Estate of Anthony Anderson et al v. Strohman et al

Filing 21

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 3/19/2014. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ESTATE OF ANTHONY ANDERSON,
SR., et al.,

:
:

Plaintiffs,
:
v.

Civil Action No. GLR-13-3167
:

TODD STROHMAN, et al.,
:
Defendants.
:
MEMORANDUM OPINION
Pending

before

the

Court

are

Defendant

Mayor

and

City

Council of Baltimore’s (the “City”) and Defendant Baltimore City
Police Department’s1 (“BPD”) respective Motions to Dismiss.
Nos. 9, 15).

(ECF

Plaintiffs, the Estate of Anthony Anderson, Sr.,

and seven surviving immediate family members,2 are suing Officers
Todd Strohman, Michael Vodarick, and Greg Boyd (collectively,
the

“Officers”),

constitutional

the

City,

violations

and

the

stemming

from

BPD,
the

for
violent

civil
death

and
of

Anthony Anderson, Sr., while in police custody.
This case presents two prevailing threshold issues.

The

first is whether the BPD may assert sovereign immunity to shield
itself from Plaintiffs’ state law actions.
1

The second is one

The BPD notes its proper name is Baltimore Police
Department.
2
The family-member Plaintiffs include Anderson’s mother,
Edith Fletcher; father, Leon Anderson; three sons, Anthony
Anderson, Jr., Marcus Pettiford, and Terrence Manocky; and two
daughters, Yvonne and Jean Anderson.

often visited but recently muddled by this Court: whether the
City

sufficiently

liability

for

controls

the

constitutional

BDP

to

be

violations

subject

by

to

§ 1983

Baltimore

police

officers.
Having reviewed the pleadings and supporting documents, the
Court finds no hearing necessary.
2011).

See Local Rule 105.6 (D.Md.

For the reasons outlined below, the Motions will be

granted.
I.

BACKGROUND3

Anderson was returning home from a local corner store on
September 21, 2012, when Officer Strohman approached him from
behind in a vacant lot, lifted Anderson from his knees, and
threw him to the ground head and neck first.
handcuffed Anderson while he lay on the ground.
Officers
proceeded

Vodarik
to

kick

and

Boyd

Anderson

approached.
repeatedly

Officer Strohman
Moments later,

The
in

three

officers

his

ribs,

stomach,

back, and chest, causing him significant injuries from which he
later died.
On October 24, 2013, Plaintiffs filed this survival and
wrongful death action in this Court against the three officers,
the City, and the BPD.

Their eighty-six-page Complaint alleges

forty causes of action, including twenty-eight counts against
3

Unless otherwise noted, the following facts are stated as
alleged in the Complaint. (ECF No. 1).
2

the

three

Maryland

officers

for

Declaration

violating

of

Articles

24

claims

for

Rights,

and

26

of

constitutional

violations asserted under § 1983, and claims for battery.
remaining twelve counts allege the BPD is liable
inadequately
officers.

trained,

supervised,

and

the

disciplined

The

because it
the

three

They also allege the BPD maintains a policy of using

excessive force during criminal investigations.

Despite listing

the City as a defendant, the Complaint contains no substantive
cause of action against it.
The

City

moved

November 22, 2013.

to

dismiss

(ECF No. 9).

the

Complaint

against

it

on

On December 3, 2013, the BPD

moved to dismiss all but the two counts against it asserting
§ 1983 claims.

(ECF No. 15).

Although Plaintiffs filed a joint

response to the Motions (ECF No. 19), only the City filed a
reply.

(ECF No. 20).

Nevertheless, the Motions are ripe for

review.
II.
A.

DISCUSSION

Standard of Review
To

motion,

survive
the

a

Federal

complaint

must

plausible claim for relief.

Rule

of

allege

Civil
enough

Procedure

12(b)(6)

facts

state

to

a

Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).

A claim is plausible when “the plaintiff pleads
3

factual content that allows the Court to draw the reasonable
inference

that

alleged.”

the

Id.

defendant

(citing

is

Twombly,

liable
550

for

U.S.

the

at

misconduct

556).

Legal

conclusions or conclusory statements do not suffice and are not
entitled to the assumption of truth.

