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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 337 September Term, 1996

JESSE WILLIAMS, JR.

v.

PRINCE GEORGE'S COUNTY, MARYLAND, ET AL.

Murphy, C.J., Wenner, Davis, JJ. Opinion by Davis, J.

Filed: December 4, 1996

This appeal requires us to determine whether summary judgment is the proper vehicle to decide the availability of qualified immunity to appellee police officers against various tort claims filed by appellant. Appellant alleged, in his initial and his

amended complaint filed January 17, 1992, intentional infliction of emotional distress, negligent infliction of emotional distress, false arrest, false imprisonment, battery, assault, and negligence against Prince George's County, Maryland, Officer Walls, Officer Tyrone Taylor, Officer Darrius T. Qualls, Officer Mallory, Officer Mahon, and John Doe, unknown police officer, "c/o of Prince

George's County Police Department." After appellant's counsel voluntarily dismissed the case

against Officer Mahon, trial was eventually scheduled for October 31, 1995. On October 24, 1995, the lower court granted the motion

to dismiss, generally, and thereafter ordered that the complaint "be, and is hereby dismissed, with prejudice, insofar as it

pertains to" Prince George's County, Maryland, Officer Tyrone Taylor, Officer Darrius T. Qualls, Officer Walls, Officer Mallory, and John Doe. The court's order concluded by stating, "that there

being no just reason for delay, the clerk is hereby directed to enter this as a final judgment as to defendants Prince George's County, Maryland, Officer Tyrone Taylor, Officer Darrius T. Qualls, Officer Walls, Officer Mallory and John Doe." Although the October

24 order by the Circuit Court for Prince George's County was a dismissal of the complaint filed in the case, it is apparent from

- 2 the proceedings that the court based its disposition on the

affidavit of Officer Walls, the deposition testimony of Officer Taylor, Officer Qualls, Mary Grace Williams, and Jesse Williams, and the answer to interrogatories and response to request for admissions filed by Prince George's County. It is from the court's

order of October 24 that this appeal was filed. Alternatively, viewing the court's dismissal of the complaint as a grant of appellees' motion to dismiss and of appellees' motion for summary judgment, appellant asks us to decide the following issues which we restate in reverse order: I. Whether the trial court's order dismissing the complaint is actually a summary judgment, and was improperly granted, as there are genuine issues of material fact that should have been considered by a jury. Whether the trial court erred in granting defendants' motion to dismiss in that the complaint sets forth claims for which relief can be granted, and for which defendants do not enjoy governmental immunity.

II.

III. Whether the trial court erred in granting defendants' motion for summary judgment, or alternatively, motion to dismiss without holding a hearing on the same as required by MD. RULE 2-311(f).

FACTS
On November 21, 1990, Mary Grace Williams, appellant's mother, reported to Officer Tyrone Taylor, who was then working as a part-

- 3 time security guard for Shoppers' Food Warehouse located in the Coral Hill section of Prince George's County, that her 1990 Hyundai Sonata automobile had been stolen from the parking lot in front of Shoppers' Food Warehouse. by the pair proved After perambulation of the parking lot Officer Taylor transmitted a

unfruitful,

description of the vehicle and the license plate over the police radio to units in the area. He then completed an incident report

regarding the suspected theft and thereafter placed the report on teletype, giving the written incident report to an officer on duty who submitted it to a sergeant at the Seat Pleasant Station. According to the deposition testimony of Mary Williams, within two or three days of the theft, she was telephoned at her home by a Prince George's County police officer and notified that her automobile had been discovered on a dead end street "right at the back of Shoppers'" near Marlboro Pike in Prince George's County. Ms. Williams's husband drove her to recover her automobile and he had to drive her vehicle home because the ignition had been damaged to the point where a key could not be inserted and it could only be operated with a screwdriver. Ms. Williams further testified at her deposition that

approximately seven weeks later, she received a telephone call at her home from the police who inquired as to whether she knew "Jesse." She advised the officer who had telephoned her that Jesse

was her son, that "he's got my car," and that appellant was on his way to work. When advised by the officer on the telephone that the

