Clea v. Mayor and City Council of Baltimore, No. 76

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued before MURPHY; ELDRIDGE
• Citation: 312 Md. 662,541 A.2d 1303
• Docket Number: No. 76
• Decision Date: 01 September 1986
• Parties: Isaac CLEA et al. v. The MAYOR AND CITY COUNCIL OF BALTIMORE et al. ,

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312 Md. 662 541 A.2d 1303 Isaac CLEA et al.
v.
The MAYOR AND CITY COUNCIL OF BALTIMORE et al. No. 76, Sept. Term, 1986. Court of Appeals of Maryland. June 9, 1988.

[541 A.2d 1304]

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Gary S. Bernstein (Joseph F. Zauner III and Rocklin & Settleman, P.A., on the brief), Baltimore, for appellants.

Robert C. Verderaine (Verderaine & DuBois, P.A., on the brief), Baltimore, for appellee Robert E. Leonard.

Benjamin L. Brown, City Sol. and Millard S. Rubenstein, Asst. Sol., on the brief, Baltimore, for appellees Mayor and City Council of Baltimore City, Baltimore City Police Dept. and Bishop L. Robinson, Police Com'r.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH ^*, McAULIFFE and ADKINS, JJ.

ELDRIDGE, Judge.

This is a tort action based upon an unlawful search of the plaintiffs' home by an officer of the Baltimore City Police Department. The questions before us relate to whether Baltimore City and the Police Department are vicariously liable for the police officer's conduct, and whether the officer is entitled to public official immunity under the circumstances.

I.

On January 30, 1985, Police Officer Robert Leonard, along with at least seven other armed police officers, forcibly entered the home of the Isaac Clea family and conducted a search of the entire premises pursuant to a search

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warrant. Officer Leonard had intended to obtain a warrant to search the residence of Alvin Thomas for narcotics. Officer Leonard's affidavit in support of his application for a warrant, and consequently the warrant itself, stated that Mr. Thomas resided at 2428 East Chase Street in Baltimore City. Actually, however, Thomas resided at 2428 East Eager Street in Baltimore City. The Clea residence was 2428 East Chase Street. Chase and Eager Streets are parallel to each other, one block apart.

Officer Leonard's affidavit in support of the search warrant also contained a description of the Thomas residence. The Thomas house was described as a two-story row house, with a white crossbuck storm door, a lamp post in the front yard, and no house numbers. The affidavit stated that Mr. Thomas lived in the basement of the house which his aunt, Ethel Dorman, an elderly woman approximately 96 years of age, rented. The Clea residence did not entirely match the house described in the affidavit. It did not have a lamp post in front; whether it had house numbers is not clear. Furthermore, Officer Leonard did not limit his search to the basement area of the house; instead, he searched the entire premises. No narcotics or other contraband were found. It is uncontested that Officer Leonard searched the wrong house.

Mr. Clea, his wife Mattie Mae Clea, their daughter Marion Willene, son Mathew Wayne, and granddaughter Chantel Lorraine, brought this action in the Circuit Court for Baltimore City to recover for damages allegedly sustained as a result of the wrongful search. The complaint contained counts based on invasion of privacy, defamation, negligence, and violations of Articles 24 and 26 of the Maryland Declaration of Rights. Named as defendants were the Mayor and City Council of Baltimore, the Baltimore City Police Department, the Police Commissioner of Baltimore City, and Officer Leonard.

The defendants Mayor and City Council, Police Department and Police Commissioner, filed a motion to dismiss, asserting various grounds including immunity. The defendant

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Leonard moved for summary judgment, claiming that he was entitled to a qualified immunity, based upon the absence of malice. Attached to the motion was an affidavit of Officer Leonard. The plaintiffs opposed the motion, submitting an affidavit by Mattie Mae Clea. After a hearing and consideration of each side's affidavits, the circuit court granted the defendants'[541 A.2d 1305] motions and entered a judgment for costs in favor of all defendants.

The plaintiffs then appealed to the Court of Special Appeals, and, before the case was heard by that court, we issued a writ of certiorari.

II.

We shall first deal with the plaintiffs' assertion of liability on the part of the Mayor and City Council of Baltimore, the Police Department, and the Police Commissioner.

The plaintiffs' action against the defendants other than Officer Leonard has been premised entirely on the theory that the Baltimore City Police Department is, for tort liability purposes, an agency of the Mayor and City Council of Baltimore. The Department, the Commissioner, and the Mayor and City Council have all been regarded as local government entities employing Officer Leonard.

