Balt. City Police Dep't v. Esteppe
| Citation | 247 Md.App. 476,236 A.3d 808 |
| Decision Date | 27 August 2020 |
| Docket Number | No. 3128, Sept. Term, 2018,3128, Sept. Term, 2018 |
| Parties | BALTIMORE CITY POLICE DEPARTMENT v. David ESTEPPE, et al. |
| Court | Court of Special Appeals of Maryland |
Argued by: Michael Redmond (Andre M. Davis, City Solicitor, Sara Gross, Chief Solicitor, Rachel Simmonsen, Co-Directors, Appellate Practice Group on the brief), Baltimore, MD, for Appellant.
Argued by: Byron L. Warnken (Warnken, LLC of Pikesville, MD, Chaz R. Ball, Schlachman, Belsky & Weiner PA of Baltimore, MD), all on the briefs, for Appellee.
Fader, C.J., Leahy, Deborah S. Eyler (Senior Judge, Specially Assigned), JJ.
Fader, C.J. Appellee David Esteppe, the plaintiff below, obtained a judgment against appellee Adam Lewellen, the defendant below. Mr. Esteppe then sought to recover the judgment from the appellant, the Baltimore City Police Department (the "Department"), which is Mr. Lewellen's former employer. The Department's appeal raises two separate issues—one a matter of procedure and the other of substance—relating to a local government's liability under the Local Government Tort Claims Act ("LGTCA"), § 5-303 of the Courts & Judicial Proceedings Article (Repl. 2013; Supp. 2019).
First, the Department contends that the circuit court erred in ruling on the basis of the "Motion for Declaratory Relief to Enforce Judgment" Mr. Esteppe filed in the same action in which he obtained his judgment against Mr. Lewellen. We hold that a plaintiff who seeks to hold a local government liable under the LGTCA for a judgment entered against its employee must initiate a proceeding that (1) joins the local government entity as a party and (2) offers the parties an opportunity to litigate whether the tortfeasor employee committed the relevant tort while acting within the scope of employment. Here, although Mr. Esteppe did not formally join the Department as a party to the proceeding, the Department participated without objecting on that ground and, therefore, waived that objection. Accordingly, we conclude that the circuit court did not err procedurally in ruling on Mr. Esteppe's motion.
Second, the Department argues that the circuit court erred in determining that Mr. Lewellen acted within the scope of his employment when he engaged in the tortious conduct that gave rise to the judgment against him. That tortious conduct included submitting an affidavit in support of a search warrant for Mr. Esteppe's home in which Mr. Lewellen falsely claimed that a confidential informant had purchased drugs from Mr. Esteppe. The Department first contends that serious criminal conduct can never fall within the scope of an officer's employment. The Court of Appeals recently rejected that argument in Baltimore City Police Department v. Potts , 468 Md. 265, 274, 305-06, 227 A.3d 186 (2020).1 The Department also contends that even if serious criminal conduct can fall within the scope of an officer's employment, the circuit court erred as a matter of law in concluding that it did based on the record in this case. We agree with the Department that the record is devoid of any factual support for Mr. Esteppe's present contention that Mr. Lewellen's perjury was committed, even in part, in furtherance of the Department's interests. Accordingly, we will reverse the circuit court's judgment and remand for further proceedings.
In early 2012, Mr. Esteppe ended a romantic relationship with Brandi Chelchowski that had begun in late 2011. Subsequently, Ms. Chelchowski stalked and threatened Mr. Esteppe, called and texted him dozens of times each day, and, he suspected, damaged his vehicle. Mr. Esteppe changed his phone number and sought multiple peace orders. In March 2012, Ms. Chelchowski threatened Mr. Esteppe to the effect that she had "cop friends" and that he was "going down." Mr. Lewellen was one such "close" friend, whom Ms. Chelchowski had known "for years."