- 4 record showed that her car was stolen, Ms. Williams testified that she told him "it can't; . . . because when the police got my car, they reported it in, I said, and it's ok." Upon being asked if she

was sure, the officer advised her that they had her son in custody and they were attempting to ascertain whether he had stolen the car, whereupon she advised them that he had permission to drive it. Sometime thereafter, her son called her from work and,

according to Ms. Williams, he was crying and related how police had stopped him, ordered him to put his hands behind his head, and required him to lie down on the ground. When appellant returned

home that evening, his mother did not observe any scratches or bruises on his body, but he was "very nervous" and "you could tell that something was wrong with him." Appellant, testifying at his deposition, stated that he was en route to work at Malcolm Grove Hospital located on Andrews Air Force Base in Capital Heights, Maryland, when a police officer followed him as he made a left into the McDonald's fast food restaurant off of Silver Hill Road in Prince George's County. As

he was preparing to alight from his mother's vehicle, the police officer approached with his service revolver pointed at appellant. Appellant, in his deposition testimony, stated: Okay, once I turned into the parking lane inside of McDonald's, I turned my car off; and once I was getting ready to get out of my car, the police officer was behind me, with his gun pointed at me, an [sic] he was younger -- at the time, he looked like he was a young cop -- he was shaking, and the gun was just shaking

- 5 at me, like that. He ordered me to get back in my car, put my hands over my head. At that time, it was during the winter, and I had a big coat on; so, he told me to just sit there; and I could see him on the radio, calling for backup. Well, at that time, I was praying to God that this officer don't [sic] shoot me, because the whole time he had the gun on me, and my hands was [sic] slipping, and it felt like 10 minutes before the backup got there; so I was just in the car, crying, praying to God that this officer don't [sic] shoot me. So, once the backup got there, he ordered me to get out [sic] the car very slowly, get on my hands and knees; told me to put my hands behind my back, which I done [sic] everything correctly; and I don't know who walked up behind me -- put my hands behind my back, and somebody put their knee in my back, and hold [sic] my shoulder; they eased me down, they didn't rough me up, or anything. They just eased me down, handcuffed me, and the officer that had the gun on me, he asked me, do you know why we're arresting you.[?] I said, no. They said, you're riding in a stolen car. I said, stolen car -- this is my mother's car. * * * *

So he got on the radio, got in contact with my mother, made sure I had permission to drive the car, which I did. He said, it's something wrong here. I said, yeah, something is wrong here; so I told him, yeah, the car was stolen, but Officer Taylor found the car, which I felt like it should have been in the computer, that the car was found; and after all that was done and said, the only thing he had to say to me, that I'm sorry. He gave me his card; he said call me if you have any trouble, take my card and you give me a call. Later, appellant reiterated that he was wearing a big Alaskan coat; how he was ordered to lie down on the ground at which time some unidentified officer put his knee behind his back; and how he kept having flashbacks after the incident. He acknowledged,

- 6 however, that he had no physical injuries as a result of the incident nor did he or his family incur any medical expenses. Officer Qualls testified at his deposition that, at some point on the evening in question, appellant, driving his mother's Hyundai automobile, swerved in front of him on Brooks Drive. Because the

Hyundai, according to the witness, was a popular target of car thieves, he decided to place a radio call to his dispatcher to ascertain whether the car was stolen. Once the dispatcher

confirmed that the records indicated the subject vehicle was stolen, he followed appellant into the McDonald's parking lot, approached appellant, ordering him "to put his hands up in the air and put his car in gear." Officer Qualls stated that appellant

complied with his orders to raise his hands and place his car in gear, whereupon he advised the dispatcher that he was going to wait for backup. Appellant was then ordered to lie down in a prone position with palms facing upward and to face the direction away from the police officers. As Officer Qualls secured his weapon in order to

place handcuffs on appellant, he asserted that "my major concern was that [the] vehicle was confirmed stolen. I was acting on that

and my other thing was to make sure he was handcuffed immediately." The officer acknowledged that, in accordance with police policy and training, as he handcuffed appellant, his knee was against

