Bailey v. City of Annapolis

James E. Bailey v. City of Annapolis, et al., No. 2311, September Term, 2019. Opinion by
Adkins, Sally D., J.
IMMUNITY—PUBLIC OFFICIAL IMMUNITY—DISCRETIONARY VERSUS
MINISTERIAL DUTIES: Police officers are entitled to common law public official
immunity for discretionary acts done without malice. When an officer acts on the
obedience of orders without any room for personal judgment or discretion, the action is
ministerial, and thus not protected by public official immunity. Here, a police officer acted
in a ministerial capacity when applying for a new, corrected warrant based on specific
direction to do so by a judge. Under these circumstances, he was not entitled to public
official immunity.
TORT—GROSS NEGLIGENCE—PLEADINGS: Gross negligence is an intentional
failure to perform a manifest duty in reckless disregard of the consequences as affecting
the life or property of another. A claim of gross negligence does not arise from allegations
of negligence without meeting the higher standard for gross negligence. The facts alleged
here did not state a cause of action for gross negligence.
Circuit Court for Anne Arundel County
Case No. C-02-CV-18-002768
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2311
September Term, 2019
______________________________________
JAMES E. BAILEY
v.
CITY OF ANNAPOLIS, et al.
______________________________________
Reed,
Beachley,
Adkins, Sally D.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Adkins, Sally D., J.
______________________________________
Filed: September 1, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-09-07
13:26-04:00
Suzanne C. Johnson, Clerk
James Elmer Bailey was twice arrested—based on two separate warrants—for a
crime he did not commit. The suspect just happened to share his name and date of birth.
After the second arrest, Bailey filed suit against Sergeant Christopher Kintop, the officer
who applied for both warrants. He also filed suit against Jamekica Mackall, Kathleen
Buchanan, and Britney Lane, police personnel involved at varying levels, as well as the
City of Annapolis (collectively “Appellees”). The circuit court dismissed some charges
and granted summary judgment against Bailey on the rest.
Bailey presented us with three questions,1 which we rephrased and separated:
1. Did the circuit court err by dismissing the malicious
prosecution claims against Kintop?
1
Bailey’s questions are as follows:
1. Whether the Court erred as a matter of law in granting
Defendants City of Annapolis, Kintop, Buchanan, Lane and
Mackall’s Motion to Dismiss Count VIII (Malicious
Prosecution), Count IX (Gross Negligence), Count X
(Gross Negligence), Count XI (Gross Negligence), and
Count XII (Gross Negligence), where Appellant’s Second
Amended Complaint fully stated facts, amounting to
legally sufficient causes of action, for which relief may be
granted.
2. Whether the Court erred in granting Defendants City of
Annapolis’ and Kintop’s Motion for Summary Judgment as
to Count I (Negligence) through the application of Public
Official Immunity when Sgt. Kintop’s actions were all
ministerial in nature.
3. Whether the Court erred in granting Defendants City of
Annapolis, Buchanan, and Mackall’s Motion for Summary
Judgment as to Count II (Negligence) and Count III
(Negligence) through finding that Ms. Buchanan and Ms.
Mackall did not owe Mr. Bailey a private duty in tort.
2. Did the circuit court err by dismissing the gross
negligence claims against Kintop, Buchanan, Mackall,
and Lane?
3. Did the circuit court err by granting summary judgment
on the negligence claim against Kintop by applying
public official immunity?
4. Did the circuit court err by granting summary judgment
on the negligence claims against Buchanan and Mackall
by finding that they did not owe a duty to Bailey?
For the reasons that follow, we affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
The First Warrant
On March 14, 2007, a man assaulted Kimberly Sharper in Annapolis, injuring her
eye. She went to the Anne Arundel Medical Center two days later to seek treatment.
Kintop interviewed her about the incident on March 16, 2007. Sharper knew her assailant;
she told Kintop that James Elmer Bailey assaulted her. She described him as a Black male
born on October 15, 1962, approximately 5’5” and 145 pounds, living at 26 College Creek
Terrace in Annapolis.
Kintop prepared an incident report and filed an application for statement of charges
within a few days. After consulting with dispatch on height and weight, Kintop described
the suspect2 (hereinafter “Suspect Bailey”) on the application as a 6’3” Black male
weighing 195 pounds. He assumed Sharper was confused, and explained the discrepancy
2
We refer to this James Elmer Bailey as “Suspect Bailey” only to differentiate him
from the plaintiff/appellant in this case. We intend to make no suggestion about his guilt
or innocence of the crime alleged.
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in a later deposition that “a description given by a witness may not be accurate on height
and weight.”
Little did he know that there were two people named James Elmer Bailey born on
October 15, 1962, living in the Annapolis area. The court issued a warrant on March 23,
2007 (“2007 Warrant”). A police dispatcher who entered the warrant into the National
Crime Information Center (“NCIC”) database informed Kintop that there was only one
James Elmer Bailey—and he was white. Later, Kintop initialed the warrant to change the
suspect’s race to white, believing that Sharper was once again mistaken.
In July 2010, Annapolis City Police Officers arrested Bailey at his home in
Edgewater. Bailey insisted that he was not the right person—he had been mistaken for
Suspect Bailey in the past due to their date of birth and name. Back at the station, an officer
quickly realized that they had the wrong Bailey after looking at the warrant file. The
department released him shortly after.
Bailey filed suit against Kintop and the officers involved in November 2011. The
parties went to trial on February 19, 2013. The court held the civil suit for deliberation, 3
but on the day of its trial, expressed its desire for the administrative commissioner to strike
the 2007 Warrant and reissue a new, correct warrant with Suspect Bailey’s information.
3
The court issued its order from the February 2013 trial on March 10, 2014. It
found that Bailey’s federal and state constitutional rights were violated and awarded Bailey
$4,500 in damages.
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The Second Warrant
On the very same day as trial, Kintop filed a new application for statement of
charges using the correct height, weight, and race of Suspect Bailey. The district court
issued a warrant later that evening (“2013 Warrant”).
About three years went by; the mishap appeared to be over. In 2016, Mackall
entered the warrant for Suspect Bailey into the NCIC database. To do so, Mackall had to
“find identifiers”—“[n]ame, date of birth, two identifiers is all you needed.” According to
her testimony, Mackall “look[s] for the warrant itself on the computer” in their in-house
record system, InPursuit. Then, she “click[s] on the name and it pops up” and she verifies
the “name and date of birth” of the individual. While InPursuit has other information, “the
only part that [she] really check[s] is . . . the name, date of birth, the address.”
When Mackall entered the information into the NCIC database, she verified “[h]is
name and date of birth.” To her recollection, there were no notes or special instructions;
she did not see the 2007 Warrant or any reference to it. Because the 2013 Warrant was
already in InPursuit, she “didn’t have to look for” anything else. She then went into the
Motor Vehicle Administration (“MVA”) records and entered “the name and date of birth.”
Only one Bailey came up—and it was not Suspect Bailey. She entered the MVA records
into the NCIC database in connection with the warrant. Once Mackall finished entering
the information, she “made a packet, because it [had] to have all the information to go with
the warrant, and [she] gave it to [her] supervisor,” Buchanan.
Buchanan reviewed the information for the 2013 Warrant. Buchanan looked over
the packet Mackall gave her to verify the name and date of birth. Satisfied that the “name
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and the date of birth matched,” Buchanan “never gave James Elmer Bailey another
thought[.]”
The 2013 Warrant, unfortunately, gave Bailey more than another thought. On April
21, 2017, Maryland Transportation Authority officers stopped Bailey on the Bay Bridge.
The officers notified him that “he had been stopped because there was an active warrant
for his arrest[.]” Bailey insisted that he was not the person described in the warrant—
emphasizing the stark differences in physical appearances between the two James Elmer
Baileys. The officers called the Annapolis Police Department to verify the validity of the
warrant, and Lane confirmed that the warrant was still active and faxed it over. Officers
proceeded to arrest Bailey, transport him to the Maryland Transportation Authority, and
place him in a holding cell.
One of the officers who detained Bailey was confused about the warrant—he
noticed that it was for a Black male, and Bailey was white. He called Lane back, asking
about the discrepancy. Lane contacted Kintop, who told her that if the detainee was white,
they had the wrong James Elmer Bailey. She then explained the discrepancy to the officers
at the Maryland Transportation Authority and told them to release him.