Moreover, the plaintiffs have not suggested that the Mayor and City Council, the Police Department, or the Police Commissioner were involved or connected in any way with, or cognizant of, the alleged wrongful conduct. ¹ Instead, the plaintiffs seek to hold the City, the Department, and the Commissioner vicariously liable for Officer Leonard's conduct. The plaintiffs' position is that the City of

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Baltimore and its agencies, the Police Department and the Commissioner, together constitute an employer liable under the doctrine of respondeat superior. The plaintiffs rely upon a case dealing with the liability of Prince George's County for the tortious conduct of officers in the Prince George's County Police Department. See Bradshaw v. Prince George's County, 284 Md. 294, 396 A.2d 255 (1979). See, in addition, Cox v. Prince George's County, 296 Md. 162, 460 A.2d 1038 (1983); James v. Prince George's County, 288 Md. 315, 418 A.2d 1173 (1980). ²

One difficulty with the plaintiffs' position, with regard to the counts in their complaint not based on alleged constitutional violations, is that Baltimore City and its departments are entitled to a degree of immunity in tort suits. Prince George's County, at the time of the Cox, James, and Bradshaw cases, had waived its immunity for tort actions. Baltimore City, however, has not waived its tort immunity. Consequently, as to many types of ordinary tort actions, including those sounding in negligence, Baltimore City is immune with regard to matters classified as "governmental" and not immune with regard to matters classified as "proprietary." See, e.g., Tadjer v. Montgomery County, 300 Md. 539, 546-551, 479 A.2d 1321 (1984); Austin v. City of Baltimore, 286 Md. 51, 405 A.2d 255 (1979), and cases there cited. ³ Police activity, of the type giving rise to the

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instant case, has been classified as governmental and not proprietary. See Cox v. [541 A.2d 1306] Prince George's County, supra, 296 Md. at 166-167, 460 A.2d 1038; Wynkoop v. Hagerstown, 159 Md. 194, 150 A. 447 (1930).

The plaintiffs, treating the case as if Baltimore City had waived tort immunity, and as if Bradshaw v. Prince George's County, supra, controlled the liability of Baltimore City and its agencies for Officer Leonard's torts, have not focussed upon whether, under applicable principles of Maryland law, a municipality or county which has not waived immunity would be vicariously liable for tortious conduct like that alleged in this case.

A more fundamental obstacle, however, to the plaintiffs' theory of recovery against the Mayor and City Council of Baltimore, the Police Department, and the Police Commissioner, concerns the status of the Baltimore City Police Department for purposes of tort liability.

By Ch. 367 of the Acts of 1867, the General Assembly of Maryland made the Police Department of Baltimore City a state agency; its officials and officers were designated as state officers. Since that time, this Court has consistently held that Baltimore City should not be regarded as the employer of members of the Baltimore City Police Department for purposes of tort liability. Unlike other municipal or county police departments which are agencies of the municipality or county ( see, e.g., Cox v. Prince George's County, supra, 296 Md. at 165-170, 460 A.2d 1038), the Baltimore City Police Department is a state agency. Thus, as a matter of Maryland law, no liability ordinarily attaches to Baltimore City under the doctrine of respondeat superior for the torts of Baltimore City police officers acting within the scope of their employment. See, e.g., Green v. Baltimore,

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181 Md. 372, 30 A.2d 261 (1943); Taxicab Co. v. M. & C.C. of Baltimore, 118 Md. 359, 84 A. 548 (1912); Sinclair v. Baltimore, 59 Md. 592 (1883); Altvater v. the Mayor and City Council of Baltimore, 31 Md. 462 (1869). See also Austin v. City of Baltimore, supra, 286 Md. at 75-76, 405 A.2d 255 (concurring and dissenting opinion); Kaufman v. Taxicab Bureau, 236 Md. 476, 479-480, 204 A.2d 521 (1964), cert. denied, 382 U.S. 849, 86 S.Ct. 95, 15 L.Ed.2d 88 (1965); Hector v. Weglein, 558 F.Supp. 194, 197-199 (D.Md.1982).

It is true that, by Ch. 920 of the Acts of 1976, the General Assembly transferred the power to appoint the Baltimore City Police Commissioner from the Governor to the Mayor of Baltimore City. At the same time, however, the General Assembly maintained the express designation of the Baltimore City Police Department as a state rather than a local government agency. See § 16-2(a) of the Code of Public Local Laws of Baltimore City (1980, 1985 Supp.), being § 16-2(a) of Article 4 of the Code of Public Local Laws of Maryland. ⁴ Furthermore, the General Assembly, and not the Baltimore City Council, has continued to be the legislative body enacting significant legislation governing the Baltimore City Police Department. See, e.g., Ch. 265 of the Acts of 1982.

In light of the cases in this Court holding that the Baltimore City Police Department is a state agency for purposes of respondeat superior liability, and the General Assembly's continued adherence to the Department's classification as a state agency, it is clear that the Mayor and City Council of Baltimore would not be liable for Officer Leonard's alleged tortious conduct. As a matter of Maryland law, Baltimore City was simply not Officer Leonard's

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