Id. (citing Twombly, 550

U.S. at 555).
Thus, the Court “must determine whether it is plausible
that the factual allegations in the complaint are enough to
raise a right to relief above the speculative level.”
City

of

Charlottesville,

579

F.3d

380,

386

(4th

Monroe v.
Cir.

2009)

(quoting Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009))
(internal quotation marks omitted).

And in doing so, the Court

must examine the complaint as a whole, consider the factual
allegations in the complaint as true, and construe the factual
allegations

in

the

light

most

favorable

to

the

plaintiff.

Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm’rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005)
(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
B.

Analysis
1.

State Law Claims Against the BPD

Plaintiffs bring ten pendant state law claims against the
BPD,

alleging

it

caused

the

unconstitutional

actions

of

the

three officers through inadequate training and the practice of
4

condoning inappropriate law enforcement behavior.4

In seeking to

dismiss these claims, the BPD argues it has sovereign immunity
as a state agency.

Plaintiffs respond that the Local Government

Tort Claims Act (“LGTCA”), Md. Code Ann., Cts. & Jud. Proc.
§§ 5-301

et

seq.

(West

sovereign

immunity,

committed

by

thus

Baltimore

2014),
making
police

bars

the

it

liable

officers.

argument, Plaintiffs make two presumptions.

BPD

from

for
In

asserting

tortious

acts

advancing

this

First, they presume

the LGTCA allows the BPD to be held vicariously liable for the
conduct of Baltimore police officers.

Second, they presume the

LGTCA bars the BPD from asserting sovereign immunity to avoid
that liability.

Neither of these presumptions are correct.

State sovereign immunity bars individuals from maintaining
an action against the State of Maryland or one of its agencies
unless the immunity is waived.

Balt. Police Dep’t v. Cherkes,

780 A.2d 410, 424 (Md.Ct.Spec.App. 2001) (citing Catterton v.
Coale, 579 A.2d 781, 785 (Md.Ct.Spec.App. 1990)).

In addition,

it shields the State and state agencies from actions seeking
damages for state constitutional violations and protects them
from respondeat superior liability for torts committed by their
employees.

4

Cherkes, 780 A.2d at 423–24.

The specific state law claims against the BPD are found in
Counts IV, VIII, XII, XVI, XX, XXIV, XXVIII, XXXII, XXXVIII, and
XL, which the Complaint erroneously denotes as “XXXX.”
5

Contrary to commonly held belief, the BPD has long been
considered a state agency with sovereign immunity to state law
claims.

See Mayor & City Council of Balt. v. Clark, 944 A.2d

1122, 1128–30 (Md. 2008) (outlining the BPD’s history as a state
agency); Clea v. Mayor & City Council of Balt., 541 A.2d 1303,
1306 (Md. 1988) (“[T]he Baltimore City Police Department is a
state agency.”), superseded by statute, Md. Code Ann., State
Gov’t

§

Diamond,

12-101(a)
36

A.3d

(West
941

2014),

(Md.

as

2012);

recognized
Cherkes,

in

780

D’Aoust

A.2d

at

v.
428

(concluding the BPD may assert sovereign immunity as a state
agency).
This

analysis,

governments.

Years

however,
ago,

changes

amid

a

slightly

dramatic

for

increase

local

in

tort

litigation, the Maryland General Assembly enacted the LGTCA to
limit

the

employees.
Cts.

&

civil

liability

of

local

governments

and

their

Cherkes, 780 A.2d at 430; see also Md. Code Ann.,

Jud.

Proc.

§

5-303(a)(1)

(limiting

recoverable against local government agencies).

the

damages

Labeled among

the “local governments” it safeguards is “[t]he Baltimore City
Police Department.”
301(d)(21).
so far.

Md. Code Ann., Cts. & Jud. Proc. § 5-

But the LGTCA’s application to the BPD extends only

The General Assembly merely included the BPD as a local

government under the LGTCA to extend its protection to Baltimore
6

police officers, who were otherwise not shielded by the Maryland
Tort Claims Act (“MTCA”), Md. Code Ann., State Gov’t §§ 12-101
et seq. (West 2014).

