                                   UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 16-1523


RAYMOND GRAY, by Carolyn Gray, Guardian of the Person and Property of
Raymond Gray; SHERI GRAY,

                    Plaintiffs – Appellants,

             and

CAROLYN GRAY, Guardian of the Person and Property of Raymond Gray,

                    Plaintiff,

             v.

OFFICER WILLIAM SCOTT KERN, Individually and in his official capacity;
MAJ. ERIC RUSSELL, Individually and in his official capacity; OFFICER
EFREN EDWARDS, Individually and in his official capacity; COMMISSIONER
ANTHONY BATTS, Individually and in his official capacity; BALTIMORE
POLICE DEPARTMENT,

                    Defendants – Appellees,

             and

BALTIMORE    COUNTY, MD;  BALTIMORE   COUNTY    POLICE
DEPARTMENT/BALTIMORE COUNTY; MAYOR AND CITY COUNCIL OF
BALTIMORE CITY,

                    Defendants.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge. (1:13-cv-02270-WMN)
Argued: March 23, 2017                                            Decided: July 27, 2017


Before NIEMEYER, KING, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.


ARGUED: Allan B. Rabineau, LAW OFFICES OF ALLAN B. RABINEAU, Baltimore,
Maryland, for Appellants.        Colin Patrick Glynn, BALTIMORE CITY LAW
DEPARTMENT, Baltimore, Maryland, for Appellees. ON BRIEF: A. Dwight Pettit,
LAW OFFICES OF A. DWIGHT PETTIT, P.A., Baltimore, Maryland, for Appellants.
David E. Ralph, City Solicitor, Kara Lynch, Assistant City Solicitor, Ashley McFarland,
Assistant City Solicitor, BALTIMORE CITY LAW DEPARTMENT, Baltimore,
Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

       While being trained by the Baltimore Police Department in 2013, Raymond Gray

was shot in the head and grievously wounded by Officer William Scott Kern, one of the

Department’s officers teaching the training course. In this appeal, Gray and his wife seek

the reinstatement of state and federal claims against Officer Kern, Officer Efren Edwards,

Major Eric Russell, Commissioner Anthony Batts, and the Department itself.             As

explained below, we affirm the district court’s judgment in part, vacate in part, and

remand for further proceedings.



                                            I.

                                           A.

       The dilapidated buildings of the Rosewood Center, established on the outskirts of

Baltimore in 1888 as the Maryland Asylum and Training School for the Feeble Minded,

have largely gone unused since the Center closed in 2009. On February 12, 2013,

however, the Rosewood campus was being utilized for tactical training courses conducted

by the Baltimore Police Department for its own recruits and recruits of other nearby

police agencies, totalling about twenty trainees. That day, Raymond Gray — then forty-

three years old and a trainee with the University of Maryland Police Department — was

participating in the training courses. A duo of Officers Kern and Edwards was teaching

the courses. No other official of the Baltimore Police Department was then present at

Rosewood, including Commissioner Batts and Major Russell, the Department’s director

of education and training.

                                            3
       The tactical training courses involved the use of Simunition weapons, i.e., copies

of the service weapons (Glock 22 pistols) issued to Baltimore police officers. The

Simunition weapons fire only non-lethal paintball-like rounds and are almost entirely

blue, distinguishing them visually from the deadly, all-black service weapons generally

used by Baltimore’s officers. Nevertheless, the blue Simunition weapons feel nearly

identical to the black service weapons. Because of the dangers that would be posed in

tactical training courses by live weapons — including the risk that they would be

confused with Simunition weapons or otherwise accidentally discharged — no live

weapons are permitted to be carried during tactical training or even to be present in the

physical location where such training is being conducted. That prohibition is spelled out

in both Simunition instructional materials and Baltimore Police Department rules and

regulations.

       Despite the prohibition against live weapons, Officer Kern was carrying his loaded

black service weapon during the tactical training courses being conducted at the

Rosewood campus on February 12, 2013.           By then, he and Officer Edwards had

periodically worked together teaching tactical training courses for nearly ten years. Kern

had a total of approximately nineteen years of police service, and Edwards more than

twenty-five.   That day’s training courses were their first at Rosewood, where they

planned to continue working with trainees for the next three days. After lunch, Edwards

taught room clearing and hallway observation to a group of trainees in the upper east side

of a Rosewood building, and Kern conducted bunker training with the other trainees two

floors below in a gymnasium on the same building’s lower west side. Kern worked with

                                            4
his trainees a few at a time, and the remainder of the trainees waited in a hallway outside

the gymnasium.