Williams's shoulder blade while the officer was in a kneeling position. After Williams was searched, he asked Officer Qualls

- 7 "what is all of this for" to which the officer responded that the vehicle had been confirmed stolen and that appellant was under arrest. At that point, after appellant advised the arresting

officers that his mother had authorized him to drive the car, Officer Qualls asked the dispatcher to determine the ownership of the car, the dispatcher subsequently notifying Officer Qualls that the owner and appellant had the same last name. The dispatcher,

shortly thereafter, advised Officer Qualls that appellant was authorized to drive the car and the owner had informed her that she recovered the vehicle "but forgot to take it out of the computer." Officer Qualls's deposition testimony indicated that once he received information that appellant had permission to use the car, he immediately took the handcuffs off of him. At that point,

according to Officer Qualls, appellant said his mother reported the car stolen at Shoppers' Food Warehouse, but that she had recovered it in Washington, D.C., and that Officer Qualls advised that he had recalled the stolen automobile report as well as the field

observation report.

According to the officer, he and Williams

discussed what had happened and the officer explained why they had handled the situation the way they did and, according to Officer Qualls, "he was fine with that." touching appellant with his weapon. It should be noted that, consistent with the deposition testimony of Officer Qualls, Officer Tyrone Taylor, appellant and appellant's mother, appellees' response to appellant's Request for He denied ever physically

- 8 Admissions of Fact are in accord in every significant respect with the testimony of the four witnesses.

LEGAL ANALYSIS I
Our initial task, upon a review of the record below, is to determine how the trial judge disposed of the instant case and then apply the appropriate standard to the court's action. Appellant

contends that "the plain language of the order indicates that the court granted Appellees' Alternative Motion to Dismiss, and not their Motion for Summary Judgment." He posits that, assuming the

order was in fact a dismissal of the claims, it was improper because "all of the claims set out in the complaint are wellestablished, legally cognizable causes of action." He

acknowledges, however, that it is highly likely that the court "did make factual conclusions," urging that this would require reversal and remand of the case. Citing MD. RULE 2-322(c), appellees, on the other hand, assert that their Motion for Summary Judgment, or alternatively, Motion to Dismiss, must be treated as a motion for summary judgment in view of the court's consideration of matters presented outside of the pleadings. MARYLAND RULE 2-322(c) provides, in part, "[i]f, on a

motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be

- 9 treated as one for summary judgment . . . .". In the case at bar,

the trial court did not exclude the facts submitted to it through the affidavits and depositions of the parties, and thus, the court's order must be treated as a grant of appellees' motion for summary judgment. See Hrehorovich v. Harbor Hospital Ctr., Inc.,

93 Md. App. 772, 782 (1992) (Despite the absence of an express indication of how the trial judge treated the case, we held that the lower court transmuted appellees' motion to dismiss to a motion for summary judgment. We considered the fact that the trial judge

did not exclude facts that were submitted to the court that were not part of the pleadings.); Haselrig v. Public Storage, Inc., 86 Md. App. 116 (1991) (Despite the language of the court's order, the ruling was on the motion for summary judgment, not the motion to dismiss.) Thus, we conclude in the instant case, although the

court did not specifically state the legal grounds for granting appellees' Motion, it had before it facts that were not part of the pleadings, and thus, the court's ruling was on the motion for summary judgment, not the motion to dismiss. In addition, we said, in Bond v. NIBCO, 96 Md. App. 127, 133 (1993): It would certainly be preferable to have before us the basis for the circuit court's order. This would not only give us the benefit of the circuit court's reasoning as to why summary judgment was proper but also make it clear whether the lower court found any of the asserted grounds lacked merit, i.e., did not support the grant of summary judgment. In

