Bord v. Balt. Cnty.

• Decision Date: 17 December 2014
• Docket Number: No. 1154, Sept. Term, 2013.,1154, Sept. Term, 2013.
• Citation: 220 Md.App. 529,104 A.3d 948
• Parties: David Israel BORD v. BALTIMORE COUNTY, Maryland, et al.
• Court: Court of Special Appeals of Maryland

220 Md.App. 529

104 A.3d 948

David Israel BORD

v.BALTIMORE COUNTY, Maryland, et al.

No. 1154, Sept. Term, 2013.

Court of Special Appeals of Maryland.

Dec. 17, 2014.

William N. Butler (Butler, Melfa & Taylor, PA, on the brief), Towson, MD, for Appellant.

Shawn Vinson (Michael E. Field, Co. Atty., on the brief), Towson, MD, for Appellee.

Panel: MEREDITH, ZARNOCH, REED, JJ.

Opinion

REED, J.

This appeal involves litigation arising from the execution of a search and seizure warrant of David Bord's (“Appellant”) home in which Corporal Anthony Kidwell (“Cpl. Kidwell”) and Detective Socha (“Det. Socha”) of the Baltimore County Police Department recovered twenty-eight firearms and a 30mm cannon. Appellant alleges that the officers mishandled the firearms, causing damages to his firearms. The primary issue before us is whether appellant is entitled to statutory damages under Criminal Procedure Article (“C.P.”) § 1–203 of the Maryland Code.

Appellant filed suit against both officers and the County Police in the Circuit Court for Baltimore County. The circuit court granted the two officers' motions to dismiss, finding that the police officers were immune from civil liability in the absence of malice. The circuit court also held appellant's claims were common law tort claims, and thus, granted Baltimore County's motion for judgment on the basis of government immunity.

Appellant filed this timely appeal, and presented five questions for our review, which we rephrased into four questions¹ :

1. Does C.P. § 1–203(d) provide a civil cause of action for money damages where property is damaged during the execution of a search and seizure warrant?

2. Did the circuit court err in granting the individual officers' motion to dismiss and Baltimore County's motion for judgment on the basis of governmental immunity?

3. Did the circuit court abuse its discretion in refusing to allow appellant to amend the pleadings?

4. Did the circuit court abuse its discretion in refusing to impose sanctions against appellee Baltimore County under the discovery rules?

For the following reasons, we answer all questions in the negative, and affirm the judgment of the circuit court.

Facts and Procedural Background

The facts are from the parties' respective factual submissions and trial testimony:

Appellant is a licensed gun collector, and has an extensive collection of firearms that were fully registered and documented. All weapons were securely stored in safes within his basement of his residence, and a 30mm cannon was stored within his automobile repair shop. Appellant testified that most of the firearms were at least “50 years old, [in] excellent condition, superbly maintained and ... the cream of the crop.”

In 2009, agents from the ATF Baltimore and Phoenix Field Offices approached Det. Socha, a Baltimore County Police Detective, concerning an investigation of illegal machine guns being transported into Maryland. The ATF agents informed Det. Socha that they interviewed appellant in 2008 and seized an illegally manufactured machine gun from appellant at that time. The ATF agents also told Det. Socha that there was “possibly another machine gun that was in his possession.” Based upon this information, Det. Socha applied for a search warrant for appellant's home at 9 Springbriar Lane and his business at 6303 Blair Hill Lane, in Baltimore County. The search warrant was based on a violation of the Maryland Code, Criminal Law Article (“C.L.”) § 4–405(a)(1)(iii).²

On December 8, 2009, while appellant was staying with friends in California after attending a gun show in Arizona, appellant received a phone call from Cpl. Kidwell. The corporal explained that a police team was present at appellant's residence with a warrant, and that they intended to open the door and drill open appellant's gun safes. Appellant called his adult children, who proceeded over to the residence, and opened the door and gun safes for the officers. The police officers executed the search and seizure warrant, as the ATF seized certain weapons they determined would require further investigation.

Det. Socha testified that the weapons were placed on top of a wool blanket in a Baltimore County vehicle, and appellant's children requested that towels be used to cover them for protection. Upon the request of appellant's children, Det. Socha testified that the firearms were “laid flat down in the bed of the ... evidence truck” and towels were used “as ... [they] laid more guns down for protection” Det. Socha testified that nothing was laid on top of the 30mm cannon when it was seized from appellant's auto repair shop.

