Meyers v. Balt. Cnty.

• Decision Date: 01 November 2013
• Docket Number: Civil Action No. ELH–10–0549.
• Citation: 981 F.Supp.2d 422
• Parties: William MEYERS, Sr., et al., Plaintiffs, v. BALTIMORE COUNTY, et al., Defendants.
• Court: U.S. District Court — District of Maryland

981 F.Supp.2d 422

William MEYERS, Sr., et al., Plaintiffs,

v.BALTIMORE COUNTY, et al., Defendants.

Civil Action No. ELH–10–0549.

United States District Court, D. Maryland.

Nov. 1, 2013.

Ted Justice Williams, Law Offices of Ted J. Williams, Gregory L. Lattimer, Law Offices of Gregory L. Lattimer PLLC, Washington, DC, for Plaintiffs.

Jordan V. Watts, Jr., Paul McLane Mayhew, Office of Law Baltimore County, Towson, MD, for Defendants.

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

Ryan Meyers (the “decedent” or “Ryan”) died in 2007, after he was repeatedly tased during the course of an arrest. In 2010, the decedent's parents, William Meyers, Sr. and Anna Mae Meyers, and his brother, William Meyers, Jr., as personal representative of Ryan's estate, filed suit against Baltimore County and three of its police officers, including Officer Stephen Mee. Plaintiffs alleged, inter alia, the use of excessive force, in violation of federal and Maryland law. See Complaint (ECF 1) and Amended Complaint (ECF 3, “Am. Compl.”).¹ Among the federal and state claims raised in the Amended Complaint, plaintiffs asserted in Count III a claim under 42 U.S.C. § 1983, predicated on defendants' alleged violation of the decedent's Fourth Amendment rights. Am. Compl. ¶¶ 31–37. In Count V, plaintiffs alleged that defendants' actions violated Articles 24 and 26 of the Maryland Declaration of Rights. Id. ¶¶ 42–45.

All four defendants moved for summary judgment. ECF 33. The motion was fully briefed and, after argument, Judge Benson Legg granted summary judgment on September 28, 2011. See ECF 45; see also Meyers v. Baltimore Cnty., Md., 814 F.Supp.2d 552 (D.Md.2011). In doing so, Judge Legg analyzed plaintiffs' claims under the Fourth Amendment. ECF 45 at 6. With respect to Officer Mee, Judge Legg found that the officer was entitled to the protection of qualified immunity.

Thereafter, plaintiffs noted an appeal to the Fourth Circuit. ECF 47. The Fourth Circuit focused on plaintiffs' Fourth Amendment claim, stating in a footnote that it need not address the legal standards applicable to the Maryland constitutional claims because plaintiffs did not address their State claims. See Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 730 n. 7 (4th Cir.2013). In a published opinion, the Fourth Circuit reversed Judge Legg's entry of summary judgment as to Officer Mee, and remanded the case to the trial court for further proceedings. See id. at 732–34;see also Memorandum to Counsel (ECF 55), at 1 (“Judge Legg's judgment in favor of Officers Romeo and Gaedke was affirmed in its entirety, and plaintiffs' claims against those officers are no longer viable.”).

As a result of Judge Legg's retirement, the case has been reassigned to me. Trial is scheduled for November 2013.

Following the remand, Officer Mee has asserted that plaintiffs are precluded from arguing at trial that different legal standards apply with respect to Count III, the Fourth Amendment excessive force claim, and Count V, the claim of excessive force under the Maryland Declaration of Rights. ECF 65 (“Mee Mem.”). In essence, Mee maintains that the defense of qualified immunity is available to him under both Maryland and federal law, because plaintiffs did not argue otherwise on appeal. In support of his argument, Mee cites the “law of the case” doctrine, the “mandate rule,” and principles of waiver. Id. at 2–4. Subsequently, in a Proposed Pretrial Order dated October 28, 2013, plaintiffs asserted, under the “mandate rule,” that, in light of the Fourth Circuit's opinion, Officer Mee is barred from raising any defense based on qualified immunity. See ECF 75 at 2.

For the reasons stated below, I conclude that plaintiffs have not waived their right to argue that, with respect to the Maryland constitutional claim, qualified immunity does not apply. I also conclude that Officer Mee is not precluded under the “mandate rule” from raising the defense of qualified immunity as to the federal claim of excessive force.

Procedural Background

Plaintiffs' Amended Complaint contains multiple counts: Count I (“Survival Act”); Count II (“Wrongful Death”); Count III (excessive force claim brought under 42 U.S.C. § 1983, alleging violation of the Fourth Amendment); Count IV (negligent training and supervision claim, brought against Baltimore County); Count V (Maryland constitutional claims for excessive force); and Count VI (negligence claim against Baltimore County). ²

Defendants moved to bifurcate, so as to proceed first with discovery and a trial on the claims brought against the individual defendants, and to stay discovery as to the “custom, policy, and practice” claims against Baltimore County until after completion of the first trial. See ECF 9, 9–1. Plaintiffs did not oppose the motion to bifurcate, ECF 11, which Judge Legg subsequently granted. ECF 32.