- 10 the absence of any such discussion, we must assume that the circuit court carefully considered all of the asserted grounds and determined that all or at least enough of them as to merit the grant of summary judgment were meritorious. The trial judge in the case sub judice obviously gave no hint as to those arguments presented by the litigants that led to the grant of the motion to dismiss the claim. As NIBCO points out,

however, we must assume that the trial court considered all of the asserted grounds and determined that, in whole or in part, they warranted what in essence was the granting of appellees' motion for summary judgment. Id. In a thorough exposition of what is

contemplated once a party files a motion for summary judgment, we held in NIBCO that a movant was required to "support his various contentions by placing before the court facts that would be

admissible in evidence or otherwise detailing the absence of evidence in the record to support a cause of action." Id. at 134.

Citing Washington Homes, Inc. v. Interstate Land Dev. Co., Inc., 281 Md. 712, 716, 382 A.2d 555 (1978), we further stated that "when a moving party has set forth sufficient grounds for summary

judgment, the party opposing the motion must show with `some precision' that there is a genuine dispute as to a material fact and place before the trial court facts that would be admissible in evidence." Id. at 135 (citations omitted).

Finally, we concluded that

- 11 "[t]o satisfy the requirement that there be no genuine dispute as to any material fact, the moving party must include in the motion the facts necessary to obtain judgment and a showing that there is no dispute as to any of those facts." Neimeyer at 330 [MARYLAND RULES COMMENTARY 171 2ed. 1992] (emphasis added). Only if a movant "bears this initial responsibility" or makes this "showing" does the party opposing the summary judgment motion have the burden of identifying "with particularity the material facts that are disputed." Thus, a motion for summary judgment that simply asserts that the opponent has not identified disputed facts is not sufficient. A summary judgment movant usually is not required to file an affidavit, see MD. RULE 2-501(a), but if the movant disputes facts alleged in the complaint (or answer if the movant is the plaintiff), the movant must himself identify the portions of the record that "demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Id. at 136. We reject appellant's assertion that the judgment must be reversed if it appears that the trial court did make factual conclusions; however, sorting out what occurred below is made more difficult by the different theories of liability involved. The two

broad theories of liability are bottomed on the negligent failure to remove the vehicle from the stolen car list and the alleged illegal arrest, detention, and force used. Without the benefit of

the court's reasoning, we are unable to discern whether the court intended to dismiss certain counts and grant summary judgment on others or whether summary judgment was granted as to all counts, notwithstanding that the order, by its explicit terms, dismissed

- 12 all claims. In any event, because the court had before it facts

that went beyond the pleadings, we shall treat its grant of the motion to dismiss as though it were a grant of appellees' motion for summary judgment. Considering the facts before the lower

court, we initially must determine whether there was in dispute any fact that would somehow affect the outcome of the case. German, 100 Md. App. 512 (1994). Warner v.

ILLEGAL DETENTION AND EXCESSIVE FORCE Appellant's constitutional allegations are that Officers

Qualls and Taylor illegally detained him and used excessive force against him.1 Appellees argued in their memorandum in support of

Although the Amended Complaint alleges that appellant's civil rights were violated as a result of the acts of Officers Walls, Taylor, Qualls, Mahon, Mallory, and/or John Doe, unknown police officer of Prince George's County, as agents and under color of authority of Prince George's County, appellant has voluntarily dismissed the case against Officer Mahon. In addition, Appellant's Opposition to Defendant's Motion for Summary Judgment, or Alternatively, Motion to Dismiss, states that appellant "would submit to the arguments of the defendants with respect to Officer Walls and Mallory. Plaintiff has no information to contradict the affidavits on this issue." Appellant, however, also states that because he cannot recall the specific name of the officer who contacted the Williams's family and returned their vehicle to them, they have sued in a John Doe capacity. In addition, plaintiff/appellant states that Officer Taylor was the police officer that reported the car stolen and Ms. Williams believes Officer Taylor is the officer who located the vehicle and returned it to her and her husband. Thus, we will only consider the allegations asserted by appellant against Officers Taylor, Qualls, John Doe, unknown officer of Prince George's County, and Prince George's County. (continued...)