       While Gray was among the trainees waiting for bunker training, he peered through

a window in a closed wooden door between the hallway where he was standing and the

gymnasium. Contemporaneously, Officer Kern removed his live black service weapon

from its holster, took aim at the door, and fired, propelling a bullet through the window

glass and shooting Gray in the head.

       According to Officer Edwards, Officer Kern then ran upstairs to Edwards to report

that “I shot somebody” and “shot him with my gun.” See J.A. 272. 1 On their way back

downstairs, Edwards asked Kern, “What the f**k were you doing with a gun in the

building?” Id. at 274. Kern responded, “That’s not important right now.” Id. Kern also

failed to offer Edwards any explanation as to why Kern had fired at Gray. Edwards

asked Kern several times for his loaded service weapon, but Kern refused to give the

weapon to Edwards.

                                            B.

       As a result of the shooting by Officer Kern, Raymond Gray suffered permanent

brain damage and has been estimated to require more than $7 million in round-the-clock

care over the remainder of his life. The shooting resulted in this civil action, as well as

state criminal charges against Kern.


       1
         Citations herein to “J.A. ___” refer to the contents of the Joint Appendix filed by
the parties in this appeal.


                                             5
       At his criminal trial, Officer Kern testified that he intended to fire his blue

Simunition weapon — not his black service weapon — in the direction of Gray. His

purpose, Kern asserted, was to teach the trainees to avoid “fatal funnels,” e.g., doorways,

hallways, stairways, and windows that “are the biggest areas that police get killed in.”

See J.A. 123-24. Kern explained that he “saw individuals walking back and forth in the

hallway in front of the door,” and that he only “intended to withdraw [his Simunition]

weapon and fire one round at the door,” to “remind them that that is an area in which you

do not need to be.” Id. According to Kern, firing the Simunition weapon at the door

would have posed “no risks whatsoever,” because a round from the Simunition weapon

“has no capabilities of penetrating anything like that.” Id. at 124.

       Officer Kern further testified at trial, however, that the “distinctive sound” of the

firing made him realize immediately that he had fired his service weapon, rather than his

Simunition weapon. See J.A. 125. Kern admitted carrying his loaded black service

weapon in a holster at his right-side waist, while his blue Simunition weapon was tucked

nearby in his right pants pocket. Kern claimed he was armed with his live service

weapon by agreement with Officer Edwards out of concern that the Rosewood building

in which they were conducting that day’s training courses “wasn’t a secure facility like

we had used in the past.” Id. at 112; see also id. at 114 (Kern’s testimony that he and

Edwards agreed that Kern “would be the one, for the first two days [at the Rosewood




                                              6
campus], to remain armed,” and that Edwards “would be the one for the second two days

to remain armed”). 2

      At depositions conducted in these proceedings, Officer Kern similarly testified,

again stating that he had been armed with his live service weapon by agreement with

Officer Edwards and “accident[al]ly withdrew the wrong weapon” before shooting Gray.

See J.A. 139, 166-67. Kern’s account was disputed, however, by Edwards.

      First of all — consistent with his description of being surprised and bewildered in

the immediate wake of the shooting by the fact that Officer Kern had been carrying his

live service weapon — Officer Edwards testified at deposition that he never discussed or

agreed with Kern that one of them would be armed with a loaded service weapon during

the training courses at the Rosewood campus. Edwards elaborated that, if he had known

Kern was carrying a live weapon, he “would have asked [Kern] to take it off” and “would

have suspended the training” upon Kern’s refusal to do so. See J.A. 250. Edwards also

described the precautions he took prior to both the morning and afternoon training

sessions on the day that Gray was shot: At his vehicle, Edwards unloaded his service

weapon, placed the ammunition in the vehicle’s glove box, put the weapon in a safety

lock bag, stowed the bag in the vehicle’s trunk, and locked the vehicle. That morning,

Edwards even asked Kern if he had performed a standard “weapons check,” and Kern

      2
         In October 2013, in the Circuit Court for Baltimore County, a jury found Officer
Kern guilty of reckless endangerment and acquitted him of second degree assault. He
was sentenced to eighteen months of incarceration, with all but sixty days suspended,
plus two years of supervised probation. See Kern v. State, No. 2443 (Md. Ct. Spec. App.
July 11, 2016) (affirming criminal judgment), cert. denied, 147 A.3d 402 (Md. 2016).