Bailey provided notice to the City of Annapolis and State of Maryland of his claims
under the Local Government Tort Claims Act and the Maryland Tort Claims Act. The
Maryland Treasurer and Annapolis both promptly denied his claims after investigation.
Bailey filed suit in September 2018. The trial court dismissed eight of Bailey’s twelve
counts in June 2019, and granted summary judgment against Bailey on the other four in
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January 2020. This appeal followed, challenging both the dismissals and grants of
summary judgment.
STANDARD OF REVIEW
When reviewing the grant of a motion to dismiss, our standard of review is whether
the trial court was legally correct: “we must determine whether the complaint, on its face,
discloses a legally sufficient cause of action. In reviewing the complaint, we must presume
the truth of all well-pleaded facts in the complaint, along with any reasonable inferences
derived therefrom.” Schisler v. State, 177 Md. App. 731, 742–43 (2007) (cleaned up).
When reviewing the grant of a motion for summary judgment, we “focus on whether
the trial court’s grant of the motion was legally correct.” Laing v. Volkswagen of America,
Inc., 180 Md. App. 136, 152–53 (2008). We analyze “whether a fair[-]minded jury could
find for the plaintiff in light of the pleadings and the evidence presented, and there must be
more than a scintilla of evidence in order to proceed to trial.” Id. at 153 (cleaned up). In a
situation where “the facts are susceptible to more than one inference, [we] must view the
inferences in the light most favorable to the non-moving party.” Id.DISCUSSION
Malicious Prosecution
Bailey argues that the circuit court erred by dismissing his claim of malicious
prosecution against Kintop because he properly asserted a legally sufficient cause of action.
Appellees respond that Bailey failed to state a claim for malicious prosecution because
criminal proceedings were never instituted against him personally.
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A claim for malicious prosecution requires: “1) a criminal proceeding instituted or
continued by the defendant against the plaintiff; 2) without probable cause; 3) with malice,
or with a motive other than to bring the offender to justice; and 4) termination of the
proceeding in favor of the plaintiff.” Candelero v. Cole, 152 Md. App. 190, 199 (2003)
(cleaned up). Bailey argues that Kintop instituted and continued proceedings against him.
Appellees respond that Bailey failed to sufficiently plead “that he was the subject of the
2013 Arrest Warrant.”
To address these contentions properly, we look at malicious prosecution in more
depth. Malicious prosecution is distinguished from other related torts, such as false arrest
and false imprisonment, by the actions underlying the claim:
Traditionally at common law, actions of malicious prosecution
and false imprisonment have been directed at different
interests. “False imprisonment is the invasion of the interest in
freedom from unlawful confinement, while a malicious
prosecution is the unlawful use of legal procedure to bring
about a legal confinement.”
Montgomery Ward v. Wilson, 339 Md. 701, 723–24 (1995) (emphasis added) (citing
Harper, James & Gray, The Law of Torts § 3.9 at 297 (2d ed. 1986)).
The focus is on the unlawful use of procedure: “[a] person who procures a facially
valid warrant for another’s arrest thereby initiates legal process against the person to be
arrested.” Wilson, 339 Md. at 724 (emphasis added). “[F]alsely procuring an arrest
through wrongfully obtaining a warrant is ordinarily malicious prosecution.” Id. The
Wilson court detailed the claim further:
[A] malicious prosecution action against [a] third party will lie
if the [third party] acted out of malice, i.e., acted from a
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wrongful or improper motive [while wrongfully procuring a
warrant]. Furthermore, if in this situation there was no malice,
but the third party procured the warrant as a result of
negligence, the wrongfully arrested plaintiff may recover
damages from the procurer in an action for negligence.
Id. at 727.
Improperly obtained warrants are a common theme in successful malicious
prosecution claims. See, e.g., First Nat’l. Bank of St. Mary’s v. Todd, 283 Md. 251, 254
(1978) (after a bank failed to hold a check as agreed, the bank obtained a warrant against
the check drawer for insufficient funds); Zablonsky v. Perkins, 230 Md. 365, 366–70 (1963)
(a defendant obtained a warrant against a plaintiff renting his performance space following
the disappearance of equipment, despite having insufficient grounds to believe the plaintiff
stole the equipment); Glover v. Fleming, 36 Md. App. 381, 382–85 (1977) (a company
official applied for a warrant for an employee without sufficient evidence); Derby v.
Jenkins, 32 Md. App. 386, 387–89 (1976) (a party obtained a warrant for larceny against
his family members, who were merely retrieving their lawfully owned possessions).
Claims can also stem from the actions of police officers during their investigations. See,
e.g., Prince George’s Cnty. v. Longtin, 419 Md. 450, 460–64 (2011) (officers continued to
imprison and investigate a party after discovering and failing to disclose exculpatory
evidence, as well as misconstruing his responses in a statement of probable cause).
The initial issue before us—whether a proceeding was instituted against Bailey after
his arrest for a warrant appearing to identify someone else—is not one we have directly
addressed in Maryland. A court in Georgia considered a similar situation in Wilson v.
Bonner, 303 S.E.2d 134 (Ga. App. 1983). There, a clerk at K-Mart accepted a check from
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an individual named Joyce Wilson; the check was subsequently not honored by the bank
“because no such account existed at the time [it was] presented for payment.” Id. at 137.
Parties from K-Mart then obtained a warrant for the arrest of Joyce Wilson for passing a
bad check. Id. The warrant used the address printed on the fraudulent check. Id. at 137–
38.
The appellant, also named Joyce Wilson, was not a resident of the address on the
warrant. Id. at 138. She was arrested at a different location. Id. After she was released
from jail, the parties from K-Mart “received certain information which, for the first time as
to them, raised the question of whether appellant was in fact the Joyce Wilson who had
passed the bad checks.” Id. (emphasis in original). The solicitor’s office still prepared
charges against the appellant; which were eventually dropped because of Wilson’s
mistaken identity. Id.Wilson sued for malicious prosecution. Id. The Court of Appeals of Georgia held
that “the original warrants obtained by appellee-K-Mart and appellee-Lionel for the arrest
of Joyce Wilson cannot serve as the basis for appellant’s malicious prosecution action.”
Id. The Bonner Court further differentiated the claim:
This is an action for malicious prosecution. It involves
mistaken identity. The evidence is uncontradicted that there
never was a warrant issued for the arrest of the plaintiff in this
case. The fact that the defendants, with probable cause,
obtained a warrant meant for another person having the
identical name of plaintiff cannot be expanded to infer that the
defendant[s] intended maliciously for just any person of that
name or this plaintiff to be prosecuted for the offense.
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Id. (emphasis in original) (quoting Massey Stores v. Reeves, 141 S.E.2d 227, 228 (Ga. App.
1985)). Further, because “the uncontradicted evidence shows that there never was a
warrant sworn out charging this appellant, the plaintiff in this case, with passing bad
checks, it follows that as to her there was no warrant.” Bonner, 303 S.E.2d at 138 (cleaned
up). The Bonner Court relied on cases holding “a suit for malicious prosecution will not
lie against a prosecutor where there was in fact no warrant at all issued on the prosecutor’s
accusation for the arrest of the person of the plaintiff bringing the action.” Id. (citing
Massey Stores, 141 S.E.2d at 230).
We consider Bonner analogous. The 2013 Warrant specifically named Suspect
Bailey and included Suspect Bailey’s name, date of birth, height, weight, race, and last
known address. Like the appellant in Bonner, Bailey shared the same name as the subject
of the warrant. Bailey even shared the same date of birth. But this warrant was void as to
Bailey: Bailey became connected to the warrant by a clerical mistake, not by a purposeful
prosecution. This was an unfortunate case of mistaken identity. For all intents and
purposes, Kintop applied for a valid warrant for Suspect Bailey. We see no purposeful
action by Kintop to institute legal proceedings against this James Elmer Bailey, or any
intent to facilitate his arrest. See Wilson, 339 Md. at 724 (quoting Harper, James, & Gray,
supra, at 297) (“[A] malicious prosecution is the unlawful use of legal procedure to bring
about a legal confinement.”). Shortly after Bailey was arrested in 2017, Kintop confirmed
that Bailey was not the subject of the warrant. Kintop initiated legal process against
Suspect Bailey—the true subject of the warrant.
