DiPino v. Davis

• Decision Date: 11 May 1999
• Docket Number: No. 78,78
• Citation: 354 Md. 18,729 A.2d 354
• Parties: Bernadette DiPINO et al. v. Wayne Nelson DAVIS.
• Court: Maryland Court of Appeals

729 A.2d 354

354 Md. 18

Bernadette DiPINO et al. v. Wayne Nelson DAVIS.

No. 78, Sept. Term, 1998.

Court of Appeals of Maryland.

May 11, 1999.

Guy R. Ayres, III (Ayres, Jenkins, Gordy & Almand, P.A., on brief), Ocean City, for petitioners.

Peter Ayers Wimbrow, III, on brief, Ocean City, for respondent.

Deborah A. Jeon, Dwight H. Sullivan, American Civil Liberties Union Foundation of Maryland, Centreville, for amicus curiae.

C. Christopher Brown, Maryland Trial Lawyers Ass'n, Baltimore, for amicus curiae.

Stephen H. Sachs, David Gray, Francisco Medina, Wilmer, Cutler & Pickering, Washington, DC, counsel of record for amicus curiae.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and THEODORE G. BLOOM (retired, specially assigned), JJ. WILNER, Judge.

This is the second appearance of this case before this Court. It involves an action filed in the Circuit Court for Worcester County by Wayne Davis against the Mayor and City Council of Ocean City (the City), Bernadette DiPino, a police officer employed by the City, and Donald Turner, a District Court Commissioner. The action was first filed in December, 1991, but we are concerned here with an amended complaint filed in April, 1995. Mr. Davis's complaint, alleging both Constitutional violations and common law torts, arises from his arrest on July 6, 1991, upon a charge of hindering and obstructing Officer DiPino and a fellow officer, Alice Brumbley, in the performance of their duties. The arrest was pursuant to a warrant and Statement of Charges issued by Commissioner Turner upon application of DiPino.

At issue before us is whether (1) the evidence sufficed to establish the violations and torts alleged, (2) if so, DiPino and the City are immune from liability, and (3) certain claims against the City were preserved for appellate review. Some of the underlying facts were in dispute, mostly as to what Davis knew about DiPino and what was said by Davis and DiPino at various times.

BACKGROUND

During the period most relevant to this case—from the spring of 1990 through the first week of July, 1991—Officer DiPino worked as an undercover narcotics agent for the City police department. Her job required her to identify drug dealers and purchase drugs from them, and she therefore had to develop contacts and build trust with potential sellers. The plaintiff, Wayne Davis, was a bartender at the Inlet Lodge on the Ocean City boardwalk, where he had worked for about 10 years. DiPino first learned of Davis through an informant, who told her that he had seen marijuana in Davis's apartment. Nothing immediate came of that information.

In the spring of 1990, DiPino met Davis on the boardwalk and, as part of a "reversal" operation—an attempt to sell, rather than buy, drugs—she told him that she had some marijuana for sale and wanted to trade it for cocaine. She said that they discussed such a trade and exchanged telephone numbers, that, as a result of that conversation, Davis became a "target," and that she made a number of attempts during the summer of 1990 to consummate a drug trade with Davis, without success.¹ We need not recount the several ensuing contacts between DiPino and Davis. It will suffice to say that, by the end of September, 1990, Davis had sufficient information to believe that DiPino was an undercover police officer, that DiPino suspected that Davis was aware of her occupation, and that, as a result, she terminated her effort to engage him in a drug transaction. Some of Davis's suspicion arose from his having seen DiPino twice in the company of a person—Sergeant Holtzman—whom he knew to be a police sergeant; some of it came from his seeing her leave the courthouse and learning that she had just testified in a drug case.

The event that ultimately led to Davis's arrest occurred in the late hours of May 11-12, 1991. Davis had just closed the bar and was standing somewhere in the vicinity of the boardwalk and Wicomico Street with his friend, Frederick King. The area, according to DiPino, was populated with drug users, drug sellers, and "biker gangs." DiPino and Detective Brumbley had just left a bar where, in their undercover capacities, they had met with two "targets." When Davis saw DiPino and Brumbley, about ten feet away, he said something to King indicating that the women were police officers. Precisely what was said and how it was said were in dispute. According to DiPino and Brumbley, Davis said, in a voice loud enough for them to hear some nine to ten feet away, that they were "narcs," "undercover detectives," "undercover officers," or "undercover cops." Davis said that, upon spying the women, he told King, in a normal conversational tone, "[l]ook, those were the two girls that were going to come in last year and give me some pot and have Mr. Holtzman bust me, right?" When King asked if they were "narcs," Davis responded "I don't know what they are," that "[t]hey could be under cover or anything."