                                           7
responded in the affirmative. Id. at 257. Just before the lunch break, Edwards advised

Kern that “if he was going to allow any of the trainees to leave the Rosewood reservation,

to ensure that he did a weapons check when they came back.” Id. at 258. Thereafter,

Edwards confirmed with Kern that he had performed the post-lunch weapons check.

Edwards stated that he had never known Kern or any other officer to carry a live weapon

during a tactical training course, that he considered the Rosewood campus to be

sufficiently secure, and that Kern had not expressed to him any concern that Rosewood

was unsafe.

      Additionally, with respect to Officer Kern’s claim that he fired at Gray to teach the

trainees a safety lesson about fatal funnels, Officer Edwards emphasized that instructors

“don’t fire [Simunition] weapons, and definitely not live weapons, in the direction of a

trainee to teach anyone any lessons.” See J.A. 279. At the time of the shooting, Kern

was not even teaching a course related to fatal funnels; rather, he was conducting bunker

training. Moreover, Edwards explained that when Simunition weapons are properly

employed “in the process of actual scenario-based training,” they are fired only at

participants in full protective gear — which Gray was not. Id.

      During his deposition, Officer Edwards addressed a separate incident that had

occurred earlier the very day that Officer Kern shot Gray, but that Edwards learned about

only later. In that incident, which happened during another training session led by Kern

at the Rosewood campus, Kern pointed his live service weapon at a trainee — a trainee

who has been identified as Gray. Kern’s later account of the incident was that he

intentionally withdrew the loaded service weapon in response to a trainee’s inquiry and in

                                            8
furtherance of the training mission. But trainees present for the incident described it

differently, saying that an alarmed trainee alerted Kern that he had pulled his service

weapon and that Kern then indicated the incident was inadvertent. According to the

witnesses, a trainee “recognized [the black service weapon] not to be a [Simunition]

weapon” and “advised Officer Kern immediately that [Kern] had a live weapon on his

person” and “that that is a safety violation.” See J.A. 299. Kern responded that he had

pulled the service weapon because of “muscle memory.” Id. Edwards deemed Kern’s

response to the trainees to be unsatisfactory, in that it did “not abate the fact that [Kern

had] a live weapon in a [Simunition] training scenario. That should have been enough for

him to take that weapon off. He did not.” Id.

       Officer Edwards also testified that he believes Gray’s shooting was intentional,

rather than accidental, and that Officer Kern, who is white, may have acted out of racial

animus toward Gray, who is black. Edwards explained that Kern “was the type of

instructor who refused to follow directions,” and that Kern had been “reprimanded on

several occasions by several supervisors” and recommended for removal as an instructor.

See J.A. 293. According to Edwards, Kern demonstrated “dislike to a particular group of

trainees, particular[ly] African-American males, with each one of the classes that he

instructed,” and African-American trainees had complained to Edwards and other

instructors “about the abusive manner” in which Kern treated those trainees. Id. at 293-

94. Edwards also recalled a comment made by Kern “that he did not like President

Obama, being a black President.” Id. at 293.



                                             9
                                            C.

       Raymond Gray and his wife initiated this action in the Circuit Court for Baltimore

City on June 14, 2013, and the defendants thereafter removed it to the District of

Maryland, predicated on the district court’s federal question jurisdiction under 28 U.S.C.

