Smith v. Baltimore City Police Department et al

Filing 77

MEMORANDUM AND ORDER granting in part 64 Defendants Church, Pilkerton, Ulmer and Campbell's Motion for Summary Judgment. Signed by Judge Marvin J. Garbis on 12/19/14. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MAKIA SMITH

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Plaintiff
vs.

BALTIMORE CITY POLICE
DEPARTMENT et al.

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CIVIL ACTION NO. MJG-13-1352

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Defendants
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MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT
The Court has before it Defendants Church, Pilkerton,
Ulmer, and Campbell's Motion for Partial Summary Judgment
[Document 64] and the materials submitted relating thereto.

The

Court has held a hearing and had the benefit of the arguments of
counsel.

I.

BACKGROUND
A.

The Assumed "Facts"

The Defendants have a version of the facts that is starkly
different from Plaintiff's version.
now making factual findings.

However, the Court is not

The Court must, and will, assume

the facts to be as Plaintiff contends to the extent there is
evidence from which a reasonable jury could find those facts.
Thus, it is assumed that on March 8, 2012, Plaintiff Makia
Smith ("Plaintiff") was driving home along Harford Road in

Baltimore, Maryland when, due to the stopping of other vehicles,
she was forced to stop her vehicle and remain stopped.

While

stopped, Plaintiff witnessed police officers from the Baltimore
City Police Department ("BCPD"), not parties to the instant
case, beating a young male while attempting to arrest him.
Plaintiff began filming the arrest and beating of the young
male with her cell phone camera.

1.

Defendant Church

Upon realizing that Plaintiff was filming the incident of
police brutality, Defendant Church ("Church"), in retaliation
for Plaintiff's exercise of her First Amendment right to film
police action in public, ran over to Plaintiff's car, grabbed
the telephone, and smashed the telephone with his foot,
destroying it.

Moreover, Church, although well aware that

Plaintiff's car was not disrupting traffic and that she was
unable to move her vehicle, shouted an order for her to move the
vehicle, an order that he knew could not be obeyed because of
the traffic conditions.

Church's order was intended to create a

pretext of probable cause to justify arresting Plaintiff.
Moreover, Church, in effecting the arrest, used excess force
against Plaintiff.
Plaintiff was charged with several criminal and traffic
offenses in connection with the incident, including second

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degree assault against Church and "causing a vehicle to obstruct
a free vehicle passage of a roadway."

Am. Compl. ¶ 27.

"On

January 3, 2013, a disposition of nolle prosequi was entered for
all of the criminal and traffic charges filed by Officer Church
against Plaintiff."

Id. ¶ 29.

As a result of the incident, Plaintiff obtained necessary
medical treatment for injuries to her face, neck, and body.

2.

The Other Officers

Defendants Pilkerton, Ulmer, and Campbell, Baltimore City
Police Officers ("the Other Officers"), were on the scene at the
time of the incident in question, and, it can be assumed,
observed Plaintiff filming other police officers engaging in
police misconduct.

B.

Procedural Posture

In the Amended Complaint, Plaintiff presents the following
claims against Officers Church, Pilkerton, Ulmer, and
Campbell1:

1

As well as certain claims against the Baltimore City Police
Department ("BCPD") and Commissioner Anthony W. Batts ("Batts")
in his official capacity (collectively "the BCPD Defendants").

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CLAIM

COUNTS

CHURCH

PILKERTON

ULMER

CAMPBELL

I, II









Unlawful
arrest

III, IX, X









Excess
force

XII, XIII







VIII







Intentional
Infliction

XI





Cell phone
deprivation

IV, V, VI, VII



Free speech
retaliation

Battery





On September 29, 2014, the Court permitted the Other
Officers (not Church) to file "simplified motions for summary
judgment" merely identifying the claims as to which they sought
summary judgment.

Plaintiff was required to respond, and the

movants would be given an opportunity to file a reply if
necessary.

[Document 59].

The instant "simplified" Motion was filed by all of the
Officers, including Church.

On October 14, 2014, the Court

denied the instant Motion as filed by Church, stating:
As a procedural matter, the summary judgment
motion filed by Officer Church lacks an
adequate memorandum in support.
Defendant
Church, as distinct from the other Officer
Defendants, was not given leave to file a
simplified summary judgment motion. As a
substantive matter, there are genuine issues

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of material fact that prevent Defendant
Church from being granted summary judgment.
[Document 67] at 2.