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There was no proceeding instituted or continued against Bailey from his arrest in
2017. The Maryland Transportation Authority officers released Bailey as soon as they
discovered he was not the subject of the warrant. Bailey was not formally charged, nor
was he brought before a court on Suspect Bailey’s charges. Bailey was mistakenly arrested
based on a warrant for someone else with the same name and date of birth—the actual
person Kintop instituted proceedings against. Thus, there were no proceedings ever
instituted or continued against this James Elmer Bailey. We affirm the trial court as to the
count for malicious prosecution.
Gross Negligence
Bailey asserts that the court erred by dismissing his claims for gross negligence
against Appellees because he sufficiently pleaded reckless disregard for the accuracy of
the information in the 2013 Warrant’s application. He also asserts that the amended
complaint was sufficient to show actual malice and intent to do harm. Appellees respond
that Bailey’s claims fall short, and that his amended complaint fell short because his claim
of gross negligence was based on mere conclusory allegations.
Gross negligence is “an intentional failure to perform a manifest duty in reckless
disregard of the consequences as affecting the life or property of another, and also implies
a thoughtless disregard of the consequences without the exertion of any effort to avoid
them.” Howard v. Crumlin, 239 Md. App. 515, 529 (2018) (cleaned up). A party “is guilty
of gross negligence or acts wantonly and willfully only when he [or she] inflicts injury
intentionally or is so utterly indifferent to the rights of others that he [or she] acts as if such
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rights did not exist.” Id. The consequences must still be foreseeable: “[o]ne cannot act in
reckless disregard of consequences of which she or he is unaware.” Id.The Court of Appeals addressed gross negligence in the context of law enforcement
officers in Barbre v. Pope, 402 Md. 157 (2007). Deputy Sheriff Mark Barbre tried to stop
a truck driven by Andrew Pope, III for an apparent traffic violation. Id. at 162–63. Pope
declined to stop, and Barbre followed Pope all the way to his home, where Pope eventually
exited his vehicle and “raised his hands in surrender.” Id. at 163. Despite his signal of
defeat, “Barbre approached Pope with his gun drawn and fired a single shot, striking Pope
in the neck.” Id. Pope, who was paralyzed as a result of the shot, sued Barbre for gross
negligence, among other things. The Court of Appeals analyzed whether Pope “presented
sufficient allegations of gross negligence” to defeat Barbre’s immunity defense. Id. at 187.
It held that because “Barbre ordered Pope, who was unarmed, to raise his hands and that
after Pope complied with the request, Barbre approached with his gun drawn and shot him
in the neck, [the evidence] could support an inference that Barbre acted grossly negligent.”
Id. at 190. This action by Barbre, on its face, was unexplainable in light of the obvious risk
of bodily injury to Pope from Barbre’s gun and readily met the reckless disregard standard
for gross negligence.
The Court of Appeals revisited gross negligence in the law enforcement context
again in Cooper v. Rodriguez, 443 Md. 680 (2015):
This case concerns the brutal murder of an inmate [Philip
Parker, Jr.] by another inmate during a ride on a prison
transport bus that was staffed by five correctional officers. At
core, the issue is whether the correctional officer who was in
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charge of the bus was grossly negligent and, if so, whether he
is entitled to common law public official immunity.
Id. at 686. In the events preceding the murder, prison officials transported four prisoners
to a sentencing hearing: Kevin Johns, the subject of the hearing, and three inmates, one
being Parker, testifying on his behalf. Id. at 688. The court sentenced Johns to life without
parole for murdering his cellmate. Id. Multiple officers heard Johns remark on that day
that “the killing has just begun.” Id. at 689.
On the way back, the prisoners boarded a State-owned prison bus, which was
modified to have secured compartments and give officers better views of the interior of the
bus. Id. at 689–90. Thirty-two other inmates joined the passengers on the bus, which had
five total officers on board. Id. at 690. In a violation of the Maryland Department of Public
Safety and Correctional Services’ policy, multiple Supermax inmates were seated next to
each other at the back of the bus, and not in the enclosed security cages or in the front. Id.
at 691. At some point during the ride, “Johns got up from his seat, reached over the seat
in front of him, hooked his arm around Parker’s head from behind, . . . and began choking
Parker with his arm.” Id. at 692. He also “cut Parker’s neck” with a razor blade smuggled
onto the bus. Id.At trial, the jury found, among other things, that one of the officers, Sergeant Larry
Cooper, was grossly negligent. Id. at 703–04. But the trial court granted Cooper’s motion
to strike the finding of gross negligence, reasoning that no evidence supported the notion.
Id. at 704. We disagreed and held that the complaint adequately asserted a claim of gross
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negligence and the Court of Appeals affirmed. Id. at 704–05, 709. In the words of Judge
Watts, writing for the Court:
[T]he record overflows with facts sufficient to support the
finding of gross negligence as to Cooper. Cooper failed to
follow basic procedures. Expert testimony established that, as
the Officer in Charge, Cooper was responsible for ensuring that
the three-point restraints placed on inmates were properly
secured. It is undisputed that Surgeon improperly secured the
three-point restraint device on Johns, and Cooper did not check
the restraints. Next, although according to DPSCS policy,
Supermax inmates such as Johns and Parker were to ride in the
protective custody cages located at the front of the bus, or,
absent space in a protective custody cage, were to ride in the
front of the bus, Cooper violated DPSCS policy by allowing
Supermax inmates Johns, Folk, Parker, and Diggs to sit on the
two benches at the rear of the bus. According to Cooper, he
“did the best [he] could with what [he] had” concerning the
seating arrangements on the bus. And, as the Officer in
Charge, Cooper was required to sit at the front of the bus
instead of in the rear elevated cage.
Cooper, 443 Md. at 710–11.
The Court went on to conclude:
Indeed, the evidence was sufficient to support the conclusion
that Cooper, who claimed to have not seen or heard the attack
occurring right in front of him, and who testified that he was
unaware of several policies meant to ensure inmates’ safety,
was “so utterly indifferent to the rights of others that he act[ed]
as if such rights did not exist.” [Barbre, 402 Md. at 187].
Whether Cooper knew of Johns’s propensity for violence
before the transport began is inconsequential where the
evidence was sufficient to support the rational inference that,
after the bus began its trip to Supermax, Cooper’s actions
constituted gross negligence.
Id. at 712 (cleaned up).
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Cooper and Barbre are helpful to understand circumstances when law enforcement
personnel can be grossly negligent. We recognize, however, that both Cooper and
Barbre―reflecting a callous and reckless disregard for the safety of the inmates and
arrestees―are a far cry from the actions of any of the Appellees here.
A case more in the realm of the present one is Torbit v. Baltimore City Police Dept.,
231 Md. App. 573 (2017), where we revisited gross negligence. There, we analyzed a
gross negligence claim against Major Marc Partee,4 a Baltimore Police Officer called to a
nightclub “after several fights had broken out inside[.]” Id. at 579–80. He closed the club
early, sent the club’s guests home, and set up a police perimeter around the club and nearby
parking lot. Id. at 580. Arguments later broke out nearby, and a man began to fire his
weapon “indiscriminately with his arm parallel to the ground.” Id. at 580–81. Officer
Toyia Williams and three other police officers fired their weapons at the shooter, who was
fatally wounded. Id. at 581, 593. The fatally wounded person turned out to be Baltimore
Police Department Officer William Torbit, a plainclothes officer at the scene. Id. at 581.
At trial, the plaintiffs presented an expert witness who testified: “(1) that a
supervising officer has a duty to give orders and make sure those orders are carried out; (2)
that, in his opinion, no perimeter was set up outside the club and; (3) that Major Partee
failed to give adequate instruction” to Torbit “as a plainclothes police officer.” Id. at 589.
4
Torbit only addressed a gross negligence claim against Partee and did not discuss
ordinary negligence against Partee. See Torbit v. Baltimore City Police Dept., 231 Md.
App. 573, 588 (2017).
