             REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND


              No. 01475


        September Term, 2015

    _________________________


   WILLIAM H. TORBIT, SR., et al.

                  v.

     BALTIMORE CITY POLICE
       DEPARTMENT, et al.

    _________________________


   Krauser, C.J.,
   Friedman,
   Sharer, J. Frederick
       (Senior Judge, Specially Assigned),

                  JJ.

    _________________________

       Opinion by Friedman, J.

    _________________________


   Filed: February 2, 2017
       Two people were killed and several others were injured when the Baltimore Police

Department (“BPD”) responded to an “active shooter” 1 situation outside a nightclub in

Baltimore City. We are first asked to determine whether the Police Department, the Club,

and an adjoining parking lot’s owner and operator may be liable for actions prior to the

shooting. For a variety of reasons described below, we affirm the trial court’s rulings in

favor of those appellees. We are then asked to determine whether the trial court erred in

granting judgment in favor of the four police officers who fired their guns at the shooter.

We affirm the trial court’s finding that no reasonable juror could find that the officers were

grossly negligent.

                                     BACKGROUND

       On January 9, 2011, the BPD was called to the Select Lounge nightclub, located on

Baltimore City’s North Paca Street, after several fights had broken out inside the nightclub.

On arrival, Major Marc Partee decided to close the club early and send its patrons home.

Police set up a perimeter around the club and an adjacent parking lot frequently used by

guests of, although not owned by, the Select Lounge.

       After the closing, Jazzmin Graves, a patron of the Select Lounge, was walking

across the parking lot when she was hit by a car pulling out of the lot. Although Ms. Graves

was not harmed, an argument erupted between occupants of the car and Ms. Graves and



       1
        “An ‘active shooter’ is an individual actively engaged in killing or attempting to
kill people in a populated area.” FBI, Active Shooter Incidents, https://perma.cc/P4AB-
CUQH.
her friends. Because the car was blocking traffic, a man in dark clothing—specifically in

black jeans, hat, boots, and a black “hoodie” sweatshirt—approached the group. The man

told the two groups to stop arguing and to leave the parking lot. The car drove off the lot.

       Another patron, later identified as Sean Gamble, however, took exception to the

dark-clothed man’s actions. Gamble “got up in” the dark-clothed man’s face and expressed

his view that the man shouldn’t be “putting [his] hands on a female.” The dark-clothed man

told Gamble to “mind your own fucking business.” While they argued, another man, later

identified as Darrell “Rico” Baker, sucker-punched the dark-clothed man. More men joined

the fray, knocking the dark-clothed man to the ground and began “stomping[,] kicking[,]

and punching” him.

       The dark-clothed man then pulled and fired a gun.

       Officer Harry Pawley testified that the dark-clothed man fired a few shots, paused

briefly, and then resumed shooting:

              Q: When did you withdraw your service weapon?

              A: I was putting my mace away, I heard gunshots. I looked up,
              more gunshots. I saw an individual on the ground shooting and
              that’s at which time I withdrew my weapon and fired.

Further:

              Q: When you witnessed [the dark-clothed man] shooting, he
              was laying on his back shooting up into the air, wasn’t he?

              A: No. He was laying on his back shooting, like, his arm
              moving from side to side, discharging.



                                            -2-
       Officer Harry Dodge testified that, after hearing initial shots, he looked up and saw

the dark-clothed man fire shots toward Franklin Street, a cross street of North Paca:

              Q: Was the individual firing his weapon … into the air
              indiscriminately?

              A: He was firing towards Franklin Street indiscriminately with
              his arm parallel to the ground.

              Q: It wasn’t into the air?

              A: Not the second time he started shooting, no. The first time
              he started shooting, I don’t recall which direction he was firing.
              The second time he began firing again, he was indiscriminately
              [shooting] towards Franklin street where a group of people
              were.

       Officer Latora Craig testified that she heard several initial shots, saw the men who

had attacked the dark-clothed man begin to run, and saw that the dark-clothed man began

to fire again indiscriminately:

              Q: … And the shots that were fired by that person that you saw
              they were all going towards Franklin Street. Correct?

