Plaintiff in GTTF case to seek ruling on city control of police department

Baltimore currently cannot be sued for damages in federal civil rights cases over alleged police misconduct, but a lawsuit concerning wrongful arrest by officers of the corrupt Gun Trace Task Force is likely to serve as a vehicle to challenge that precedent.

The Baltimore Police Department was established as a state agency and the state is immune from suit in U.S. District Court for unconstitutional behavior by its agents. U.S. District Court judges and the 4th U.S. Circuit Court of Appeals have ruled repeatedly that, given this setup, the city can’t be sued in federal court when police violate people’s constitutional rights.

But attorney Cary Hansel said that it is “crystal clear” that Baltimore city, not the state government, controls the Baltimore police department and that he is prepared to litigate the issue on appeal after a judge dismissed the city from a GTTF lawsuit on Wednesday.

“Our goal is to change that precedent and make that point to the 4th Circuit that there really is no state-level control … and any argument to the contrary is just untenable given the actual facts on the ground,” Hansel, of the Baltimore firm Hansel Law P.C., said Thursday.

The plaintiff in the case, Devon Harrod, was approached in August 2015 by two officers, both members of the corrupt police department unit, who accused him of possessing a handgun found in a vehicle they were searching nearby, according to court filings. The officers allegedly coerced a confession from Harrod and charged him with crimes for which he eventually pleaded guilty and served 18 months.

Harrod filed a federal lawsuit last year and named the city, department, deputy commissioner and the two officers. He accused the individual defendants of violating his rights and claimed the city and department were liable for the officers’ conduct because of a pattern of unconstitutional policing and a failure to train and supervise officers.

The city moved to dismiss the claim, known as a Monell claim, arguing that as a state agency it is immune from liability under the federal civil rights statute. U.S. District Judge George L. Russell III granted the motion to dismiss, citing his own ruling in a 2014 case that referenced the history of the issue and court rulings.

“The Court addressed this exact issue (in the 2014 case) and sees no reason to reach the opposite conclusion in this case,” Russell wrote. “Harrod’s attempts to relitigate or reframe the issue are unpersuasive for at least two reasons.”

Russell said that Harrod cited cases that preceded the 2014 opinion and that the facts he used to argue the state is not in control of the department were also known to the court in 2014.

Hansel said that Russell was “constrained by precedent” and that he understands the ruling, which is why he wants to appeal the issue.

“This will be a precedent-making case because we are challenging the idea that Baltimore should get off scot-free in federal court,” he said. “Our intent is to appeal as expeditiously as possible given the complexities of the current legal situation.”

City Solicitor Andre M. Davis was unavailable for comment Thursday.

City control

Though the state may once have exerted control over the Baltimore Police Department, it has not done so for decades, Hansel said.

The recent national search for a new police commissioner was controlled entirely by city officials and the police commissioner makes the policies of the department, Hansel pointed out, adding that neither the governor nor the legislature has taken any steps to assert control over the department in recent years. The state did not get involved in quelling the unrest following Freddie Gray’s death in 2015 until the city requested its help, nor does the state have a role in federal consent decree proceedings that seek to reform the department, he noted.

Hansel said that the facts show “to the extent that the state has any legal ability to control anymore, it has completely abdicated” responsibility and that “the concept that it’s a state agency is just a farce.”

The city’s motion to dismiss claimed that, under state and federal law, there is no legal relationship between the city and the department.

“The Complaint cannot state a legally viable claim against the City – neither vicariously nor directly – because the individual defendants are not agents of the City and the City has no legal role in setting BPD policy regarding training or otherwise,” the motion states.

In 2014, Russell reached this conclusion in Estate of Anderson v. Strohman, a lawsuit by the family of a man who died in police custody.

“The Court concludes, based on governing Maryland and federal law, that a § 1983 claim cannot be brought against the City for Baltimore police officer conduct because it does not sufficiently control the BPD and cannot be considered to employ Baltimore police officers,” he wrote. “Municipal liability under Monell cannot attach to the City for the unconstitutional actions of Baltimore police officers.”

But Hansel said that “the law should reflect what is” and that the relationship between Baltimore and the department has changed since the last time the 4th Circuit addressed the issue.

“It’s time to recognize that this is a locally controlled agency in fact and therefore there is liability in federal court and a responsibility that Baltimore has for the police force it created to the citizens of Baltimore,” he said.

The case is Devon Bernard Harrod v. Mayor & City Council of Baltimore et al., 1:18-cv-02542.