Rouse et al v. City Of Baltimore et al
Filing
41
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 9/30/2019. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
THERESA ROUSE, et al.,
*
Plaintiffs,
*
v.
*
P.O. CHRIS FLORIO, et al.,
*
Defendants.
Civil Action No. GLR-17-3482
*
* * *
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendants P.O. Chris Florio (“Officer
Florio”), P.O. John Romeo (“Officer Romeo”), and P.O. Billy Shiflett’s (“Officer Shiflett”)
(collectively, the “Officer Defendants”) Motion for Summary Judgment (ECF No. 36).
This action under 42 U.S.C. § 1983 (2018) arises from Plaintiffs K.V.1 and Theresa Rouse’s
interaction with Officer Defendants in May 2016. The Motion is ripe for disposition, and
no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the following reasons,
the Court will grant the Motion in part and deny it in part.
I.
BACKGROUND2
On May 7, 2016, Plaintiff K.V., a thirteen-year-old boy, and other juveniles,
1
The Court identifies K.V. and other minors in this Memorandum Opinion by their
initials only.
2
Unless otherwise noted, the facts outlined here are set forth in Plaintiffs’ Amended
Complaint (ECF No. 5). To the extent the Court discusses facts that Plaintiffs do not allege
in their Amended Complaint, they are uncontroverted and the Court views them in the light
most favorable to the non-moving party. The Court will address additional facts when
discussing applicable law.
entered a gas station (the “Gas Station”) on 900 N. Monroe Street in Baltimore, Maryland.
(Am. Compl. ¶ 15, ECF No. 5). At around 12:00 p.m., Sergeant Michael Brinn (“Sergeant
Brinn”) and Officer Anthony Ward (“Officer Ward”), who are not named as Defendants in
the Amended Complaint,3 responded to a call-for-service at the Gas Station regarding
juveniles who were fighting. (Defs.’ Mot. Summ. J. [“Defs.’ Mot.”] Ex. A [“Ward Incident
Report”] at 1–2, ECF No. 36-3; Pls.’ Resp. Opp’n Defs.’ Mot. Summ. J. [“Pls.’ Resp.”]
Ex. 3 [“Florio Interrogs.”] at 7, ECF No. 39-3). As Officers Brinn and Ward approached
the Gas Station, they saw male juveniles rolling and smoking an object that appeared to be
a hand-rolled cigar. (Ward Incident Report at 2). The Gas Station owner approached
Sergeant Brinn and told him that these were the juveniles who were smoking marijuana
inside his store, prompting his 9-1-1 call. (Id.). Officer Ward smelled marijuana on one of
the juveniles, M.H., searched him, and found a hand-rolled cigar containing green leaves.
(Id.).
Thereafter, other officers, including Officer Defendants, arrived at the Gas Station.
(See id.; Florio Interrogs. at 7; Defs.’ Mot. Ex. D [“Shiflett Interrogs.”] at 7, ECF No. 366). Officer Romeo and Officer Ryan Ernst (“Officer Ernst”) stopped three more juveniles
who Sergeant Brinn had observed inside the Gas Station who smelled of marijuana. (Ward
Incident Report at 2; Florio Interrogs. at 14). Officer Shiflett arrived and monitored the
3
Officers Florio, Romeo, and Shiflett are the only Baltimore Police Department
officers named as Defendants in the Amended Complaint. (See Am. Compl. at 1). The
Amended Complaint brings claims against “John Doe Officers” and “John Doe
Supervisors,” (id.), but only Officers Florio, Romeo, and Shiflett have moved for summary
judgment. Plaintiffs have not named any of the other officers identified in this
Memorandum Opinion as defendants in this case.
2
crowd gathered in front of the Gas Station. (See Shiflett Interrogs. at 7).
Plaintiff Theresa Rouse heard about the incident and walked up to the Gas Station,
where she saw that M.H. was one of the detained juveniles. (See Defs.’ Mot. Ex. C [“Rouse
Dep.”] 16:1–6, 22:8–12, ECF No. 36-5; Pls.’ Resp. Ex. 2 [“Rouse Crim. Charges”] at 2,
ECF No. 39-2). Rouse told Officer Defendants that she was the grandmother of one of the
juveniles. (Rouse Dep. 16:8–10). Officer Defendants allege that Rouse said she was the
grandmother of M.H. specifically. (Defs.’ Mot. Ex. J [“Florio Incident Report”] at 2, ECF
No. 36-12). Officer Shiflett called M.H.’s mother, who denied that Rouse was M.H.’s
grandmother but said Rouse was dating M.H.’s grandfather. (Id.; Rouse Dep. 22:19–21).