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The appeal addressed whether there was sufficient evidence to support a claim for
gross negligence against Partee―not the shooter―for the manner in which he supervised
the other officers, including Williams. The trial court granted judgment in favor of Partee
on the gross negligence claim. Id. at 587.
We considered “whether a reasonable juror could conclude that Major Partee’s
conduct strayed so grossly from the ordinary standard of care as to support a finding of
utter indifference to the rights of others.” Id. at 589. In affirming the trial court, we said:
Major Partee may have failed to properly command his
subordinate police officers, but there was no evidence that he
didn’t instruct them because he didn’t care. He may have failed
to set up a perimeter, but there was no evidence that this failure
amounted to gross disregard for the lives of Appellants. He
may not have adequately instructed Officer Torbit on how to
behave while Torbit was in plainclothes, but there is no
evidence that this was because he had reckless disregard for
Torbit’s safety. Thus, even if we were to accept Appellants’
factual assertions that Major Partee failed to act in these several
respects, we agree with the trial court that no reasonable juror
could find his conduct constituted gross negligence.
Id. at 589–90. We focus on the language in the above opinion that there was “no evidence
that he didn’t instruct them because he didn’t care” and consider below whether there is
evidence in the record that “absence of caring” was involved.
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Kintop
Bailey’s primary allegations against Kintop to support gross negligence were that
he 1) “deliberately made no effort to further investigate” Sharper’s claims prior to applying
for the 2013 Warrant; 2) “knew there was not an individual named James E. Bailey that
was 5’5” and 145 lbs. in the ‘system,’” yet still applied for the 2013 Warrant; and 3) “did
not attempt to ensure the correct identifying information was used” for the 2013 Warrant
“after causing it to be issued.” He relies primarily on Cooper5 and Beall v. Holloway-
Johnson, 446 Md. 48 (2016) to support his claim for gross negligence.
In 2013, Kintop applied for a warrant for a Black James Elmer Bailey born on
October 15, 1962, who was 5’5” and weighed 145 pounds. He included a last known
address of 26 College Creek Terrace. Sharper directly provided all of this information to
him. The 2013 Warrant did share similarities with the 2007 Warrant: both were men named
James Elmer Bailey and born on October 15, 1962, living in the general vicinity of
Annapolis.6
It is most unfortunate that Bailey was stopped by the police and taken to the station
twice in connection with a crime he did not commit. The confluence of circumstances
occurring over a six-year period reveals some vulnerability in the law enforcement systems
designed to provide security to the public. The second arrest of Bailey might have been
5
Appellant primarily cites to the Court of Special Appeals version of this case. See
Rodriguez v. State, 218 Md. App. 573 (2014).
6
Bailey also alleged in his complaint that Kintop used his social security number
while applying for the 2013 Warrant. Neither Kintop’s application nor the actual warrant
itself have a social security number.
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avoided if Kintop or another state actor had anticipated that correcting the identifying
information on the warrant would not be sufficient, in itself, to avoid another
misidentification and arrest of Bailey as the police searched for Suspect Bailey. Arguably
a method could have been devised to flag the potential for confusion when the databases
were utilized.7 Yet we must apply the applicable tort law to Bailey’s claim for monetary
damages from gross negligence. As we said above, a monetary claim for gross negligence
requires that there be evidence that the defendant “strayed so grossly from the ordinary
standard of care as to support a finding of utter indifference to the rights of others.” Torbit,
231 Md. App. at 589. It also requires “an intentional failure to perform a manifest duty in
reckless disregard of the consequences as affecting the life or property of another,
and . . . implies a thoughtless disregard of the consequences without the exertion of any
effort to avoid them.” Howard, 239 Md. App. at 529 (quoting Cooper, 443 Md. at 708).
In his brief, Bailey cites this Court’s observation that “[w]hether or not gross
negligence exists necessarily depends on facts and circumstances in each case. It is usually
a question for the jury and is a question of law only when reasonable men could not differ
as to the rational conclusion to be reached.” The facts in Beall, however, were markedly
different: the defendant police officer was acting against his superior’s orders by
continuing to pursue a motorcyclist during a long chase resulting in the death of the
7
We discuss below, in the section on ordinary negligence whether Kintop should
have assessed the risk that there might be further confusion arising from databanks utilized
by police and have taken further corrective action.
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motorcycle driver when the defendant’s automobile ran into him from the rear.8 Beall, 446
Md. at 57–59. In the Court’s words:
Ms. Holloway-Johnson relied specifically . . . on the actions of
Officer Beall prior to the collision to show that he was acting
recklessly. Officer Beall commenced trailing the motorcycle
surreptitiously and started active pursuit only after Holloway–
Lilliston “popped a wheelie” and sped away. Officer Beall’s
conduct concededly was in violation of BCPD General Order
11–90 . . . as he was acting without exigent circumstances in
his pursuit of Holloway–Lilliston, who committed only traffic
offenses and posed no articulated immediate harm to others.
Additionally, evidence was presented to show that Holloway–
Lilliston reduced his speed upon entering the construction zone
on I–695 East; yet, Officer Beall continued to follow him in
contravention of a directive from his Shift Commander to
discontinue pursuit and allow the State Police to handle the
“traffic incident.”
Id. at 65–66. None of the circumstances in Beall are remotely comparable to this case.
Indeed, none of the Maryland cases that Appellant cites support a conclusion that
Kintop acted with gross negligence. Bailey does not contend that Kintop violated any order
of a superior, or a statute or court rule in his 2013 application for warrant, and he correctly
stated Suspect Bailey’s height and weight as reported to him by Ms. Sharper. Although
the potential exists that individuals will suffer harm after a wrongful arrest caused by a
mistaken identity, the risk of serious harm under these circumstances is not so high that it
arises to the level of Cooper, in which the plaintiff was murdered while seated in the back
8
The chase was initiated when Beall “overheard a call on his radio from an off-duty
officer about a Mercedes convertible and a motorcycle ‘chasing each other or racing each
other’ at about 100 miles per hour (m.p.h.) on Interstate 83 North (also known as the Jones
Falls Expressway) in Baltimore City. A second transmission related that other officers
were able to stop the car, but not the motorcycle.” Beall v. Holloway-Johnson, 446 Md.
48, 57 (2016) (footnote omitted).
-19-
of a van right next to Supermax inmates without any security cages or other physical barrier
between them for protection.
Moreover, some of the language in Beall favorable to finding gross negligence was
disapproved in Stracke v. Est. of Butler, 465 Md. 407, 421–27 (2019) (also cited by Bailey)
in which the Court of Appeals, in a split decision, narrowed the scope of what could be
considered gross negligence. Stracke was a case involving paramedics responding to an
emergency call:
[O]ur opinion in Beall morphed the distinctions between
simple and gross negligence by holding that “a legally
sufficient case of ordinary negligence will frequently be
enough to create a jury question of whether such negligence
was or was not gross.” [Beall, 446 Md. at 64] . . . .
We decline to further muddy this already unclear area of law.
If in almost all instances where a plaintiff can prove
negligence, and the case is submitted to the jury to consider
gross negligence, then many first responders will be stripped
of the protective shield that the immunity was intended to
provide, forcing them to go through the entire litigation process
when there is only evidence of simple negligence. This result
runs contrary to the heightened threshold of gross negligence
we have articulated[.]
Stracke, 465 Md. at 421–22.
The plaintiff in Stracke died of a heart attack in the emergency room right after his
transportation by paramedics from home to the hospital, and his estate alleged the
paramedics ignored his symptoms and complaints of pain in his chest both during the
transportation and in the first 15-30 minutes after arrival while getting him inside and
waiting for hospital staff to triage him. Id. at 414–17. The Court ultimately ruled against
the plaintiff on the issue of gross negligence, and, applying a restrictive standard,
-20-
concluded that “there is not sufficient evidence to conclude that Petitioners made a
deliberate and conscious choice to not help [the decedent] survive.” Id. at 422 (emphasis
added).9
Although the nature of the Stracke paramedics’ responsibilities and the associated
risks differ from those presented here, and involve different statutory immunities, we
should not ignore the Stracke majority’s more restrictive approach to defining gross
negligence. Our chief takeaway from Stracke is its rejection of the notion that “ordinary
negligence will frequently be enough to create a jury question of whether such negligence
was or was not gross.” Id. at 421. As we explain below, we hold that the circuit court
erred in granting summary judgment against Bailey on his claim for ordinary negligence.
