Claims Act - Baltimore City Police De- partment as State Agency
Facts: On March 1, 1998, Charles Cherkes (“Cherkes”) was standing on the sidewalk in Baltimore City. Cherkes al- leged that two Baltimore City Police Department (“BCPD”) officers ap- proached to investigate an unrelated matter, and instructed him that if he touched the door to the club, he would be arrested. Allegedly without any provo- cation on Cherkes’ part, the officers pushed him to the ground and, along with additional officers who arrived later, pro- ceeded to beat him. The officers then placed him under arrest and transported him to the hospital. Additional injuries were caused when he was subsequently dragged out of the vehicle and dropped to the pavement. Cherkes was charged with, among other things, criminal assault on the two officers who appeared first. In swearing out the charging papers, one of the officers allegedly falsely stated that Cherkes had been intoxicated and endan- gered the officers’ safety. The criminal charges against Cherkes as to one officer were ultimately nolle prossed because the officer failed to appear for the trial. Cherkes was tried and acquitted on the charges of assault on the other officer. Based on this incident, Cherkes filed a twenty-count complaint, alleging bat- tery, assault, false arrest, false imprisonment, malicious prosecution, defamation, intentional infliction of emo- tional distress, violation of articles 24 and 25 of the Maryland Declaration of Rights, and negligent hiring and supervision. The defendants were the individual officers, the City of Baltimore, and the Commis- sioner of the BCPD. By later amendment, the State of Maryland was added as a de- fendant, but its motion to dismiss was granted because it was not responsible for the BCPD. The ten remaining counts sought punitive damages on each tort al- leged. With the exception of negligent hiring and supervision, all of the counts were based on the actions of the individual officers, with liability of the City, BCPD, and the Commissioner premised on vi- carious liability. The City was dismissed because as a matter of law Baltimore City police officers are not agents of the City. The BCPD filed a motion to dismiss on the grounds that it has no separate exist- ence from the State and therefore cannot be sued. The Commissioner likewise filed a motion to dismiss on the grounds of failure to state a claim and on the grounds of sovereign immunity and public official immunity. Both motions were denied.
Fall 2001
Held: Orders denying motions of BCPD and Commissioner vacated, and case re- manded to Circuit Court for Baltimore City for Entry of Judgment in favor of appellants. The Court held: 1. The BCPD is a state agency and has common law State sovereign immunity from liability for both ordinary and state constitutional torts. This immu- nity is absolute and is only lost by a waiver by the legislature, either ex- pressly or implicitly. The BCPD’s immunity was not waived by the MTCA.
2. The 1997 amendment to the LGTCA added the BCPD to the list of “local governments,” thereby waiving immu- nity for failing to provide a defense for one of its officers, or for failing to pay a judgment entered against one of its officers. These are the only modifica- tions to the BCPD’s immunity that were made by the 1997 amendment. In all other respects, the BCPD’s im- munity remains intact. Because no such judgment has been entered, the
BCPD’s motion to dismiss should have been granted, and the trial court erred in failing to do so. The court noted, however, that if Cherkes is successful in his claims against the individual of- ficers, and the BCPD fails to pay the judgment, then the BCPD would be subject to an enforcement action.
3. As to the police commissioner, the facts alleged conduct on his part that was governmental in nature and not pri- vate or proprietary, with no facts establishing malice on his part. The only alleged malice was on the part of the officers, of whom the commis- sioner was at most a supervising employee. Without any participation alleged on the part of the commis- sioner, there are insufficient facts for respondeat superior liability on his part for the acts.
Baltimore Police Department v. Cherkes, No. 1480, September Term, 2000, filed August 29, 2001. Deborah S. J.
Opinion by Eyler,
Trial Reporter
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