IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

MURIEL E. DEAN, et al.

:

v. : Civil Action No. DKC 2008-0847

:

TIMOTHY K. CAMERON, et al.

:

Presently pending and ready for resolution in this civil

rights action arising from the death of James Dean are: (1) a

motion filed by State Police defendants Keith Runk, Mark Gibbons,

Scott Wayne, Andrew Trossbach, Wesley Forchion, Daniel Weaver,

Thomas Hutchins, Steve Tom, and the State of Maryland to dismiss

(Paper 20); (2) a motion filed by Defendants St. Mary’s County,

Maryland, Calvert County, Maryland, and Charles County, Maryland to

bifurcate (Paper 22); and (3) a motion filed by Deputy Sheriff

defendants Steve Salvis, Timothy K. Cameron, Christopher Morley,

Sergeant Gerald Johnson, William Raddatz, David Alexander,

Christopher Becker, and Douglas Campbell to dismiss (Paper 28).

The issues have been fully briefed and the court now rules pursuant

to Local Rule 105.6, no hearing being deemed necessary. For the

reasons that follow, Defendants’ motions to dismiss will be

granted. Because all of Plaintiffs’ claims against the individual

defendants will be dismissed, no basis will remain for any claim

against the counties and the entire complaint will be dismissed.

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The following facts are alleged by Plaintiffs in their

extremely detailed complaint. On December 25, 2006, at about 9:10

p.m., James Dean called his sister and told her that he “just can’t

take it anymore,” after which he fired a shot and the call was

disconnected. (Paper 1, ¶ 30). After Dean’s sister was able to

get him back on the phone, she concluded he was still alive. She

called 911 at about 9:39 p.m. and said that she thought her brother

was suicidal and that he was located at his Jones Wharf Road

address. At 9:51 p.m., Dean’s sister called 911 a second time and

said that Dean was at the Dusty Lane address located in St. Mary’s

County, Maryland. The Dusty Lane home is a secluded family farm

surrounded by woods, fields, and several other houses nearby. The

road leading to the home is a dead-end dirt road serving only the

Dusty Lane home and several nearby houses. Visibility around the

home provides a clear 360 degrees of observation.

At about 10:00 p.m., Deputy Sheriff Christopher Morley of the

St. Mary’s County Sheriff’s Office (the “Sheriff’s Office”) arrived

at the Dusty Lane residence where Dean was located. A neighbor

told Morley that Dean had a gun and had been shooting. Dean told

Morley that he would come out of the house, but he did not do so.

After talking to Dean, Morley concluded that Dean was intoxicated

and agitated.

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Also at approximately 10:00 p.m., other law enforcement

officers arrived at the scene, secured the perimeter, and evacuated

surrounding residents from the area. Dean’s truck, which was

parked at the house, was disabled by law enforcement. State

Trooper Shughart of the Maryland State Police (“State Police”)

spoke with Dean’s wife, Muriel E. Dean. Mrs. Dean told Shughart

that Dean was an Army Reservist who was recalled to active duty and

scheduled to report to Fort Benning, Georgia on January 14, 2007.

Mrs. Dean also told Shughart that Dean had numerous mental

problems, had been “acting crazy” in recent days, had been

diagnosed with Post-Traumatic Stress Disorder (“PTSD”), and there

were guns in the Dusty Lane home, including at least 12 shotguns

and a black powder gun. The law enforcement officers at the scene

were informed that Dean had been drinking alcohol, had an argument

with his wife, was distressed regarding being called to active

duty, and threatened suicide. The officers at the scene were also

informed that Dean had served in Afghanistan, suffered from PTSD

due to his service in Afghanistan, and he had not been taking his

medication for some period of time.

At approximately 10:07 p.m., Sergeant Gerald Johnson of the

Sheriff’s Office spoke with Dean by phone, at which time Dean told

him that he was not coming out of the house. Dean further stated

that he was alone and not hurting anyone, but that he would hurt

anyone who tried to enter the house and wanted all law enforcement

Case 8:08-cv-00847-DKC Document 36 Filed 03/06/2009 Page 3 of 34

Cpl, apparently an abbreviation for Corporal. (Paper 1, at 2 & ¶

47). For purposes of clarity, Campbell will be referred to as

Lieutenant Campbell.

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officers to back off. At about 10:14 p.m., Dean appeared on the

back porch of the house with a long gun and advised the law

enforcement officers to “back off.” The St. Mary’s County

Emergency Response Team then arrived at the scene and took command

of a perimeter around the house.

At approximately midnight, the Hostage Recovery

Team/Negotiators from the St. Mary’s and Charles County Sheriff’s

Offices were contacted. Deputy Sheriff William Raddatz, Deputy

Sheriff David Alexander, Sergeant Steve Salvis, Lieutenant

negotiations command post at a residence in the Forest Farms

subdivision. Deputy Sheriff Alexander was assigned as the lead

negotiator. Also around midnight, the Calvert County Emergency

Response Team arrived on the scene and took up perimeter positions

with the St. Mary’s Hostage Recovery Team.