              A: They were going in different directions, he had no aim.
              Some were straight up, some were down. They were back-and-
              forth.

Officer Craig further testified that the initial shots “went past [her] legs and [her] feet.”

       Finally, Officer Toyia Williams testified that she heard rapid gunfire nearby,

observed about 20 to 30 people between her and the shooter, identified a muzzle flash from

the shooter’s gun, and then fired her weapon at the shooter.




                                             -3-
       Both the dark-clothed man and Sean Gamble were fatally wounded. Jazzmin Graves

and two other patrons, Katrina Harris and Jamie Jordan, suffered minor gunshot wounds.

       The dark-clothed man was later identified as BPD Officer William Torbit.

                               PROCEEDINGS BELOW

       Several lawsuits were filed and consolidated in the Circuit Court for Baltimore City.

Plaintiffs were Katrina Harris, Jazzmine Graves, Jamie Jordan, the Estate of William

Torbit, and the Estate of Sean Gamble. Defendants were the Select Lounge, its owner and

manager, 2 the parking lot owner Shell Realty, Inc., the parking lot operator PMS Parking,

Inc., the BPD, former Commissioner Frederick Bealefeld, Major Partee, Lieutenant

Charles Clayton (Torbit’s partner), and BPD Officers Pawley, Dodge, Craig, and Williams.

       Claims against Commissioner Bealefeld and the BPD were dismissed. Summary

judgment was entered in favor of Select. A jury trial commenced regarding the remaining

claims but the trial court, at the conclusion of the plaintiffs’ case, granted motions for

judgment in favor of the remaining defendants. The plaintiffs noted this appeal.

                                      DISCUSSION

       We have reorganized the appellate issues according to their procedural posture.

Pursuant to that organization, Appellants first argue that the trial court erred in granting

Commissioner Bealefeld and the BPD’s motions to dismiss. Next, they argue that the trial



       2
        The Select Lounge, its owner, and manager will be collectively referenced as
“Select” herein.


                                           -4-
court erred in granting summary judgment in favor of Select. Finally, they argue the trial

court erred in granting motions for judgment in favor of PMS, Shell, Major Partee,

Lieutenant Clayton, and the four police officers who fired their guns.

I.     Motions To Dismiss

       Appellants assert the trial court erred in dismissing their tort claims against

Commissioner Bealefeld and the BPD. Appellants argue that Commissioner Bealefeld and

the BPD owed a duty to protect the public from harm. That duty, they claim, arises out of

a special relationship between the public, the BPD, and Commissioner Bealefeld.

Appellees argued below and in this Court that Commissioner Bealefeld and the BPD owed

no duty of care to Appellants.

       The standard of review of a grant of a motion to dismiss is “whether the trial court

was legally correct.” Litz v. Maryland Dep’t of Env’t, 446 Md. 254, 264 (2016). We “must

determine whether the [c]omplaint, on its face, discloses a legally sufficient cause of

action.” Pittway Corp. v. Collins, 409 Md. 218, 234 (2009). In reviewing the complaint,

we “accept all well-pled facts in the complaint, and reasonable inferences drawn from

them, in a light most favorable to the non-moving party.” Litz, 446 Md. at 264. “Dismissal

is proper only if the alleged facts and permissible inferences, so viewed, would, if proven,

nonetheless fail to afford relief to the plaintiff.” O’Brien & Gere Engineers, Inc. v. City of

Salisbury, 447 Md. 394, 403-04 (2016) (citations omitted).




