Baltimore tees up key appellate issues on GTTF liability

State and federal appellate courts will grapple this year with key questions about Baltimore’s liability for the widespread misconduct of its police department’s corrupt Gun Trace Task Force — and attorneys representing the officers’ victims are paying attention.

The city contends that it cannot be required to pay for judgments against the officers as individuals and that the Baltimore Police Department is a state agency immune from federal civil rights lawsuits. If those arguments are successful, citizens with claims against the now-defunct GTTF will have little hope for compensation.

Baltimore City Solicitor Andre M. Davis said that the city has received around 70 notices of potential claims and that at least 26 state and federal lawsuits have been filed against GTTF officers.

Attorney Abigail A. Graber, one of the authors of an amicus brief to the Court of Appeals, characterized the city’s legal positions as “sort of an attack from all sides trying to get out of taking responsibility for these cases.”

Graber, of Brown, Goldstein & Levy LLP in Baltimore, said the city’s attempt to avoid liability is “a real disservice to the people of Baltimore.”

“I think it’s a difficult thing for people to hear,” she said. “I think it sounds like exactly what it looks like, which is they’re trying to avoid responsibility.”

Attorney Cary Hansel, who filed two federal lawsuits against GTTF officers and signed on to the amicus brief, said the city is attempting to avoid “just results.”

“It is not the case that there is some outcome the city is trying to avoid that is not just or appropriate or proper,” said Hansel, of Hansel Law in Baltimore. “These are literally just verdicts that they’re trying to avoid.”

The city’s attempt to “shut the courthouse doors” to the victims of the GTTF is concerning, said Jonathan M. Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

“Personally, I think this is shocking because what the city is trying to do — and I don’t think they’re going to be successful, I certainly hope they’re not going to be successful — is place themselves beyond the law,” Smith said. “These individual claims are incredibly important to bringing reforms to a department that is deeply troubled.”

Scope of employment

The Court of Appeals will determine if the GTTF officers in two cases were acting within the scope of their employment. If they were, state law and the city’s memorandum of understanding with the police union would require the city to pay judgments against them. Arguments are scheduled for Monday morning.

Though attorneys do not expect any ruling to magically resolve the dozens of pending and potential future lawsuits against the officers, any opinion on the issue from the Court of Appeals will have an impact.

“It’s big and it isn’t, right? It’s just two cases: very similar factual records, the court is bound by the factual record that we agreed to, and the court’s just deciding these two cases,” Davis said. “We don’t think it’s big in the sense that it’s going to resolve all GTTF cases, but what it will do (is) at least at a minimum give us something of a road map for how future cases are going to be litigated.”

Hansel said though he is watching the Court of Appeals cases carefully, he thinks the city’s reliance on them as “test cases” is misplaced because the question of scope of employment is dependent on the facts of a case.

“I think the city’s focus on these particular cases as a talisman against all the other cases is completely misplaced, and I think (the city’s) view that these cases are likely to have a broad impact on broad swaths of other cases is just wrong,” he said. “These are important cases, but they’re far less important than the city thinks.”

Because the city’s position has been that the outcome of the cases will guide its future decisions in GTTF cases, however, Hansel said a loss in the Court of Appeals would be “catastrophic” for the city’s Law Department.

The issue is before the high court as a certified question of law from a federal judge in the case of Ivan Potts and on appeal from a Baltimore trial court judge’s ruling in the case of William James. Both Potts and James were arrested and charged based on fabricated evidence and false statements of GTTF officers.

Attorneys for the plaintiffs argue the officers, who were on duty and using department equipment to conduct stops and arrests, were acting within the scope of their employment. The city contends that, because the officers were acting in furtherance of a larger conspiracy that was not part of their assigned duties, they were acting outside the scope of their employment.

Immunity

If the city is not liable for the judgments against individual officers, it may still be held liable through federal lawsuits alleging the department had a policy or custom of allowing officers to violate constitutional rights. This so-called Monell claim can also allege the department failed to adequately hire, train and supervise its officers.

Baltimore is also seeking a ruling from a federal appeals court about whether the police department, which is technically a state agency, has sovereign immunity from suit in federal court. The BPD was established as a state agency in 1860 and conflicting rulings from U.S. District Court judges in recent years prompted the city to appeal the issue to the 4th U.S. Circuit Court of Appeals, which has never directly ruled on it, according to Davis.

“We need to get final, definitive clarification,” Davis said. “We’re going to take this issue of Monell liability … to the 4th Circuit and have them tell us what the law is.”

Two cases, one involving the GTTF and a second a decades-old wrongful conviction, are currently consolidated before the 4th Circuit. If the court elects to hear arguments in the cases, they could be scheduled for as early as May, according to Davis.

Hansel said the reason the 4th Circuit has never before been asked to rule on the department’s sovereign immunity is because the city ultimately paid judgments in federal cases even if the city and BPD were dismissed as defendants.

“Historically, Baltimore has stepped up and paid judgments that are against individual officers, so from the perspective of plaintiffs it has not been worthwhile to appeal this question to the 4th Circuit,” he said.

The city argues the General Assembly has not relinquished control over the department and “dictates (its) structure, governance, and operations” through state law.

But U.S. District Judge Ellen L. Hollander ruled last year that plaintiffs had sufficiently laid out a history of misconduct by members of the police department, particularly members of plainclothes units like the GTTF, whose actions were permitted, by indifference or tacit authorization, by supervisors.

Financial impact

Baltimore paid more than $320,000 in 15 police misconduct lawsuits in 2019 alone, according to a recent report from the Law Department. Mayor Bernard C. “Jack” Young has expressed concern about how the city would pay for GTTF judgments.

“I’m concerned about that. I’m really concerned. We already have the highest property tax in the state, and there’s no other resources we can tap into if … they win. I mean it’s just mind-boggling,” Young said in September.

But Graber said allowing the city to avoid liability would prevent victims, through potentially costly judgments, from encouraging the department to change its ways.

“The people bringing these lawsuits are also citizens of Baltimore and everybody has to live with the policing of the Baltimore Police Department,” she said.

For his part, Hansel said he has “no sympathy” for the city’s attempt to avoid financial liability, arguing that “just results here will not be ruinous for the city.”

“Fair judgments are meant to motivate the city and fairly compensate the victim,” he said.

Smith, of the Washington Lawyers’ Committee, said embracing reform leads to fewer constitutional violations and fewer civil claims: “If the city’s concerned about its liability, the real way you address that issue is you fix the police department.”