At approximately 4:33 a.m. and 7:00 a.m., Dean fired an

individual shot from the house in the general direction of the

police vehicles. The shots did not strike anyone and were not

fired in the direction of the officers. At approximately 8:00

a.m., the Charles County Emergency Response Team arrived on the

scene to relieve from duty the St. Mary’s and Calvert County

Case 8:08-cv-00847-DKC Document 36 Filed 03/06/2009 Page 4 of 34

Courts have described a “throw phone” as a phone encased in a box

that also contains an open microphone. The microphone may allow

police to hear what is going on inside the house. See., e.g.,

Estate of Bing v. City of Whitehall, Ohio, 373 F.Supp. 2d 770

(S.D.Ohio. 2005).

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Emergency Response Teams. At 11:00 a.m., some 14 hours after the

armed confrontation began, the State Police arrived at the scene

for the first time. The State Police, under the command of Sgt.

Keith Runk, took over command of the perimeter and deployed its

troops and resources. State police officers Lt. Mark E. Gibbons

and Lt. Scott A. Wayne were on the scene and helped develop a

tactical plan. Negotiators for the Hostage Recovery Team,

specifically Sgt. Salvis of the Charles County Sheriff’s Office,

held several short phone conversations with Dean from about 11:18

a.m. to 12:48 p.m. In one of the conversations, Dean told the

negotiator to get police cars out of the area or he would shoot.

through a window at about 11:36 a.m. and then retreated toward a

Calvert County armored “peacekeeper” vehicle that had been deployed

on the right side of the house, where no windows are located. At

that point, Dean fired a shot out of the house toward the ground,

but not at the officers. Dean had advised the negotiator that he

would shoot any throw phone that was thrown into the house. At

some point between 11:18 a.m. and 12:48 p.m., before the armored

vehicle was moved to the front of the house, Dean told the

Case 8:08-cv-00847-DKC Document 36 Filed 03/06/2009 Page 5 of 34

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negotiator that he would shoot any armored vehicle that was

positioned in front of the house.

Sgt. Runk was in the Calvert County vehicle, along with a team

leader for Calvert County. At approximately 12:10 p.m., the State

Police indicated that they would try to talk Dean out of the house

using Officer Andrew Trossbach, a childhood friend of Dean’s.

After talking to Trossbach, Dean did not come out of the house. At

about 12:15 p.m., Dean spoke to a negotiator on the phone and

stated, “I’m going home.” Dean thereafter indicated that he may be

coming out of the house. At that point the batteries in the police

throw phone died. At 12:45 p.m., the State Police cut off the

electricity in the home. A police negotiator also attempted to

call Dean on the phone in the house, but Plaintiffs allege that by

turning of the electricity, the State Police caused the land-line

phone to be inoperable.

At the same time, the Calvert County peacekeeper vehicle

deployed chemical munitions to the rear of the house, and the State

Police peacekeeper vehicle deployed chemical munitions to the front

of the house. At 12:47 p.m., the State Police peacekeeper vehicle

was moved to a position approximately 8-15 feet from the front of

the house, sitting broadside, with its front door nearly in front

of the front door of the house. Cpl. Wesley Forchion of the State

Police was inside the State Police peacekeeper vehicle. A Charles

County deputy was driving the vehicle.

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When the State Police vehicle was moved to the front of the

house, Dean opened the front door of the house, holding the storm

door partly open, and raised his long gun and pointed it directly

at the occupied State Police vehicle. At that moment, State Police

Sgt. Daniel Weaver, a counter sniper, fired one round from

approximately 70 yards away, striking Dean in the left side and

killing him immediately.

On April 4, 2008, Dean’s surviving spouse, Muriel Dean, along

with Dean’s parents, Elaine Faust and Joseph Dean, filed a six

count complaint naming twenty defendants: (1) survival action under

42 U.S.C. § 1983 brought by Muriel Dean, personal representative of

Dean’s estate against all defendants except the State of Maryland;

(2) wrongful death action under 42 U.S.C. § 1983 against all

defendants except the State of Maryland; (3) negligence - survival

action against St. Mary’s County, Calvert County, and Charles

County, and the State of Maryland; (4) negligence - wrongful death

action against St. Mary’s County, Calvert County, and Charles

County, and the State of Maryland; (5) gross and malicious

misconduct - survival action against all the individual defendants;

and (6) gross and malicious misconduct - wrongful death against all

the individual defendants. Plaintiffs seek compensatory and

punitive damages. The State Police Defendants, Officers Runk,

Gibbons, Wayne, Trossbach, Forchion, Weaver, Hutchins, and Tom, and

the State of Maryland filed a motion to dismiss. (Paper 20).