On March 19, Ms. Chelchowski "said something to the effect of, ‘You're going down next week.’ " Eight days later, on March 27, then-Officer Lewellen applied for a warrant to search Mr. Esteppe's home on the pretext that Mr. Esteppe was a drug dealer. In the affidavit supporting the warrant application, Mr. Lewellen stated, among other things, that he recently had orchestrated a controlled purchase in which Mr. Esteppe sold drugs to a confidential informant. Specifically, Mr. Lewellen averred that he had the confidential informant set up the buy via telephone, searched the confidential informant to ensure that he was "free of any contraband," dropped off the informant at Mr. Esteppe's residence, and "took a covert position with a clear and unobstructed view of" the location as the confidential informant "approached the door and knocked." Then, according to Mr. Lewellen's affidavit:
In what appears to be a boilerplate portion of the affidavit, Mr. Lewellen identified a number of things that, in his experience, drug dealers commonly keep in connection with their trafficking activities, including "large amounts of ... currency"; "paraphernalia used in the manufacture, packaging, preparation, and weighing of [controlled dangerous substances] in preparation for trafficking"; "firearms and ammunition"; "financial records and financial instruments"; "records of their drug transactions"; "books, records and other documents that identify" the names of associates; telephones and pagers; photographs and videos of themselves and their associates; "identification and travel documents"; and vehicles. The search warrant application sought permission to seize any of those items, as well as any illegal drugs.
Based on Mr. Lewellen's affidavit, the court issued a warrant authorizing the search of Mr. Esteppe's home and seizure of items found there. Later that day, Mr. Lewellen and several other officers "busted in" through Mr. Esteppe's front door and executed the search warrant. During the search, the officers repeatedly accused Mr. Esteppe of being a drug dealer and asked him to identify the location of the drugs in his home. The officers did not uncover any illegal drugs. They did, however, find and seize a black powder rifle and a shotgun that Mr. Esteppe kept for hunting. Mr. Esteppe was arrested and charged for unlawful possession of a firearm based on a relatively new law—of which Mr. Esteppe had been unaware—that disqualified him from possessing firearms.2 When he was arrested, Mr. Esteppe heard Mr. Lewellen say that "Brand[i] led us to it."
After his arrest and release awaiting trial, Mr. Esteppe, along with other witnesses, informed the Department of their suspicions that he may have been set up. The Department's Internal Affairs Division began an investigation, during which the confidential informant listed in the warrant application stated that he had never seen or met Mr. Esteppe, nor had he ever set foot in Mr. Esteppe's house or called him on the phone. Investigators obtained phone records for the confidential informant and Mr. Esteppe, which verified that the two had not had any phone contact.
After he was interviewed for the investigation, the confidential informant contacted Mr. Lewellen, who met with the confidential informant and pressured him to recant the information he had provided to the investigators. Mr. Lewellen had the informant call the investigators over speakerphone in Mr. Lewellen's presence and "direct[ed] him what to say." The informant complied at the time, but then subsequently reported that interaction to the Internal Affairs investigators.
Subsequently, the State entered a nolle prosequi in the criminal case against Mr. Esteppe, thereby dropping all charges.
In two separate charging documents, the State charged Mr. Lewellen with perjury as to the affidavit, misconduct in office, and obstruction, among other crimes. He pleaded guilty to perjury and misconduct in office, and resigned from the Department as part of his plea deal. At the plea hearing, the prosecutor recited a statement of facts to which Mr. Lewellen agreed, with no modifications or objections. The statement included, among other things, that Mr. Lewellen had been "close" friends with Ms. Chelchowski "for years"; the affidavit he had submitted in support of the warrant application was "bogus," "fraudulent," and "perjurious"; he "was the lead on th[e] execution of that search warrant"; and he had directed the confidential informant "to recant what he told Internal Affairs."
In March 2013, Mr. Esteppe filed a complaint for damages against Mr. Lewellen, the Department, the Mayor and City Council of Baltimore (the "City"), and the State of Maryland. Mr. Esteppe brought counts for assault, battery, false arrest, false imprisonment, intentional infliction of emotional distress, malicious prosecution, negligence, violations of the Maryland Declaration of Rights, and civil conspiracy. The circuit court dismissed the claims against all defendants but Mr. Lewellen.
In November 2014, the court held a bench trial. During his opening statement, counsel for Mr. Esteppe advanced his theory that Mr. Lewellen's actions were motivated...
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