Lee v. Cline

• Decision Date: 26 December 2002
• Docket Number: No. 2275,2275
• Citation: 149 Md. App. 38,814 A.2d 86
• Parties: Keith A. LEE, v. Gary CLINE, et al.
• Court: Court of Special Appeals of Maryland

814 A.2d 86

149 Md. App. 38

Keith A. LEE, v. Gary CLINE, et al.

No. 2275, Sept. Term, 2001.

Court of Special Appeals of Maryland.

December 26, 2002.

Willie J. Mahone, Frederick, for appellant.

Kevin Karpinski (Victoria Shearer and Allen, Karpinski, Bryant & Karp, on the brief), Baltimore, for appellee.

Argued before SALMON, JAMES R. EYLER and ADKINS, JJ. ADKINS, Judge.

In this tort case involving an allegedly unconstitutional "second stop," we encounter one of the Gordian knots of Maryland governmental immunity law—whether, under the Maryland Tort Claims Act, a police officer classified as State personnel has a qualified immunity defense against a constitutional tort claim alleging a violation of the Maryland Declaration of Rights.

Frederick County Deputy Sheriff Gary Cline,¹ appellee, stopped Keith A. Lee, appellant, because Lee's front license plate was missing. After Lee produced the plate, and explained that it had been damaged that morning in a car wash, Cline asked Lee for consent to search his car. Lee refused. Cline asked dispatch to send a canine unit, which eventually arrived and scanned Lee's vehicle without an alert. Cline wrote two warning citations, which he delivered after the scan.

Claiming racial profiling, retaliation, and an unjustified detention, Lee, who is African American, sued Cline for violating his constitutional rights under the Maryland Declaration of Rights. On summary judgment, the Circuit Court for Frederick County ruled, inter alia, that Cline had qualified immunity for his constitutional torts. Citing Court of Appeals decisions, Lee argues that Cline does not have qualified immunity for constitutional torts. Citing broad statutory language, Cline argues that he does. We shall hold that, based on the Maryland Tort Claims Act, police officers classified as State personnel do have qualified immunity from liability for their constitutional torts.

FACTS AND LEGAL PROCEEDINGS

The Stop

On March 12, 1994, Keith Lee left his Frederick home to run some errands and then get in a few hours of work at the financial services company where he was a vice president. Dressed in jeans and a sweater, he drove his black BMW to the bank, the car wash, and the dry cleaners. As he returned to his car from an errand, he noticed that his front license plate was missing. He immediately returned to the car wash, where he found the tag. Because it was mangled, he could not reattach it. Instead, he placed it on the floor directly behind his seat.

Lee was driving on Route 355 when he saw a marked police car with its lights flashing, two cars behind him. The car between Lee and the cruiser pulled over, but the cruiser went around it, then deactivated its lights. After another mile, the cruiser lights reactivated, and Lee pulled over into a driveway off of the heavily traveled thoroughfare.

Frederick County Deputy Sheriff Gary Cline came to Lee's window and asked for his driver's license and vehicle registration. Lee retrieved his wallet from the center console and mistakenly handed Cline a credit card instead of his license. Cline asked for the license and Lee gave it to him. Lee then sifted through the papers in his glove compartment and found the registration. As he presented it to Cline, Lee asked why he had been pulled over. Cline replied that his front license plate was missing, whereupon Lee explained that it had come off in the car wash. Lee immediately presented the damaged tag to Cline.

Cline then said that on these types of stops in Frederick County, he liked to search vehicles for illegal narcotics and weapons. He asked Lee if he would consent to a search of his car. Lee responded that Cline did not have probable cause or reason to suspect that he was transporting any illegal items, and that he would not consent to a search. Cline retorted, "I don't need your permission to search the car. I can get dogs in here and search it without your permission." Lee maintained his refusal to a consensual search, and Cline returned to his cruiser with Lee's license and registration.

While Lee was waiting in his car, he observed that Cline appeared to be talking on his handset radio and writing. After about 15 minutes, another patrol car arrived, apparently as back up. Cline got out of his car and talked with the officer for several minutes. During this time, Lee got out of his car because he was tired of just sitting there. About 30 seconds after he did so, Cline yelled at Lee to get back into his car. Lee complied. Eventually, the other officer left the scene.

