JAMES E BAILEY * IN THE * CIRCUIT COURT FOR v. * ANNE ARUNDEL COUNTY CITY OF ANNAPOLIS * MARYLAND Defendant(s) * Case No.: C-02-CV-18-002768 ' Plainrms) * * * * * * * * * * * * a: MEMORANDUM OPINION BEFORE THE COURT is Defendant’s Motion for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment led on July 22, 2019, Plaintiff‘s Memorandum in Opposition to Defendant’s Motion for Summary Judgment ler! on August 12, 2019 and Defendant’s Response to Plaintiff’s Opposition to Motion for Summary Judgment led on August 28, 2019. This matter Was held before the Honorable Elizabeth S. Morris on October 21, 2019, where parties and their counsel were present and heard. At the Conclusion of counsels’ presentations, the Court took the matter under advisement. After considering the testimony, documentary evidence produced and the parties submitted memorandum, the Court now issues this written opinion and order. FACTUAL BACKGROUND - On January 25, 2019, Plaintiff led employees and/0r police ofcers a Second Amended Complaint against Defendants, of the Annapolis Police Department and the Maryland Transportation Authority. The Complaint indicates that on April 1, 2017, ofcers stopped Plaintiff because there was an active warrant for his arrest. Plaintiff (a 6’3, 1951b white male) asserts that he informed ofcers that he was not the individual described in the warrant (a 5’5, 1451b black male with an identical DOB of 10/15/62) and that he had been wrohgly arrested on the same or similar incorrect warrant. Plaintiff alleges that the ofcers then contacted dispatcher, Ofcer Britney Lane, and relayed information that the warrant was for a black male with different characteristics. Despite this inconsistency, Ofcer active and ofcers Lane stated to the officers that the system showed the warrant was proceeded to arrest Plaintiff. With regard to Defendant Jamekica Mackall, Plaintiff asserts that despite knowing she was required to locate the name, date of birth and two identiers when entering information into the National Crime Information Center (“NCIC”), Defendant Mackall failed to do so. Plaintiff further asserts that Defendant Kathleen Buchannan’s responsibility was to double-check Defendant Mackall’s entry for accuracy but failed to conrm that the race, height, and weight matched the 201 3 Arrest Warrant. Thus, a result Plaintiff alleges that as of the named Defendants either “acting in a negligent and careless manner” or “performing [their]t job duties in a negligent and careless manner,” he suffered violations of his civil rights, embarrassment, anguish and mental distress. Leading up to the 20] 7 arrest, Plaintiff avers that on March 16, 2007, Defendant Sergeant Christopher Kintop responded t0 Anne Arundel Medical Center to investigate an alleged assault on March 14, 2007 involving a woman, Kim Sharper, who described her attacker as a black male by the name James Elmer Bailey, standing 5’5 and 1451bs, with an address in Annapolis, Maryland. When preparing an Application for Statement of Charges, Defendants Buchannan, Mackall and /or Lane conducted a database search for the individual described in the Complaint and found that the only James E. Bailey that existed in the Annapolis area was a white male, 6’3 and 1951bs. Plaintiff then alleges that after Sergeant Kintop was unable to locate Ms. Sharper to clarify her account of events, he changed the description contained in the 2007 arrest warrant from a black male to a white male. suit for wrongil As a result, Plaintiff was arrested in his home and thereafter, brought arrest. On February 19, 2013, during the one-day trial, it was noted that the 2007 Arrest Warrant was still active in the system, so the trial judge requested that the Court’s Administrative Commissioner take the necessary steps to have the warrant recalled. Later that evening on the same day, Sergeant Kintop led a new Application for Statement of Charges with the District Commissioner, describing the perpetrator as an African American male by the name of James Elmer Bailey, standing.5’5 and l451bs. Thereafter, the District Court Commissioner issued a Statement of Charges and Arrest Warrant (“2013 Arrest Warrant”). Plaintiff asserts that Sergeant Kintop “knew or should have known, Plaintiff‘s identifying information was connected to the 2013 Arrest Warrant, as he was aware that there was no individual by the name of James Elmer Bailey who is 5’5 and l451bs.” On February 11, 2019, Defendants City of Annapolis, Sergeant ChristOpher Kintop, Kathleen Buchannan, Jamekica Mackall and Britney Lane led an Answer, asserting various Defenses, namely that “each Defendant was performing lawful duties as a civilian employee of the Annapolis Police Department and, therefore, are entitled to and claim all common law, statutory and qualied immunities.” On July 22, 2019 Defendant led a Motion for Summary Judgment alleging that no material dispute remains with respect to Plaintiff’s claims. Plaintiff led an Opposition to Defendant’s Motion for Summary Judgment on August 12, 20] 9 and Defendant led to a Response Plaintiffs Opposition on