We do not “morph” that conclusion into a decision that the count for gross negligence
should also go to the jury. Id.
Bailey also contends that a claim for gross negligence was stated because Kintop
acted with malice, “or at least some improper purpose or motive.” He believes that because
9
The Court further explained its decision:
The mere fact that Petitioners inaccurately diagnosed and
treated their patient does not elevate their conduct to gross
negligence. “[W]e cannot equate a well-intended error in
medical judgment—even if it costs the patient’s life—with
wanton and reckless disregard for the life of that patient.”
[McCoy v. Hatmaker, 135 Md. App. 693, 713 (2000)].
***
Petitioners assessed the patient, took his vitals, and promptly
transported him to the nearest hospital within approximately
seven minutes of first arriving on the scene.
Stracke v. Est. of Butler, 465 Md. 407, 426, 430 (2019).
-21-
Kintop was “reprimanded by the Court for his actions,” he suffered embarrassment and
acted with an improper motive.
To be sure, malice can support gross negligence. See Wilson, 339 Md. at 728 n. 5
(implied malice has been defined in the past as “‘gross negligence’ involving ‘wanton or
reckless disregard’”). The record, however, reveals no facts to support this allegation.
First, Kintop received no reprimand by the court. Quite simply, the trial court directed that
there be a warrant issued for the correct Bailey, and Kintop undertook steps he thought
necessary to comply with that request. We do not agree with Bailey’s speculation that the
alleged facts show that Kintop was so embarrassed or chagrined by the court’s directive as
to suggest that he had malicious intent that would support gross negligence. There is not
even an allegation that Kintop said anything or made any gesture that indicated an angry
reaction to the trial court’s directive.10
Bailey believes gross negligence “must be present” because Bailey suffered “the
same injury and harassment” a second time—without pointing to any specific, concrete
facts rising to the level of gross negligence. The confluence of circumstances leading to
his second arrest do not transform Kintop’s actions from possible negligence to gross
negligence. We affirm the circuit court as to gross negligence against Kintop.
10
We note that Kintop did not know how the trial court would rule when he applied
for the 2013 Warrant. The trial court did not make its ruling in favor of Bailey in his first
lawsuit until 2014, more than a year after Kintop applied for the warrant.
-22-
Buchanan, Mackall, and Lane
Bailey alleged in his complaint that Buchanan “owed a duty to [Bailey] to ensure
that [his] identifying information was not used for the 2013 Arrest Warrant,” discover the
correct Bailey named in the 2013 Warrant, and correct the information entered in the
system. He charged that she “knew there was not an individual named James E. Bailey
[who] was 5’5” and 145 lbs. in the ‘system’” but did not correct the error.
Buchanan stated in her deposition that she did not learn of the 2007 Warrant, 2010
arrest, or subsequent trial until after the 2017 arrest. She did not receive any reports on the
earlier arrest or civil trial. Buchanan’s primary connection to Bailey was verifying the
name and date of birth on the packet that Mackall gave her. She did not know that there
were two persons in the county named James Elmer Bailey until she was asked to verify
the 2013 Warrant during the 2017 arrest. She then saw that there were two men named
James Elmer Bailey in the system. Her failure to discover that there were two persons with
the same name and birth date may have been careless, but it fails to rise to the level of gross
negligence. We see no facts alleged in Bailey’s complaint that show any reckless
disregard—without knowledge of the coincidence, she cannot act in reckless disregard of
potential that the wrong person will be arrested. See Howard, 239 Md. App. at 529 (“One
cannot act in reckless disregard of consequences of which she or he is unaware.”). There
is no evidence of malice. Although we acknowledge that being arrested can be an
experience fraught with fear, trauma, and risk, we cannot, within the confines of existing
law, authorize an award for gross negligence―perhaps the most serious of all torts―in
every instance of error by a municipal employee who has contact with the warrant process.
-23-
Bailey’s complaint cites the exact same reasoning for Mackall as Buchanan.
Mackall was not employed by the Annapolis Police Department in 2007 or 2010. She
became a Police Records Specialist in September 2013, after the issuance of the 2013
Warrant. Mackall stated in her deposition that she did not have any knowledge of Bailey’s
trial or its connection to Kintop. She did not enter the information about Suspect Bailey
into InPursuit―she just entered the information she found into the NCIC database.
Because the warrant was already entered, “all [she] checked was the name and date of
birth.” She had no knowledge of the 2007 Warrant. She merely verified the name and date
of birth of the warrant, as she does with any other warrant. For the same reasons we applied
to the claim against Buchanan, we affirm the circuit court’s dismissal of the gross
negligence claim against Mackall.
Bailey uses the same allegations for Lane as against Buchanan and Mackall. She
had no prior knowledge of Bailey’s first arrest in 2010. Up until the lawsuit, she was
unaware of a majority of the circumstances surrounding the 2007 Warrant and the 2013
Warrant. Her participation was limited to verifying that the warrant was still active, and
then contacting other parties when the Maryland Transportation Authority officers
questioned the warrant’s discrepancy on race. She was the one who notified the Maryland
Transportation Authority that Bailey was not the subject of the warrant. Although after the
fact Lane expressed frustration about her added work to fix the mix-up, rather than
considering Bailey’s greater embarrassment and inconvenience, the law of torts, especially
gross negligence, is not designed to control self-centered actions that have no
consequences. We see no allegations sufficient to allege gross negligence.
-24-
Based on Bailey’s lack of cognizable allegations against Buchanan, Mackall, and
Lane demonstrating grossly negligent conduct, we affirm the circuit court on this count.
Ordinary Negligence And Public Duty Doctrine
Discretionary v. Ministerial
Bailey also alleges that Kintop’s11 actions involved with the 2013 Warrant were
negligent—a lower threshold than our requirements for gross negligence.12 His complaint
stated that Kintop “owed [Bailey] a duty of care to ensure the proper and correct
information regarding James Elmer Bailey was used for the 2013 Arrest Warrant,” and that
Kintop breached this duty. The circuit court granted summary judgment in favor of
11
Bailey sued Buchanan and Mackall for negligence as well; we address those
claims next.
12
To successfully state a claim for negligence, a plaintiff must allege “(1) that the
defendant was under a duty to protect the plaintiff from injury, (2) that the defendant
breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss
or injury proximately resulted form the defendant’s breach of the duty.” Evergreen
Assocs., LLC v. Crawford, 214 Md. App. 179, 186–87 (2013) (cleaned up).
-25-
Appellees on grounds that “[p]ublic officials are entitled to qualified immunity from
negligence claims.”13
In order to prevail under either a statutory or common law immunity defense, the
official must be acting in a discretionary capacity and not be grossly negligent or act with
malice. See Lee v. Cline, 384 Md. 245, 258 (2004) (“The Maryland public official
immunity doctrine is quite limited and is generally applicable only in negligence actions
or defamation actions based on allegedly negligent conduct.”); Ashburn v. Anne Arundel
Cnty., 306 Md. 617, 622 (1986)) (“[T]he actor will be relieved of liability for his non-
malicious acts where: (1) he is a public official rather than a mere government employee or
agent; and (2) his tortious conduct occurred while he was performing discretionary, as
opposed to ministerial, acts in furtherance of his official duties.” (emphasis in original)).
See also Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 137 (2000). We
address both the questions of whether the Appellees were public officials and acted with
discretion.
13
The Appellees do not identify the source of their claimed immunity—which could
be common law or statutory. Maryland Code (1973, 2020 Repl. Vol.), § 5-507 of the
Courts & Judicial Proceedings Article (“CJP”) provides in pertinent part: “An official of a
municipal corporation, while acting in a discretionary capacity, without malice, and within
the scope of the official’s employment or authority shall be immune as an official or
individual from any civil liability for the performance of the action.” Common law
immunity could also be applicable. See CJP § 5-303(d) (“Notwithstanding the provisions
of subsection (b) of this section, this subtitle does not waive any common law or statutory
defense or immunity in existence as of June 30, 1987, and possessed by an employee of a
local government.”); Howard v. Crumlin, 239 Md. App. 515, 526 (2018) (“Public official
immunity protects public officials—including police officers—who perform negligent acts
during the course of their discretionary, as opposed to ministerial, duties.”)