§ 1331 and supplemental jurisdiction under 28 U.S.C. § 1367. On May 27, 2014, the

Grays filed their operative Amended Complaint, which alleges the same eleven claims

alleged in the original Complaint. Those consist of three 42 U.S.C. § 1983 claims (an

excessive force claim under the Fourth Amendment, a substantive due process claim

under the Fourteenth Amendment, and a claim of municipal liability for failure to train

under Monell v. Department of Social Services, 436 U.S. 658 (1978)); a corresponding

Maryland constitutional claim; negligence and gross negligence claims; four intentional

tort claims (for false imprisonment, assault, battery, and intentional infliction of

emotional distress); and a loss of consortium claim. All but the three § 1983 claims are

pursued under state law. The named defendants include Officers Kern and Edwards,

Major Russell, Commissioner Batts, the Baltimore Police Department, and the Mayor and

City Council of Baltimore (the “City”). 3




       3
         The other named defendants are Baltimore County and the Baltimore County
Police Department. The district court dismissed all claims against the City, Baltimore
County, and the Baltimore County Police Department, and the Grays do not challenge
those dismissals on appeal. See Gray v. Kern, No. 1:13-cv-02270 (D. Md. Jan. 7, 2014),
ECF Nos. 39 & 40; Gray v. Kern, No. 1:13-cv-02270 (D. Md. June 19, 2014), ECF No.
73; Gray v. Kern, No. 1:13-cv-02270 (D. Md. Mar. 17, 2015), ECF No. 84.


                                            10
      Prior to the filing of the now-operative Amended Complaint, the district court

granted in part and denied in part a dismissal motion of Commissioner Batts and the

Baltimore Police Department (together, “the Baltimore police defendants”). See Gray v.

Kern, No. 1:13-cv-02270 (D. Md. Jan. 7, 2014), ECF Nos. 39 & 40. The court left

pending the § 1983 claim against the Baltimore police defendants (the Monell claim for

failure to train), plus various state law claims against Batts (the corresponding Maryland

constitutional claim, the gross negligence claim, and the four intentional tort claims).

The court then granted the Baltimore police defendants’ motion to bifurcate, ordering a

separate trial of the § 1983 claim against them and staying discovery relative thereto

pending resolution of the claims against the other defendants. See Gray v. Kern, No.

1:13-cv-02270 (D. Md. Apr. 3, 2014), ECF No. 56.

      In the wake of the Amended Complaint, the district court awarded summary

judgment to Officer Kern on the § 1983 claims against him (the Fourth Amendment

excessive force and Fourteenth Amendment substantive due process claims), as well as

the corresponding Maryland constitutional claim, the negligence claim, and the false

imprisonment claim. See Gray v. Kern, No. 1:13-cv-02270 (D. Md. Aug. 21, 2015), ECF

Nos. 94 & 95, published at 124 F. Supp. 3d 600. With respect to the § 1983 claims, the

court accepted Kern’s assertion that he had fired at Gray to simply remind the trainees of

the dangers of fatal funnels and only accidentally used his live service weapon instead of

his Simunition weapon. Consequently, the court concluded there was no violation of

either the Fourth or the Fourteenth Amendment, in that Kern did not intend to either seize

or injure Gray. The court left pending against Kern the gross negligence claim; the

                                           11
intentional tort claims for assault, battery, and intentional infliction of emotional distress;

and the loss of consortium claim.

       At the same time, the court awarded summary judgment to Officer Edwards and

Major Russell on all claims against them. With respect to the gross negligence claim, the

court deemed the evidence against Edwards and Russell to be insufficient to warrant a

trial, even accepting Officer Kern’s assertion that he carried his live service weapon

pursuant to an agreement with Edwards. As to the § 1983 claims against Edwards and

Russell (the Fourth Amendment excessive force and Fourteenth Amendment substantive

due process claims), the court reasoned that — because it had already ruled that Kern was

entitled to summary judgment on those claims — it was unnecessary to reach and

consider the Grays’ theories of Edwards’s aiding and abetting liability and Russell’s

supervisory liability.

       Thereafter, again premised on its summary judgment decision in favor of Officer

Kern on the § 1983 excessive force and substantive due process claims, the district court

awarded summary judgment to the Baltimore police defendants on the previously

bifurcated § 1983 claim for failure to train under Monell. See Gray v. Kern, No. 1:13-cv-

02270 (D. Md. Feb. 4, 2016), ECF Nos. 106 & 107. Simultaneously, the court denied as

premature Commissioner Batts’s request for summary judgment on the state law claims

yet pending against him, as the Grays had not been afforded an opportunity for discovery

pertinent to those claims.