August 28, 2019. STANDARD 0F REVIEW Maryland Rule 2-501 details the standard for ruling 0n a Motion for Summary Judgment. Subsection (f) provides that “the court shall enter judgment in favor of or against the moving party 3 if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favorjudgment is entered is entitled to judgment as a matter of law.” In deciding a motion for summary judgment, the circuit court must determine two legal issues: whether there is a genuine dispute of material fact; and 2) if not, l) whether the moving party is entitled to summary judgment as a matter of law. See Salaman v. Progressive Classic Ins, Co., 379 Md. 301, 841 A.2d 858 (2004). In deciding the rst issue, the court must review the record before it “in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the well-pled facts against the moving party.” Muskin v. State Dep’t ofAssessments & Taxation, 422 Md. 544, 30 A.3d 962, 554 (201 1). (The trial court is not tasked with trying the case or deciding factual disputes; rather, the court must render its decision based upon whether a dispute ofmaterial facts exists. See Grimes v. Kennedy'Krieger Inst. Ina, 366 Md. 29, 782 A.2d 807 (2001). For purposes of summary judgment, a material fact is one the resolution ofwhich will somehow affect outcome of case. See Lowman v. Consolidated Rail Corp, 68 Md.App. 64, 509 A.2d 1239 (1986). Furthermore, the party moving for summary judgment bears the burden of establishing the absence of a genuine issue of material fact. See Carter v. Aramark Sports and Entertainment Services, Ina, 153 Md.App. 210, 835 A.2d 262 (2003). DISCUSSION Viewing all inferences in the light most favorable to Plaintiff, this Court no genuine dispute nds of material fact concerning Defendants Sergeant Kintop and that there is the City of Annapolis’s liability, as they are immune from suit pursuant to the common law and statutory public ofcial immunity. Furthermore, there is no genuine dispute of material fact that Defendants Kathleen Buchanan, Jamekica Mackall, and Britney Lane did not owe Plaintiff an individual private duty in tort. Therefore, summary judgment is appropriate in favor of Defendants Sergeant Kintop, Kathleen Buchanan, Jamekica Mackall, Britney Lane and the City of Annapolis. Each count is discussed in further detail below: I. COUNT I: NEGLIGENCE- DEFENDANT KINTOP AND DEFENDANT CITY OF ANNAPOLIS Public ofcials are entitled to qualied immunity from negligence claims. Under Maryland law, “once it is established that an individual sued for negligence is a public ofcial and the negligence was committed while performing a duty which involves the exercise of discretion and in the absence of malice, public ofcial immunity attaches.” Lanford MD, 199 F Supp. 2d 297 (2002); See also DiPino v. v. Prince George ”s County Davis, 354 Md. 18, 729 A.2d 354, 370 (1999). As a result, Sergeant Christopher Kintop could avoid liability if his actions were within the scope of his duties and he acted without malice or gross negligence. Furthermore, Plaintiff’s cause of action only survives Defendant’s Motion for Summary Judgment if Sergeant Kintop’s actions are not protected by the common law immunity because his actions were ministerial rather than discretionary. The Court of Appeals provides the following guidance regarding the difference between ministerial and discretionary acts: Ministerial refers to duties in respect to which nothing is left to discretion as distinguished from those where the official has the freedom and authority to make decisions and choices. ‘ 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 ofcials, discretion is under certain the power conferred upon them by law to act ofcially circumstances according to the dictates of their own judgment and conscience and uncontrolled by the judgment or conscience ofothers. Hines v, French, 157 Md. App. 536, 566 (2004)(intemal citations omitted). The relevant statute relating to the completion of an application for a search warrant can be found in Criminal Procedure, § 1—203(a)(2) and it provides: (2)0) An application for a search warrant shall 1. be: in writing; 2. signed, dated, and sworn to by the applicant; and that: 3. accompanied by an afdavit A. sets forth the basis for probable cause as deSCribed in paragraph subsection; and B. contains facts within the personal knowledge ofthe afant cause. Here, the Court nds to ministerial. Sergeant (l) of this that there is probable that Sergeant Kintop’s actions were purely discretionary as opposed Kintop’s 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. Such judgment required him to make decisions and choices as to what was necessary and proper. This exercise ofjudgment is not only contemplated but permitted in the statute which requires him to set forth the basis for probable cause and facts based on personal knowledge. Therefore, his action and/or inactions were purely discretionary as opposed to ministerial. Thus, he is immune from an action in tort under these circumstances. In addition to the common law immunity, the Local Government Tort Claims Act (LGTCA) is