Baltimore Police Dept. v. Cherkes

• Decision Date: 06 September 2001
• Docket Number: No. 1480,1480
• Citation: 140 Md. App. 282,780 A.2d 410
• Parties: BALTIMORE POLICE DEPARTMENT, et al. v. Charles H. CHERKES.
• Court: Court of Special Appeals of Maryland

780 A.2d 410

140 Md. App. 282

BALTIMORE POLICE DEPARTMENT, et al. v. Charles H. CHERKES.

No. 1480, Sept. Term, 2000.

Court of Special Appeals of Maryland.

September 6, 2001.

Charles R. Gayle and William R. Phelan, Jr. (Sean Malone, on the brief), Baltimore, for appellants.

Robert L. Hanley, Jr. (Nolan, Plumhoff & Williams, Chtd., on the brief), Towson, for appellee.

Argued before SONNER, DEBORAH S. EYLER and ADKINS, JJ. DEBORAH S. EYLER, Judge.

This is an interlocutory appeal in a police brutality case brought by Charles Cherkes, the appellee, against the Baltimore City Police Department ("the BCPD") and former Police Commissioner Thomas Frazier ("the Commissioner"), the appellants, and two officers of the BCPD, in the Circuit Court for Baltimore City.

The circuit court granted a motion to dismiss filed by the BCPD and denied a motion to dismiss or for summary judgment filed by the Commissioner. The order granting the BCPD's motion was not entered on the docket, however, and a docket entry referring to the motion stated, incorrectly, that it had been denied. About a year later, the BCPD and the Commissioner re-filed their motions on the same grounds and, for the BCPD, one additional ground. This time, the court denied both motions. This appeal followed.

We have divided and recast the questions presented by the BCPD and the Commissioner as follows:

I. Was the circuit court's first order granting the BCPD's motion to dismiss conclusive, so that the court could not subsequently deny its second motion?

II. Did the circuit court err in denying the BCPD's second motion to dismiss?

III. Did the circuit court err in denying the Commissioner's second motion to dismiss or for summary judgment?

For the following reasons, we answer "no" to question I and "yes" to questions II and III. Accordingly, we shall vacate the pertinent orders of the circuit court and remand the case for judgment to be entered in favor of the appellants.

FACTS AND PROCEEDINGS

On December 14, 1998, Cherkes filed suit in the Circuit Court for Baltimore City against the Mayor and City Council of Baltimore (the "City"), the BCPD, the Commissioner, and Officers Charles Sparenberg and Robert E. Briscoe, of the BCPD. His complaint alleged the following facts.

On March 1, 1998, at around 5:30 a.m., Cherkes was standing on the sidewalk in front of the Windsor Club on East Fayette Street, in Baltimore City. Officers Sparenberg and Briscoe arrived at the Windsor Club location, purportedly to investigate a citizen's complaint of a liquor law violation. The officers approached Cherkes from behind, as he was standing on the sidewalk. One of them said, "Motherfucker, if you touch that door, I'll arrest your ass." When Cherkes turned to see what he had done to provoke that statement, one of the officers pushed him and punched him in the face. Both officers tackled Cherkes and threw him against the glass vestibule of the building. The officers then threw Cherkes to the ground and beat him repeatedly about the head and body. More BCPD officers arrived and joined in the beating. At one point, Officer Briscoe wrapped his handcuffs around his fist and used them to beat Cherkes. The officers continued to beat Cherkes as he was lying on the ground, trying to cover himself.

The officers placed Cherkes under arrest, put him in a BCPD vehicle, and transported him to Mercy Medical Center, where they caused him additional injury by dragging him out of the vehicle and dropping him to the pavement from a height of several feet.

Officer Briscoe went before a court commissioner and had Cherkes charged with criminal assault on both himself and Officer Sparenberg. Officer Briscoe also charged Cherkes with violating article 2B, section 19-101 of the Baltimore City Code. According to Cherkes, Officer Briscoe falsely swore in the charging papers that Cherkes had been intoxicated and had endangered the officers' safety during the encounter.

On June 11, 1998, the criminal case against Cherkes was called for trial. The State nolle prossed the assault charges pertaining to Officer Sparenberg, after he failed to appear. The charges respecting Officer Briscoe were tried and Cherkes was acquitted. According to Cherkes, Officer Briscoe testified falsely about the March 1, 1998 incident.