After several more minutes, Maryland State Trooper Eric Fogle arrived with his dog, which was trained to detect narcotics. Cline again exited his cruiser and spoke with Fogle for a couple of minutes. Fogle approached Lee's vehicle, and asked Lee whether he had any drugs in the car. Lee said that he did not. Fogle and his dog then circled Lee's car. When the dog did not alert, Fogle returned to his car and left.

At that point, Cline returned to Lee's vehicle to deliver two warning citations involving the missing tag. After commenting that he could have ticketed Lee, Cline asked Lee to sign both citations. Lee did so, whereupon Cline returned his license and registration.

Lee proceeded directly to the nearby house of his grandmother, calling his wife along the way. When he arrived, his grandmother already had heard about the stop from someone who saw it. Lee told his cousin about the incident, and then later that day, called his attorney.

Cline does not have any independent recollection of Lee or the stop. A tape of the radio dispatch and other police department records, however, recorded the following:

15:11 Cline reported Lee's tag number and "requested a traffic on that vehicle." Cline testified at his deposition that it is his standard practice to report and request such information before he has pulled over a motorist.

15:13 Dispatch advised that the tag was valid and would expire in July 1994.

15:14 Cline asked the dispatcher to "locate a canine and start him my way." The dispatcher responded that there were no canine units available.

15:16 Dispatch advised that a State of Maryland canine unit was on I-270, near Route 109, and could respond. Cline asked the canine unit to be sent, stating, "I've got a suspect not being too cooperative. Already told me there's no way he's going to give me consent to search. Go ahead and start this way please." Cline then requested information on Lee's driving record and arrest warrant status.

15:17 Dispatch advised that Lee's license was valid, with no points or restrictions, and that Lee's wanted status was negative.

15:22 Officer Henry reported that he was on the scene as backup.

15:23 Cline asked for the "reporting district and beat" information necessary to complete traffic citations. At the same time, he asked for the canine unit's estimated time of arrival, commenting that he had almost finished his paperwork. Dispatch advised that the "ETA" was three minutes.

15:31 Trooper Fogle reported being on the scene. (The K-9 Unit Search Report shows arrival time as 15:30).

15:42 Cline reported that the stop was "cleared."

The Litigation

Alleging that he had been "detained, seized and searched pursuant to a `drug courier profile' and policy in practice ... which targets persons of the African American race," Lee filed suit in the Circuit Court for Frederick County. He sued Maryland State Trooper Eric Fogle, the Maryland State Police, Frederick County Sheriff James W. Hagy, Deputy Sheriff Gary Cline, and the County Commissioners of Frederick County. The circuit court dismissed Fogle because the state trooper was not alleged to be responsible for any unlawful detention, and the Maryland State Police because it concluded that Lee's notice of claim under the Maryland Tort Claims Act did not provide adequate notice of his claim against Fogle. Lee filed an amended complaint, asserting a federal civil rights cause of action under 42 U.S.C. section 1983, along with his state law claims for violation of his State constitutional rights, false imprisonment, invasion of privacy, intentional infliction of emotional distress, and negligence. The amended complaint did not name the State, which was Cline's employer for purposes of the Maryland Tort Claims Act, as a defendant.

The remaining defendants removed the case to federal court. After discovery, that court granted summary judgment for Hagy, who did not become sheriff until after this incident, and for the County Commissioners. In addition, the federal court granted summary judgment in favor of Cline on the section 1983 count. In a memorandum opinion, the court concluded that, although there were factual disputes regarding both the length of the stop and what occurred during the stop, there was insufficient evidence that Cline acted with the type of malice that can defeat a federal section 1983 claim.²

On remand to the circuit court, the remaining defendants were Cline and the County Commissioners. They jointly moved for summary judgment on all of the state law claims. At the conclusion of the summary judgment hearing, the circuit court granted Cline summary judgment on all claims, ruling that there had been no violation of Lee's constitutional rights; that Cline had qualified immunity under Md.Code (1974, 2002 Repl.Vol.), section 5-522(b) of the Courts & Judicial Proceedings Article ("CJ"); and that Lee had not overcome Cline's qualified immunity with evidence raising an inference of malice.

DISCUSSION

Lee offers four reasons for reversing the judgment in favor of Cline on all counts, which we restate in issue format as follows:

I. Did the circuit court err in holding that Lee did not produce sufficient evidence to create a factual dispute as to whether there was a constitutionally unjustified "second stop"?

II. Did the circuit court err in holding that, under section 5-522(b) of the Maryland Tort Claims Act, Cline had a qualified...