Officer Defendants then asked Rouse to leave and she did. (Rouse Dep. 16:12–14).
Meanwhile, K.V. had fled the Gas Station, but Sergeant Brinn apprehended him in
a nearby alley. (See Ward Incident Report at 2; Defs.’ Mot. Ex. E [“K.V. Dep.”] 12:2–13,
ECF No. 36-7). Sergeant Brinn searched K.V. and brought him back to the Gas Station to
sit with the other juveniles. (Ward Incident Report at 2). Rouse then returned to the scene
and saw the officers detaining K.V., her actual grandson. (Rouse Dep. 16:16–21). A cell
phone video (the “Cell Phone Video”) taken by an onlooker offers a view of what happened
next. (Florio Interrogs. at 12; see generally Defs.’ Mot. Ex. G [“Cell Phone Video”], ECF
No. 36-9).
Officer Florio observed two other officers searching or adjusting the handcuffs on
K.V. as K.V. sat on a curb with his head close to his knees. (Cell Phone Video 00:01–
00:33). Rouse approached the Officers, protesting their treatment of K.V., at which point
Officer Florio told her to “get back.” (Id. 00:32–00:36). Around this time, Officer Florio
3
also told Rouse to dispose of the lit cigarette she had in her hand. (See Rouse Dep. 30:1–
2). As Officer Florio approached her, Rouse, who was facing Officer Florio, “plucked” her
cigarette behind him. (Id. at 30:1–3; see Cell Phone Video 00:35–00:38). Officer Florio
then moved to arrest Rouse. (Cell Phone Video 00:38–00:40). Defendants allege Rouse
stepped back to resist arrest, whereas Rouse alleges she was pushed back. (Florio Interrogs.
at 7–8; Rouse Dep. 29:3–5).
Officer Florio and Officer John Rosenblatt (“Officer Rosenblatt”) then forced Rouse
to the ground, Officer Florio put his knee against her back, and pulled her hands behind
her body to handcuff her while she lay on her stomach. (Cell Phone Video 00:38–00:49;
see Florio Interrogs. at 7–8). Officers Florio and Rosenblatt then carried Rouse by her
hands and feet to a nearby police car. (Cell Phone Video 00:38–01:04). When Officers
Florio and Rosenblatt could not get Rouse fully into the police car, they then carried her to
the Gas Station curb and sat her there. (Id. 01:04–01:45). Rouse then fell to her side and
yelled that she was injured and needed to go to the hospital. (Id. 01:45–02:37). Officer
Florio then called an ambulance, which took Rouse to the hospital. (Florio Incident Report
at 2).
The Officers continued to detain the juveniles, including K.V., at the Gas Station
until their parents or guardians arrived to pick them up. (See Ward Incident Report at 2).
At approximately 1:12 p.m., about twenty minutes after Rouse’s arrest, K.V. was released
to his mother. (Id.; K.V. Dep. 13:13–15, 14:17–19). Upon Rouse’s release from the
hospital, she was charged with second-degree assault, possession of a dangerous weapon
4
with intent to injure, reckless endangerment, and disorderly conduct, all of which were
eventually dismissed. (Rouse Crim. Charges at 2–3)
On November 22, 2017, Plaintiffs sued Officer Defendants, John Doe Officers
(collectively, with Officer Defendants, “All Officer Defendants”) and John Doe
Supervisors, and the City of Baltimore (the “City”). (ECF No. 1). On November 29, 2017,
Plaintiffs filed an eight-count Amended Complaint, alleging: violations of the Fourth,
Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution against the City4 (Count
I); violations of the Fourth and Fourteenth Amendments against John Doe Supervisors
(Count II); false arrest in violation of the Fourth and Fourteenth Amendments against All
Officer Defendants (Count III); excessive force in violation of the Fourth and Fourteenth
Amendments against All Officer Defendants (Count IV); failure to intervene to stop the
excessive force in violation of the Fourth Amendment against All Officer Defendants
(Count V); malicious prosecution in violation of the Fourth Amendment against
Defendants (Count VI); and abuse of process in violation of the Fourth Amendment against
Defendants (Count VII). (Am. Compl. ¶¶ 31–126). Plaintiffs bring their claims under 42
U.S.C. § 1983 (2018). (Id. at 7, 15, 17, 20, 23, 25, 27). They seek compensatory and
punitive damages, as well as attorney’s fees under 42 U.S.C. § 1988 (2018). (Id. ¶¶ 1, 126).