Cherkes, 780 A.2d at 433–34.

With that purpose in mind, the LGTCA imposes on the BPD the
duty to pay judgments entered against its employees, namely,
Baltimore

police

officers,

and

waives

the

BPD’s

sovereign

immunity to the extent it conflicts with that responsibility:
(1) [A] local government shall be liable for any
judgment against its employee for damages resulting
from tortious acts or omissions committed by the
employee within the scope of employment with the local
government.
(2) A local government may not assert governmental or
sovereign immunity to avoid the duty to defend or
indemnify an employee established in this subsection.
Md. Code Ann., Cts. & Jud. Proc. § 5-303(b).
The LGTCA preserves, however, the defenses and immunities
the BPD otherwise has at common law:
(d) [T]his subtitle does not waive any common law or
statutory defense or immunity in existence as of June
30, 1987, and possessed by an employee of a local
government.
(e) A local government may assert on its own behalf
any common law or statutory defense or immunity in
existence as of June 30, 1987, and possessed by its
employee for whose tortious act or omission the claim
against the local government is premised . . . .
Id. § 5-303.
Put

simply,

the

LGTCA

only

prohibits

the

BPD

from

asserting sovereign immunity to avoid its statutorily-imposed
7

duty to defend or indemnify its employees.
434.

Cherkes, 780 A.2d at

It requires the BPD to pay any judgment, in whole or in

part, this Court may render against Officers Strohman, Vodarick,
and Boyd.

But the BPD cannot be vicariously liable and may

still raise sovereign immunity in its own defense.
436.

See id. at

Even under the LGTCA, Plaintiffs cannot bring state law

claims directly against the BPD for the actions of Baltimore
police officers acting within the scope of their employment.
that

regard,

Plaintiffs

bring

precisely

the

sovereign immunity protects the BPD against.
sovereign

immunity

here,

and

the

Court

type

of

In

claim

The BPD may assert
will

dismiss

with

prejudice the ten state law claims against it.
2.
As

Possible State Law and § 1983 Claims Against the City
a

result

of

an

admitted

technical

error

Complaint, Plaintiffs bring no claim against the City.

in

their

Chiefly

for that reason, the City moves to dismiss the Complaint against
it.

Indeed, the Complaint literally fails to state a claim

against the City upon which relief may be granted.

The Court

may dismiss it on those grounds alone.
But the City goes one step further.

It asks the Court to

dismiss the Complaint with prejudice because it lacks sufficient
control over the BPD to be liable under state law or § 1983 for
the conduct of Baltimore police officers.
8

Plaintiffs disagree.

Relying on four of this Court’s decisions, they argue the City
has sufficient control over the BPD’s everyday affairs to be
liable under § 1983 for Baltimore police officer conduct.

See

Humbert v. O’Malley, No. WDQ-11-0440, 2011 WL 6019689 (D.Md.
Nov. 29, 2011); Brown v. Tshamba, No. RDB 11-00609, 2011 WL
2935037 (D.Md. July 18, 2011); Mason v. Mayor & City Council of
Balt., No. HAR 95-41, 1995 WL 168037 (D.Md. Mar. 24, 1995);
Wilcher v. Curley, 519 F.Supp. 1 (D.Md. 1980).
not address the City’s state law contentions.

Plaintiffs do

In any event, the

Court agrees with the City.
Plaintiffs’ possible state law claims against the City can
be

dispensed

with

quickly.

As

previously

Maryland law, the BPD is a state agency.5

discussed,

under

Clark, 944 A.2d at

1131; Cherkes, 780 A.2d at 428; Clea, 541 A.2d at 1306.

As a

result, the City does not employ Baltimore police officers and
is not liable for their conduct under state law.
at 1306.

Clea, 541 A.2d

For those reasons, Plaintiffs can bring no cognizable

state law claim against the City here.
The
attention.

possible

§ 1983

claims,

however,

require

more

Section 1983 allows individuals to sue any person

who violates their constitutional rights while acting under the
5

Because many earlier cases discuss the unique relationship
between the City and BPD at length, the Court will not belabor
the point here. For a more detailed discussion, see Clark, 944
A.2d at 1128–31.
9

color of law.