                                            -5-
       In a negligence action, “a plaintiff must allege facts demonstrating (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 from the defendant’s breach of the duty.” McNack v. State,

398 Md. 378, 394 (2007) (quoting Remsburg v. Montgomery, 376 Md. 568, 582 (2003))

(internal quotations omitted). Thus, in a case based in negligence, as we have here, we

begin by identifying whether a legally cognizable duty exists. Id. at 396. The Court of

Appeals of Maryland has explained that police do not owe an enforceable tort duty to the

public at large. Muthukumarana v. Montgomery Cnty., 370 Md. 447, 486 (2002) (“[W]hen

a statute or common law imposes upon a public entity a duty to the public at large, and not

a duty to a particular class of individuals, the duty is not one enforceable in tort.”) (Internal

quotations omitted). A duty may arise between police and an individual, however, when

there is a “special relationship.” Williams v. Mayor & City Council of Baltimore, 359 Md.

101, 143 (2000) (explaining that, “absent a ‘special relationship’ between police and

victim, liability for failure to protect an individual citizen against injury caused by another

citizen does not lie against police officers”). Thus, Appellants can recover against

Commissioner Bealefeld and the BPD only if they plead and prove the existence of a

special relationship. “[F]or a special relationship between police officer and victim to be

found, [a plaintiff] must [show] that the local government or the police officer affirmatively

acted to protect the specific victim or a specific group of individuals like the victim, thereby



                                              -6-
inducing the victim’s specific reliance upon the police protection.” Fried v. Archer, 139

Md. App. 229, 250-51 (2001) (emphasis added) (citations omitted).

       Here, Appellants have not pleaded facts in their complaint that allege Commissioner

Bealefeld or the BPD affirmatively acted to protect Appellants from harm, or that

Appellants were specifically relying on protection from Commissioner Bealefeld or the

BPD. They try to bridge that gap by alleging that Commissioner Bealefeld and the BPD

failed to act. Thus, Katrina Harris and Jazzmin Graves alleged that Commissioner

Bealefeld and the BPD “fail[ed] to establish and/or implement adequate policies, rules

and/or guidelines, and/or adequately train and/or prepare its … employees in operational

realities … relating to … crowd control.” Sean Gamble similarly alleged that

Commissioner Bealefeld “failed … to use proper care in selecting, supervising, training,

and or retaining their employees.” But failure to act, by definition, cannot satisfy the

requirement of an “affirmative act.” As a result, because there was no affirmative act to

create such a relationship, no special relationship existed between Commissioner Bealefeld

and Appellants nor between the BPD and Appellants. 3 Consequently, Commissioner




       3
         Appellants suggest that Torbit, by virtue of his employment as a BPD officer, had
a special relationship with the BPD, thus creating a duty of care. Torbit’s complaint alleged
that the BPD had a duty to, among other things, “conduct a specific policy addressing the
type of attire necessary for plainclothed officers.” Appellants have not, however, pleaded
facts alleging that BPD affirmatively acted to protect Torbit from harm or that Torbit
specifically relied on its protection. Therefore, no special relationship existed and no duty
of care arose.


                                            -7-
Bealefeld and the BPD owed Appellants no duty of care. 4 Because Appellants have not

provided allegations and facts that, if proven, would be sufficient to afford relief, we hold

that the trial court did not err in dismissing claims against Commissioner Bealefeld and the

BPD. 5

II.      Summary Judgment

         Appellants argue that the trial court erred in granting summary judgment in favor of

Select because Select violated a duty of care owed to nightclub patrons. Appellants claim

that Select’s knowledge of criminal activity in the neighborhood, over-promotion,

allowance of overcrowding, and lack of security created a dangerous condition that was

the proximate cause of Appellants’ injuries. Select disputes that it owed a duty of care but

also argues that, even if it did and violated that duty, the police shooting was a superseding

cause of Appellants’ harm. The trial court found that “even if [the] Court is to consider



