Police department appeals ruling on immunity from suit in GTTF case

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The Baltimore Police Department will seek an appellate ruling on whether it is a city or a state agency for the purposes of federal lawsuits claiming the department is liable for the misconduct of its officers.

U.S. District Judge Ellen L. Hollander issued an opinion and order Sept. 12 denying the department’s motion to dismiss a lawsuit brought against members of the corrupt Gun Trace Task Force, as well as other officers and supervisors and the department as a whole. The 4th U.S. Circuit Court of Appeals, to Hollander’s knowledge, “has not directly addressed” whether the department can be sued for federal civil rights violations.

The Baltimore Police Department was established as a state agency. The state is immune from suit in U.S. District Court for unconstitutional behavior by its agents.

On Tuesday, the department noted an appeal to the 4th Circuit of Hollander’s denial of its motion to dismiss based on 11th Amendment immunity.

Baltimore City Solicitor Andre M. Davis said the city, on behalf of the department, can appeal an adverse ruling on immunity immediately. Davis said “conventional wisdom” in Maryland for decades has held that though the police department is a state agency, it is still subject to certain lawsuits, though two recent U.S. District Court decisions called that into question.

“In light of all of these developments, we just decided let’s just go to the 4th Circuit and get an answer once and for all,” Davis said.

The appeal will be limited to the immunity issue, said Davis, who added that the department would not seek to stay trial proceedings while the appeal is pending.

Andy Freeman, one of the attorneys representing plaintiffs Umar Burley and Brent Matthews, said he is “very confident” Hollander’s ruling will be upheld.

“They have a right to an interlocutory appeal, but there’s just overwhelming evidence that the Baltimore Police Department is controlled by the city,” said Freeman, partner at Brown, Goldstein & Levy LLP in Baltimore.

Monell liability

Burley was convicted and sentenced to 15 years in prison after 28 grams of heroin were planted in his car after he crashed it while fleeing from plainclothes police officers who he feared were going to rob him. Matthews, a passenger in the car, was sentenced to nearly four years. Both pleaded guilty despite knowing they were innocent.

The plaintiffs claim the department is liable for the conduct of the officers because of the history of misconduct by them and by others involved in plainclothes units in the Baltimore Police Department. Hollander quoted from the U.S. Department of Justice findings report on patterns and practices in the department, as referenced by the plaintiffs in their complaint, which found illegal conduct by plainclothes units.

The department’s liability — and, potentially, the city’s — is based on a claim, known as a Monell claim, that a policy or custom of violating constitutional rights existed. It can be proven by showing that a practice was so “persistent and widespread” and “so permanent and well settled” that it constitutes a “custom or usage” and that the municipality had actual or constructive knowledge of the practice.

The lawsuit also alleges former Deputy Police Commissioner Dean Palmere and three others were liable as supervisors for being indifferent or for tacitly authorizing the GTTF officers’ actions. Hollander found the complaint “sets out in abundant detail a protracted history of misconduct by members of the BPD who were under the supervision of these officers.”

Steven D. Silverman, another attorney for Burley and Matthews, said Wednesday that it was important to his clients that supervisors such as Palmere remain defendants in the lawsuit.

“Holding in Palmere and the supervisors is critical to the ultimate success of this litigation, and that’s the most important aspect of this opinion as far as my clients are concerned,” he said. “When you get to the supervisory level and you are able to show liability, then that creates much more ease and collectability to any judgment because it’s going to ultimately fall on the city to pay if we are successful on that claim.”

The city is not a named defendant in the suit.

Silverman, of Silverman Thompson Slutkin and White LLC in Baltimore, also said the issue of liability for supervisors and liability for the department as a whole are “tied at the hip” and involve similar evidence.

Hollander also declined to dismiss the lawsuit on statute of limitation grounds. The city had argued that the incident occurred in 2010 and that Burley and Matthews were on notice from that time that they had three years to file claims.

Silverman said that attorneys were pleased to see their reading of the statute of limitations validated and noted the practical element.

“How are (Burley and Matthews) possibly — even if they had all the information, which they didn’t — how are they possibly going to avail themselves of the civil process?” he asked. “Because they’re really behind the eight ball.”

The case is Umar Burley et al. v. Baltimore Police Department et al., 1:18-cv-01743.