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Bailey contends this was a misapplication of the doctrine of public official
immunity. He argues that Kintop’s actions in applying for the 2013 Warrant were
ministerial rather than discretionary, and ministerial actions are not entitled to public
official immunity.14 Appellees respond that Kintop’s actions were purely discretionary,
and thus shielded by public official immunity.
We review “without deference a trial court’s application of common law public
official immunity.” Cooper, 443 Md. at 713. Common law public official immunity
“applies to public officials . . . who perform negligent acts during the course of their
discretionary (as opposed to ministerial) duties.” Id. (cleaned up). Further:
The term discretion denotes freedom to act according to one’s
judgment in the absence of a hard and fast rule. When applied
to public officials, discretion is the power conferred upon them
by law to act officially under certain circumstances according
to the dictates of their own judgment and conscience and
uncontrolled by the judgment or conscience of others.
Id. (quoting Livesay v. Baltimore Cnty., 384 Md. 1, 16 (2004)). We do not look to see if
there was just any discretion, “but whether the act involves an exercise of the officer’s
personal judgment that includes, to more than a minor degree, the manner in which the
police power of the State should be utilized.” Howard, 239 Md. App. at 527 (cleaned up)
(citing James v. Prince George’s Cnty., 288 Md. 315, 327 (1980)).
The Court of Appeals addressed the distinction between discretionary acts and
ministerial acts in D’Aoust v. Diamond, 424 Md. 549 (2012). There, an appellant
14
Bailey also raises a constitutional challenge to the warrant, but did not raise this
challenge in the earlier proceedings. We decline to review this unpreserved issue. See Md.
Rule 8-131(a).
-27-
challenged the application of qualified immunity to court-appointed trustees in the judicial
sale of a condominium. Id. at 560. The Court began by recognizing the purpose underlying
public official immunity: “the injustice of subjecting to liability an officer who is legally
required to exercise discretion, particularly absent bad faith, and . . . the danger of deterring
willingness to exercise judgment with decisiveness posed by the threat of liability.” Id. at
586–87 (cleaned up).
The Court considered the Restatement (Second) of Torts’ commentary “indicating
that ‘ministerial acts are those done by officers and employees who are required to carry
out the orders of others or to administer the law with little choice as to when, where, how
or under what circumstances their acts are to be done.’” Id. at 589 (citing Restatement
(Second) of Torts § 895D cmt. h) (cleaned up). The Court also cited respected treatises:
“Prosser has asserted that discretionary acts are those ‘requiring personal deliberation,
decision and judgment,’ while ministerial acts are those ‘amounting only to an obedience
to orders, or the performance of a duty in which the officer is left no choice of his own.’”
Id. (citing William L. Prosser, Handbook of the Law of Torts, § 132 at 988–89).
In D’Aoust the Court held that the defendants, trustees in a judicial sale, were not
public officials and therefore had no immunity. Although not essential to its holding, the
Court went on to correct what it considered to be an error made by the Court of Special
Appeals in ruling that the trustees prevailed because they had immunity and their negligent
acts, although ministerial, were nonetheless immune because they were included within a
group of discretionary actions. D’Aoust, 424 Md. at 593–96.
-28-
In Howard v. Crumlin, we looked at the delineation of ministerial versus
discretionary action involving an officer’s “alleged failure to investigate further” after
receiving a 911 call. Howard, 239 Md. App. at 527. Although the appellant alleged that
the officer’s level of investigation was ministerial, we disagreed: “[t]hat action—a police
officer’s determination regarding what degree of action or investigation might be necessary
in responding to a particular situation—is a paradigmatic case of an action involving the
exercise of personal judgment in determining the manner in which the State’s police power
will be utilized.” Id. We held that the officer’s level of investigation was “thus
discretionary, not ministerial.” Id. at 528.
Bailey asserts that Kintop’s application for the 2013 Warrant was ministerial
because, at the 2013 trial, the court expressed its desire for the 2007 Warrant to be recalled,
and all of Kintop’s actions after that were “absolute, certain, and involving merely the
execution of a set task.” The court specifically stated that it would “ask [the administrative
commissioner] to strike the [2007] warrant and reissue with the correct information so that
[Appellant Bailey] doesn’t get picked up, or if he does get picked up . . . as long as he’s
still 6’1” [and 195 pounds] he’ll be okay[.]” Bailey argues that “nothing was left to Sgt.
Kintop’s judgment or discretion . . . [and] therefore Sgt. Kintop’s actions cannot be
protected by statutory or common law public official immunity.” In his deposition, Kintop
testified that a judge told him “to issue another warrant for James Elmer Bailey.”15
15
Bailey’s complaint alleged, in Count I, inter alia, that (i) “[Kintop] used the
same . . . information for the 2013 Arrest Warrant as was used for the 2007 Arrest Warrant
despite knowing the James Elmer Bailey stated in the 2013 Arrest Warrant was not the
Plaintiff;” (ii) “he failed to correct the identifying information for the 2013 Arrest
-29-
Following that directive, according to Kintop, he generated the Statement of Charges that
were signed by a Commissioner.16
In granting summary judgment for Appellees on the negligence count, the circuit
court found “that Sergeant Kintop’s actions were purely discretionary as opposed to
ministerial.” It found that his “actions and/or inactions, relating to investigating the claims
of the complaining witness and deciding which information to include in the 2013 Arrest
Warrant, were in accordance to his own judgment.” We agree that any actions Kintop took
regarding investigation and his choice of incriminating facts to include in the 2013
application for warrant were discretionary. Yet a close examination of D’Aoust and other
cases instructs us that the discretionary shield is not impenetrable.
The Court of Appeals in D’Aoust overruled the Court of Special Appeals in its
determination that in assessing whether a public official’s actions could be ministerial, a
so-called “nesting approach” applied, under which any ministerial acts “are subsumed
Warrant[;]” (iii) “he failed to take reasonable steps to discover and use the correct
information for [Suspect Bailey][;]” and (iv) “in other ways [Kintop] was negligent.”
Bailey’s memorandum in opposition to summary judgment emphasized how
16
Kintop was following judicial direction in taking the steps to obtain the 2013 warrant:
Defendant Kintop was required to further investigate the
claims and the individual set forth by Kim Sharper’s
complaint. Defendant Kintop was required to swear that the
information contained in the Statement of Probable Cause and
the Application for Statement of Charges were true and
accurate. Defendant Kintop did not investigate further the
claims by Kim Sharper, and he swore to information that he
knew was incorrect. These were not discretionary acts, but fall
under the umbrella of ministerial acts.
-30-
within the broader judicial function of the” public official, thus entitling them to immunity.
D’Aoust, 424 Md. at 595. In the High Court’s words,
[T]his Court has consistently upheld the distinction between
discretionary and ministerial acts in its application of the
qualified public official immunity doctrine . . . . In the context
of public official immunity, we find no compelling reason to
depart from Maryland precedent, which indicates that the
distinction between discretionary and ministerial acts is an
important one. The clear purpose of such a distinction is to
allow public officials the freedom to make discretionary
decisions according to their best judgment, without undue
influence from a fear of personal liability . . . . There is no
similar need for protection when performing actions that are
strictly mandatory and for which no discretion is involved. In
these situations, public officials are appropriately held
personally liable if their conduct is not in accordance with the
applicable rules or instructions governing the functions they
are performing.
Id. at 595–96.
With D’Aoust as our guide, we next determine whether any alleged conduct of
Kintop that Bailey relies upon could be considered ministerial, and therefore unprotected
by the doctrine of public official immunity. Bailey argues that Kintop’s actions became
ministerial after the District Court civil case brought by Bailey against the City for his first
arrest:
Once Sgt. Kintop received the directive from Judge McKenna,
Sgt. Kintop’s actions were absolute, certain, and involving
merely the execution of a set task. Sgt. Kintop’s compliance
with Judge McKenna’s directive was mandatory, amounting
only to obedience to orders.
-31-
Except for cases involving operation of a motor vehicle,17 Hines v. French, 157 Md. App.
536 (2004) ―cited by Bailey―is the only notable instance that a Maryland appellate court
has determined a police officer’s action was ministerial rather than discretionary.