On January 24, 2019, Officer Defendants filed their Motion for Summary Judgment.
(ECF No. 36). On February 7, 2019, Plaintiffs filed an Opposition. (ECF No. 39). On
February 27, 2019, Officer Defendants filed a Reply. (ECF No. 40).
4
On February 12, 2018, Plaintiffs voluntarily dismissed the City from the case.
(ECF No. 11).
5
II.
A.
DISCUSSION
Standard of Review
In reviewing a motion for summary judgment, the Court views the facts in a light
most favorable to the nonmovant, drawing all justifiable inferences in that party’s favor.
Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
Summary judgment is proper when the movant demonstrates, through “particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory answers,
or other materials,” 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), (c)(1)(A). Significantly, a
party must be able to present the materials it cites in “a form that would be admissible in
evidence,” Fed.R.Civ.P. 56(c)(2), and supporting affidavits and declarations “must be
made on personal knowledge” and “set out facts that would be admissible in evidence,”
Fed.R.Civ.P. 56(c)(4).
Once a motion for summary judgment is properly made and supported, the burden
shifts to the nonmovant to identify evidence showing there is genuine dispute of material
fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
The nonmovant cannot create a genuine dispute of material fact “through mere speculation
or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 141
(4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).
6
A “material fact” is one that might affect the outcome of a party’s case. Anderson,
477 U.S. at 248; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459,
465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
Whether a fact is considered to be “material” is determined by the substantive law, and
“[o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248;
accord Hooven-Lewis, 249 F.3d at 265. A “genuine” dispute concerning a “material” fact
arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the
nonmoving party’s favor. Anderson, 477 U.S. at 248. If the nonmovant has failed to make
a sufficient showing on an essential element of her case where she has the burden of proof,
“there can be ‘no genuine [dispute] as to any material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
B.
Analysis
Officer Defendants move for summary judgment on Plaintiffs’ claims against them,
Counts III–VII. The Court will address each count in turn, beginning with Plaintiffs’ claims
for false arrest.
1.
False Arrest (Count III)
Officer Defendants argue that they were not involved in K.V.’s detention, that
Officers Romeo and Shiflett were not involved in Rouse’s arrest, that Officer Florio had
probable cause to arrest Rouse, and that even if he did not, Officer Florio is entitled to
qualified immunity from this claim. Plaintiffs counter that Officer Florio did not have
7
probable cause to arrest Rouse and is not entitled to qualified immunity. The Court agrees
with Officer Defendants.
In order to state a claim under § 1983 for false arrest in violation of the Fourth
Amendment, a plaintiff must show that her arrest was made without probable cause. Carter
v. Durham, No. WMN-14-2635, 2015 WL 641370, at *2 (D.Md. Feb. 12, 2015) (citing
Street v. Surdyka, 492 F.2d 368, 372–73 (4th Cir. 1974)). Probable cause exists if the
evidence before the law enforcement officer is “sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances shown, that the suspect [has]
committed . . . an offense.” Gray v. State, No. CCB-02-0385, 2004 WL 2191705, at *6
(D.Md. Sept. 24, 2004) (quoting Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998)).
Whether there is probable cause depends on the totality of the circumstances. Gilliam v.
Sealey, 932 F.3d 216, 234 (4th Cir. 2019) (quoting Smith v. Munday, 848 F.3d 248, 253
(4th Cir. 2017)). “While probable cause requires more than bare suspicion, it requires less
than that evidence necessary to convict.” Id. (quoting United States v. Gray, 137 F.3d 765,
769 (4th Cir. 1998)). “It is an objective standard of probability that reasonable and prudent
persons apply in everyday life.” Id. (quoting Gray, 137 F.3d at 769). Whether probable
cause to arrest exists is based only on the information the officers had at the time of the
arrest. Id. (first citing Munday, 848 F.3d at 253; then citing Graham v. Gagnon, 831 F.3d
176, 184 (4th Cir. 2016)). The court does not consider “the subjective beliefs of the
arresting officers to determine whether they thought that the facts constituted probable
cause.” Id. (quoting Munday, 848 F.3d at 253).
