge Strausberg on Officer Colbert's Motion for Summary Judgment. On February 27, Judge Strausberg granted the motion, ruling that, as a matter of law, Officer Colbert was acting in a discretionary capacity, without malice, at the time of the incident and was, therefore, entitled to qualified immunity as a government official.

Special Focus on Former Art. 27, § 11F

The success or failure of the appellants' claim against Officer Colbert will be controlled by our interpretation of the intended scope of a law enacted by the Legislature as Chapter 307 of the Acts of 1979 and codified as of the date of the assault in this case as Article 27, § 11F.³ As of July 19, 1995, the critical date for our purposes, § 11F provided, in pertinent part:

(b) Assistance to victim.—(1) Any person who alleges to have been a victim of abuse and who believes there is a danger of serious and immediate injury to himself or herself may request the assistance of a local law enforcement agency.

(2) A local law enforcement officer responding to the request for assistance shall:

(i) Protect the complainant from harm when responding to the request; and

(ii) Accompany the complainant to the family home so that the complainant may remove:

1. The personal clothing of the complainant and of any child in the care of the complainant; and

2. The personal effects of the complainant and of any child in the care of the complainant that are required for the immediate needs of the complainant or the child.

(c) Immunity of law enforcement officer from civil liability. —Any law enforcement officer responding to such a request shall have the immunity from liability described under § 5-326 of the Courts and Judicial Proceedings Article.

With respect to that immunity referred to in subsection (c), Courts and Judicial Proceedings Article, § 5-326, in turn, provided:⁴

A law enforcement officer who responds to a request under Article 27, § 11F of the Code for assistance by an individual who alleges to have been a victim of spousal assault shall be immune from civil liability in complying with the request if the law enforcement officer acts in good faith and in a reasonable manner.

(Emphasis supplied).

The appellants' critical reliance on what was then § 11F is two-fold. They claim first that that statutory provision imposes on a law enforcement officer responding to a domestic violence call a specific duty to protect a victim threatened with domestic violence above and beyond those duties ordinarily incumbent on a law enforcement officer responding to any other type of complaint or call for assistance. Intertwined with that first claim is the further subclaim that the statutory duty is so specific and so mandatory that the officer's function is thereby transformed from one that is ordinarily of a "discretionary" character into a mechanistic and merely "ministerial" function, a transformation that would ipso facto divest the officer of his accustomed immunity as a governmental official.

The second claim is that § 11F provides an officer responding to a domestic violence complaint with only a constricted immunity far less plenary than that enjoyed by law enforcement officers in performing other aspects of their duties. Ordinarily an officer, even if he be negligent in the performance of his duties, enjoys official immunity so long as he does not act maliciously. The appellants argue that, because of § 11F(c), Officer Colbert was divested of his ordinary government official immunity unless, in the special context of responding to a domestic violence call, he acted not only 1) non-maliciously but also 2) reasonably.

Before turning attention to those two alleged exceptions to the ordinary rule, it behooves us briefly to set out the context of the ordinary rules themselves. We must ask ourselves initially what the result in this case would have been if, on July 19, 1995, § 11F had not existed.

Duty of Police Officers Generally

Generally, police officers do not, as an aspect of tort law, owe a duty of individualized protection to any particular person. The duty of protection, rather, applies to the public as a whole. Ashburn v. Anne Arundel County, 306 Md. 617, 626-27, 510 A.2d 1078 (1986); Holson v. State, 99 Md. App....