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Remedy for Baltimore riot damages has historic roots, few modern applications

A woman surveys the riot damage April 28, 2015 in her grocery store on the 300 Block of North Charles Street. (The Daily Record / Maximilian Franz)

A woman surveys the riot damage April 28, 2015 in her grocery store on the 300 Block of North Charles Street. (The Daily Record / Maximilian Franz)

Civil unrest and rioting were a much more common concern when Maryland passed its Riot Act in 1835 permitting citizens to seek compensation from the government for damage to property sustained in a violent disturbance.

The idea, at the time, was that such statutes would “deter the lawless since the sufferer must be compensated by a tax burden which will fall on all property, including that of the evil doers as members of the community,” according to a 1911 Supreme Court opinion.

The law, which has stayed on the books with few substantial changes, was last widely used after the 1968 riots in Baltimore following the death of Martin Luther King Jr. when hundreds of businesses filed suit, according to a review of court records.

Now, in 2017, a few dozen businesses are seeking to use it again to recover for their losses during the April 2015 Baltimore riots which followed the death of Freddie Gray in police custody.

For a law intended to deter conduct, the Riot Act has seemingly faded from public consciousness, but a new lawsuit may remind officials and the public that they may have to pay for riot damage.

“Someone might argue we’ve staved off riots from 1968 until now, and the idea would be it had its deterrent effect and theoretically it will have it going forward,” said University of Baltimore School of Law professor Audrey McFarlane.

Damage and redress

The U.S. Small Business Administration reported Baltimore businesses sustained approximately $9 million in damage during the riots. Though basic insurance policies have coverage for physical damage and lost contents, the plaintiffs are likely smaller businesses without sufficient coverage or additional coverage for lost business, according to attorney Brian S. Goodman, of Kramon & Graham, P.A. in Baltimore.

Goodman, who said he has not read the details of the lawsuit but is familiar with insurance law, said the insurance carriers could also have a cause of action against the city to recover what they paid out if they chose to exercise their right of subrogation. No such lawsuits have been reported.

“I’m guessing what’s happened here is these carriers paid out and they don’t see liability on the part of the city and that’s why they haven’t filed suit,” he said.

In the nearly 700-page complaint pending in U.S. District Court, dozens of businesses and their owners claim former Mayor Stephanie Rawlings-Blake and former Baltimore Police Commissioner Anthony Batts failed to adequately respond to the riots.

The Riot Act requires the county or municipality to have good reason to believe a riot was about to take place and notice in time to prevent theft, damage or destruction as well as the ability to do so.

The plaintiffs in the lawsuit claim city officials had notice that protests were growing but “adopted a policy of restraint” rather than stopping violent behavior, according to attorney Peter K. Hwang of Sung & Hwang LLP in Columbia.

Further complicating the plaintiffs’ suit is Maryland’s Local Government Tort Claims Act, which caps liability of a local government for damages resulting from tortious acts or omissions at $200,000 per individual claim and $500,000 per total claims that arise from the same occurrence. The caps were raised in 2015 but the effective date was after the harm alleged in the lawsuit. Since its initial passage in 1987, the LGTCA has not been applied to a Riot Act claim.

Hwang declined to comment on issues relating to damage caps.

Other sources of relief

The Baltimore plaintiffs are also seeking compensation based on a newer legal theory: the duty of the government to protect individuals from private danger under the Due Process Clause of the Constitution.

Courts have recognized since the 1800s that “prevention of riots and the preservation of social stability are basic governmental functions owed as due process of law,” according to a 2004 Indiana Law Journal article by Susan S. Kuo, and judges used this logic to uphold riot act laws when they faced constitutional challenges.

The Supreme Court recognized a federal cause of action for failing to protect individuals from private danger in 1976 but that logic was limited in 1980 to state action that wasn’t too remote from the harm suffered, according to Kuo. In the 1990s, some plaintiffs sued the government based on a theory that state actors created or increased the risk of harm by other individuals.

The 4th U.S. Circuit Court of Appeals has only applied the “state-created danger doctrine” a handful of times, according to court records, and most recently held in 2015 “a plaintiff must show that the state actor created or increased the risk of private danger, and did so directly through affirmative acts, not merely through inaction or omission.”

The Baltimore plaintiffs allege the city prevented arrests for unlawful assembly, issued a stand-down order to the police and gave protesters room to destroy property, “which constituted a policy of restraint and was tantamount to an official sanction of privately inflicted injury,” according to the complaint. The defendants also failed to request additional resources, including the Maryland National Guard, in a timely manner, and “emboldened participants to riot, engage in violent acts and destroy property.”

The lawsuit also makes state and federal constitutional claims for deprivation of the plaintiffs’ property without just compensation, alleging the government’s actions lead to damage that amounted to a taking.

The case is Chae Brothers et al. v. Mayor and City Council of Baltimore et al., 1:17-cv-01657.

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