McPherson v. Balt. Police Dep't

Decision Date14 October 2020
Docket NumberCivil Case No. SAG-20-0795
Citation494 F.Supp.3d 269
Parties Kenneth MCPHERSON, et al., Plaintiffs, v. BALTIMORE POLICE DEPARTMENT, et al., Defendants.
CourtU.S. District Court — District of Maryland

Renee Spence, Pro Hac Vice, Gayle Horn, Loevy and Loevy, Chicago, IL, for Plaintiffs.

Kara K. Lynch, Natalie Rose Amato, Baltimore City Law Department, Baltimore, MD, Shneur Zalman Nathan, Nathan & Kamionski LLP, Chicago, IL, for Defendant Baltimore Police Department.

Shneur Zalman Nathan, Avi Kamionski, Nathan & Kamionski LLP, Chicago, IL, Judson Arnold, Nathan & Kamionski LLP, Baltimore, MD, for Defendants Detective Robert Patton, Detective Frank Barlow.


Stephanie A. Gallagher, United States District Judge

This case arises out of the arrest, prosecution, and conviction of Plaintiffs Kenneth McPherson and Eric Simmons (collectively, "Plaintiffs") for conspiracy to murder Anthony Wooden in 1984-1985. Plaintiffs’ convictions were vacated in 2019, after their attorneys and the Conviction Integrity Unit of the Baltimore City State's Attorney's Office filed a Joint Petition for Writ of Actual Innocence. On March 26, 2020, Plaintiffs filed a Complaint against the Baltimore Police Department ("BPD") and five named defendants who served as BPD detectives during the investigation of Wooden's murder, Robert Patton, Dave Neverdon, Frank Barlow, Richard Garvey, and "Detective Gilbert" (collectively, "the Officer Defendants"), along with "unknown employees of the Baltimore Police Department." BPD and the Officer Defendants have each filed Motions to Dismiss the Complaint ("the Motions"). ECF 21, 18 (respectively). The Court has reviewed each Motion, along with the related Oppositions and Replies thereto. See ECF 26, 29, 30. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the reasons that follow, the Motions will be granted in part and denied in part.


The following facts from the Complaint are accepted as true, and all reasonable inferences are drawn in Plaintiffs’ favor. See, e.g. , E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. , 637 F.3d 435, 440 (4th Cir. 2011). On August 31, 1994, near the intersection of North Washington Street and Federal Street in Baltimore City, a group of men approached Anthony Wooden from behind to rob him. ECF 1 ¶ 15. Wooden pulled out a gun, and he and the would-be robbers exchanged gunfire, resulting in Wooden's death. Id.

Defendant Patton served as the lead detective on the Wooden homicide, with Defendant Barlow as his partner. Id. ¶ 18. Defendants Patton, Neverdon, Barlow, and Garvey all arrived on the homicide scene, and the officers began to interview potential witnesses. Id. ¶ 19. "BPD Officer Defendants, including Defendants Barlow and Patton," interviewed Sandra Jackson, who described three black males encountering two other black males at the intersection, and provided detailed physical descriptions of the men. Id. ¶¶ 20, 21. Jackson expressed willingness to participate in a procedure to identify the suspects. Id. ¶ 22. Jackson told "the BPD Officer Defendants" that she believed one of the suspects had recently robbed her niece, and provided her niece's name and contact number to the officers. Id. ¶ 23.

Another witness, Crystal White, told "BPD Officer Defendants, including Defendant Barlow" that she observed the victim at Federal and Washington running north, before she heard shots and saw the victim fall. Id. ¶ 24. White saw two black men at the intersection just before the shooting started, and she was able to provide a description of one of the subjects. Id. ¶¶ 24, 25.

A woman named Diane Bailey, who lived just over a block away from the murder, approached the officers to tell them that she had overheard people discussing that Daniel Ellison and Nicholas Richards had intended to commit a robbery, and were involved in the shooting. Id. ¶¶ 27, 28. Bailey met with "BPD Officer Defendants, including Defendants Patton and Barlow," but the notes of the officers’ initial conversation with Bailey were not produced to Plaintiffs in discovery. Id. ¶ 29. "BPD Officer Defendants" arranged for Bailey to view a photographic line-up to identify people involved. Id. ¶ 30. The Complaint alleges that Bailey had previously served as an informant and had received financial benefits from the BPD in that context. Id. ¶ 32. According to Plaintiffs, because of Bailey's great financial need, she was susceptible to conforming her story to the officers’ wishes. Id. ¶ 32.

The "BPD Officer Defendants, including Defendant Patton" interviewed Bailey's daughter, Keisha Thompson, together with Bailey, instead of taking separate statements from the two women. Id. ¶ 34. As a result, Thompson provided identical information to that provided by Bailey. Id. ¶ 36. Thompson and Bailey identified Plaintiffs in a photographic lineup, along with Ellison and Richards, and a 13-year old named Marcus King, who was a known acquaintance of Ellison and Richards. Id. ¶ 37. The "BPD Officer Defendants then directed Ms. Bailey and her daughter Ms. Thompson to repeat their false identifications of Plaintiffs at a live line-up." Id. ¶ 38. Plaintiffs contend that the officers knew that Bailey and Thompson had not seen the shooting and were unable to make reliable identifications of the persons involved. Id. ¶ 39.

