Plaintiffs in GTTF suit seek to strike police department filing

The plaintiffs in a federal lawsuit against a former Gun Trace Task Force officer are accusing the Baltimore Police Department of changing their arguments in motion to dismiss filings and say the judge should strike the latest response.

One of the alleged new arguments is that that the plaintiffs have already sued someone for the 2010 crash that killed Elbert Davis Sr. and obtained a judgment.

The more recent lawsuit, filed in August, accuses at least one of the members of the corrupt GTTF of initiating a chase with a man who, while fleeing, was involved in the crash. The complaint was filed in U.S. District Court in Baltimore and names the department, GTTF Sgt. Wayne Earl Jenkins, former Deputy Police Commissioner Dean Palmere and another officer.

Davis’ family alleges Umar Burley and his passenger were fleeing unmarked vehicles, one of which was driven by Jenkins, and after the collision the officers at the scene did not render aid to Davis but instead planted drugs on the men in the other car.

Jenkins, who was sentenced to 25 years in prison last year, admitted to the incident in his plea agreement.

In a motion to dismiss filed in October, the department argued the statute of limitations has run, the plaintiffs failed to comply with notice provisions for suing the department and the department has sovereign immunity for state law claims.

The plaintiffs responded and then say the department’s reply in December contained “three entirely new arguments” which, unless the court grants them the opportunity, they cannot respond to under the rules. In a motion filed Thursday, they asked the judge to either strike the reply or allow them to respond.

The alleged new arguments include claims that the plaintiffs cannot recover twice for the same injury.

The department’s December filing argues that the plaintiffs, who obtained a judgment against Burley after the crash, cannot recover a second one. The reply cites a January 2018 letter to the Baltimore City Solicitor’s Office providing notice of a lien on any award Burley might obtain in his lawsuit against the city over his arrest and prosecution.

Burley pleaded guilty to vehicular manslaughter in state court and possession with intent to distribute in federal court. Those convictions were vacated after the officers’ 2017 indictments cast doubt on their arrests and Burley filed suit last year.

“There is but one cause of action in this case,” the defendants argue. “Plaintiffs and their decedent were injured and harmed in a car accident. When that occurred, any and all possible parties to this accident could have been included in Plaintiffs’ lawsuit. Through discussions with counsel, Plaintiff elected to sue only Burley. Plaintiff recovered a judgment against Burley, and now seeks to recover a second judgment against others for the same cause of action. This is clearly impermissible.”

The other new arguments are that the plaintiffs they lack standing to seek indemnification from the department and Palmere has sovereign immunity, according to the plaintiffs’ motion to strike.

The plaintiffs, which include Davis’ children and estate, are represented by attorneys from Azrael, Franz, Schwab & Lipowitz LLC in Towson. Attorneys for the plaintiffs did not respond to a request for comment Friday.

The case is Shirley Johnson et al. v. Baltimore City Police Department et al., 1:18-cv-02375.