Whatever was said, DiPino believed that Davis made the statement in a voice loud enough to indicate to her an intent to "blow our covers." Although it appears that there was not a large crowd in the area, it being late at night, DiPino said that she noticed some "bikers" who gave them "dirty looks." Concerned for their safety, DiPino and Brumbley got into their car, left the area, and returned to the police station, without incident. There was no evidence that the particular "targets" they were pursuing that evening were still in the area when the comment was made or, if they were, that they overheard the remark; there was no evidence that Frederick King was a particular "target." DiPino believed, however, that "anybody that was standing out on the street was a potential ... target." She also believed that, by his loud statement to King, Davis had compromised her investigation, her ability to continue working undercover, and her safety, and that, as a result, he had committed some kind of crime, although she was unsure of what it was. She never contacted the State's Attorney's office to seek legal advice but instead conferred with a District Court Commissioner, who informed her that Davis could be charged with "hindering."

Despite her immediate concerns, DiPino put the matter on the "back burner." She could have preferred charges against Davis at any time, but for two months she declined to do so. On July 5, 1991—during one of the busiest weekends in Ocean City—she applied to Commissioner Turner for a Statement of Charges against Davis. In her application, she stated that Davis had said to an unknown white male: "Look those two girls are narcs.... This statement was said in a loud enough voice as so the Det's, approx. 3 yds away, could hear and any passerby could also hear placing the Det's in extreme danger and compromising their cover." Upon that application, Commissioner Turner issued a warrant for Davis's arrest and a Statement of Charges charging Davis with two counts of the common law crime of obstructing and hindering, one count as to DiPino and one as to Brumbley. In each, Davis was charged with "intentionally and knowingly obstruct[ing] and hinder[ing] a police officer... in the performance of the victim's lawful duties...." Pursuant to the arrest warrant, Davis was arrested at the Inlet Lodge on Saturday evening, July 6, 1991; in the presence of his customers, he was handcuffed and taken away. He was promptly presented before Commissioner Turner, who, despite Davis's established residence and employment in Ocean City, set bond at $50,000. Unable to post that bond immediately, Davis spent the next two nights in jail. On October 2, 1991, the day of his scheduled trial, the State entered a nol pros to both charges.

As noted, this action against DiPino, Turner, and the City was filed in December, 1991. The circuit court initially granted summary judgment in favor of all three defendants. On appeal, the Court of Special Appeals concluded that entry of summary judgment on the basis of the affidavits filed by the defendants was improper, but it affirmed the judgments on the alternative ground, raised by the appellate court on its own initiative, that the complaint filed by Davis failed to state any cause of action upon which relief could be granted. Davis v. DiPino, 99 Md.App. 282, 637 A.2d 475 (1994). We granted certiorari and reversed the judgment of the Court of Special Appeals, holding that it was improper for that court to raise sua sponte the issue of the sufficiency of the complaint. We directed that the case be remanded to the circuit court for further proceedings. Davis v. DiPino, 337 Md. 642, 655 A.2d 401 (1995).

Upon the remand, Davis filed the amended complaint that is at issue now. In Count I, based on 42 U.S.C. § 1983, he alleged that, by filing a false application, with malice and without probable cause, DiPino violated various of his rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. He averred, among other things, that some of the allegations in her application were untrue and that no properly trained police officer could reasonably have believed that he had committed the crime of hindering. Count II charged DiPino with comparable violations of Articles 21, 24, 25, 26, and 40 of the Maryland Declaration of Rights. Count III claimed against the City, based on respondeat superior, for the State Constitutional violations alleged in Count II. Counts IV, V, and VI charged DiPino and the City with the common law torts of false imprisonment, malicious prosecution, and abuse of process. Count VII charged the City, under 42 U.S.C. § 1983, with failing to supervise DiPino and restrain her from unlawfully and maliciously harassing and arresting him and conspiring to violate his Constitutional rights. Counts VIII and IX purported to be class actions against Commissioner Turner under 42 U.S.C. § 1983 and the Maryland Declaration of Rights; they were...