The Gun Trace Task Force was an elite unit within the Baltimore City Police Department tasked with getting illegal guns off the streets. But as a blockbuster federal investigation revealed, GTTF members were themselves criminals of the worst kind: crooked cops who conspired to terrorize the very same citizens they swore to protect and defend. Their misconduct was shocking even for a City accustomed to police scandals: suspicion-less stops and arrests, writing false police reports and fake search warrants, lying in court, planting evidence, beating detainees, robbing citizens, and on and on. Some measure of justice was achieved after the officers involved were convicted of federal conspiracy charges, but the battle to ensure appropriate compensation for the victims is ongoing. A recent decision by the Maryland Court of Appeals in two cases brought by GTTF victims represents an important victory in that battle.
In Baltimore City Police Department, et al. v. Ivan Potts, Misc. No. 6, September Term, 2019, and Mayor and City Council of Baltimore v. Estate of William James, No. 51, Sept. Term, 2019 (https://mdcourts.gov/data/opinions/coa/2020/6a19m.pdf), the Court considered whether Baltimore City and the Police Department should be forced to pay judgments against GTTF officers obtained by two victims, Ivan Potts and William James. The facts of their cases are egregious, but sadly typical of the crimes committed by the GTTF officers.
On September 2, 2015, Potts was walking home from the grocery store when three members of the GTTF exited an unmarked police car and stopped him. The officers had no basis to believe that Potts had committed any crime. Nonetheless, when Potts refused to consent to a search of his person, the officers became angry, slammed him to the ground, and beat him. The officers then handcuffed Potts and searched him, but found nothing illegal. The officers then tried to put a gun in Potts’s hand to get his fingerprints on it. When Potts resisted, the officer beat him again. The injuries inflicted on Potts were so severe that when the officers tried to book him, they were told that he had to be taken to the hospital for treatment first.
Following Potts’ arrest, the officers wrote false police reports stating that Potts was in possession of a handgun. Potts was then charged with handgun-related crimes, and convicted based on the officers’ false testimony about having found a handgun on him. Potts spent about year in prison before his conviction was vacated by state prosecutors.
On August 18, 2016, James’ car was stopped by three GTTF members. Neither James nor his girlfriend, who was a passenger in his car, had committed a crime. Taylor approached James’ car and said that he would let James go if James provided the name of a person who possessed guns or drugs. When James was unable to produce any names, the officers decided to frame him for possession of a handgun. James was arrested, charged with handgun-related crimes, and held without bail. After sitting in prison for seven months (during which time James lost his job and had his home go into foreclosure), the State dropped the charges.
Following their release from prison, Potts and James (“the plaintiffs”) filed lawsuits against the officers, the Police Department, and Baltimore City. Potts sued in federal court while James sued in state court. Both cases against the officers settled for identical sums of $32,000. The settlements gave the plaintiffs the right to attempt to collect the judgment from the City under a state law called the Local Government Tort Claims Act (“LGTCA”), which makes local governments liable “for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government.”
In James’ case, the state court determined that the officers were acting within the scope of their employment during their misconduct and on that basis found the City liable under the LGTCA. The City appealed and successfully petitioned the state’s highest court, the Maryland Court of Appeals, to hear the case directly. Meanwhile, in Potts’ federal case, the federal trial court sent a certified question of law to the Maryland Court of Appeals asking it to decide the same legal question presented in James’ case.
Thus, in both cases, the Court was tasked with answering the same question, namely, whether the officers were acting within the scope of their employment during their misconduct, such that the City and Police Department should be required to pay the judgments against them.
The Court of Appeals applied a two-part test to determine the City’s liability under the LGTCA, asking first whether the officers’ action “were in furtherance of” the City’s business, and second, whether the City “authorized” the officers’ action. The Court determined that both parts of the test had been satisfied, making the City responsible for paying the judgments against the officers.
On the first part of the test, the Court found that the officers’ actions were in furtherance of the Police Department’s business (and by extension, the City’s) “because they were at least partially motivated by a purpose to serve the Department,” and because there “was no indication that the officers were acting to protect their own interests.” The misconduct committed by the officers occurred during the course of ordinary police activities: stopping, searching, questioning, and arresting individuals; authoring police reports; and testifying at trials. Although the officers had no basis for stopping or arresting the plaintiffs, used excessive force, and planted evidence, the Court determined that these circumstances did not shield the City from liability where there was no indication that the officers were serving their personal interests, as opposed to the interests of the Police Department and City in making arrests. The lack of evidence that the officers were acting in their own interests also distinguished these cases from those that formed the basis for the federal conspiracy charges against the GTTF members. In the federal conspiracy cases, the officers seized cash, drugs, or other property from the people they stopped, and then kept some or all of the items for themselves, whereas in the plaintiffs’ cases, “the officers received nothing of value from Potts or James.”
Turning to the second part of the test, the Court acknowledged that the Police Department had not expressly authorized the officers’ misconduct, but it noted that their actions could still be considered authorized if the misconduct was “incidental to the performance of the duties” that the City had entrusted to the officers. The Court looked at ten factors to decide whether this standard had been met:
(1) whether the actions are commonly done by such employees;
(2) the time, place, and purpose of the actions;
(3) the previous relations between the employer and the employee;
(4) the extent to which the business of the employer is apportioned between different employees;
(5) whether the actions are outside the enterprise of the employer or, if within the enterprise, have not been entrusted to any employee;
(6) whether the employer has reason to expect that such actions will be done;
(7) the similarity in quality of the actions that were done to the actions that were authorized by the employer;
(8) whether or not the instrumentality by which the harm is done has been furnished by the employer to the employee;
(9) the extent of departure from the normal method of accomplishing an authorized result; and
(10) whether or not the actions are seriously criminal.
The Court concluded that the balance of these factors weighed in favor of a finding that the officers’ misconduct was “incidental” to the performance of the duties entrusted to them by the City, and should therefore be considered authorized. The Court pointed to six factors:
- the conduct was the type the officers were hired to routinely perform (making stops and arrests), and occurred while the officers were on duty and within their jurisdiction (factors 1 and 2);
- the officers at least appeared to have made gun arrests (however baseless they may have been), which was consistent with the responsibilities assigned to them as members of the GTTF (factor 4);
- the Police Department should have foreseen the misconduct in light of the officers’ involvement in a vast criminal conspiracy spanning more than two years (factor 6);
- the officers committed the misconduct while performing authorized actions (factor 7); and
- the officers committed the misconduct while wearing police uniforms and badges, and with the use of police equipment and vehicles (factor 8)
The Court also remarked that holding the City liable would be consistent with the LGTCA’s purposes of providing a remedy for citizens who are injured by local government employees, and ensuring that local governments bear the financial burden for such injuries. The Court cautioned, however, that it was “not issuing a blanket ruling” for all cases involving misconduct by former GTTF members. Rather, in future cases seeking to hold the City liable, courts “must engage in a case-specific analysis and take into account all relevant considerations.”
The Court’ decision is an important step forward in righting the wrongs committed by the GTTF. But the Court’s closing instruction that each case should be examined individually leaves room for the Police Department and City to attempt to distinguish other cases and avoid liability. As a result, each potential plaintiff’s case will need to be carefully reviewed to determine the best strategy for recovery. Silverman Thompson Slutkin & White’s team of skilled and experienced civil litigators are available to help. We have a demonstrated history of recovery on behalf of victims harmed by police misconduct and we are co-lead plaintiffs’ counsel in Burley, et al. v. Baltimore Police Dept., et al., Civil No. SAG-18-01743.