Rich v. Hersl

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
PartiesERIC RICH, Plaintiff v. DANIEL HERSL, et al., Defendants.
Docket NumberCivil Action No. ELH-20-488
Decision Date24 June 2021

ERIC RICH, Plaintiff
DANIEL HERSL, et al., Defendants.

Civil Action No. ELH-20-488


June 24, 2021


This civil rights case is rooted in the conduct of members of the now defunct and disgraced Gun Trace Task Force ("GTTF"), a unit within the Baltimore City Police Department ("BPD").

Plaintiff Eric Rich filed suit against a host of defendants on February 24, 2020, with respect to an incident that occurred in 2007. ECF 1. He also included several exhibits. Thereafter, on September 29, 2020, Rich filed an Amended Complaint (ECF 17), again supported by exhibits. The Amended Complaint names numerous defendants, including the BPD and former BPD officer Daniel Hersl. Id. ¶¶ 2, 3. In addition, Mr. Rich has sued former Major Keith Tiedemann, former Major Nathan Warfield, former Chief Grayling Williams, former Chief Rodney Hill, and former Major Ian Dombroski, each of whom previously led BPD's Internal Affairs Division ("Internal Affairs"), as well as Major Stephanie Lansey-Delgado, who currently leads that division (collectively, the "IA Defendants"). Id. ¶¶ 9-11. Further, Mr. Rich has sued the current BPD Commissioner, Michael S. Harrison, as well as six former commissioners of the BPD: Frederick Bealefeld, Leonard Hamm, Anthony Batts, Kevin Davis, Darryl De Sousa,1 and Gary Tuggle

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(collectively, the "Commissioner Defendants"). Id. ¶¶ 15-18. The individual defendants have been sued in their individual and official capacities.

Taking a "kitchen sink" approach, the Amended Complaint contains eleven counts, seeking both compensatory and punitive damages. The counts are summarized below, see id. at 23-37:2

• Count I (against Hersl) — "Illegal Arrest," in violation of Fourth and Fourteenth Amendments to the Constitution, pursuant to 42 U.S.C. §§ 1983, 1985, 1988;

• Count II (against Hersl) — "False Imprisonment," in violation of Fourth and Fourteenth Amendments, pursuant to §§ 1983, 1985, 1988;

• Count III (against Hersl) — "Malicious Prosecution," in violation of Fourth and Fourteenth Amendments, pursuant to §§ 1983, 1985, 1988;

• Count IV (against Hersl) — violation of Article 24 of the Maryland Declaration of Rights;

• Count V (against all defendants) — "Civil Conspiracy," pursuant to §§ 1983, 1985;

• Count VI (against all defendants) — "Aider & Abettor," pursuant to §§ 1983, 1985;

• Count VII (against BPD and the Commissioner Defendants) — "Unconstitutional Custom or Practice of Unlawful Arrest and Improper Use of Police Powers," pursuant to §§ 1983, 1985;

• Count VIII (against BPD and the Commissioner Defendants) — "Inadequate Training," pursuant to §§ 1983, 1985;

• Count IX (against BPD, the Commissioner Defendants, and the IA Defendants) — "Failure to Supervise," pursuant to §§ 1983, 1985;

• Count X (against all defendants) — "Violation of RICO Act," pursuant to 18 U.S.C. § 1962;

• Count XI (against all defendants) — "Conspiracy to Violate RICO Act," pursuant to 18 U.S.C. § 1962.

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BPD, Commissioner Bealefeld, and Major Warfield moved to dismiss the Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) (ECF 25), supported by a memorandum of law. ECF 25-1 (collectively, the "Motion"). At the time they submitted the Motion, the remaining defendants had not yet been served. ECF 25-1 at 4 n.1. But, they argue for dismissal of the suit as to all defendants. Id. at 5 n.3. Plaintiff opposed the Motion. The defendants who filed the Motion replied. ECF 27.

Thereafter, all of the remaining defendants, other than Hersl, filed a motion to dismiss, joining the arguments made in the Motion. ECF 39 (the "Supplemental Motion"). I shall refer to the Motion and the Supplemental Motion collectively as the "Motions." In his opposition to the Supplemental Motion, plaintiff incorporated by reference all of his arguments set forth in his opposition to the Motion. ECF 40.

Hersl did not join either motion. He answered the suit on February 2, 2021. ECF 41.

No hearing is necessary to resolve the Motions. Local Rule 105.6. For the reasons that follow, I conclude that plaintiff's civil rights claims are time-barred and thus subject to dismissal. But, defendants have not persuaded me, at this stage, that the RICO claims likewise warrant dismissal. Therefore, I shall grant the Motions in part and deny them in part.

I. Background3
A. Officer Hersl

In late September 2007, Hersl, then a BPD officer, "threatened to plant a gun" on Mr. Rich. ECF 17, ¶ 99. At a subsequent, unspecified time, plaintiff filed a complaint about the incident with Internal Affairs. Id.