Here, it is undisputed that Officer Defendants did not participate in K.V.’s
8
apprehension or detention, and therefore no reasonable jury could find them liable for false
arrest as to K.V. Similarly, it is undisputed that Officers Shiflett and Romeo did not effect
Rouse’s arrest, and therefore no reasonable jury could find that they are liable to her for
false arrest.
Turning to the false arrest claim against Officer Florio, Defendants argue that Rouse
committed several offenses, each of which gave Defendant Florio probable cause for the
arrest: second-degree assault, disorderly conduct, hindering, false statement, and littering.
Under Maryland law, a person “may not willfully act in a disorderly manner that disturbs
the public peace.” Md. Code Ann., Crim. Law § 10-201(c)(2) (West 2019). A person also
“may not willfully fail to obey a reasonable and lawful order that a law enforcement officer
makes to prevent a disturbance to the public peace.” Id. at § 10-201(c)(3). In considering
this charge, Maryland courts have considered whether the conduct in question disturbs,
incites, or tends to incite a crowd of people in the same area. See Spry v. State, 914 A.2d
1182, 1187 (Md. 2007); Harris v. State, 206 A.2d 254, 256 (Md. 1965) (holding that
appellant was guilty of disorderly conduct because he ignored officers’ repeated requests
to remain outside of a building and “appeal[ed] to passions of his sympathetic crowd of
onlookers”).
Here, Rouse refused to stay away from the officers despite repeated requests to do
so and yelled using profanity during her second and third encounters with Officer
Defendants, which, the Cell Phone Video shows, ultimately incited the crowd behind her
during her third encounter. Plaintiffs’ reliance on Diehl v. State, 451 A.2d 115, 119 (Md.
1982) is unavailing. In Diehl, a police officer pulled over a car over whose passenger,
9
Diehl, got out; the officer unlawfully instructed Diehl to get back in the car; and Diehl
protested the officer’s demand using profanity. Id. at 116–17. The Court of Appeals
concluded that when “a person is acting in a lawful manner (a passenger getting out of a
stopped car) and is the object of an unlawful police order, it is not usually a criminal
violation . . . to verbally protest a police officer’s insistence . . . to such an order.” Id. at
123. But since Diehl, the Court of Appeals has limited its holding to self-help. See Hill v.
State, 20 A.3d 780, 785 (Md. 2011) (reasoning that Diehl applies only to self-help
circumstances where defendant argues that his own arrest was illegal); Briggs v. State, 599
A.2d 1221, 1226 (Md.Ct.Spec.App. 1992) (“We distinguish Diehl and the case at bar . . .
by pointing out that the defendant in Diehl behaved lawfully.”). Here, Plaintiff Rouse was
not protesting her own arrest, but rather the arrest of Plaintiff K.V., and was not behaving
lawfully when she repeatedly ignored Defendants’ requests to leave the scene. Given the
totality of the circumstances, a reasonable officer in Officer Florio’s position would have
believed that Rouse had committed a crime. See Gray, 2004 WL 2191705, at *6; Gilliam,
932 F.3d at 234. Because Officer Florio had probable cause to arrest Rouse, she cannot
show that her arrest lacked probable cause, as she must to prove this claim. See Carter,
2015 WL 641370, at *2. Accordingly, the Court will grant summary judgment against K.V.
and Rouse, and in favor of Officer Defendants, as to Count III.
2.
Malicious Prosecution (Count VI)
Officer Defendants argue that they are not liable for malicious prosecution because
Officer Florio had probable cause to arrest Rouse and because K.V. was not charged.
Plaintiffs argue that Officer Defendants did not have probable cause and that the other
10
elements of malicious prosecution are present. The Court agrees with Officer Defendants.
