Verdict against officers not subject to cap

The Court of Special Appeals has definitively turned aside an attempt to apply the $200,000 cap on damages under the Local Government Tort Claims Act to an award against individual police officers who acted with malice.

The decision affirmed the officers’ liability to a teenager whom they picked up, drove around for several hours and then dropped in the rain without shoes or a cell phone, miles from his home.

Michael L. Marshall, an attorney for the officers, said the intermediate court erroneously carved out an exception to the LGTCA’s cap on governmental liability.

The law applies to officers who act with malice and provides that the officers can be held personally liable, Marshall said in reaction to the decision. However, the law’s $200,000 cap also applies, added Marshall, of Schlachman, Belsky & Weiner P.A. in Baltimore.

But A. Dwight Pettit, who represented the teenager, said Maryland law has long held that hat limits on damages do not apply when a police officer violates an individual’s civil rights with malice.

“This court was re-establishing what was already good law, that malice is not ‘cap’-able,” said Pettit, a Baltimore solo practitioner. “The city keeps raising arguments that have already been dealt with.”

Though personally liable under the statute, the officers do not have to pay the judgment. Under a collective bargaining agreement with the Fraternal Order of Police, the city is financially responsible for damages against its officers even when they are held personally liable, Pettit said.

The lawyers’ dueling comments followed the intermediate court’s decision Monday affirming a Baltimore jury’s verdict that the officers acted with malice in picking up Michael Brian Johnson Jr., then 15, in a police van near his West Baltimore home on May 4, 2009, and dropping him off hours later near a Howard County park without his shoes, cell phone or any way of getting home.

The jury awarded $35,000 in punitive damages and $465,000 in compensatory damages. The trial judge found that excessive, and reduced the compensatory damages to $300,000.

Marshall had argued unsuccessfully that the damages should have been capped at $200,000 under the LGTCA.

Marshall cited the LGTCA’s provision that police officers “shall be fully liable for all damages awarded in an action in which it is found that [they] acted with actual malice.”

The provision means that officers have “full liability” up to the statutory cap of $200,000, said Marshall, who argued the case with Chaz R. Ball, also of the Schlachman firm.

But the Court of Special Appeals said “fully liable” meant the full amount awarded, without reference to the LGTCA’s damages limit.

“Thus, although there is a cap on damages for the local government, where, as here, a police officer is found to have acted with actual malice, he is not shielded by immunity and is liable fully for all damages awarded.” Judge Kathryn Grill Graeff wrote in the court’s 3-0 opinion.

Plaintiffs’ attorney Cary J. Hansel III, who was not involved in the case, called the Court of Special Appeals’ decision a “pretty straightforward interpretation” of the LGTCA.

“The language of the statute is very clear,” said Hansel, of Joseph, Greenwald & Laake in Greenbelt. “The plain meaning is that [the officer] is fully liable for the full amount and it’s not capped.”

Hansel called “creative” Marshall’s argument that full liability stops at the $200,000 cap.

“That’s a very lawyerly way of looking at it [but] not a very common sense way of looking at it,” Hansel said.

Civil defense attorney Daniel Karp, who has represented police officers in brutality cases, also said the “cap is not applicable against an officer found to have acted with malice.”

Officers who act with malice are “fully liable in whatever amount the jury awards and the court ultimately confirms,” added Karp, who was not involved in the case. Karp is with Karpinski, Colaresi & Karp P.A. in Baltimore.

Marshall said Wednesday that he will ask the Baltimore solicitor’s office about seeking review of the intermediate court’s decision by the state’s top court, the Court of Appeals.

Pettit said he hopes the Court of Special Appeals’ decision sparks more court rulings limiting the scope of what he called the LGTCA’s “outdated” limit on damages.

“Slowly but surely we are able to chip away at the cap,” added Pettit, who argued the case with Allan B. Rabineau, a Baltimore solo practitioner.

The Baltimore officers were also criminally charged with kidnapping, a felony, and misconduct in office, a misdemeanor. Baltimore City State’s Attorney Gregg L. Bernstein, who prosecuted the case himself, obtained misdemeanor convictions against officers Milton G. Smith III and Tyrone Francis in May 2011. Those convictions were affirmed on appeal in November 2012. The third officer, Greg Hellen, was acquitted.

Under the Court of Special Appeals’ decision, the punitive damage awards totaling $34,000 remain unchanged, as does Hellen’s liability for $32,000 in compensatory damages.

The appellate court did reduce the compensatory damages against Smith and Francis somewhat — reductions that were based on the lower court’s duplication of damages under tort and contract law, not related to the LGTCA’s damages cap.

Smith’s liability for compensatory damages was reduced from $136,000 to $110,000. Francis’ liability was reduced from $132,000 to $105,000.

Judges Deborah S. Eyler and Stuart R. Berger joined Graeff’s reported opinion in Francis et al. v. Johnson, CSA No. 673, Sept. Term 2013.