On December 21, 2010, defendants moved for summary judgment as to all claims. ECF 33. As Officer Mee notes, Mee Mem. at 1, defendants had argued:

Since there is no Fourth Amendment violation the plaintiffs' claims under the Maryland Declaration of Rights also fail. See, Richardson v. McGriff, 762 A.2d 48, 56 (Md.1999[2000] ) (federal case law interpreting the Fourth Amendment is controlling authority for excessive force claims under Article 26 of the Declaration of Rights because “we have long recognized that Article 26 is in pari materia with the Fourth Amendment.”).

ECF 33–1 at 33 n. 16. Further, defendants maintained that, “ ‘[i]f the court finds that Officer Mee violated the Fourth Amendment then he is still entitled to qualified immunity because such an interpretation of the law was not clearly established.’ ” Mee Mem. at 1 (quoting ECF 33–1 at 33). Defendants did not raise any state law immunity arguments in connection with their summary judgment motion.

In opposing defendants' motion for summary judgment, plaintiffs argued, among other things, that qualified immunity was unwarranted as a matter of law, given the facts of this case. See ECF 40 at 14–17. However, plaintiffs did not assert that, as a matter of Maryland law, qualified immunity is altogether inapplicable to state constitutional claims, such as the claims contained in Count V. As noted, in Count V plaintiffs alleged, inter alia, that Officer Mee violated Articles 24 and 26 of the Maryland Declaration of Rights in connection with Ryan Meyers's arrest and death. Id. ¶ 43. Further, they alleged that Baltimore County is liable for any Maryland constitutional violations committed by its police officers, on the basis of respondeat superior. Id. ¶ 44. In addition, Baltimore County is alleged to have violated Articles 24 and 26 by failing properly to train, discipline, and supervise its officers. Id. ¶¶ 43–45.

In granting summary judgment in favor of all defendants, Judge Legg did not differentiate between the federal and Maryland constitutional claims. The analysis began by observing: “Each of the Plaintiffs' claims rests on the existence of a single underlying wrong, the use of excessive force to effect a seizure in violation of Ryan Meyers's Fourth Amendment rights.” Meyers, 814 F.Supp.2d at 557. Applying a Fourth Amendment standard, Judge Legg concluded that Officer Mee's conduct in administering the first three tases was objectively reasonable. Id. at 559–60. The court further concluded that, although the last six “stun mode” tases could not be deemed objectively reasonableas a matter of law, Officer Mee was nonetheless entitled to qualified immunity. Id. at 560–61.

On appeal, plaintiffs argued, inter alia, that the force used against Ryan Meyers was unreasonable and excessive, and that the officers were not entitled to qualified immunity. See Brief of the Appellants, March 26, 2012, 4th Cir. Case No. 11–2192, ECF 21 at 15–32. But, plaintiffs did not argue that Judge Legg erred with respect to Count V, on the ground that qualified immunity is not available as a defense to a Maryland constitutional claim. The Fourth Circuit thus focused solely on plaintiffs' Fourth Amendment claim under 42 U.S.C. § 1983. In a footnote, 713 F.3d at 730 n. 7, the Fourth Circuit said:

In conducting its analysis, the district court did not consider separately the plaintiffs' federal and state law claims, stating that “[e]ach of the [p]laintiffs' claims rests on the existence of a single underlying wrong, the use of excessive force to effect a seizure in violation of [Ryan's] Fourth Amendment rights.” 814 F.Supp.2d at 557. The plaintiffs do not argue on appeal that the district court erred in construing their complaint in this manner or in conducting a single analysis of their federal and state law claims. Accordingly, our analysis focuses solely on whether the officers' conduct violated Ryan's Fourth Amendment rights. To the extent that the doctrine of qualified immunity does not shield a state official from liability for alleged violations of the Constitution of Maryland, see Okwa v. Harper, 360 Md. 161, 757 A.2d 118, 140 (2000), or that any of the claims arising under Maryland law require a different analysis than the plaintiffs' Section 1983 claim, those issues have not been raised by the plaintiffs, and, accordingly, are waived for purposes of this appeal. See United States v. Hudson, 673 F.3d 263, 268 (4th Cir.2012) (issues not raised in opening brief are waived).

The Fourth Circuit reversed and remanded and, as noted, the case was reassigned to me. On March 11, 2013, the parties submitted a status report noting their disagreement on the law applicable to the Maryland constitutional claims raised in Count V. See ECF 59. In a letter dated March 22, 2013, I asked counsel to brief the issue of whether, under the law of the case or waiver, Count V is subject to the same legal analysis as the Fourth Amendment claim contained in Count III. ECF 60.³ Officer Mee submitted a memorandum on August 23, 2013 (ECF 65, “Mee Mem.”), and plaintiffs responded on September 13, 2013 (ECF 69, “Pla. Mem...