Malicious prosecution, brought under § 1983, is a “Fourth Amendment claim for
unreasonable seizure which incorporates certain elements of the common law tort.” Evans
v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (quoting Lambert v. Williams, 223 F.3d
257, 261 (4th Cir. 2000)). In order to be held liable under malicious prosecution, the
defendant must have “(1) caused (2) a seizure of the plaintiff pursuant to legal process
unsupported by probable cause, and (3) criminal proceedings were terminated in plaintiff’s
favor.” Id. at 647.
Here, Officer Defendants were not involved in detaining K.V., and K.V. faced no
charges and, therefore, no criminal proceedings. As a result, no reasonable jury could find
that Officer Defendants maliciously prosecuted K.V. Further, because Officers Shiflett and
Romeo did not personally arrest Rouse, no reasonable jury could find that these Defendants
maliciously prosecuted against her. As discussed above, Officer Florio had probable cause
to arrest Rouse. Because Rouse’s arrest was supported by probable cause, she cannot prove
her claim for malicious prosecution against Officer Florio.
As a result, there is no genuine dispute of material fact that Officer Defendants did
not seize either K.V. or Rouse without probable cause. Accordingly, the Court will grant
summary judgment against Plaintiffs and in favor of Officer Defendants on Plaintiffs’
malicious prosecution claims.
3.
Abuse of Process
In their briefing, the parties treat malicious prosecution and abuse of process as one
and the same. To the extent that Plaintiffs intended to bring a claim for malicious abuse of
11
process, which is another name for malicious prosecution, see, e.g., Rice v. Calvert Cty.
Bd. of Cty. Comm’rs, No. DKC 2007-1005, 2009 WL 10685346, at *5 (D.Md. Mar. 9,
2009), their claims fail for the same reasons stated above. To the extent they intended to
bring a claim for abuse of process, the common law tort, it also fails.
Under Maryland law, abuse of process occurs when “when a party has willfully
misused criminal or civil process after it has issued in order to obtain a result not
contemplated by law.” Thomas v. Gladstone, 874 A.2d 434, 439 (Md. 2005) (first citing
Krashes v. White, 341 A.2d 798, 802 (Md. 1975); then citing 1000 Fleet Ltd. P’ship v.
Guerriero, 694
A.2d
952,
956
(Md.
1997)).
Unlike
malicious
prosecution,
abuse of process “is concerned with the improper use of criminal or civil process in a
manner not contemplated by law after it has been issued, without the necessity of showing
lack of probable cause.” Id. (quoting Walker v. Am. Sec. & Trust Co. of Washington, 205
A.2d 302, 307 (Md. 1964)). Importantly, abuse of process is a state common law claim that
does not support “recovery under § 1983 which . . . provides redress only for violations of
[f]ederal law.” Id.
Here, Plaintiffs’ abuse of process claim must fail because they bring it under § 1983
and, in any event, pleaded only the elements of the tort without any supporting facts. For
those reasons, Plaintiffs’ abuse of process claims could not have survived a motion to
dismiss. At this stage of the litigation, Plaintiffs have offered no evidence beyond those
conclusory allegations that Officer Defendants “misused criminal . . . process after it issued
in order to obtain a result not contemplated by law.” Id. As a result, the Court will grant
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summary judgment in favor of Officer Defendants and against Plaintiffs on their abuse of
process claims.
4.
Excessive Force (Count IV)
Plaintiffs argue that even if Officer Florio had probable cause to arrest Rouse,
Officer Florio used unreasonable and disproportionate force under the circumstances.
Officer Defendants argue that Officer Florio’s take-down was proportionate and
reasonable.
Again, because it is undisputed that Officer Defendants did not actively participate
in K.V.’s detention, no reasonable jury could find that Defendants used excessive force on
him. Officers Shiflett and Romeo also did not arrest Rouse; therefore, no reasonable jury
could find that these Defendants used excessive force on her. The Court now turns to the
claim against Officer Florio.
Excessive force in the course of an arrest is analyzed “under the Fourth
Amendment’s ‘objective reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 388
(1989). In assessing whether such force is reasonable, the Fourth Amendment requires
“careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth
Amendment interests’ against the countervailing governmental interests at stake.” Id. at
396 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). Though “the right to make
an arrest . . . necessarily carries with it the right to use some degree of physical coercion
. . . [the reasonableness standard] requires careful attention to the facts and circumstances
of each particular case,” including (1) “the severity of the crime at issue”; (2) “whether the
suspect poses an immediate threat to the safety of the officers or others”; and (3) “whether
13
he is actively resisting arrest or attempting to evade arrest by flight.” Id. (citing Tennessee
v. Garner, 471 U.S. 1, 8–9 (1985)). The “reasonableness standard” requires an objective
analysis, judged from “the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.” Id.