In Hines, a plaintiff alleged that she was injured when a police officer (“Officer 1”),
knowing she recently had TMJ surgery, slammed her face against a vehicle in the course
of an arrest. Id. at 546. She sued Officer 1 as well as another officer (“Officer 2”) who
was assigned to internal affairs and responsible for accepting complaints about police
officers and referring them for investigation. Id. at 547. Refusing to recognize public
official immunity to Officer 2, we said that “[Officer 2’s] duties in taking complaints prior
to forwarding them for investigation were clerical in nature and involved no exercise of
judgment or requirement to make decisions or choices.” Id. at 567.
Some cases outside of Maryland are closer factually to the case at hand. In
Soderlund v. Merrigan, 955 A.2d 107 (Conn. App. 2008), the plaintiffs claimed that the
defendant police had an obligation to destroy all records of their arrest because a court had
directed that the arrest warrant be vacated, and the defendants failed to do so. Id. at 109.
Connecticut’s rationale for distinguishing between discretionary and ministerial acts by
17
See Prince George’s Cnty. v. Brent, 414 Md. 334, 356 (2010) (“[O]rdinarily the
operation of a vehicle by [anyone], including a ‘public official,’ is a mere ministerial act.”).
-32-
public officials is similar to Maryland’s.18 Applying that standard, the Court examined
whether the officer had discretion when a judge directed that a police officer vacate an
arrest warrant:
We are faced with an issue of first impression in Connecticut,
namely, whether a judge’s direction to a law enforcement
officer not directly responsible to the judicial authority has the
same legal effect as a judge’s direction to a judicial employee.
We conclude that on the basis of the narrow facts of the present
case, a judge’s order to vacate an arrest warrant is mandatory
even upon a police officer.
Id. at 114. It rejected the officer’s claimed immunity:
Police officers are protected by discretionary act immunity
when they perform the typical functions of a police officer.
Nevertheless, under the facts of this case, when a law
enforcement officer has been ordered by the court to vacate an
18
Connecticut explains the rationale for public official immunity as
follows:
[O]fficials are immunized from liability for negligence arising
out of their discretionary acts in part because of the danger that
a more expansive exposure to liability would cramp the
exercise of official discretion beyond the limits desirable in our
society[.] Discretionary act immunity reflects a value
judgment that—despite injury to a member of the public—the
broader interest in having government officers and employees
free to exercise judgment and discretion in their official
functions, unhampered by fear of second-guessing and
retaliatory lawsuits, outweighs the benefits to be had from
imposing liability for that injury[.] In contrast, municipal
officers are not immune from liability for negligence arising
out of their ministerial acts, defined as acts to be performed in
a prescribed manner without the exercise of judgment or
discretion[.] This is because society has no analogous interest
in permitting municipal officers to exercise judgment in the
performance of ministerial acts[.]
Soderlund v. Merrigan, 955 A.2d 107, 112 (Conn. App. 2008) (cleaned up).
-33-
arrest warrant, the broad protections of discretionary act
immunity do not apply.
Id. at 114–15.19 The reasoning of the Connecticut case suggests that like the officer there,
Kintop―because he was directed by the court to take certain action regarding a
warrant―may have been performing ministerial acts, which were not protected by public
official immunity.
Texas also decided a warrant case involving a plaintiff who was arrested after her
warrant was dismissed:
The lawsuit grew out of a traffic citation issued to Mrs. Boone
by a Bexar County Deputy Sheriff. Mrs. Boone alleged in her
petition that she appeared before a justice of the peace who
informed her that the case was dismissed and wrote
“dismissed” on her citation. Approximately ten months later
appellant Baeza appeared at Boone's residence. She arrested
Boone on a warrant based on the prior citation, refused to
consider Boone’s explanation about the dismissed citation, and
transported her to jail where she was booked and incarcerated.
At no time was Boone allowed to appear before a magistrate.
Copeland v. Boone, 866 S.W.2d 55, 56 (Tex. App. 1993). The appellate court rejected the
police officer’s defense of immunity as discretionary acts of a public official:
To demonstrate that she acted in good faith, she argues that an
officer with a warrant has a clear duty to arrest the person
named in the warrant. It is not her responsibility to determine
whether or not the order of arrest was wrongfully issued. This
argument does not describe acts that are quasi-judicial or
19
For more recent Connecticut cases, see Borelli v. Renaldi, 243 A.3d 1064, 1071
(Conn. 2020) (“Because we conclude that the applicable provisions require officers to
exercise judgment in determining whether to pursue a fleeing motorist, we conclude that
the trial court correctly determined that the duty imposed is discretionary.”); Cole v. City
of New Haven, 253 A.3d 476, 491 (Conn. 2020) (“[W]e conclude that the trial court
improperly granted the defendants’ motion for summary judgment on discretionary
immunity grounds.”).
-34-
discretionary in character. These acts required no deliberation,
only obedience to orders of the court. They describe the
performance of the duty as to which Baeza was left no choice
of her own.
Id. at 57. Like Soderlund, Copeland instructs that certain duties of a police officer
regarding warrants are ministerial, and therefore not entitled to the protection of public
official immunity.
The above cases from Connecticut and Texas are instructive and consistent with
Maryland law regarding discretionary and ministerial actions by police officers. Applying
a similar rationale to those cases, we hold that the allegations in the amended complaint
cover both discretionary and ministerial actions by Kintop. His decision whether to
interview Sharper again, and his decision to add new charges are discretionary actions
falling within the public official immunity, absent malice. But his decision about the
proper method to identify James E. Bailey and minimize any chance that the wrong man
would be arrested a second time was not discretionary―because the judge had directed
that a new warrant be issued so that the proper Bailey (Suspect Bailey) would be arrested
instead of Appellant.
In response to the Motion for Summary Judgment, Bailey provided an affidavit from
Joseph Blaettler, a 32-year police veteran, who held progressive positions of responsibility.
Mr. Blaettler opined, inter alia, that “[b]ased on Sergeant Kintop’s knowledge and the
unique facts and circumstances of this case, Sergeant Kintop had a duty and an obligation
to conduct a further investigation into the . . . identity of the individual described by Ms.
-35-
Sharper” and to “seek guidance from his superior, and ultimately explain the situation to
the commissioner prior to swearing out another warrant.”
We hold that Bailey’s allegations, supported by Blaettler’s affidavit, are sufficient
to survive a summary judgment motion on his cause of action for negligence in the
performance of ministerial duties by Kintop. The Blaettler affidavit is consistent with our
belief, mentioned above, that being arrested is an experience fraught with fear, trauma, and
risk. The affidavit also reflects that the power given to Commissioners to issue warrants
for arrest and to police officers to apply for and present those warrants is a formidable
power that must be exercised only with careful adherence to a fair process.20 Because one
mistaken arrest had occurred―arising from the identity of names and birth dates―it was
incumbent on Kintop to exercise care in his duty to protect against that mistake happening
again.
Assuming the alleged facts, including the substance of the Blaettler affidavit, were
introduced into evidence, it would be reasonable for a jury to conclude that Kintop should
have been aware of the several available databanks available to police, including motor
vehicle information, and that mistaken information could be drawn from these databanks
(as it was here). It is sufficient to prove that if Kintop did not know how to add something
to his application for warrant that would flag the risk of a second mistaken identity because
20
To be sure, warrants and arrests often must be expedited. But this was a situation
in which the alleged crime had been committed six years earlier, and the wrong man had
already been arrested because his name, date of birth, and county were the exact same as
those belonging to Suspect Bailey. So, speed was not an issue—there was sufficient time
for Kintop to consult his superiors and the Commissioner about an effective way to achieve
what the judge ordered.
-36-
of identical name and date of birth, then, as the Blaettler affidavit asserts, he could have
consulted his superiors. We conclude that the Blaettler affidavit is sufficient to create a
material dispute of fact regarding whether Kintop had an obligation to take action―such
as including a notation on the application―that gave notice to law enforcement personnel,
including police officers dealing with the warrant down the line, that two persons with the
same name and same birth date lived in the area, and one had already been erroneously
arrested.