Appellant's neighbor testified that the firearms were loaded into a mobile lab “one on top of the other” in “no particular order, [with] no particular care taken,” and it appeared as if the police officers were building a “bonfire.” Appellant later testified that, during the execution of the warrant, the police had “broken open” all of his firearms and removed the slides, and “all the mags were thrown on the floor, and every gun was taken out of its box and disassembled to make sure that it wasn't loaded.” A total of twenty-eight weapons were seized from appellant's residence and a 30mm cannon was seized from appellant's place of business.

On about December 12 or 13, 2009, appellant met with the Baltimore County Police and an ATF agent, and allowed the officers to examine his paperwork for the firearms, but the police refused to return the firearms at that time. Appellant alleged in his complaint that, when he presented his paperwork during this meeting, Det. Socha and Cpl. Kidwell responded he should “save it for court,” that his paperwork was “ ‘wrong’ or ‘bull__t’ ” and that they did not believe in its accuracy. At a March 15, 2011, motions hearing, appellant testified that the officers were “ill-mannered” and “ill-tempered” during that meeting and, when he asked for the return of his firearms, they told him “that's not going to happen[ ] today,” and also stated words to the effect that “plaintiff would never get his property back.”

On August 27, 2010, after several unsuccessful attempts to recover his firearms, appellant filed his complaint, which consisted of three counts: (1) demand for return of property, (2) detinue, and for (3) trover and conversion against Baltimore County, Det. Socha, and Cpl. Kidwell. Appellant subsequently requested a temporary restraining order, which was granted on August 31, 2010, followed by a request for preliminary injunction enjoining appellee from selling, destroying or damaging the property seized from appellant, which was granted on September 16, 2010.

In November of 2010, the State charged appellant for possession of a banned assault pistol, which was placed on the stet docket. Appellant was not charged under any federal criminal statutes. The appellees moved to dismiss the complaint, and after the March 25, 2011, hearing, the circuit court granted the motion to dismiss as to the two officers because the civil liability of police officers in the ordinary course of employment requires allegations of actual malice, which appellant did not sufficiently allege. The circuit court, however, denied appellee Baltimore County's motion to dismiss. In that same order, the circuit court granted appellant leave to amend the complaint. Subsequently, appellant filed a motion for summary judgment, which was denied. On August 10, 2010, appellee Baltimore County released eighteen of the twenty-eight firearms to the ATF. The remainder of the firearms were released to the ATF on March 31, 2011, and May 5, 2011. At this point, appellee possessed only the 30mm cannon. As of the March 19, 2013, hearing, appellee returned the 30mm cannon to appellant. By the date of trial, appellee was no longer in possession of any of appellant's firearms.

The circuit court conducted a trial on the merits on March 19, 20, and 21, 2013. At trial on March 20, 2013, appellant rested his case, and the County made a motion for directed verdict primarily based on governmental immunity. The circuit court reserved its ruling on appellee's motion for directed verdict to allow the parties to brief the issue on governmental immunity. During trial on March 21, 2013, Det. Socha testified that entry and exit photos were taken during the execution of the search warrant. Counsel for appellant stated that he had previously made numerous requests for those photos to no avail. In light of this development, the circuit court continued the trial by agreement to allow appellant to obtain copies of the photos, and also to brief the issue on governmental immunity.

On April 12, 2013, appellant filed a motion to reconsider order of dismissal against the officers, and a motion for leave to amend pleadings. At the hearing on April 29, 2013, the court denied both motions on the basis that appellant had previously received leave to amend and failed to amend the complaint against the officers during the two years that had passed. The circuit court also held that it would be unfair to allow appellant to amend after appellant had already rested his case.

At the conclusion of trial, the circuit court granted appellee Baltimore County's motion for judgment. Relying on DiPino v. Davis, 354 Md. 18, 729 A.2d 354 (1999), the circuit court found that appellant's causes of actions were common law torts. As a result, appellee Baltimore County was not liable for common law torts committed while acting in a governmental capacity. The circuit court held that “executing a search and seizure warrant and confiscating property during that search and seizure warrant is a governmental function,” and therefore, governmental immunity protected appellee from liability.

Appellant moved for a new trial on June 28, 2013, and the circuit court denied that motion on July 30, 2013. The circuit court explained that, although appellee failed to provide the photos taken during the search and seizure, a new trial was not warranted because appellant failed to explain “h...