         4
          Appellants also contend that Commissioner Bealefeld and BPD are liable—by way
of the doctrine of respondeat superior—for constitutional violations allegedly committed
by BPD police officers in this case. Because we affirm the trial court’s judgment in favor
of all BPD police officers involved here, none of the officers can be found liable. See infra,
Part III. We, therefore, do not need to address Appellants’ respondeat superior argument.
         5
         Appellants further argue that the trial court erred by improperly striking their
motion for reconsideration of the trial court’s grant of Commissioner Bealefeld and the
BPD’s motion to dismiss. Rule 2-534 provides that a trial court, “on motion of any party
filed within ten days after entry of judgment, … may amend the judgment, or may enter a
new judgment.” Md. Rule 2-534. Here, Appellants filed their motion for reconsideration 7
months after the entry of judgment. Appellants’ motion was therefore untimely and
properly stricken. Moreover, Appellants have not explained how, had the trial court
considered their untimely motion for reconsideration, the outcome would have changed.
As a result, we affirm the trial court’s striking of Appellants’ motion for reconsideration.

                                             -8-
[Select] a tortfeasor, [the] ensuing chain of events was not foreseeable.” Moreover, “the

end result of a fatal police shooting was clearly not foreseeable.”

       A trial court “shall enter [summary] judgment in favor of or against the moving

party if the motion and response show that there is no genuine dispute as to any material

fact and that the party in whose favor judgment is entered is entitled to judgment as a matter

of law.” Md. Rule 2-501(f). We apply a de novo standard of review in determining whether

the trial court correctly entered summary judgment. Roy v. Dackman, 445 Md. 23, 39

(2015).

       Even if we assume that Select owed a duty to Appellants, we agree with the trial

court that Select was not the proximate cause of Appellants’ injuries. That is because an

intervening act—Torbit’s firing of his gun—broke the causal link between any action by

Select and Appellants’ injuries. A “defendant’s negligence is not deemed the proximate

cause of the injury, when the connection is thus actually broken by a responsible

intervening cause.” Sindler v. Litman, 166 Md. App. 90, 116 (2005) (citations omitted).

“An intervening force is a superseding cause if the intervening force was not foreseeable

at the time of the primary negligence.” Id. at 115.

       Here, Torbit firing his gun was an intervening force and superseding cause of

Appellants’ injuries. Even if Select knew of crime in the area, knew that the nightclub was

overcrowded, knew that the nightclub was over-promoted, and failed to hire adequate

security, it could not foresee that Torbit, a plainclothes BPD officer, would fire his weapon



                                            -9-
in a nearby parking lot. Because there is no genuine dispute of material fact regarding

whether Torbit firing his gun was an intervening force and superseding cause, we hold that

the trial court correctly granted summary judgment in Select’s favor. 6

III.   Motion for Judgment

       Appellants contend that the trial court erred when —at the conclusion of Appellants’

case but prior to the case being submitted to the jury—it granted motions for judgment in

favor of the remaining Appellees. We will begin by analyzing the trial court’s grant of

judgment in favor of Shell and PMS. We then address, in turn, the trial court’s grant of

judgment in favor of Major Partee, Lieutenant Clayton, and the remaining police officers.

       “We review the trial court’s grant of [a] motion for judgment de novo, considering

the evidence and reasonable inferences drawn from the evidence in the light most favorable

to the non-moving party.” Thomas v. Panco Mgmt. of Maryland, LLC, 423 Md. 387, 393-

94 (2011) (citations omitted); see also Md. Rule 2-519. A case must be submitted to a jury

for consideration if any evidence is legally sufficient to create a jury question. Lowery v.

Smithsburg Emergency Med. Serv., 173 Md. App. 662, 683 (2007).




       6
         Appellants filed suit against Select’s owners and manager as well. Assuming that
Select’s owners and manager could be held liable for tortious conduct relating to operation
of the nightclub, we would find, as we found with Select, that an intervening act was a
superseding cause of Appellants’ injuries.

                                           - 10 -
         A.     Shell & PMS

         Appellant Sean Gamble contends that Shell, the parking lot owner, and PMS, the

parking lot operator, violated a duty of care by failing to protect Gamble from harm. Both

Shell and PMS argue that the police shooting was unforeseeable and therefore they were

not the proximate cause of Gamble’s injuries.