The Court provided, however, that Church

could "seek reconsideration if there is a grant of summary
judgment as to the Other Officer Defendants that should be
deemed applicable to him."2

Id.

On November 12, 2014, Church

filed a Notice of [Interlocutory] Appeal from the denial of his
summary judgment motion.
By the instant Motion, Officers Pilkerton, Ulmer, and
Campbell seek summary judgment with regard to all claims against
them.

II.

SUMMARY JUDGMENT STANDARD
A motion for summary judgment shall be granted if the

pleadings and supporting documents "show[] that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."

Fed. R. Civ. P.

56(a).

2

In the same letter Order denying the instant Motion as
filed by Church, the Court denied Defendants Baltimore City
Police Department and Commissioner Anthony Batts' Motion for
Summary Judgment [Document 65] without prejudice as premature.
The Court stated that "if it is determined, on summary judgment
or at trial, that Plaintiff does not have a valid claim against
any Officer Defendant, [the BCPD Defendants] will be entitled to
summary judgment. However, if Plaintiff does prevail, the case
will proceed to the Monell claim phase." [Document 67] at 3.

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The well-established principles pertinent to summary
judgment motions can be distilled to a simple statement:

The

Court may look at the evidence presented in regard to a motion
for summary judgment through the non-movant's rose-colored
glasses, but must view it realistically.

After so doing, the

essential question is whether a reasonable fact finder could
return a verdict for the non-movant or whether the movant would,
at trial, be entitled to judgment as a matter of law.

See,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).

III. DISCUSSION
A.

Free Speech and Related Claims (False Arrest and
Battery) – Counts I-III, VIII-X

Plaintiff's claim is, in essence, that Church and the Other
Officers retaliated against her for exercising her First
Amendment free speech right to film police action (specifically,
misconduct) in public.

The retaliation consisted of Church's

destroying her cellphone and Church's, as well as the Other
Officers', arresting her without probable cause.
To establish a free speech retaliation claim, Plaintiff
must prove that:


Her speech was protected – i.e., she
was exercising a First Amendment right;

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

A defendant took retaliatory action
against her for exercising this right
that
adversely
affected
her
constitutionally protected speech; and



A causal connection exists between her
protected speech and the retaliatory
action.

See, e.g., Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th
Cir. 2000).
The evidence would permit a reasonable jury to find that
Plaintiff was filming police misconduct in a manner that was not
interfering with police activity – other than, of course, to
ensure that there was evidence to establish the misconduct of
the officers arresting the young male.

Each of the Other

Officers could be found to have observed the filming, to have
observed Church's destruction of the cellphone, and to have
believed that Church was seeking to arrest Plaintiff without
genuine probable cause.

The Other Officers each assisted Church

in arresting Plaintiff.

And, the Court will assume that the

evidence is sufficient to permit a reasonable jury to find that
one, or all of the Other Officers, assisted in the arrest of
Plaintiff knowing that Church was effecting an arrest without
probable cause.
Nevertheless, the Court finds the Other Officers entitled
to qualified immunity with regard to their using reasonable
force to assist Church in arresting Plaintiff.

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As stated by the

United States Court of Appeals for the Fourth Circuit in Meyers
v. Baltimore County, Maryland, 713 F.3d 723 (4th Cir. 2013):
[A]lthough a plaintiff may prove that an
officer has violated certain constitutional
rights, the officer nonetheless is entitled
to qualified immunity if a reasonable person
in the officer's position "could have failed
to appreciate that his conduct would violate
those rights."
Torchinsky v. Siwinski, 942
F.2d 257, 261 (4th Cir.1991) (citation and
internal quotation marks omitted).
Id. at 731 (emphasis added).
Of course, Plaintiff's right to be free from an arrest
without probable cause was well established.

And, there is no

doubt that the evidence is sufficient for a reasonable jury to
find that Church violated Plaintiff's constitutional rights by
arresting her in retaliation for her filming police misconduct.
However, there is insufficient evidence to establish that
any of the Other Officers assisted Church for a retaliatory
motive, rather coming to the aid of a fellow officer who was
trying to effect an arrest.

"The question is what the officer

reasonably understood his powers and responsibilities to be,
when he acted, under clearly established standards."