On September 6, 1994, BPD arrested Plaintiffs and Marcus King. Id. ¶ 41. Upon arrival at the police station, Marcus was handcuffed to a chair, placed in leg irons

, and interviewed with no parent present. Id. ¶¶ 42-45. Plaintiffs allege that Marcus's interviewers consisted of "the BPD Officer Defendants, including Defendants Patton and Barlow, alongside Trooper [First Class Jody] Ressin" of the Maryland State Police. Id. ¶ 50. Plaintiffs allege that the interviewing officers used "harsh interrogation tactics" and intimidation, and eventually "fed Marcus ‘facts’ about the crime" to procure a false statement implicating Plaintiffs. Id. ¶¶ 46-50. Marcus's initial statement that neither Plaintiff was involved was rejected by the interviewing officers, who "insisted that he give a different answer." Id. ¶¶ 51-52. By the end of the interrogation, "the BPD Officer Defendants, including Defendants Patton and Barlow, and Trooper Ressin succeeded in forcing Marcus to adopt a false statement that corroborated Ms. Bailey's statement." Id. ¶ 55.

In addition to knowingly manufacturing false evidence from Bailey, Thompson, and Marcus, the "BPD Officer Defendants" did not follow up on the witnesses who had actually witnessed the shooting: Jackson, White, and Martin. Id. ¶ 60. Plaintiffs allege that "the BPD Officer Defendants" failed to disclose the detailed descriptions Jackson had provided of the shooters to the prosecution or the defense, and did not disclose the existence of Jackson's niece as a potential source of relevant information. Id. ¶¶ 63-64.

Upon Plaintiffs’ arrest, they were taken to the police station, where they were questioned by officers including Defendants Patton, Barlow, Gilbert, and Garvey. Id. ¶ 65. Plaintiffs denied any participation in the crime. Id. ¶ 66. Ellison, who was also arrested on the same day, admitted to his participation in the murder and identified other persons involved, but affirmatively stated that Plaintiffs and Marcus were not involved. Id. ¶¶ 68-69. Nevertheless, after in-person line-up identifications from Bailey and Thompson, "the BPD Officer Defendants" submitted their evidence, including the identifications, to the Baltimore City State's Attorney's Office, which presented evidence to a grand jury and secured indictments of Plaintiffs. Id. ¶¶ 71-72.

In May, 1995, Marcus testified at Plaintiffs’ trial that neither he nor Plaintiffs had any involvement in the murder, but his prior statement to the officers during the coercive interview was introduced to corroborate Bailey's statement. Id. ¶ 74. Ultimately, the jury convicted Plaintiffs of conspiracy to murder Wooden, but acquitted them of the murder charge. Id. ¶¶ 73, 75. Plaintiffs received life sentences, despite continuing to maintain their innocence at their sentencing hearings. Id. ¶¶ 76-78.

Approximately twenty-four years later, on May 3, 2019, following investigation by the SAO's Conviction Integrity Unit, the Mid-Atlantic Innocence Project and the University of Baltimore School of Law's Innocence Project, the Circuit Court ordered a new trial for Plaintiffs, and the State of Maryland entered a nolle prosequi as to all charges. Id. ¶¶ 80, 81, 84-85.

This action followed. Plaintiffs contend that the Officer Defendants engaged in misconduct and actively pursued their wrongful convictions, in accordance with policies and practices maintained by BPD. Plaintiffs further contend that BPD failed to train, supervise and discipline its employees with respect to investigating crimes and disclosing exculpatory evidence. Plaintiffs seek recovery of compensatory damages, punitive damages, and reasonable attorneys’ fees based on eleven specific claims for relief. Count I alleges that the Officer Defendants deprived Plaintiffs of their Fourteenth Amendment right to due process, in violation of 42 U.S.C. § 1983. Id. ¶¶ 118-125. Count II asserts a federal claim for malicious prosecution against the Officer Defendants, also under § 1983. Id. ¶¶ 126-32. Count III alleges that the Officer Defendants violated Plaintiff's Fourth Amendment rights by detaining them without probable cause, in violation of § 1983. Id. ¶¶ 133-38. Count IV asserts that the Officer Defendants failed to intervene, in violation of § 1983. Id. ¶¶ 139-42. Count V once again cites § 1983, and charges a conspiracy to deprive constitutional rights against the Officer Defendants. Id. ¶¶ 143-49. Count VI asserts a claim against BPD, alleging its liability for the various constitutional violations described above, pursuant to Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Id. ¶¶ 150-54. Count VII, VIII,...

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