42 U.S.C. § 1983 (2012).

Originally, local

governments were not considered a “person,” and thus could not
be sued under § 1983.

The Supreme Court of the United States

changed this interpretation in Monell v. Department of Social
Services of the City of New York, 436 U.S. 658 (1978).

Monell

made it possible to sue local governments under § 1983, but only
if

the

constitutional

violations

local government policy or custom.

occurred

while

Id. at 690.

executing

a

In other words,

Monell allows plaintiffs to sue the City under § 1983 for the
unconstitutional conduct of its employees.
The

threshold

question

then

police officers are City employees.
confusing.

becomes

whether

Baltimore

The answer can be quite

On the one hand, this Court has repeatedly concluded

the City does not sufficiently control the BPD to be responsible
for Baltimore police officer conduct under § 1983 (i.e., they
are not City employees).

See, e.g., Creasy v. Mayor of Balt.,

No. JFM–11–1870, 2012 WL 1044426, at *2 (D.Md. Mar. 26, 2012)
(“[T]he Baltimore City Police Department is an agency of the
State, not an agency of the City of Baltimore and thus not
within the control of the Mayor.”); Brown v. Balt. Police Dep’t,
No. RDB-11-00136, 2011 WL 6415366, at *6 (D.Md. Dec. 21, 2011)
(“BPD officers are not City employees and the City does not
exercise control over the BPD and its employees.”); Chin v. City
10

of Balt., 241 F.Supp.2d 546, 549 (D.Md. 2003) (“[T]he Baltimore
City government does not wield enough control over the Baltimore
Police Department to be subject to liability for the Baltimore
Police Department’s actions.”); Carter v. Mayor & City Council
of

Balt.,

established

164

F.Supp.2d

that

509,

Baltimore

517

City

(D.Md.
cannot

2001)
be

(“It

regarded

is
as

well
the

employer of members of the Baltimore City Police Department.”
(citing Clea, 541 A.2d at 1306)), vacated on other grounds sub
nom. Carter v. Balt. Cnty., Md., 39 F.App’x 930 (4th Cir. 2002).
On the other hand, the cases upon which Plaintiffs rely,
Wilcher, Mason, Tshamba, and Humbert, apparently hold the exact
opposite – that the City has sufficient practical links with the
BPD to be liable for Baltimore police officer conduct under
§ 1983 (i.e., they are City employees).6
The genesis of the confusion seems to be the Wilcher line
of cases, which disregarded the threshold question altogether
and jumped immediately into the Eleventh Amendment analysis.7

6

The Court of Appeals for the Fourth Circuit briefly
discussed whether the City sufficiently controls the BPD for
§ 1983 purposes in Wiley v. Mayor and City Council of Baltimore,
48 F.3d 773 (4th Cir. 1995), but declined to address the issue
on its merits. Id. at 776. For the purposes of that case, the
court instead assumed the City could be liable under § 1983 for
BPD policies. Id.
7
Understandably, it is easy to confuse the § 1983 municipal
liability question with the Eleventh Amendment analysis.
The
Eleventh Amendment analysis, which considers the degree of
control the government has over a certain entity, is nearly
11

Wilcher specifically concerned whether the City and BPD are so
connected

as

to

bar

the

BPD

from

asserting

Amendment to avoid liability under § 1983.

the

Eleventh

The Court concluded

the City and BPD were sufficiently connected, and thus the BPD
could not assert the Eleventh Amendment.
at 4–5.
Hector

Wilcher, 519 F.Supp.

The Court reaffirmed this conclusion two years later in
v.

concluded

Weglein,
again

that

558

F.Supp.

the

City

194

and

(D.Md.

BPD

are

1982),
too

where

it

connected

to

escape § 1983 liability by invoking the Eleventh Amendment.

Id.

at 199.
But

the

Court

in

neither

case,

despite

having

the

opportunity to do so, addressed whether the City is generally
liable for Baltimore police conduct as a threshold matter.

The

City argued in both cases that it cannot be liable under § 1983
because

it

Wilcher

Court

footnote.

did

See

not

employ

quickly

Baltimore

dispensed

police

with

Wilcher, 519 F.Supp.

that

officers.
argument

at 2 & n.5.