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On October 2, 2007, about one week after plaintiff's initial encounter with Hersl, plaintiff was arrested by Hersl and another BPD officer, Calvin Moss. Id. ¶ 95.4 They "alleged Plaintiff was in possession of a Llama 9mm handgun." Id. ¶ 96. "Due to a prior conviction, Plaintiff was prohibited from possessing a handgun." Id. ¶ 98. Therefore, he was charged in "Maryland District Court" with "possessing an unregistered firearm," id. ¶ 96, and incarcerated pending trial. Id. ¶ 97. Thereafter, he was indicted on seven charges filed in the Circuit Court for Baltimore City, including possession of a firearm by a convicted felon. Id. ¶ 98.5

On March 20, 2008, Mr. Rich was indicted on federal charges stemming from the arrest of October 2, 2007. Id. ¶ 101; see United States v. Rich, RDB-08-131.6 Rich remained detained pending trial in federal court. ECF 17, ¶ 102. As a result of the federal charges, on April 23, 2008, the State of Maryland entered a nolle prosequi as to the State charges. Id. ¶ 103.

In June 2008, defense counsel in the federal case filed a motion to compel the production of "Internal Investigation Division Files." Id. ¶ 104. Plaintiff does not specify the person whose files were sought, but presumably the files pertained to Hersl.

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Hersl, a former member of the GTTF, was the subject of more than twenty-nine Internal Affairs complaints and investigations over several years. See id. ¶¶ 84-87. These complaints were no secret. For example, according to a newspaper article referenced in the Amended Complaint, a local defense attorney sent then-BPD Commissioner Hamm a letter in 2006 about various allegations lodged by citizens against Hersl. See id. ¶ 85 (referencing Gregory Kane, Unreturned warrants indicate a bigger issue, Baltimore Sun (Apr. 15, 2006), (last visited May 18, 2021)).

In 2008, a criminal prosecution "was dropped" after Hersl's "lengthy Internal Affairs file was disclosed to the jurors." Id. ¶ 86. Hersl was also named in multiple civil lawsuits stemming from instances of his misconduct. For example, he was sued for "falsely arrest[ing] a woman . . . selling church raffle tickets"; breaking someone's arm while "search[ing] for another individual" in a store; and breaking the jaw and nose of a man whom he charged with drug possession. Id. ¶ 87.

In United States v. Rich, United States District Judge Richard Bennett granted the motion to compel, in part, on June 6, 2008. Id. ¶ 105. Following review by the government of the files that were produced, the government dismissed the indictment, with prejudice, on June 9, 2008. Id. ¶ 106. Plaintiff was then released from incarceration. Id.

B. Other Allegations

According to the Amended Complaint, the IA Defendants and the Commissioner Defendants were long aware of illegal conduct by members of the BPD in the course of their employment. Id. ¶ 29. Among other things, police misconduct was the subject of various news articles. See, e.g., id. ¶¶ 85-88. And, of relevance here, plaintiff claims that the IA Defendants

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and the Commissioner Defendants knew of Hersl's "Longstanding Misconduct," id. at 17, and the consistent "mishandling of Internal Affairs." Id. ¶ 89.

Further, the Amended Complaint sets forth allegations regarding failure to train and failure to investigate and/or discipline BPD members for their misconduct. In addition, plaintiff includes factual allegations of misconduct by members of the GTTF, other than Hersl, as well as the subsequent federal prosecutions of various GTTF members. Id. ¶¶ 33-83.

I need not recite all of these factual allegations, because they are not necessary to the resolution of the motions. But, some context is helpful.

1. The GTTF Generally

In the Amended Complaint, Mr. Rich alleges various acts of misconduct by former members of the GTTF, other than Officer Hersl. See id. ¶¶ 33-42, 89, 93.

Some of these allegations pertain to former GTTF officer Jemell Rayam.7 In June 2009, Rayam and officers Jason Giordano and Michael Sylvester, all in plain clothes, stopped Gary Brown in his vehicle. Id. ¶¶ 33-35. During the stop, the officers took over $11,000 in cash from Brown's vehicle, which Brown had obtained from "a 'cash out'" of the equity on his home. Id. ¶ 36. The officers also "threatened [Brown] with unlawful police actions," including "executing fraudulent search warrants on his house." Id. ¶ 37. A few days later, Brown lodged a complaint with BPD regarding the incident. Id. He also "took and passed a polygraph examination." Id. ¶ 38. Rayam and Giordano were subjected to such an examination, too. The results indicated "a greater than 99% chance that they were being deceptive" as to what had transpired. Id. ¶ 42.

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Nevertheless, the Baltimore City State's Attorney's Office ("SAO") declined to pursue charges against the officers. Id. ¶ 41.

The Amended Complaint describes another instance in which the BPD failed to investigate reports of Rayam's misconduct. Id. ¶ 44. In 2015, Rayam testified at a "Franks Hearing" in the Circuit Court for Baltimore City against Gary Clayton, a criminal defendant who had been investigated by the GTTF. See id. ¶ 47. The judge found that Rayam was not a credible witness and that he made "numerous factual misrepresentations." Id. Thereafter, the SAO sent a memo to the chief...

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