Saucier v.

Katz, 533 U.S. 194, 208 (2001), receded from on other grounds by
Pearon v. Callahan, 555 U.S. 223 (2009)
Thus, a reasonable person in the circumstances of the Other
Officers could have believed that he would not be violating
Plaintiff's constitutional rights by utilizing reasonable force

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to assist in ending the incident – even though Church was
effecting an illegal arrest – if the only alternative was to
stand by and let Church and the Plaintiff "fight it out among
themselves."
"The denial of qualified immunity for [the Other]
Officer[s] would mean that an assisting officer must assess both
the primary rationale for probable cause and the factual and
legal rationale that support it.
rejected this proposition."3

This Court has previously

Swagler v. Sheridan, No. CIV.A.

RDB-08-2289, 2011 WL 2635937, at *10 (D. Md. July 5, 2011).

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But see Carter v. Jess, 179 F. Supp. 2d 534, 544-45 (D. Md.
2001) ("Plaintiff has cited no authority for the proposition
that an officer must make an independent assessment of probable
cause before assisting other officers with what appears to be a
difficult or potentially dangerous arrest that is already
underway. Indeed, such a requirement could yield perilous
results for officers whose colleagues are deterred from
assisting them. Plaintiff asserts instead that because of the
short time between Officer Boone's initial encounter with
Plaintiff, and Plaintiff's arrest by Officers Jess and Waite,
that 'Defendant Boone must have known that at no time during
this incident was Mr. Carter a candidate for a disorderly
conduct charge.' Plaintiff's argument fails to address the fact
that Officer Boone did not witness Plaintiff's conduct
immediately prior to the arrest, and had no personal knowledge
of the arresting officers' basis for the arrest. Officer
Boone's liability turns not on whether the arrest was actually
based on probable cause, but rather, 'what the officer
reasonably understood his powers and responsibilities to be,
when he acted, under clearly established standards.'
['[H]owever, officers with knowledge that their fellow officers
are engaged in unlawful activity, including a wrongful arrest,
should not assist in it. There is no evidence that Officer
Boone had such knowledge in this case.']").

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Accordingly, the Court finds that the Other Officers are
entitled to qualified immunity with regard to Plaintiff's claims
for free speech retaliation, false arrest, and battery (as based
upon the use of reasonable force4) in Counts I, II, III, VIII,
IX, and X.

B.

Excess Force Claim – Counts VIII, XII, XIII

As stated by the Fourth Circuit:
Under Maryland law, "[a] battery occurs when
one intends a harmful or offensive contact
with another without that person's consent."
Nelson v. Carroll, 355 Md. 593, 735 A.2d
1096, 1099 (1999). Although Maryland police
officers are entitled to qualified immunity
when performing their official duties, they
lose such protection when they commit "an
intentional tort or act [ ] with malice."
DiPino v. Davis, 354 Md. 18, 729 A.2d 354,
370 (1999).
Young v. Prince George's Cnty., Maryland, 355 F.3d 751, 759 (4th
Cir. 2004).

4

The Court is granting qualified immunity to Pilkerton and
Campbell on the battery claim to the extent that claim is based
upon their merely having touched Plaintiff (with reasonable
force) while assisting Church in effecting the arrest. Cf.
Bixler v. Harris, No. CIV. WDQ-12-1650, 2013 WL 2422892, at *8
(D. Md. June 3, 2013) ("'False imprisonment, false arrest, and
assault and battery (when the force used is not excessive) can
only occur when there is no legal authority or justification for
the arresting officer's actions.'" (quoting Williams v. Prince
George's Cnty., 685 A.2d 884, 898 (Md. Ct. Spec. App. 1996)).
Qualified immunity is not granted on Plaintiff's battery claim
based upon a use of excess force.

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Put more simply, "[t]he right to arrest . . . does not give
rise to a privilege to use an unreasonable amount of force."
Estate of Saylor v. Regal Cinemas, Inc., --- F. Supp. 3d ---,
No. CIV.A. WMN-13-3089, 2014 WL 5320663, at *11 (D. Md. Oct. 16,
2014).
Plaintiff has presented evidence adequate to permit a
reasonable jury to find that one of the Other Officers,
Campbell, used excess force in participating with Church in her
arrest.