       Finally, the district court resolved to dismiss as moot the remaining state law

claims against Officer Kern, along with those against Commissioner Batts, upon the

                                              12
City’s deposit of a check payable to the Grays and their counsel in the sum of $200,000

— which the court ruled to be the state law cap on the damages available in this action

under Maryland’s Local Government Tort Claims Act. See Gray v. Kern, No. 1:13-cv-

02270 (D. Md. Apr. 13, 2016), ECF No. 112, published at 143 F. Supp. 3d 363. Kern

had made a $200,000 offer of judgment to the Grays pursuant to Federal Rule of Civil

Procedure 68 and sought dismissal on that basis. Although the court acknowledged that

the Grays could obtain damages in excess of $200,000 upon proof that Kern acted with

actual malice, the court judged the evidence to be insufficient to support the necessary

finding. The court also rejected the Grays’ argument that applying a $200,000 state law

cap on damages here would engender a state constitutional violation. The City promptly

deposited a $200,000 check with the court, and the court then entered a final judgment

closing this action. See Gray v. Kern, No. 1:13-cv-02270 (D. Md. Apr. 26, 2016), ECF

No. 116.

      The Grays subsequently turned to this Court for relief, timely noting this appeal.

We possess jurisdiction pursuant to 28 U.S.C. § 1291.



                                           II.

      On appeal, Raymond Gray and his wife seek reinstatement of the following

claims: the three 42 U.S.C. § 1983 claims against Officers Kern and Edwards, Major

Russell, and the Baltimore police defendants on which those defendants were awarded

summary judgment; the gross negligence claim against Edwards and Russell on which

they were awarded summary judgment; and the various state law claims against Kern and

                                          13
Commissioner Batts that were dismissed as moot upon the City’s payout of $200,000.

We assess the viability of those claims in turn.

                                             A.

       We begin with the three § 1983 claims. In pertinent part, § 1983 imposes liability

on persons who, under color of state law, subject or cause a citizen to be subjected to a

deprivation of a federal constitutional right. As heretofore explained, there are two

§ 1983 claims alleged against Officer Kern — the Fourth Amendment excessive force

claim and the Fourteenth Amendment substantive due process claim. Those two claims

are also alleged against Officer Edwards and Major Russell, pursuant to theories of aiding

and abetting and supervisory liability. The third § 1983 claim — the claim of municipal

liability for failure to train under Monell v. Department of Social Services, 436 U.S. 658

(1978) — is alleged against the Baltimore police defendants.

       The district court first awarded summary judgment to Officer Kern on the two

§ 1983 claims against him and then, premised on that decision, awarded summary

judgment to Officer Edwards, Major Russell, and the Baltimore police defendants on the

§ 1983 claims against them. The parties agree that, if we reinstate either or both of the

§ 1983 claims against Kern, we should also reinstate the same claim or claims against

Edwards and Russell, as well as the separate § 1983 claim against the Baltimore police

defendants. Thus, our analysis focuses on the two § 1983 claims against Kern.

       We review de novo the district court’s award of summary judgment to Officer

Kern on those § 1983 claims, viewing the facts in the light most favorable to the Grays.

See Bauer v. Lynch, 812 F.3d 340, 347 (4th Cir. 2016). Summary judgment is not

                                             14
appropriate unless Kern shows that there is no genuine dispute as to any material fact and

that he is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a).

       In seeking summary judgment on the § 1983 claims against him, Officer Kern

contended — and the district court then agreed — that the undisputed evidence is that

Kern intended to fire his Simunition weapon at Gray to merely startle the trainees and

thereby remind them of the dangers of fatal funnels, but that Kern accidentally fired his

live service weapon instead.     As such, although Kern may have terminated Gray’s

freedom of movement and employed excessive force in doing so, he did not have the

intent to seize required to sustain a Fourth Amendment excessive force claim. See

Brower v. Cty. of Inyo, 489 U.S. 593, 599 (1989) (concluding that a seizure occurs for

Fourth Amendment purposes when a person is “stopped by the very instrumentality set in

motion or put in place in order to achieve that result”). Under the same view of the

evidence, Kern did not have the intent to injure that is usually necessary to sustain a

Fourteenth Amendment substantive due process claim. See Waybright v. Frederick Cty.,

528 F.3d 199, 205 (4th Cir. 2008) (explaining that there is “a strong presumption that

§ 1983 due process claims which overlap state tort law should be rejected,” and that such

a presumption can be overcome only “by showing governmental conduct so ‘arbitrary’

and ‘egregious’ that it ‘shocks the conscience,’ usually because a state actor intended

harm without justification” (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-46

(1998))).