Here, Officer Florio had probable cause to arrest Rouse, but it was for being
disorderly. Rouse was agitated and did not promptly follow all orders, but she had not made
physical contact with the Officers or anyone else at the scene, or threatened to. The severity
of the crime for which Officer Florio had probable cause to arrest her was therefore
relatively mild. Relatedly, she had identified herself as a grandmother and was
considerably smaller than both Officers Florio and Rosenblatt, who had no reason to
believe that she was armed or especially dangerous. See Smith v. Ray, 781 F.3d 95, 102
(4th Cir. 2015) (reasoning that the second Graham factor weighed in favor of a “smaller
woman” plaintiff who was unarmed who was tackled and arrested by an officer who was a
“pretty good size[d] man”). Further, even if Rouse took a step back when Officer Florio
attempted to arrest her, such force may not constitute resistance. Id. at 103 (“Nor could a
reasonable officer believe that [plaintiff’s] initial act of pulling her arm away when
[defendant] grabbed her without warning . . . justified [defendant’s] decision to throw her
down, jam his leg into her back, and wrench her arm behind her.”). The Court therefore
concludes there is a genuine dispute of material fact as to whether the force Officer Florio
used to subdue Rouse was excessive.
6.
Failure to Intervene (Count V)
Officer Defendants argue there was no constitutional violation during which they
14
failed to intervene and, if there was, they did not have a reasonable opportunity to do so.
Plaintiffs counter that Officer Defendants were at the Gas Station around the time that K.V.
and Rouse were detained or arrested, and therefore a reasonable jury could conclude that
they failed to intervene to prevent any constitutional violations.
An officer may be liable under § 1983 on a theory of bystander liability, if he “(1)
knows that a fellow officer is violating an individual’s constitutional rights; (2) has a
reasonable opportunity to prevent the harm; and (3) chooses not to act.” Randall v. Prince
George’s Cty., 302 F.3d 188, 204 (2002); see 42 U.S.C. § 1983 (2018) (“Every person who
. . . subjects, or causes to be subjected . . . any citizen of the United States . . . to the
deprivation of any rights . . . secured by the Constitution . . . shall be liable to the party
injured in an action at law . . . .”). In order for an officer to be liable, there must be a
“realistic opportunity to intervene and end the unlawful” activity. Randall, 302 F.3d at 204.
Determinations of whether an officer “had sufficient time to intercede or was capable of
preventing harm being caused by another officer is an issue of fact for the jury unless . . .
a reasonable jury could not possibly conclude otherwise.” Anderson v. Branen, 17 F.3d
552, 557 (2d Cir. 1994). Further, if no excessive force “is applied by the fellow officer, the
officer witnessing the conduct ‘cannot be held liable under bystander liability for a failure
to intervene.’” Jarvis v. Securitas Sec. Servs. USA, Inc., No. 11-CV-00654-AW, 2012 WL
527597, at *6 (D.Md. 2012) (citing Howie v. Prince George’s Cty., No. DKC 2006-3465,
2009 WL 2426018, at *6 (D.Md. Aug. 5, 2009)); Dodson v. Prince George’s Cty., No. JKS
13-2916, 2016 WL 67255, at *3 (D.Md. (2016)).
Here, given the evidence, there is a genuine dispute of material fact about whether
15
Officer Defendants knew the circumstances of K.V.’s detention or arrest such that they
could know that his constitutional rights were being violated. In their depositions, K.V. and
Officer Defendants indicate that Sergeant Brinn chased K.V. down an alley, away from the
other officers. Only if Officer Defendants knew that their fellow officers were violating
K.V.’s constitutional rights would the other two prongs of the bystander liability test come
into play.
As for Officer Defendants’ bystander liability with respect to K.V.’s excessive force
claim, the Court concludes that no reasonable jury could find Officer Defendants liable.