The
in

a

While in

Hector, the Court ignored it altogether and proceeded to rule as
if the City attempted to assert Eleventh Amendment immunity.
See Hector, 558 F.Supp. at 197, 199.
Even then, the Court in both cases poked holes in its own
analysis.

In Wilcher, the Court, upon reconsideration and with

identical to that of § 1983. See Lee-Thomas v. Prince George’s
Cnty. Pub. Sch., 666 F.3d 244, 248 n.5 (4th Cir. 2012).
12

new evidence in tow detailing the relationship between the City
and BPD, ultimately acknowledged the City exercised only limited
control over the BPD and no control whatsoever over the actions
of

Baltimore

police

officers.

Wilcher,

519

F.Supp.

at

9.

Similarly, the Court in Hector granted summary judgment in the
City’s favor after noting that no City official is responsible
for training or disciplining Baltimore police officers, and that
BPD

officials

Hector,

558

have

“very

F.Supp.

at

infrequent

202.

These

contact”

with

conclusions

the

City.

suggest

the

Eleventh Amendment analysis employed in these cases is not as
air-tight as it seems.
Nonetheless, Mason, Tshamba, and Humbert relied on Wilcher
and Hector to conclude the City sufficiently controlled the BPD
and could be liable under § 1983 for Baltimore police officer
conduct.

See

Humbert,

2011

WL

6019689,

at

*5

(denying

the

City’s motion to dismiss the § 1983 claims against it because of
the “strong practical links” between it and the BPD); Tshamba,
2011 WL 2935037, at *7 (“[The City is] precluded from asserting
state

sovereign

immunity

and

[is]

amendable

to

a

§ 1983

action.”); Mason, 1995 WL 168037, at *4 (“[T]he City maintains
sufficient practical knowledge of and control over the Police
Department to withstand dismissal of this § 1983 action.”).

And

in doing so, those cases merged the analysis as to whether the
13

City could be liable for Baltimore police officer conduct under
§ 1983

with

Amendment

Wilcher

and

analysis.

Hector’s

Bradley

v.

already
Balt.

F.Supp.2d 642, 648 n.4 (D.Md. 2012).

shaky

Police

Eleventh

Dep’t,

887

The Court will decline to

follow Mason, Tshamba, and Humbert here.
Try as they may, Plaintiffs cannot avoid the mountain of
law insisting the City does not sufficiently control the BPD or
Baltimore police officers.
police

officers

are

state

supervision and control.

Neither can this Court.
employees

free

from

Baltimore
the

City’s

The City sets no policy or custom that

Baltimore police officers execute, and the City cannot be liable
for the conduct of Officers Strohman, Vodarick, and Boyd under
§ 1983.
The

Court

concludes,

based

on

governing

Maryland

and

federal law, that a § 1983 claim cannot be brought against the
City for Baltimore police officer conduct because it does not
sufficiently control the BPD and cannot be considered to employ
Baltimore

police

officers.

Municipal

liability

under

Monell

cannot attach to the City for the unconstitutional actions of
Baltimore police officers.

Accordingly, the Court will dismiss

the Complaint against the City with prejudice.

14

3.

Leave to Amend

Plaintiffs request leave to amend the Complaint “to cure
their technical pleading irregularities against the City.”

(See

Pls.’

City

Joint

Opp’n

Balt.

City

Police

Dep’ts

&

Mayor

Council’s Respective Mots. Dismiss at 2, ECF No. 19-1).
the

City

cannot

be

liable

for

the

alleged

&

Because

offenses,

and

Plaintiffs offer no specific factual allegations that would cure
that defect, the Court will deny Plaintiffs’ request.

See Laber

v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006).
III. CONCLUSION
For

the

foregoing

reasons,

the

Court

will,

by

separate

Order, grant the City and BPD’s respective Motions to Dismiss
(ECF Nos. 9, 15) and deny Plaintiffs’ request for leave to amend
the Complaint (see ECF No. 19).
Entered this 19th day of March, 2014
/s/
_____________________________
George L. Russell, III
United States District Judge

15