For these reasons we shall vacate the circuit court’s decision to grant summary
judgment against Bailey on the negligence count against Kintop and the City on the
grounds that he was acting in a discretionary capacity and therefore immune. 21 We shall
remand to the circuit court for further proceedings on this issue consistent with this opinion.
Special Relationship
Kintop also argued below that he is not liable in negligence because a police officer
has no duty to an individual, but only to the public at large. This is known as the public
duty doctrine. See Fried v. Archer, 139 Md. App. 229, 247–48 (2001). Bailey countered
below that the exception to the public duty doctrine applies—when a special relationship
is created between the plaintiff and the police officer. See, e.g., Howard, 239 Md. App. at
523.
21
Bailey also argued that even if Kintop’s actions were discretionary, he was
ineligible for public official immunity because he acted with malice or an improper
purpose. Because we hold that Kintop’s actions were ministerial, and thus not protected
by public official immunity, we need not address Bailey’s allegations of malice.
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Both arguments are interesting but ultimately not pertinent to this appeal. The
circuit court did not grant summary judgment on grounds that Kintop had no duty to Bailey.
Although the parties argue the existence, vel non, of the special relationship exception, the
judge in the circuit court did not enter summary judgment on this ground. “[A]n appellate
court ordinarily may uphold the grant of a summary judgment only on the grounds relied
on by the trial court.” Ashton v. Brown, 339 Md. 70, 80 (1995). See, e.g., Gross v. Sussex
Inc., 332 Md. 247, 254 n. 3 (1993); Beckenheimer’s Inc. v. Alameda Assocs. Ltd. P’ship,
327 Md. 536, 545 n. 5 (1992). Thus, we do not address the question of whether a special
relationship may have existed between Bailey and Kintop. This should be the subject of
further proceedings in the circuit court on remand.
Negligence—Buchanan and Mackall
Finally, Bailey asserts that the circuit court erred in its decision to grant summary
judgment in favor of Buchanan and Mackall on grounds that they owed him no private duty
in tort under the public duty doctrine. See Muthukumarana v. Montgomery Cnty., 370 Md.
447, 486 (2002).22 Under this doctrine, “absent a special relationship between a [municipal
employee and a member of the public needing public services], an employee does not owe
such an individual a private duty in tort.” Id. at 486.
22
The circuit court was brief in its analysis of this point, simply saying: “[T]here is
insufficient evidence upon which the jury could reasonably find Defendants Buchanan and
Mackall owed Plaintiff a special duty to ensure the proper and correct information was
used for the 2013 Arrest Warrant.” It also reasoned that because the City of Annapolis was
entitled to raise the public duty doctrine as to its employees, summary judgment in its favor
would be entered.
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Bailey must establish duty: “a defendant cannot be held negligent if she did not have
a duty to the plaintiff.” Fried, 139 Md. App. at 262. We have used the special duty rule
for police dispatchers and related personnel to analyze whether the situation “justifies the
imposition of a private duty of care toward [the] victim.” Id. at 243. The special duty rule
“requires a showing that the affirmative act of the defendant induced the victim’s specific
reliance upon the defendant’s protection.” Id. at 265 (emphasis omitted) (cleaned up)
(citing Ashburn, 306 Md. at 631). That victim’s “reliance is as critical in establishing the
existence of a ‘special relationship’ as is the municipality’s voluntary affirmative
undertaking of a duty to act.” Id. at 266. We held that “proof of such reliance is critical to
creating a private tort duty, because detrimental and reasonable reliance on the promise of
. . . assistance connects the defendant’s conduct to the plaintiff’s injury.” Id.Fried v. Archer arose out of heartbreaking circumstances; teenager Tiffany Fouts
drank at a party, was sexually assaulted, and left for dead in the woods. Id. at 236–37. One
of the party guests called the sheriff’s department and reported to Kim Archer that Fouts
was lying in the woods near an address that did not exist, but was close to the actual address.
Id. at 237. Archer said that she would “send someone out.” Id. Officers attempted to find
what they believed was the intended address, but they were unable to find Fouts before her
untimely death. Id.Fouts’ mother sued, alleging a special duty on the part of Archer and James Terrell,
the chief of the county’s Emergency Management and Operations Division. Id. at 240,
265. We noted that it was “undisputed that [Fouts] did not detrimentally rely on Archer’s
promise to ‘send someone out.’” Id. at 266. Fouts had no awareness of any call to the
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sheriff’s department, or of any promise to send someone out. Id. at 267. She “did not
detrimentally rely on a promise of police assistance.” Id. We also acknowledged that the
caller did not justifiably rely on Archer’s promise either: “assailants who request help on
behalf of their victim cannot ‘justifiably’ rely on a generalized promise to send an officer
in deciding to leave their victim in the peril that they created.” Id. at 274–75. We declined
to impose a special duty on Archer.
As for Terrell, Fouts’ mother alleged that he had a special duty based on “the
foreseeability of harm resulting from a potential failure to establish proper policies,
procedures and safeguard with respect to the training of emergency dispatch operators.”
Id. at 276–77 (cleaned up). She failed to allege that Fouts “or her assailants specifically
relied on Terrell’s allegedly insufficient training and procedures.” Id. at 277. We again
declined to impose a special duty, and thus found no cause of action for negligence.
The imposition of a special relationship often comes from an express offer of
assistance. In Williams v. Mayor & City Council of Baltimore, 359 Md. 101 (2000), the
Court of Appeals addressed whether a special relationship existed after an officer made
specific promises of protection to a victim of domestic violence. Id. at 107–09. Gerald
Watkins assaulted his girlfriend, Valerie Williams. Id. at 109. She called her mother, Mary
Williams, who came over and notified the police. Id. at 109. Officer Edward Colbert
arrived at the scene; Watkins called, threatening to return to the house. Id. Colbert
purportedly told both Williams women to stay in the house while he wrote up the report.
Id. at 109–110. Later, Valerie Williams informed her mother that Watkins recently
threatened to kill her. Id. at 110. Mary Williams then went to inform Colbert, who was no
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longer in front of the house. Id. At that very moment, Watkins arrived; he shot Mary
Williams in the leg, fatally wounded Valerie Williams, and then killed himself. Id.Mary Williams sued Colbert; the circuit court granted summary judgment in favor
of Colbert, and the Court of Special Appeals affirmed. Id. at 107. The Court of Appeals
reversed, holding that “under the peculiar circumstances testified to by Mary Williams,
there may be a genuine dispute of material fact concerning whether a special relationship
existed between the two parties, thereby creating a duty of protection on the part of Officer
Colbert.” Id. at 141. Further: “While the officer may have had no duty to remain, if in fact
he told Mrs. Williams that he would remain to protect them, he may have created a special
relationship . . . creating a duty either to remain or to inform them that he was leaving.” Id.
at 150–51.
Bailey fails to allege any voluntary affirmative undertaking of a duty to act—his
allegations merely reiterate Buchanan and Mackall’s job duties, which they perform for
public benefit, and imply that two women had special knowledge about his prior arrest.
But both Buchanan and Mackall deny any knowledge about his 2007 arrest, and Bailey
alleges no facts to support this implication.
Further, he fails to allege any type of justifiable reliance on their actions beyond
what an average citizen expects from police department personnel. Nothing in the record
suggests that he had a conversation with Buchanan and/or Mackall. Indeed, there was no
awareness on Bailey’s part that Buchanan and Mackall even existed before preparing his
lawsuit, and thus no specific reliance on any actions that they took. To merely state that
he relied upon this alleged special relationship “from at least the time of his first arrest and
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the dismissal thereof to present day” without saying that he had communications with them
that created a duty is just insufficient. Without pleading any specific, justifiable reliance
or affirmative actions, Bailey failed to plead duty, and thus he had no cognizable claim for
negligence against Buchanan and Mackall.
CONCLUSION
We affirm the circuit court in dismissing Counts VIII–XII, and in entering summary
judgment as to Count II. We reverse the court in granting summary judgment as to Count
I and remand for further proceedings consistent with this opinion.
JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED IN PART AND REVERSED
IN PART; CASE REMANDED FOR
FURTHER PROCEEDINGS
CONSISTENT HEREWITH. COSTS TO
BE PAID ONE-HALF BY APPELLANT
AND ONE-HALF BY APPELLEES.
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