Jones v. Wellham
| Citation | 104 F.3d 620 |
| Decision Date | 14 January 1997 |
| Docket Number | Nos. 95-2882,95-2966,s. 95-2882 |
| Parties | Erin Kathleen JONES, Plaintiff-Appellant, v. George W. WELLHAM, III; Anne Arundel County; Maxwell V. Frye, Jr.; William S. Lindsey, Defendants-Appellees, and Michael Dennis Ziegler; Presently Unknown and Undetermined Supervisory Police Officers, Defendants. Erin Kathleen JONES, Plaintiff-Appellee, v. Michael Dennis ZIEGLER, Defendant-Appellant, and George W. Wellham, III; Anne Arundel County; Maxwell V. Frye, Jr.; William S. Lindsey; Presently Unknown and Undetermined Supervisory Police Officers, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: William Francis Gately, Howell, Gately, Whitney & Carter, Towson, MD, for Plaintiff-Appellant. John Francis Breads, Jr., Senior Assistant County Attorney, Office of Law, Annapolis, MD; Robert Charles Verderaime, Verderaime & Dubois, P.A., Baltimore, MD, for Defendants-Appellees. ON BRIEF: H. Thomas Howell, Kathleen D. Leslie, Howell, Gately, Whitney & Carter, Towson, MD, for Plaintiff-Appellant. Phillip F. Scheibe, County Attorney, Office of Law, Annapolis, MD; Ronald A Before MURNAGHAN and ERVIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
Silkworth, Glen Burnie, MD, for Defendants-Appellees.
Affirmed by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge MURNAGHAN and Judge ERVIN joined.
Claiming that she was raped in 1990 by then-Anne Arundel County police officer Michael Ziegler, Erin Jones brought various § 1983 and state law claims against Ziegler, the County, and George Wellham, then County Police chief, in Maryland state court. Following removal of the action, the claims against Ziegler were first tried on the merits to a jury which found for Jones, awarding her substantial compensatory and punitive damages. Ms. Jones then added federal and state claims against former Police Chiefs Maxwell Frye and William Lindsey, following which the County and the three Police chief-defendants moved for, and were granted, summary judgment as to all claims against them. We affirm both on Jones' appeal from the grant of summary judgment against her and on Ziegler's appeal from the judgment entered against him on the jury verdict.
In the early morning of November 15, 1990, Officer Ziegler stopped a pickup truck driven by Ms. Jones, then age 23, on ostensible suspicion of driving while intoxicated. After questioning and observing Jones, Ziegler asked her to get into his police cruiser, told her that he would not arrest her, and said that he would drive her home. He did not, instead driving past the turnoff to her house and into a church parking lot. When Jones questioned him as to why he had gone past her house, Ziegler explained that he had to check something at the church.
Ziegler got out of the car at the church, and removed some of his clothing. According to Jones, when he returned to the car, he forcibly removed Jones' underwear and then forced her to have sex with him. According to Ziegler, Jones removed her underwear and willingly had sex with him. Ziegler then drove Jones home and dropped her off.
Once home, Jones called 911 to report the rape, but hung up after saying very little. The 911 operator traced her call and sent police units to her address; when they arrived, she explained that she had been raped by a uniformed officer. The police took her to the hospital for treatment and a medical examination.
As a result of Jones' report to the police, Ziegler's police powers were immediately suspended, and he was ordered to surrender his weapon and badge. After an investigation the state's attorney charged him with second-degree rape, but he eventually pleaded to the lesser charge of misconduct in office, for which he received a one-year suspended sentence and five years' probation. He also agreed to resign from the police force.
The incident with Jones was not the first time Ziegler had been involved in sex-related conduct with a citizen while on duty. In 1979 he had used his badge to gain entrance to a woman's apartment in the middle of the night, asking to use her telephone. The woman, Brenda Forsythe, later told the police that Ziegler removed his shirt and asked her if she could help him by getting a blood stain out of it. Ziegler then sat on the sofa, took off his shoes and gunbelt, and when Forsythe came near the sofa, Ziegler began fondling her. When, as she claimed, she resisted, Ziegler responded that if she did not have sex with him, he would have her arrested for prostitution. According to Forsythe, Ziegler then followed her to her bedroom, where he disrobed, tried to force her to perform oral sex on him, and, when she refused, raped her. After he dressed and used one of Forsythe's towels to clean himself, he left, saying that Forsythe could "call him."