         “It is a basic principle that ‘[n]egligence is not actionable unless it is a proximate

cause of the harm alleged.’” Pittway, 409 Md. at 243 (quoting Stone v. Chicago Title Ins.,

330 Md. 329, 337 (1993)). “Proximate cause involves a conclusion that someone will be

held legally responsible for the consequences of an act or omission.” Id. (Internal

quotations and citations omitted). To prove proximate causation, a plaintiff must establish

legal causation. Id. at 245. “[L]egal causation most often involves a determination of

whether the injuries were a foreseeable result of the negligent conduct.” Id. at 246. A

“defendant may not be liable if it appears highly extraordinary and unforeseeable that the

plaintiff[’s] injuries occurred as a result of the defendant[’s] alleged tortious conduct.” Id.

at 247

         Here, the trial court found that “there [was] no evidence that it was foreseeable to

[PMS and Shell] that Mr. Gamble would involve himself in an incident on the lot, and end

up entangled with Officer Torbit, and ultimately be shot by either Officer Torbit or the

other defendant police officers.” Moreover, “the shooting was an extraordinary event, and

not foreseeable under these circumstance.” We agree. Appellants have not presented any



                                             - 11 -
evidence to support a jury finding that Shell or PMS could have foreseen Gamble getting

involved in a skirmish on the lot nor the subsequent police shooting. Therefore, we affirm

the trial court’s grant of judgment in favor of Shell and PMS. 7

       B. The Police Officers on Scene

       Appellants contend that there was sufficient evidence that Major Partee, Lieutenant

Clayton, and police officers Pawley, Dodge, Craig, and Williams were grossly negligent 8

and, therefore, that the trial court erred in finding that there were no factual disputes for the

jury to resolve.

       We begin by noting that gross negligence is not just “big negligence.” Rather, gross

negligence is:

                 [A]n 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.
                 Stated conversely, a wrongdoer is [liable] of gross negligence
                 or acts wantonly and willfully only when he inflicts injury


       7
         In their brief, Appellants argue the trial court erred in prohibiting testimony
regarding various other crimes in the vicinity of the parking lot. Because we affirm the trial
court’s finding that the police shooting was not foreseeable, and do not think that any
additional evidence of criminal activity near the parking lot would have made the police
shooting foreseeable, we need not address those arguments.
       8
         Appellants alleged various theories of liability sounding in tort and constitutional
violations against Major Partee, Lieutenant Clayton, and the four police officers who fired
their guns: Dodge, Pawley, Craig, and Williams. Appellants, however, have—with the
exception of constitutional claims against Major Partee—argued regarding only gross
negligence, and have therefore waived issues related to their other claims. See Moats v.
City of Hagerstown, 324 Md. 519, 525 (1991) (explaining that “[t]he failure of an appellant
to raise an issue in the appellate court is usually deemed a waiver as to the issue”).

                                             - 12 -
                 intentionally or is so utterly indifferent to the rights of others
                 that he acts as if such rights did not exist.

Barbre v. Pope, 402 Md. 157, 187 (2007) (citations omitted); see also Shoemaker v. Smith,

353 Md. 143, 164 (1999) (explaining that gross negligence is akin to “reckless or wanton

conduct”). Here, to reverse the trial court’s grant of judgment, there must be legally

sufficient evidence to support a jury finding that Appellees were grossly negligent. We take

the Appellees separately.

            i.          Major Partee

       Appellants contend Major Partee was grossly negligent in the manner in which he

managed the nightclub’s early closing. They produced an expert witness, Dr. Tyrone

Powers, 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 Officer Torbit as a

plainclothes police officer. Appellants argue that each of these failures violated the

standard of care.

       The question here, however, is not whether Major Partee violated a standard of care,

but rather 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 other. See Barbre, 402 Md. at 187. We necessarily focus, therefore, on

whether, under the circumstances, Major Partee’s actions showed utter disregard for the

safety and rights of others. We affirm the trial court’s finding that Appellants’ did not


                                               - 13 -
present sufficient evidence to support any inference of gross negligence. 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.