                                             15
      We reject the premise, however, that the undisputed evidence is that Officer Kern

did not intend to shoot Gray with his live service weapon. Compelling evidence to the

contrary includes the following:

      ●      During the training courses on the day of the shooting (February 12,
             2013), Officer Kern carried his live service weapon despite the
             known danger of and prohibition against being so armed;

      ●      Officer Kern deceived Officer Edwards throughout the day about
             carrying his loaded service weapon, as Edwards reminded Kern to
             perform standard weapons checks and confirmed that Kern had done
             so;

      ●      In a separate incident prior to the shooting, Officer Kern pointed his
             live service weapon at Gray, causing another trainee to alert Kern
             that he was armed with his service weapon and thus committing a
             safety violation. Kern claimed the incident was inadvertent and
             blamed pulling the loaded service weapon on “muscle memory,” but
             he did not thereafter disarm himself;

      ●      Officer Kern then pointed his live service weapon at Gray for a
             second time that day, shooting Gray in the head;

      ●      In the immediate aftermath of the shooting, Officer Kern provided
             no explanation to Officer Edwards as to why Kern was carrying his
             live service weapon and why he fired at Gray, and Kern refused to
             give his service weapon to Edwards;

      ●      Only later, Officer Kern concocted his false exculpatory account of
             being armed with his live service weapon by agreement with Officer
             Edwards out of concern that the Rosewood campus was unsafe; and,

      ●      Also only later, Officer Kern dubiously claimed that he intended to
             fire his Simunition weapon, rather than his service weapon, for the
             purpose of teaching trainees to avoid fatal funnels.

Viewed in the proper light — the light most favorable to the Grays — the foregoing

evidence of Officer Kern’s dangerous and deceptive behavior casts doubt on Kern’s



                                           16
account of the events that led to Gray’s grave injury. A jury disbelieving Kern’s account

could find that Kern intentionally shot Gray with the live service weapon. 4

       Nevertheless, we conclude that the district court did not err in granting summary

judgment to Officer Kern on the Fourth Amendment excessive force claim. The Supreme

Court has recognized that “[t]he Fourth Amendment was tailored explicitly for the

criminal justice system, and its balance between individual and public interests always

has been thought to define the ‘process that is due’ for seizures of person or property in

criminal cases.” See Gerstein v. Pugh, 420 U.S. 103, 125 n.27 (1975). Because Kern’s

shooting of Gray was unconnected from any criminal justice objective, we cannot say the

shooting implicates the protections of the Fourth Amendment.

       The district court did err, however, in granting summary judgment on the

Fourteenth Amendment substantive due process claim.            Viewed in the light most

favorable to the Grays, the evidence could establish that the shooting was arbitrary,

egregious, and conscience-shocking conduct intended to harm Gray. See Waybright, 528

F.3d at 205. In these circumstances, we are obliged to reinstate the § 1983 substantive

due process claim against Kern, Officer Edwards, and Major Russell, as well as the

separate § 1983 claim against the Baltimore police defendants for failure to train.


       4
         Notably, in defending the district court’s award of summary judgment on the
§ 1983 claims against him, Officer Kern contests the admissibility of other evidence of
his alleged intent to seize and injure Gray — evidence such as Officer Edwards’s
testimony that he believes Kern intentionally shot Gray with the live service weapon,
possibly out of racial animus. We need not assess today whether that evidence is
admissible, as we do not rely on it to resolve this appeal.