Cherkes's complaint in this case sets forth twenty claims, in twenty separate counts. The following torts are alleged in ten separate counts: battery, assault, false arrest, false imprisonment, malicious prosecution, defamation, intentional infliction of emotional distress, violation of article 24 of the Maryland Declaration of Rights,¹ violation of article 26 of the Maryland Declaration of Rights,² and negligent hiring and supervision. The remaining ten counts seek punitive damages on each of those claims. All of the counts except negligent hiring and supervision are predicated on the acts of the individual police officers, with the liability of the City, the BCPD, and the Commissioner resting on a general allegation that the officers were at all times acting as their agents and employees. The negligent hiring and supervision count alone alleges direct (as opposed to vicarious) liability against the City, the BCPD, and the Commissioner.

On January 21, 1999, the City moved to dismiss all counts against it, arguing that as a matter of law the officers were not its agents. Cherkes opposed the City's motion. On March 5, 1999, the motion was granted and the City was dismissed, without prejudice.

In the meantime, on February 17, 1999, the BCPD moved to dismiss all counts against it on the ground that it has no existence separate from the State of Maryland and therefore lacks capacity to be sued. At the same time, the Commissioner filed a motion to dismiss or for summary judgment for failure to state a claim for which relief may be granted and on the grounds of sovereign immunity and public official immunity. Cherkes filed oppositions to these motions. He then amended his complaint, by interlineation, to add the State of Maryland (the "State") as a defendant.

Discovery ensued and then was stayed for a period of time pending rulings on the outstanding motions. On September 15, 1999, the circuit court (Cannon, J.) issued two orders, one granting the BCPD's motion to dismiss and the other denying the Commissioner's motion to dismiss or for summary judgment. The order denying the Commissioner's motion was docketed on September 24, 1999, and was mailed to the parties. For reasons that are not clear, the order granting the BCPD's motion to dismiss was not docketed and appears not to have been mailed to the parties. Also for reasons that are not clear, the computer-generated docket sheet stated, incorrectly, that the BCPD's motion was denied.

Discovery resumed. The scheduled May 9, 2000 trial date was postponed at the joint request of the parties, and trial was reset for September 18, 2000.

On June 29, 2000, the following three motions were filed: 1) a motion to dismiss by the State on the ground of sovereign immunity; 2) a second motion to dismiss by the BCPD, on the same ground raised in its first motion and also on the ground of sovereign immunity; and 3) a second motion to dismiss or for summary judgment by the Commissioner, on the same grounds raised in his first motion. Cherkes filed oppositions to these motions. On July 27, 2000, the circuit court (Cave, J., specially assigned), issued two orders. The first granted the State's motion to dismiss "as not responsible for the Baltimore City Police." The second denied the BCPD's motion, citing the Local Government Tort Claims Act. Both orders were docketed on July 31, 2000. On August 8, 2000, the circuit court (Berger, J.) issued an order denying the Commissioner's motion to dismiss or for summary judgment. That order was docketed on August 9, 2000.³

The BCPD and the Commissioner filed notices of appeal within thirty days of the docketing of the orders pertaining to their respective motions. On December 18, 2000, the day the record was transmitted from the circuit court to this Court, Judge Cannon's September 15, 1999 order granting the BCPD's motion to dismiss was entered on the docket.

DISCUSSION

The procedural posture of this case is such that before reaching the merits of the appellants' contentions, we first shall address the issue of subject matter jurisdiction.

Section 12-301 of the Courts and Judicial Proceedings Article of Md.Code (1998 Repl.Vol., 2000 Supp.) ("CJ") provides, in pertinent part:

Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.

"Thus, it is well settled that, to be appealable, an order or judgment ordinarily must be final." Jackson v. State, 358 Md. 259, 266, 747 A.2d 1199 (2000) (citations omitted).

The Court of Appeals has "`long recognized, however, a narrow class of orders, referred to as collateral orders, which are offshoots of the principal litigation in which they are issued and which are immediately appealable as "final judgments" without regard to the posture of the case.'" State v. Jett, 316 Md. 248, 251, 558 A.2d 385 (1989) (quoting Harris v. David S. Harris, P.A., 310 Md. 310, 315, 529 A.2d 356 (1987)). Collateral orders of this sort

are treated as final under the "collateral order doctrine," which was first recognized by the United States Supreme Court in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). For an order to be appealable under that doctrine it must:

(1) conclusively determine the disputed question, (2) resolve an important issue, (3) be completely separate from the merits of the action, and (4) be effectively unreviewable on

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