Ms. Forsythe went the next day to the police station where she told her story of the previous night's events to then-Police Chief Maxwell Frye. Frye ordered a complete criminal investigation of the incident and assigned it to a Sergeant Chaplin. Forsythe also was allowed to meet, at her request, with a female officer, Detective Susan Benson of the Sexual Assault Unit. Benson took Forsythe for a medical examination, and eventually took her formal statement, which contained all of the above-described details. Officers also went to Forsythe's apartment and collected physical evidence, including the towel Ziegler used.
Forsythe then picked Ziegler out of a police lineup, and she eventually passed a police-administered polygraph test regarding the alleged rape. Further, police radio records confirmed that Ziegler was in the vicinity of Forsythe's apartment at the time she says the rape occurred. Forsythe's neighbor also gave a statement regarding Forsythe's demeanor on the morning after the incident which corroborated Forsythe's own statement.
Ziegler met with the officers investigating the Forsythe incident, was read his rights, and after answering a few preliminary questions, invoked the Fifth Amendment. He never gave a statement regarding his version of the incident.
In late August of 1979, Chief Frye had informed Ziegler that he was being suspended without pay pending the results of the Forsythe investigation. Meanwhile, Detective Benson and Sergeant Chaplin had met with State's Attorney Warren Duckett. After Benson presented all the evidence she had, she recommended that rape charges be filed. The others disagreed, and Duckett concluded that because he was not confident that the available evidence respecting the nonconsensual nature of the incident would suffice to convict, he declined to prosecute Ziegler for any criminal violation. Duckett notified Chief Frye of his decision.
Chief Frye was given the criminal investigation file. On September 7, Frye met with Ziegler to conclude the department's internal affairs investigation of the incident. Ziegler, accompanied by his attorneys, made no statement but agreed to accept whatever punishment the Chief chose. Chief Frye apparently made no further inquiry, but accepted Ziegler's offer and decreed the following punishment: (1) one month's suspension without pay; (2) transfer of Ziegler to desk duty on the Telephone Reporting Service; (3) loss of personal patrol vehicle; and (4) that he consult the Police Chaplain for counselling. In a deposition given for this case, Frye testified that, in setting this penalty, he did not dispute the veracity of the criminal file materials, including Forsythe's statement.
The following June, Frye put Ziegler back on street duty with a car, gun, and uniform. That month, Ziegler visited Forsythe's workplace, but she was not there at the time. When she learned Ziegler had been there, Forsythe called Chief Frye and expressed her concern that he was back on street duty. Frye, according to his memorandum of the call, told her not to talk to many people about the incident and that if she kept calling, she would be sued.
Frye retired in the mid-1980s, and was replaced by William Lindsey, who was himself eventually replaced by George Wellham. Wellham was Chief of Police in 1990 when Ziegler allegedly raped Jones.
Ms. Jones then brought this action in Maryland state court seeking damages for the alleged rape by Ziegler and originally naming Ziegler, Chief Wellham and the County as defendants. Her claims against Ziegler alleged liability under 42 U.S.C. § 1983 for violation, under color of state law, of her constitutional rights under the Fourth and Fourteenth Amendments and under state law for common law battery. Her claims against the County and Chief Wellham alleged liability on various alternative theories under § 1983 and state common law. Following removal of the action to federal court, the claims against the County and Chief Wellham were severed from those against Ziegler, and those against Ziegler proceeded to a jury trial in which the jury found him liable and awarded Jones compensatory damages of $650,000 and punitive damages of $400,000. Following entry of judgment against Ziegler on this jury verdict, Jones was permitted to file an amended complaint which added to those claims still pending for disposition against the County and Chief Wellham claims against former Chiefs of Police Frye and Lindsey in their individual and official capacities. In her amended complaint, Jones sought to impose liability upon the County under various federal and state law claims: under § 1983, for municipal liability based upon the official conduct of the three police chiefs in retaining Ziegler on the police force, either as a matter of County-condoned "custom or practice," or as ad hoc policy choices of the police chiefs attributable to the County; under state common law, for vicarious liability for the battery committed by Ziegler and for the negligent conduct of the police chiefs in allowing Ziegler to return to and remain on street duty;...
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