1

- 13 Motion for Summary Judgment or Alternatively, Motion to Dismiss that the officers and the County did not violate appellant's constitutional rights, and alternatively, that the officers cannot be liable because they are entitled to qualified immunity.

Appellant argues that these constitutional issues cannot be decided on a motion for summary judgment because there are material issues of fact in dispute. Appellant then shifts his argument from the

materiality of the facts before the lower court to the principle thrust that the issue of reasonableness of the officers' actions is "patently one for the jury." We disagree. Appellant's assertions

are unsupported by the pleadings, affidavits, and depositions that were before the court and are insufficient to defeat appellees' motion for summary judgment with regard to appellant's

constitutional claims.

1

(...continued)

- 14 GENUINE ISSUES OF MATERIAL FACT Although appellant's claim of error is couched primarily in terms of "issues of material fact," he intimates the statement that the only force used by Officer Qualls, in appellees' motion, is untrue. As indicated, appellees' response to the request for

admissions of fact admitted under requests No. 5 and No. 9 that additional measures were taken to secure appellant and a cursory review of the deposition testimony of Officer Qualls as compared to appellant and his mother shows virtually no inconsistencies. The

same may be said regarding appellant's compliance with the orders of the arresting officers, as response Nos. 6, 7, and 10 admit compliance by appellant with the police officers' orders as well as full cooperation throughout the incident. Thus, despite

appellant's assertion that his compliance with the officers' orders was missing from the recitation of facts, the court clearly had before it an acknowledgement by appellees that he was compliant and cooperative during the entire incident. We conclude, based on the

pleadings, affidavits, and depositions, that there are no issues of material fact in dispute.

SUMMARY JUDGMENT AS A MATTER OF LAW Appellees argue that they are entitled to summary judgment as a matter of law because they are shielded by qualified immunity. In Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982) and Anderson

- 15 v. Creighton, 483 U.S. 635, 638-41 (1987), the Supreme Court enunciated an "objective legal reasonableness" test in determining whether a public official is entitled to qualified immunity. That

determination must be in light of "clearly established" legal rules at the time of the alleged conduct. Anderson, 483 U.S. at 639.

Clearly established law is defined as more than a mere vague assertion of an abstract constitutional right. Id. The tests to If

be applied must be at a more particularized level.

Id. at 640.

the officer's specific conduct was clearly proscribed by existing law, he or she should be prohibited from asserting immunity. at 640-41. Id.

The very conduct at issue, however, need not have

previously been ruled unlawful, but rather, in light of existing legal precedent, the unlawfulness must have been apparent. 640. The Court said in Anderson, at 641: The relevant question . . . is the objective (albeit fact-specific) question whether a reasonable officer could have believed [the officer's] warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. Moreover, qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Briggs, 475 U.S. 335, 341 (1986). discretionary functions, the Malley v. Id. at

When police officers perform in insulating officers

rationale

against all but flagrant abuses of their position, is the necessity to permit police officers, especially in the context of police

- 16 work, to make the appropriate decisions in an atmosphere of great uncertainty. The theory is that holding police officers liable in

hindsight for every injurious consequence of their actions would paralyze the functions of law enforcement. F.3d 1169, 1173 (4th Cir. 1995). Pinder v. Johnson, 54

Moreover, permitting unwarranted

lawsuits against officers would entail substantial social costs including inhibition and fear of potential liability among peace officers and would further consume much of the officer's time preventing him or her from performing his or her duties. See

Anderson, 483 U.S. at 638 and Turner v. Dammon, 848 F.2d 440, 44344 (4th Cir. 1988). Because of these considerations, immunity is

granted to officers who act reasonably, albeit mistakenly, in light of clearly established law and the information they possessed without the benefit of hindsight. Anderson, 483 U.S. at 641.