       Finally, Appellants make an incomplete argument that Major Partee violated their

constitutional rights—protected by Articles 16 9 and 25 10 of the Maryland Declaration of

Rights—against “cruel and unusual pains and penalties” and “cruel or unusual




       9
            Article 16 of the Maryland Declaration of Rights provides:

                That sanguinary Laws ought to be avoided as far as it is
                consistent with the safety of the State; and no Law to inflict
                cruel and unusual pains and penalties ought to be made in any
                case, or at any time, hereafter.

Md. Const. Decl. of Rts. art. 16.
       10
         Article 25 provides “[t]hat excessive bail ought not to be required, nor excessive
fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law.” Md.
Const. Decl. of Rts. art. 25.



                                            - 14 -
punishments.” Maryland courts have historically treated these provisions as providing the

same protection as the Eighth Amendment to the United States Constitution. 11 See, e.g.,

Harris v. State, 312 Md. 225, 237 n.5 (1988); see also Dan Friedman, THE MARYLAND

STATE CONSTITUTION: A REFERENCE GUIDE 42-44, 61-62 (Oxford ed. 2011) (and cases

cited therein).   Federal courts have consistently held that the Eighth Amendment’s

prohibition on “cruel and unusual punishments” applies only after conviction, not before.

See, e.g., Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997) (“The Eighth Amendment

prohibits the infliction of cruel and unusual punishment on one convicted of a crime.”)

(Emphasis in original). Appellants have failed to explain why they believe Articles 16 and

25 of the Maryland Declaration of Rights should be given a divergent interpretation from

that given to the Eighth Amendment. See Dan Friedman, The History, Development, and

Interpretation of the Maryland Declaration of Rights, 71 TEMPLE L. REV. 637, 645 (1998)

(“How to Create an Argument”). 12 In the absence of such an argument, we must deny relief.




       11
         “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const. amend. VIII.
       12
         Miles v. State provides an outstanding (albeit unsuccessful) example of how an
appellant might craft an argument for an independent interpretation of the Maryland
Declaration of Rights, in that case, regarding Article 16. 435 Md. 540 (2013). For
additional materials on Article 16, see 71 TEMPLE. L. REV. at 656, 692-93 n.272-81; Dan
Friedman, Tracing the Lineage: Textual and Conceptual Similarities in the Revolutionary-
Era State Declarations of Rights of Virginia, Maryland, and Delaware, 33 RUTGERS L.J.
929, 1018 (2002). For additional materials concerning Article 25, see 71 TEMPLE L. REV.
at 660, 698-99 n.380-89; 33 RUTGERS L.J. at 968.



                                          - 15 -
             ii.      Lieutenant Clayton

       Appellants contend that the trial court erred in granting judgment in favor of

Lieutenant Clayton, Officer Torbit’s partner, because they claim there were several

questions of material fact for the jury to consider. Appellants have not shown and it is not

clear to us, however, what claims those allegedly disputed facts would support. “Appellate

courts cannot be expected to either (1) search the record on appeal for facts that appear to

support a party’s position, or (2) search for the law that is applicable to the issue presented.”

Ruffin Hotel Corp. of Maryland v. Gasper, 418 Md. 594, 618 (2011) (citations omitted).

We, therefore, affirm the trial court’s grant of judgment in favor of Lieutenant Clayton. 13

            iii.      Remaining Police Officers

       Finally, Appellants argue that the trial court improperly resolved the issue of

whether the four police officers who fired their guns—Pawley, Dodge, Williams, and

Craig—were grossly negligent. In support of this contention, Appellants insist that a jury

could have decided that the police officers’ alleged violation of police training and policy,

and decision to fire their guns, amounted to gross negligence. Appellees generally argue

that the officers acted reasonably in response to an active shooter situation. The trial court


       13
          Even if we construed Appellants’ arguments as a challenge to the trial court’s
finding that there was no evidence sufficient to create a jury question of gross negligence,
we would affirm. Appellants allege that Lieutenant Clayton “abandoned Officer Torbit
almost immediately once [Clayton and Torbit] entered the nightclub” and thus failed to
supervise his partner, knowing that Torbit was in plainclothes. As the trial court explained,
however, “there was no evidence that it was against any police procedure for Officer Torbit
to work alone.”

