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High court weighs guard’s liability in prison bus killing

Melissa Rodriguez, mother of inmate, Philip E. Parker, Jr. who was killed aboard a prison bus, protests in 2006. (FILE)

Melissa Rodriguez, mother of inmate, Philip E. Parker, Jr. who was killed aboard a prison bus, protests in 2006. (FILE)

Prison guards cannot be held personally liable for deaths occurring on their watch unless they intended harm, an attorney for Maryland said Wednesday in urging the state’s top court to find a correctional officer immune from liability in one prisoner’s strangulation of another on a prison bus headed to Baltimore.

Maryland law affords guards immunity from liability for their “non-malicious discretionary” decisions, including those addressing how best to protect the prison population, Assistant Maryland Attorney General Julia Doyle Bernhardt told the Court of Appeals. Denying guards such broad legal protection would discourage them from exercising discretion for fear of liability, Bernhardt added.

“To allow juries to second-guess discretionary decisions would mean they [guards[ don’t have any discretion at all,” she said.

Bernhardt made the argument in pressing the high court to remove the specter of personal liability from guard Larry Cooper, whom a jury found grossly negligent in not preventing inmate Kevin Johns from killing fellow prisoner Philip E. Parker Jr. on the bus between Hagerstown and Baltimore in February 2005.

Gross negligence is not a sufficient basis for imposing personal liability on a prison guard in Maryland, where liability for state agencies and their agents is governed by the Maryland Tort Claims Act, Bernhardt said.

But the Parker family’s attorney, Cary J. Hansel, said the legislature did not intend the MTCA to excuse prison guards from liability when they “sit and watch while a murder is committed seven feet away,” as a jury found Cooper had done.

Guards have “a special relationship” with prisoners that involves both supervising and protecting them, added Hansel, of Hansel Law P.C. in Baltimore.

Court of Appeals judges appeared to be as divided as the attorneys during the hour-long session.

Chief Judge Mary Ellen Barbera, in apparent agreement with Hansel, said the jury found Cooper’s negligence “pretty extreme” in not protecting Parker, including the guard’s failure to note that Johns had managed to change seats to get close to his victim.

But Judge Lynne A. Battaglia voiced concern that every prison guard would be operating under a greater risk of liability under Hansel’s theory.

“A special relationship [exists] almost universally” in the prison setting between guards and prisoners, Battaglia said.

Parker was murdered on the bus after he had testified on Johns’ behalf at a sentencing hearing in Hagerstown. Parker, Johns and 35 other inmates were on their way back at night to the Maryland Correctional Adjustment Center in Baltimore.

Johns strangled Parker by standing up, looping his elbow around Parker’s neck and sitting down again. The strangulation happened 15 minutes from their destination and guards did not discover Parker until their arrival, according to trial testimony.

Parker’s parents, Melissa Rodriguez and Philip E. Parker Sr., sued the state as well as Cooper and fellow officers Robert Scott, Kenyatta Surgeon, Charles Gaither and Earl Generette. The family contended the officers had not properly monitored, searched or shackled the inmates on the trip and had not performed proper CPR on Parker.

The Baltimore City Circuit Court jury found the state liable and awarded Parker’s parents and the estate $18.5 million. In its decision, the jury found that Cooper was grossly negligent and potentially personally liable.

But Baltimore City Circuit Judge Sylvester B. Cox overturned the jury’s finding as to Cooper, stating that as a matter of law his actions were not grossly negligent because they were not “outrageous” or “utterly indifferent to the rights of others.” Cox also reduced the jury’s award to $600,000, citing the Maryland Tort Claims Act’s cap of $200,000 per claimant.

The Court of Special Appeals limited the state’s total liability to $200,000, calling that figure the maximum available for one incident under the MTCA.

However, the intermediate appellate court reinstated the jury’s finding of gross negligence by Cooper, removing his immunity from liability, and remanding the case for a finding of damages.

The state sought review by the Court of Appeals, challenging the reinstatement of gross negligence.

Bernhardt, pressing the state’s appeal, argued that Cox correctly held that Cooper was not grossly negligent in failing to anticipate or prevent Johns’ killing of Parker.

“Whatever they [the guards] should have seen, they didn’t,” Bernhardt said. “There was negligence on the bus. This was a routine trip that went horribly, horribly wrong.”

Hansel, however, noted Cooper was the supervising officer and not merely negligent but grossly negligent.

“He was in charge of everything, of every man on that bus,” Hansel said. “He is required to maintain observation at all times.”

Parker was more than halfway through serving his three-and-a-half year sentence for attempted robbery when he was killed. Johns committed suicide in prison in 2009.

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Larry Cooper v. Melissa Rodriguez et al., No. 87, September Term 2014.