Plaintiff testified that one of the Other Officers

pulled her left arm to the small of her back and then "pulled it
all the way up almost like they were going to break it," and
that the same officer said "Have you had enough yet?"
Dep. 60:13-61:4.

Smith

Campbell testified that he was the officer who

pulled Plaintiff's left arm to the small of her back and that he
did not know if any other officer – other than he and Church –
"even had hands on [Plaintiff]."

Campbell Dep. 28:13-22.

This

is sufficient evidence from which a reasonable jury could find
that Campbell utilized excess force in the arrest of Plaintiff.
Accordingly, on Plaintiff's excess force claim – and on the
battery claim as it relates to the use of excess force - summary
judgment shall be denied to Campbell but granted as to
Pilkerton.

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C.

Intentional Infliction of Emotional Distress - Count XI
To establish a cause of action for intentional infliction

of emotional distress ("IIED") under Maryland law, a Plaintiff
must establish four essential elements:
(1)

The
conduct
reckless;

was

intentional

or

(2)

The conduct was extreme and outrageous;

(3)

There was a causal connection between
the wrongful conduct and the emotional
distress; and

(4)

The emotional distress was severe.

Arbabi v. Fred Meyers, Inc., 205 F. Supp. 2d 462, 465-66 (D. Md.
2002) (citations and quotation marks omitted); see also Batson
v. Shiflett, 602 A.2d 1191, 1216 (Md. 1992).
Plaintiff has failed to present evidence adequate to
establish the fourth element, emotional distress that is severe
as that term is defined in Maryland law.
"Maryland courts have cautioned that the tort of
intentional infliction of emotional distress should be imposed
sparingly, and its balm reserved for those wounds that are truly
severe and incapable of healing themselves."

Arbabi, 205 F.

Supp. 2d at 466 (citations and quotation marks omitted).
Thus, to establish the fourth element of an IIED claim,
Plaintiff must prove that the emotional distress inflicted was
of such severity that she was unable to function or tend to

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necessary matters.

As stated by the Court of Appeals of

Maryland in Hamilton v. Ford Motor Credit Co., 502 A.2d 1057
(Md. 1986):
To
sustain
an
action
for
intentional
infliction of emotional distress . . . one
must suffer an emotional response so acute
that no reasonable person could be expected
to endure it.
One must be unable to
function, one must be unable to tend to
necessary matters.
Id. at 1064 (citations omitted).
Plaintiff here, like the plaintiff in Hamilton, simply
produced no evidence that she could not function or tend to her
everyday affairs.

"The tale of her frustration and anguish was

not one of pain so acute that no reasonable person could be
expected to endure it."

Id.

Accordingly, all of the Officer Defendants are entitled to
summary judgment on Plaintiff's IIED claim.

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IV.

CONCLUSION
Accordingly:
1.

Defendants Church, Pilkerton, Ulmer, and
Campbell's Motion for Partial Summary Judgment
[Document 64] is GRANTED IN PART.
a.

b.

Officer Ulmer is granted summary judgment
with regard to all claims against him in
Counts I, II, III, IX, and X.

c.

Officer Campbell is granted summary judgment
with regard to all claims against him in
Counts I, II, III, IX, and X.

d.

2.

Officer Pilkerton is granted summary
judgment with regard to all claims against
him in Counts I, II, III, VIII, IX, X, XII,
and XIII.

All of the Officer Defendants (including
Church) are granted summary judgment with
regard to all claims against them in Count
XI.

There now remain for trial in the first (preMonell) phase of the case:
a.

Plaintiff's claims in Counts I, II, III,
VIII, IX, and X against Defendant Church.

b.

Plaintiff's claims in Counts VIII, XII, and
XIII against Defendants Church and Campbell.

c.

Plaintiff's claims in Counts IV, V, VI, and
VII5 against Defendant Church.

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The Court has not yet determined whether all of these
claims, or some of them, can be resolved prior to trial.

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3.

Plaintiff shall arrange a conference, to be held
prior to January 7, 2015 to discuss:
a.

The effect on claims against the BCPD
Defendants of the grant of qualified
immunity to Defendants Pilkerton, Ulmer, and
Campbell.

b.

Setting a trial date for the pre-Monell
phase.

SO ORDERED, on Friday, December 19, 2014.

/s/__________
Marvin J. Garbis
United States District Judge

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