Neither K.V. nor Rouse testify about anything that could be construed as excessive force
in their depositions. The only evidence of any force that any Officer applied to K.V. is at
the beginning of the Cell Phone Video when a non-Officer Defendant pushes K.V.’s head
down for perhaps a second in the course of either searching or handcuffing him. Even if
any Officer Defendants saw that and knew in real time that it constituted unconstitutional
excessive force, which is doubtful, there was no reasonable or realistic opportunity for
them to intervene before the brief incident was over. The Court, therefore, will grant
summary judgment in favor of Officer Defendants as to K.V.’s failure to intervene claim.
As for Plaintiff Rouse, Officers Romeo and Shiflett admit that they saw Officer
Florio arrest her. The Court has concluded that Officer Florio had probable cause to arrest
Rouse but concluded there is a genuine dispute of material fact as to whether the force used
during her arrest was excessive. Given the nature of the force used, there also remains a
genuine dispute of material fact concerning whether Officers Romeo and Shiflett knew that
Officer Florio was violating Rouse’s constitutional rights and, given the sequence of events
16
over the next couple of minutes, whether Officers Romeo and Shiflett had a realistic
opportunity to intervene. See Branen, 17 F.3d at 557. Accordingly, the Court will deny
Officer Defendants’ Motion as to Rouse’s failure to intervene claim.
7.
Qualified Immunity
Officer Defendants argue they are entitled to qualified immunity on all claims, but
they only make a specific argument regarding the probable cause required for the false
arrest and malicious prosecution claims. Plaintiffs contend Officer Defendants are not
entitled to qualified immunity.
The doctrine of qualified immunity shields government officials “from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); West v. Murphy, 771 F.3d 209, 213 (4th Cir. 2014).
Qualified immunity protects government officials when they have made “mere mistakes in
judgment, whether the mistake is one of fact or one of law.” Butz v. Economou, 438 U.S.
478, 507 (1978). As “an immunity from suit rather than a mere defense to liability, . . .
[qualified immunity] is effectively lost if a case is erroneously permitted to go to trial.”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis removed). Accordingly, courts
should resolve qualified immunity questions prior to discovery or on summary judgment
if possible. See Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987).
There is a two-prong test to determine if a government official is protected by
qualified immunity: (1) whether the facts that the plaintiff has alleged or shown “make out
a violation of a constitutional right”; and (2) whether that right was “clearly established”
17
at the time of the purported violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009)
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts have discretion to resolve these
two prongs in whichever order they deem appropriate, based on the circumstances of the
case. Id. at 236. The answers to both prongs must be in the affirmative for a plaintiff to
prevail. Batten v. Gomez, 324 F.3d 288, 293–94 (4th Cir. 2003) (considering the issue in
the context of a police officer’s motion for summary judgment on qualified immunity
grounds). Once the defendant raises qualified immunity as a defense, the plaintiff bears the
burden of proof on the first prong, that is, to show a constitutional violation occurred. Henry
v. Purnell, 501 F.3d 374, 377 (4th Cir. 2007) (citing Bryant v. Muth, 994 F.2d 1082, 1086
(4th Cir. 1993)). The defendant bears the burden on the second prong, that is, to show that
the right was not clearly established at the time of the violation. Id. at 378 (quoting Wilson
v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003)).
The second prong involves a three-step analysis. First, the court identifies “the
specific constitutional right allegedly violated.” Collinson v. Gott, 895 F.2d 994, 998 (4th
Cir. 1990). Second, the court inquires whether at the time of the alleged violation, that right
was “clearly established.” Id. Third, the court assesses “whether a reasonable person in the
official’s position would have known that his conduct would violate that right.” Id.; see
Cloaninger ex rel. Cloaninger v. McDevitt, 555 F.3d 324, 331 (4th Cir. 2009) (explaining
that a right is “clearly established” when “it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted” (quoting Saucier, 533 U.S. at 202)).
To determine if a right was “clearly established,” a district court must first examine “cases
of controlling authority” in its jurisdiction,” that is, “decisions of the Supreme Court, [the]
18
court of appeals, and the highest court of the state in which the case arose.” Booker v. S.C.
Dep’t of Corr., 855 F.3d 533, 538 (4th Cir. 2017) (first quoting Amaechi v. West, 237 F.3d
356, 363 (4th Cir. 2001); then quoting Owens ex rel. Owens v. Lott, 372 F.3d 267, 279
(4th Cir. 2004)), cert. denied, 138 S.Ct. 755 (2018)).