Appellant and appellee cite Taft v. Vines, 83 F.3d 681 (4th Cir. 1996) in which the U. S. Court of Appeals for the Fourth Circuit, sitting en banc, affirmed the grant of summary judgment where the police officers had probable cause to believe that the occupant of the subject vehicle was a suspect wanted for murder and approached the vehicle with drawn weapons. Appellant attempts to

distinguish Taft on the basis of the distinction of the severity between one suspected of being a car thief as opposed to one suspected of murder. The only issue is whether the arresting In Taft, the

officers have probable cause to make a lawful arrest.

- 17 Court adopted the earlier opinion of Judge Motz, who had dissented from the panel decision, and held: The issue presented by the excessive force claim is not whether the officers violated police procedures, or even whether they, in fact, violated the Fourth Amendment. Rather, the question is whether, confronted with the facts of this case, reasonable police officers should have known that clearly established constitutional law prohibited the methods used in the search. We cannot so hold. Accordingly, the officers were entitled to summary judgment on the basis of qualified immunity on the excessive force claims. Id. at 684 (emphasis added). The dissenting opinion by Judge Motz had opined: Being the subject of an armed felony stop at night by numerous law enforcement officers most certainly would be a terrifying experience for guilty and innocent alike, regardless of their sex or age. However, in exigent circumstances, the law permits its enforcement officers to conduct such procedures in order to protect the community from a dangerous and violent offender. As frightening as these events must have been for the plaintiffs, these acts present a text book case for the imposition of qualified immunity. Not every mistake and act by "state actors" is premised on constitutional motives. See Taft v. Vines, 70 F.3d 304, 317-321 (1995). Thus, as to appellant's constitutional allegations of illegal detention and excessive force, the officers were entitled to the cloak of qualified immunity. court The salient facts before the lower

were contained in the deposition testimony of Williams who acknowledged not only that the handcuffs were

himself,

- 18 immediately removed once it was confirmed that he was authorized to drive the vehicle, but that Officer Qualls apologized, gave him his (Officer Qualls) business card, sat with him in the departmental vehicle explaining why the procedures were employed in his arrest, and offered to facilitate the removal of the vehicle from the hot list so that appellant would not be subjected to another

unwarranted detention. Specifically, related that the although officers appellant's pointed their deposition weapons at testimony him, he

acknowledged that they "didn't rough me up, or anything" as they "eased [him] down" onto the ground, and that someone's knee had been placed in the back of his shoulder blade. Accepting

appellant's assertion that the most serious violations were that this incident occurred over a period of fifteen minutes and that part or all of that time the officers had their guns trained on him, given the information, although erroneous, that the car was stolen, the high crime and drug area, appellant's bulky coat which ostensibly was conducive to concealing a weapon, and the actions of the police officers in detaining appellant, the arresting officers were entitled to the protection of qualified immunity because their actions were in conformity with "clearly established" legal rules. Appellant ultimately posits, "Even assuming . . . that it was reasonable to assume that the car was stolen, the question of the reasonableness of holding a citizen, suspected of riding in a

- 19 stolen car, who was compliant in every way with the officers, should be reserved for the jury." The inescapable implication of

appellant's statement is that a jury could have properly decided that it would have been a reasonable course of action for the arresting officers, before confirmation that the car was not stolen, to release a suspected car thief. spurious at best. In addition, appellant's amended complaint, Count I, paragraph 8, states that the individual officers "acted under the color of authority and as agents of Prince George's County," and as a result of the acts of the individual officers, appellant suffered physical and emotional injury. "Governmental entities are not liable under Kopf v. Skyrm, 993 F.2d 374, Such a suggestion is

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