Handling a Case (Continued from page 20)


filing exclusively state law claims to keep the case in state court. For example, if your case arises in a county where juries have a history of making awards against police officers for misconduct, then you will want to try your case there. Another advantage is that under Maryland law police officers do not have public official immunity for either intentional torts or a violation of a citizen’s rights under the State constitution.5


This is significant


Court of Appeals. State law claims, however, have two


disadvantages: first, the claims are subject to the damage caps imposed by the Lo- cal Government Tort Claims Act, which limit recovery to $200,000 per claim, $500,000 aggregate,7


state official, by the State Tort Claims Act, which limits recovery to $200,000 to “a single claimant from injuries arising from a single incident or occurrence.”8


These Also, a claim


under the Maryland Constitution can impose liability under respondeat superior against the county or municipality which employed the officer.6


because the plaintiff has a right to insist that the jury know that the officer’s em- ployer is on the hook for damages. Most jurors think that the police officer will have to pay any judgment when, in fact, that is rarely so. Savvy defense counsel want jurors to believe the officer will pay the judgment in order to keep the award down. Another advantage to state court is that, should your case be appealed, the Maryland appellate courts are widely considered to be less conservative, and more plaintiff friendly, than the 4th


Circuit 5


DiPino v. Davis, 354 Md. 18, 51, 729 A.2d 354 (1999).


6 354 Md. at 52-53.


caps are absurdly low, especially when you consider that a police officer’s use of excessive force can result in serious injury or death. In all cases, counsel should vigorously challenge the constitutionality of such caps.9


Second, state law does not


provide for an award of attorney’s fees to a prevailing plaintiff. If the client’s damages are likely to


exceed the state caps, or if the client’s dam- ages are not likely to cover attorney’s fees, then you will want to file federal claims along with the state law claims. Under 42


7 Md. Code, Court’s Article, § 5-303. 8 Md. Code, State Govt. Article, § 12-104.


9


See, Article 19 of the Maryland Declaration of Rights, which guarantees “[t]hat every man, for any injury done to him in his person or property, ought to have a remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without denial, and speedily without delay, according to the Law of the land.”


or, if the officer is a


U.S.C. § 1983, the vehicle for bringing a federal civil rights claim, state law caps on damages do not apply because they are inconsistent with the statute’s twin goals of deterrence and adequate compensa- tion. In federal court, the old hobgoblin is


the defense of qualified immunity. A de- tailed discussion of this defense is beyond the scope of this short article, but suffice it to say that the defense, in simple terms, is this: if a reasonably well-trained officer would have believed that his actions were lawful, then the officer has immunity for his conduct. If the officer can demon- strate that the law clearly did not prohibit his actions, the officer wins. Whether the law was “clearly established” and whether the officer should have appreciated that his conduct was unlawful has at times led to some bizarre results and can make the defense of qualified immunity a bit of crap shoot.10


Often as not, success


or defeat will depend on the judge. In any event, in federal court you can ex- pect a motion for summary judgment based on qualified immunity at the end of discovery. Therefore, it is imperative that every deposition must be conducted with the aim of adducing facts which tend to prove that a reasonably well-trained police officer would not have done what the defendant police officer did in your case. Start your legal research early and find those cases which show that the law is fairly well established.


I’ve found that


it usually is. In addition, the lawyer will want to


request in discovery the documents that will assist in overcoming the immunity defense. The police department’s gen- eral orders or regulations are a good start. Often most police departments issue regulations which govern the use of force, particularly lethal force; the use of police dogs, batons and night sticks; high speed vehicle pursuits; and the like. Also, the officer’s training records should be obtained. Lessons plans, instruction manuals, and similar documents may also be relevant. I’ve seen several cases in which the police officer has struck a person’s head with a nightstick or baton.


(Continued on page 24) 10


Robles v. Prince George’s County, Maryland, 302 F.3d 262, petition for rehearing denied, 308 F.3d 437 (2002)(qualified immunity granted to police officers who, to spite an- other police agency, tied arrestee to a pole behind a shopping center early in the morn- ing and abandoned him for no legitimate law enforcement purpose).


22 Trial Reporter Winter 2007


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