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Baltimore seeks ruling on indemnifying Gun Trace Task Force officers

Baltimore City Solicitor Andre Davis. (The Daily Record / Maximilian Franz)

Baltimore City Solicitor Andre M. Davis. (The Daily Record / Maximilian Franz)

Baltimore’s lawyers are formally asking a judge to declare the city does not have to indemnify any of the Gun Trace Task Force officers in civil lawsuits being filed against them for the actions underlying their convictions.

City Solicitor Andre M. Davis filed a complaint Friday seeking a declaratory judgment that the members of the corrupt unit who were federally indicted for a range of crimes were not acting within the scope of their employment during the incidents cited in the federal cases.

“This is far more narrow than it could have been so we’re taking it one step at a time,” Davis said in an interview Friday.

A handful of lawsuits have been filed, and more than 50 claims have been submitted to the Law Department, according to Davis, who announced earlier this year the city did not plan to indemnify the defendants.

“The offenses to which Defendants pled guilty demonstrate actions and omissions and various forms of conduct that grossly depart from any authorized or legitimate police conduct,” states the complaint, filed in Baltimore City Circuit Court.

Davis said he is not aware if the victims of the specific crimes for which the officers were indicted are among the plaintiffs.

Daniel Hersl, Marcus Taylor, Wayne Jenkins, Maurice Ward, Momodu Gondo, Evodio Hendrix and Jemel Rayam were accused of planting evidence, robbing defendants and overtime fraud.

“The indictment charged (the officers) with knowing and intentional participation in a vast criminal conspiracy, encompassing willful and intentional criminal activity,” according to the complaint.

Davis said the city hopes to get a “well-reasoned” appellate opinion supporting its position but in the meantime will litigate the issue in individual cases.

“If we get a ruling in any case in favor of the city and the police department, that’s going to be persuasive,” he said. “How persuasive will depend on a lot of factors.”

Though the Maryland Local Government Tort Claims Act generally makes the government liable for damages resulting from tortious acts by an employee, those actions must be in the scope of employment.

Similarly, the memorandum of understanding between the police union and the city provides legal representation and indemnification in civil suits for acts alleged to be within the scope of employment.

The city has already sought a declaratory judgment on indemnification in at least two pending lawsuits.

Mandy L. Miliman, an attorney for William James in a lawsuit in state court, opposed excusing the city from indemnification at a hearing earlier this month, arguing it should be decided if they were acting in the scope of their employment after a trial.

Paul H. Zuckerberg, who represents Ivan Potts in a federal lawsuit against three of the officers, is also opposing a similar motion by the city.

He previously described a judgment against the officers as “meaningless and uncollectable” because they are incarcerated.

Chaz Ball and Michael Marshall, of Schlachman Belsky & Weiner P.A. in Baltimore, represent the three officers in Potts’ suit. They declined to comment Friday but Marshall said they do not represent them in any other lawsuits or on the indemnification issue.

Defense attorneys are not listed for the officers in other filed lawsuits.

Bifurcation strategy

The city has also adopted a strategy in federal lawsuits alleging the city is liable for the officers’ conduct because of a pattern of unconstitutional policing and failure to train and supervise officers, called a Monell claim.

City attorneys filed a motion to bifurcate proceedings in Potts’ case earlier this month. Potts alleges he spent more than 18 months in custody for a crime he didn’t commit due to the officers’ actions.

The city argued the Monell claim should be tried separately and discovery on that issue should be stayed to avoid unfairly prejudicing the city and in the interest of judicial economy.

In opposition, Potts’ attorneys argue joint trials are the default because of greater efficiency and, due to the unique facts of this case, “bifurcation would needlessly multiply the costs of litigation and unduly delay the timely resolution of the case.”

The evidence of the constitutional torts allegedly committed by the officers and the department’s Monell liability “is overwhelming and irrefutable,” according to the filing, which cites the U.S. Department of Justice’s 2016 findings report following an investigation into the department.

The filing notes that both the plaintiff and the individual defendants oppose bifurcation.

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