Even when a plaintiff proves that an official has violated his rights, the official may
nevertheless be entitled to qualified immunity “if a reasonable person in the ‘official’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) (quoting Collinson, 895 F.2d at
998). In this way, the qualified immunity standard allows mistakes—“[e]ven law
enforcement officials who ‘reasonably but mistakenly conclude that probable cause is
present’ are entitled to immunity.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting
Creighton, 483 U.S. at 641). This allowance for mistakes is “ample”—the qualified
immunity standard protects “all but the plainly incompetent or those who knowingly
violate the law.” Id. at 229 (quoting Malley v. Briggs, 475 U.S. 335, 342, 349 (1986)
(internal quotation marks omitted)). This allowance “exists because ‘officials should not
err always on the side of caution’ because they fear being sued.” Id. (quoting Davis v.
Scherer, 468 U.S. 183, 196 (1984)). “If reasonable mistakes were actionable, difficult
questions of discretion would always be resolved in favor of inaction, and effective law
enforcement would be lost.” Torchinsky, 942 F.2d at 261.
Here, to the extent K.V.’s failure to intervene claim focuses on Officer Defendants
failure to intervene in his false arrest, Officer Defendants are entitled to qualified immunity.
First, Officer Defendants were not involved in his arrest, which took place away from the
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Gas Station. Thus, it is unclear whether they saw him run or if they learned anything from
Sergeant Brinn about K.V.’s apprehension, and if a constitutional right was violated.
Second, the U.S. Supreme Court and the U.S. Court of Appeals for the Fourth Circuit have
established that qualified immunity applies when an officer reasonably but mistakenly
concludes that probable cause existed. See Hunter, 502 U.S. at 228–29 (reasoning that
qualified immunity applied when agent arrested suspect without a warrant because a
reasonable agent could have believed that probable cause existed); Waterman v. Batton,
393 F.3d 471, 478–79 (4th Cir. 2005) (holding that qualified immunity applied when police
officers used deadly force to stop suspect’s car because a reasonable officer in their position
would conclude that probable cause existed). Third, given the rapid sequence of events the
parties describe in their depositions and which is apparent from the Cell Phone Video, if
K.V. was arrested without probable cause, Officer Defendants could reasonably but
mistakenly have believed, as bystanders, that K.V.’s arrest was supported by the requisite
probable cause. See Hunter, 502 U.S. at 227.
With respect to Rouse’s excessive force claim, Officer Florio is not entitled to
qualified immunity. As discussed above, Rouse has shown there is a genuine dispute of
material fact regarding whether Officer Florio employed excessive force. The Fourth
Circuit has held that “officers using unnecessary, gratuitous, and disproportionate force to
seize a secured, unarmed citizen, do not act in an objectively reasonable manner and, thus,
are not entitled to qualified immunity.” Meyers v. Baltimore Cty., 713 F.3d 723, 734 (4th
Cir. 2013) (quoting Bailey v. Kennedy, 349 F.3d 731, 744–45 (4th Cir. 2003)); see also
Smith, 781 F.3d at 105 (holding that arrestee’s right to be free from police officer throwing
20
her to the ground when she was only suspected of a misdemeanor and not attempting to
flee was clearly established at the time for qualified immunity purposes). As a result,
Officer Florio is not entitled to qualified immunity regarding Rouse’s excessive force
claim.
Finally, Officer Defendants make no argument regarding their qualified immunity
with respect to Rouse’s failure to intervene claim. Rouse has presented sufficient evidence
of a constitutional violation, and Officer Defendants have not cited any law that such
violation was not clearly established at the time of Rouse’s arrest. As a result, the Court
concludes they are not entitled to qualified immunity as to that claim.
III.
CONCLUSION
For the foregoing reasons, the Court will grant in part and deny in part Officer
Defendants’ Motion for Summary Judgment (ECF No. 36). The Court will grant the
Motion as to Counts III, VI, and VII; as to Count V with respect to K.V.’s claim; as to
Count IV with respect to K.V.’s claim, and as to Count IV with respect to Rouse’s claim
against Officers Romeo and Shiflett. The Court will otherwise deny the Motion. A separate
Order follows.
Entered this 30th day of September, 2019.
/s/
George L. Russell, III
United States District Judge
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