                                            17
                                            B.

       We next address the gross negligence claim against Officer Edwards and Major

Russell, on which they were awarded summary judgment.              Under Maryland law,

negligence “is any conduct . . . which falls below the standard established by law for

protection of others against unreasonable risk of harm.” See Barbre v. Pope, 935 A.2d

699, 717 (Md. 2007) (internal quotation marks omitted). To rise to the level of gross

negligence, there must be “an intentional failure to perform a manifest duty in reckless

disregard of the consequences as affecting the life or property of another.” Id. (internal

quotation marks omitted). That is, gross negligence involves “a thoughtless disregard of

the consequences without the exertion of any effort to avoid them.”           Id. (internal

quotation marks omitted).

       The Grays pursue the gross negligence claim as an alternative to the § 1983

claims. That is, if the § 1983 claims ultimately fail because Officer Kern’s account of the

shooting is credited, the Grays yet seek to prove the gross negligence of Officer Edwards

and Major Russell premised on Kern’s evidence that he was armed with his live service

weapon by agreement with Edwards.

                                            1.

      The district court granted summary judgment to Officer Edwards on the gross

negligence claim despite accepting as undisputed that there was an agreement between

Edwards and Officer Kern for Kern to be armed with his loaded service weapon during

the tactical training courses at the Rosewood campus. The court explained that Edwards

was not in a position of authority over Kern, such that Edwards could have ordered Kern

                                            18
to leave his live service weapon outside the training facility. The court also observed that

Edwards repeatedly asked Kern to conduct a weapons check, which the court described

as a measure intended to ensure that Kern was carrying his live service weapon safely. In

the circumstances as it painted them, the court concluded that Edwards’s conduct was, at

most, merely negligent.

       The district court’s depiction of the evidence, however, is at odds with the record.

In addition to disclaiming any agreement with Officer Kern for one of them to carry a

loaded service weapon, Officer Edwards clearly conveyed the following points in his

testimony: that Edwards did not even know prior to the shooting that Kern was armed

with his live service weapon; that, if Edwards had known, he would have — and thus

could have — asked Kern to disarm and then suspended the training courses at Rosewood

upon Kern’s refusal to do so; that the weapons checks that Edwards requested of Kern

were meant to ensure that no one inside the training facility, including Kern, was armed

with a live weapon; and that live weapons are strictly forbidden in tactical training

because there is no safe way to carry them or even keep them in close vicinity. That

evidence wholly undermines the district court’s ruling that Edwards agreed for Kern to

arm himself but was not thereby grossly negligent, because Edwards could not have

stopped Kern from carrying his live service weapon anyway and did his best to ensure

that Kern carried the weapon safely.

       Simply put, Officer Edwards’ testimony is not reconcilable with Officer Kern’s

claim of a mutual agreement. Properly viewing the evidence, it may be concluded that —

if Kern is the one telling the truth — Edwards agreed for Kern to carry his loaded service

                                            19
weapon with reckless disregard for the consequences. As Edwards himself emphasized,

live weapons are forbidden in tactical training without exception because of the grave

dangers they would pose. Accordingly, there is a genuine dispute of material fact with

respect to Edwards’s conduct that necessitates our reinstatement of the gross negligence

claim against him for further proceedings.

                                             2.

       As for Major Russell, the district court awarded summary judgment to him on the

gross negligence claim because there is no evidence that his duties included exercising

control over tactical training courses conducted by the Baltimore Police Department,

including the course at which Gray was shot. There also is no evidence that Russell

knew Officer Kern was armed with his loaded service weapon on the day of the shooting

or that Russell ever acquiesced in the carrying of live weapons during tactical training

courses. The Grays nevertheless seek to hold Russell liable for “permitt[ing] this training

to go forward at an unsafe facility, . . . where there was a custom and practice to permit

officers during training to carry live weapons despite knowing it was an unsafe practice.”

See Br. of Appellants 30. Because the Grays’ theory has no factual support in the record,

we must affirm the judgment in favor of Russell on the gross negligence claim.

                                             C.

      Finally, we turn to the state law claims against Officer Kern and Commissioner

Batts that the district court dismissed as moot once the City deposited $200,000 with the

court in reliance on Maryland’s Local Government Tort Claims Act. See Md. Code, Cts.