relevant because the Plaintiff has alleged in its Second Amended Complaint and Demand for Jury Trial “[a]s Defendant Kintop’s employer, the City of Annapolis is responsible for all acts committed by Defendant Kintop within the scope ofhis employment.” Sergeant Kintop is an employee of the Annapolis Police Department, which is an agency of the municipality City of Annapolis. The LGTCA “[d]oes not waive any immunity defenses that are otherwise available to its employees. Moreover, CJ. § 5—303(_e) permits the local government to utilize any immunity defense possessed by its employees.” See Hines v. French, 157 Md. App. 536, 569 (2004); Courts and Judicial Proceedings, § 5-303. Since this Court has determined that Sergeant are protected by the common law immunity, the LGTCA Kintop’s actions permits the City of Annapolis to raise the same defense, As a result, the Defendant’s Sergeant Kintop’s and the City of Annapolis’s Motion for Summary Judgment is Granted. II. COUNT II-IV: NEGLIGENCE- DEFENDANTS KATHLEEN BUCHANAN, JAMEKICA MACKALL, BRITNEY LANE AND CITY OF ANNAPOLIS Defendants Kathleen Buchanan, Jamekica Mackall, and Britney Lane are civil employees, of the City of Annapolis and as a result, are not entitled t0 a qualied public ofcial immunity. During oralarguments, however, Plaintiff‘s counsel conceded that Defendant Britney Lane was not negligent, as she simply had “the misfortune of being at the wrong place at the wrong time with regard to her duties as a dispatcher that day.” Thus, the remainder of the discussion focuses on the negligence claims against Kathleen Buchannan, Jamekica Mackall and City of Annapolis. To survive a Motion for Summary Judgment, Plaintiff would have to demonstrate that one or more of the Defendants owed Plaintiff a duty of care. The Court of Appeals has recognized that negligence cases involving government defendants involves the “special duty rule.” Fried Archer, 139 Md. App 229, 261—62 v. (2001). “[T]he special duty rule is premised on the fundamental tort notion that a defendant cannot be held negligent if [the Defendant] did not have a duty to the plaintiff.” Id., at 262. In Counts II-IV of his complaint, Plaintiff has made several allegations regarding the Defendants and the discharge oftheir duties. In pertinent part, Plaintiff s Opposition ‘ to Defendant’s Motion for Summary Judgment repeats what was alleged in the complaint, specically, that Defendants Buchanan and ‘Mackall owed a duty to Plaintiff and failed to discharge that duty related to the issuance 0f the 2013 Arrest Warrant in a reasonable manner. It should also be noted that in his Opposition, Plaintiff cites Jones v. State, 425 Md. 1, 26 (2012) to support his argument that the special duty rule is inapplicable under these circumstances because the Defendants themselves created the “injurious force.” However, Jones v. State is inapposite, as its holding relates to circumstances when State law enforcement ofcers personally cause physical inj ury to a member of the public. Giving deference t0 the non-movant, and considering the facts as contained in the record, and included in Plaintiff’s response and oral argument, and drawing all reasonable inferences that a genuine factual dispute does not exist. Specically, therefrom, the Court nds insufcient evidence upon which the jury could reasonably nd there is Defendants Buchanan and Mackall owed Plaintiff a special duty to ensure the proper and correct information was used for the 2013 Arrest Warrant. Since there is no genuine material dispute of fact that Defendants Kathleen Buchanan and Jamekica Mackall did not owe Plaintiff a special duty, summary judgment is appropriate. Additionally, since the LGTCA permits the City of Annapolis to raise the same defense as its employees, summary judgment in favor of the City of Annapolis is also appropriate. CONCLUSION For the reasons discussed herein, Defendant’s Motion for Summary Judgment 22, 2019 is GRANTED. “21090 I! Da e ' - Judge! Circuit Court for Anne Arundel County led on‘July JAMES E BAILEY Plaintits) . "‘ IN THE * CIRCUIT COURT FOR * ANNE ARUNDEL COUNTY * MARYLAND * Case No.2 C-02-CV-18-002768 . v. CITY OF ANNAPOLIS Defendam‘(s)- ’ , ORDER For the reasons contained in the foregoing Memorandum Opinion, it is this 9ihday of J_a_r_1_u_§._r_y, 2020, by the Circuit Court for Anne Arundel County, Maryland hereby ORDERED, that Defendant Sergeant ChristOpher Kintop and for Summary Judgment as to Count I (Negligence) be and hereby is ORDERED, that Defendant Kathleen Buchanan and and GRANTED; and it is further City of Annapolis’s Motion for Summary Judgment as to Count III (Negligence) be and hereby is ORDERED, GRANTED; and it is further City of Annapolis’s Motion for Summary Judgment as to Count II (Negligence) be and hereby is ORDERED, that Defendant Jamekica Mackall City of Annapolis’s Motion GRANTED; and it is lrther that Defendant Britney Lane and City of Annapolis’s Motion for Summary ' Judgment as to Count IV (Negligence) be and hereby is GRANTED. IT IS SO ORDERED. llama Da e @mgQ/Jhm V Jung Circuit Court for Anne Arundel County