                                             - 16 -
found that appropriate deference must be given to police—especially when they are making

“difficult and extremely quick decisions in split second circumstances of high stress and of

an emergency nature”—and therefore entered judgment in favor of the four police officers.

       The Court of Appeals of Maryland has, following United States Supreme Court

precedent, explained that excessive force claims against police officers are to be analyzed

under Fourth Amendment jurisprudence. Richardson v. McGriff, 361 Md. 437, 452 (2000)

(citing Graham v. Connor, 490 U.S. 386 (1989)). In Richardson, the Court explained the

relevant inquiry regarding claims of excessive force:

              The “reasonableness” of a particular use of force must be
              judged from the perspective of a reasonable officer on the
              scene, rather than with the 20/20 vision of hindsight. … The
              calculus of reasonableness must embody allowance for the fact
              that police officers are often forced to make split-second
              judgments—in circumstances that are tense, uncertain, and
              rapidly evolving—about the amount of force that is necessary
              in a particular situation.

Id. at 465 (citations omitted); see also Boyer v. State, 323 Md. 558, 589 (1991) (“[T]he

police officer’s conduct should be judged not by hindsight but should be viewed in light of

how a reasonably prudent police officer would respond faced with the same difficult

emergency situation.”). The Court further explained the Fourth Amendment “does not

allow [a] ‘Monday morning quarterback’ approach because it only requires that the seizure

fall within a range of objective reasonableness.” Richardson, 361 Md. at 455 (citing Schulz

v. Long, 44 F.3d 643, 649 (8th Cir. 1995)). Moreover:




                                           - 17 -
              The Fourth Amendment inquiry focuses not on what the most
              prudent course of action may have been or whether there were
              other alternatives available, but instead whether the seizure
              actually effectuated falls within a range of conduct which is
              objectively “reasonable” under the Fourth Amendment.
              Alternative measures which 20/20 hindsight reveal to be less
              intrusive (or more prudent), such as waiting for a supervisor or
              the SWAT team, are simply not relevant to the reasonableness
              inquiry.

Richardson, 361 Md. at 455 (quoting Schulz, 44 F.3d at 649). The Richardson Court

concluded that that principle of reasonableness “is the appropriate one to apply” to

excessive force claims brought under common law claims for gross negligence.

Richardson, 361 Md. at 452.

       Here, it is undisputed: (1) that the parking lot was dark; (2) that a dark-clothed man

randomly fired shots in a group within the parking lot; (3) that a group a people were around

the dark-clothed man when he started firing; (4) that when the dark-clothed man began

firing a weapon, police officers did not know he was a fellow police officer; and (5) that

four police officers fired their guns at what they perceived to be an active shooter. The

shooter posed an active danger to the public and law enforcement. A jury might question

the four police officers’ decision to fire their weapons. As the trial court explained,

however, “[t]he reasonableness of a particular use of force must be judged from the

perspective of a reasonable officer on the scene rather than with 20/20 hindsight.”




                                           - 18 -
Therefore, even making all reasonable inferences in favor of Appellants, we affirm the trial

court’s grant of judgment in favor of Officers Pawley, Dodge, Craig, and Williams. 14

                                           JUDGMENTS OF THE CIRCUIT COURT
                                           FOR BALTIMORE CITY AFFIRMED.
                                           COSTS TO BE PAID BY APPELLANTS.




       14
          Appellants’ further argue that the trial court failed to consider the individual
reasonableness of each police officer in firing their weapons. In support, Appellants point
to the fact that several other police officers on the scene did not fire their weapons. This
argument is unavailing. As the trial court explained, even if other police officers didn’t fire
their weapons, “what each of the other officers independently perceived in those few
moments” has no bearing on the question of the reasonableness of these four officers. We
agree.

                                            - 19 -