& Jud. Proc. § 5-301 et seq. The state law claims against Kern that were dismissed

                                             20
include the gross negligence claim; three of the four intentional tort claims (for assault,

battery, and intentional infliction of emotional distress); and the loss of consortium claim.

Those against Batts include the Maryland constitutional claim, the gross negligence

claim, and all four intentional tort claims.      We review de novo the district court’s

dismissal of the state law claims as moot. See Wall v. Wade, 741 F.3d 492, 496 (4th Cir.

2014).

         As the Court of Appeals of Maryland has explained, the Local Government Tort

Claims Act limits the financial liability of local governments — including, as pertinent

here, the Baltimore Police Department — and provides their employees with certain

protections from damages. See Rounds v. Md.-Nat’l Capital Park & Planning Comm’n,

109 A.3d 639, 648-49 & n.14 (Md. 2015). Where a local government’s employee is sued

for acts or omissions committed within the scope of employment, the Act requires the

local government to provide a legal defense and to pay any judgment for damages (except

some punitive damages) up to the specified limit on the local government’s financial

liability. See Md. Code, Cts. & Jud. Proc. §§ 5-302(a), 5-303(a)-(c). At the time Gray

was shot, the Act limited the financial liability of a local government to “$200,000 per an

individual claim.” See Rounds, 109 A.3d at 649 (quoting then-current version of Md.

Code, Cts. & Jud. Proc. § 5-303(a)).

         Many plaintiffs can recover only the damages that a local government must pay,

because the Local Government Tort Claims Act contains an immunity provision that

generally protects an employee from having a judgment executed against him. See Md.

Code, Cts. & Jud. Proc. § 5-302(b)(1). As an exception to the immunity provision,

                                             21
however, the Act provides that “[a]n employee shall be fully liable for all damages

awarded in an action in which it is found that the employee acted with actual malice.” Id.

§ 5-302(b)(2)(i). For purposes of the Act, “actual malice” is defined as “ill will or

improper motivation.” Id. § 5-301(b).

       In these proceedings, the district court concluded that the Grays cannot recover

more than $200,000 on the state law claims against Officer Kern and Commissioner

Batts, for lack of evidence that Kern acted with actual malice. Once again, however, the

court improperly relied on the erroneous premise that it is undisputed that Kern

inadvertently — rather than intentionally — used his loaded service weapon to fire at

Gray. As discussed at length above, when viewed in the proper light, there is ample

evidence on which a jury may find that Kern intentionally shot Gray with the live service

weapon for the purpose of injuring him, i.e., that Kern acted with ill will, improper

motivation, and actual malice. Because the applicability of the $200,000 cap on damages

under the Local Government Tort Claims Act is therefore a live question, we reinstate the

state law claims against Kern and Batts that the district court dismissed as moot. 5




       5
         In view of our conclusion that there is sufficient evidence of Officer Kern’s
actual malice for the recovery of damages in excess of $200,000 on the state law claims,
we do not reach the issue raised by the Grays on appeal as to whether the district court
erred in rejecting the argument that applying the $200,000 damages cap here would
engender a state constitutional violation.


                                             22
                                           III.

      Pursuant to the foregoing, we affirm the district court’s judgment as to the 42

U.S.C. § 1983 excessive force claim against Officers Kern and Edwards and Major

Russell, as well as the gross negligence claim against Major Russell. We vacate as to the

§ 1983 substantive due process and failure to train claims against Officers Kern and

Edwards, Major Russell, and the Baltimore police defendants; the gross negligence claim

against Officer Edwards; and the various state law claims against Officer Kern and

Commissioner Batts that had been dismissed as moot. We remand for such other and

further proceedings as may be appropriate. 6

                                                                   AFFIRMED IN PART,
                                                                    VACATED IN PART,
                                                                     AND REMANDED




      6
         We recognize that further proceedings may also be appropriate on additional
claims. For example, the district court awarded summary judgment on the Maryland
constitutional claim to Officer Kern — and by extension Officer Edwards and Major
Russell — for the simple reason that it is an analog to the § 1983 claims, one of which
has been reinstated against those defendants. And, the court awarded summary judgment
on the loss of consortium claim to Officer Edwards for lack of another colorable state law
claim against him, including the now-reinstated gross negligence claim.


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