ANNAPOLIS — Baltimore’s attorneys argued Monday that the “horrific conduct” of the police department’s Gun Trace Task Force officers was so egregious that the city is not responsible for indemnifying the officers against civil judgments obtained by victims.
Justin S. Conroy, chief solicitor for the city’s Law Department, told the Court of Appeals that state law does not require the city to pay judgments against employees who acted outside the scope of their employment — and that the former members of the corrupt, now-disbanded unit behaved so outrageously that their conduct fell outside the bounds of their duties.
“These criminals were clearly outside the scope,” Conroy said. “They were engaged in criminal conduct that furthered their own interest.”
The Court of Appeals is being asked to rule on whether the officers were acting within the scope of their employment in two cases where the parties agreed to stipulated facts and the officers consented to judgments. The plaintiffs then turned to the city to collect. The two consolidated matters are potential test cases for other victims.
Eight members of the GTTF unit were convicted of a racketeering conspiracy during which they illegally stopped and searched citizens, planted guns and drugs, made false arrests and robbed people.
“To find that it furthered the BPD’s legitimate business interests would be to find that (the department’s) business interest is to run a (racketeering) operation,” Conroy said.
Mandy L. Miliman, an attorney for the family of William James, said “the city is trying to evade accepting responsibility” for the behavior of officers in an elite police department unit that it created. She argued employees can engage in criminal conduct and still be found to be acting within the scope of their employment.
Miliman, of D’Alesandro & Miliman PA in Baltimore, also pointed out that it is troubling for the city to suggest that its liability decreases as the conduct of its employees worsens.
“If the city is relieved of the obligation to indemnify simply because it believes that the conduct was outrageous … then the city would have no motivation to police its own,” she said.
Conroy argued that the officers concealed their misconduct from supervisors and were in fact doing the opposite of the job they were entrusted to do.
“They weren’t doing anything that could have been said to be for the good of the public,” he said.
But Nicolas Riley, an attorney for the second plaintiff, Ivan Potts, said the city has not shown that the officers acted purely out of self-interest and without any benefit to the department.
Riley, of the Institute for Constitutional Advocacy and Protection at Georgetown Law, said the officers were, in part, motivated by a desire to “bolster the Baltimore Police Department’s tough-on-crime stance” by providing arrests and seizures of contraband.
Unlike some of the incidents the officers admitted to in federal plea agreements, Riley pointed out that Potts was not robbed and that the officers made false statements and later gave false testimony against him at trial. In other cases the officers would fail to appear at trial to avoid being questioned about an arrest, Riley said.
“It’s not at all clear what these officers stood to gain by pursuing this conviction over the course of months,” he said.
Riley also pointed out that in many instances, the officers stopped people and asked them where to find others with drugs or money. By targeting drug dealers as potential victims and robbing and then arresting them, the officers “very much viewed their activity as win-win” for the city and themselves, he said.
Conroy called the officers’ actions “a perversion of their entire job” and claimed that the department did not benefit from unconstitutional arrests.
Conroy also said other remedies are available to the plaintiffs suing the department, including a federal Monell claim alleging the department had a pattern or practice of violating citizens’ constitutional rights.
In response, Riley pointed out that the city has also taken the position in federal lawsuits that the BPD is a state agency and thus is immune from federal civil rights lawsuits, including Monell claims.
Conroy said contradictory rulings from federal judges led the city to ask the 4th U.S. Circuit Court of Appeals to resolve the question. After the hearing, Miliman called the city’s position “disingenuous.”
Paul Zukerberg, who also represented Potts, said if the city prevails in the Court of Appeals and the 4th Circuit, current and future plaintiffs will have difficulty collecting on any judgments they obtain against the officers, who are all serving federal prison sentences.
“It means the victims won’t be compensated, for all intents and purposes,” said Zukerberg, of Zukerberg & Halperin PLLC in Washington.
The cases are Baltimore Police Department v. Potts, Misc. No. 6, Sept. 2019, and Mayor and City Council of Baltimore v. Estate of James, No. 51, Sept. 2019.