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Officers Cameron, Morley, Johnson, Raddatz, Alexander, Becker,

Campbell, and Salvis of the St. Mary’s and Charles County Sheriff’s

Offices also filed a motion to dismiss. (Paper 28). The remaining

Defendants, St. Mary’s County, Maryland, Calvert County, Maryland,

and Charles County, Maryland filed a motion to bifurcate pursuant

to Fed.R.Civ.P. 42(b). (Paper 22).

The purpose of a motion to dismiss pursuant to Fed.R.Civ.P.

12(b)(6) is to test the sufficiency of the plaintiff’s complaint.

Except in certain specified cases, a plaintiff’s complaint need

only satisfy the “simplified pleading standard” of Rule 8(a),

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002), which

requires a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

Nevertheless, “Rule 8(a)(2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.” Bell Atlantic

Corp. v. Twombly, 127 S.Ct. 1955, 1965 n.3 (2007). That showing

must consist of at least “enough facts to state a claim to relief

that is plausible on its face.” Id. at 1974.

In its determination, the court must consider all well-pled

allegations in a complaint as true, Albright v. Oliver, 510 U.S.

266, 268 (1994), and must construe all factual allegations in the

Case 8:08-cv-00847-DKC Document 36 Filed 03/06/2009 Page 8 of 34

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light most favorable to the plaintiff. Harrison v. Westinghouse

court must disregard the contrary allegations of the opposing

The court need not, however, accept unsupported legal allegations,

legal conclusions couched as factual allegations, Papasan v.

Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations

devoid of any reference to actual events, United Black Firefighters

notice pleading does not demand that a complaint expound the facts,

a plaintiff who does so is bound by such exposition.”

The Eleventh Amendment provides:

The Judicial power of the United States shall

not be construed to extend to any suit in law

or equity, commenced or prosecuted against one

of the United States by Citizens of another

State, or by Citizens or Subjects of any

Foreign State.

The Eleventh Amendment to the United States Constitution is a

bar to suits against a State for damages in federal court, unless

Congress has exercised its power under § 5 of the Fourteenth

Case 8:08-cv-00847-DKC Document 36 Filed 03/06/2009 Page 9 of 34

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Amendment to override this immunity or the State has waived it.

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989).

Defendants assert that Maryland has not waived immunity and

therefore cannot be sued. Plaintiffs acknowledge that the State of

Maryland is entitled to immunity under the Eleventh Amendment.

(Paper 24, at 4). Indeed, Plaintiffs submit that the state law

tort claims against the State of Maryland in counts three and four

may be dismissed “without prejudice to the right of the Plaintiffs

to file such a claim against the State of Maryland in state court.”

(Paper 24, at 23). Accordingly, Plaintiffs’ complaint against the

State of Maryland will be dismissed.

To prevail on a claim pursuant to § 1983, a plaintiff must

show that (1) the defendant deprived him of a right secured by the

Constitution or the laws of the United States and (2) and the

deprivation was achieved by defendants acting under color of state

law. Paul v. Davis, 424 U.S. 693, 696-97 (1976). There is no

dispute that Defendants’ actions constituted state action.

The Fourth Amendment provides, in pertinent part, “[t]he right

of the people to be secure in their persons [and] houses ...

against unreasonable searches and seizures, shall not be violated.

. . .” U.S. Const. Amend. IV. The first step in Fourth Amendment

Case 8:08-cv-00847-DKC Document 36 Filed 03/06/2009 Page 10 of 34

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analysis is to identify the search or seizure at issue.” U.S. v.

of Charleston, 532 U.S. 67, 92 (2001)(Scalia, J., dissenting)).

The parties disagree regarding exactly when the allegedly unlawful

seizure occurred. Plaintiffs assert that Dean was seized when the

police set up a perimeter around his house and he was no longer

free to leave. Defendants maintain that Dean was not seized until

he was shot by Sgt. Weaver.

A Fourth Amendment seizure occurs “when there is a

governmental termination of freedom of movement through means

intentionally applied.” Brower v. County of Inyo, 489 U.S. 593,

597 (1989). “A police officer may make a seizure by a show of

authority and without the use of physical force, but there is no

seizure without actual submission; otherwise, there is at most an

attempted seizure, so far as the Fourth Amendment is concerned.”

Brendlin v. Califorinia, 551 U.S. 249, 127 S.Ct. 2400, 2405

(2007)(citing California v. Hodari D., 499 U.S. 621, 626 n.2

(1991). As noted by the Fourth Circuit:

It is well established that “not all

personal intercourse between policemen and

citizens involves ‘seizures’ of persons” for

purposes of the Fourth Amendment. United

States v. Mendenhall, 446 U.S. 544, 552, 100

S.Ct. 1870, 64 L.Ed.2d 497 (1980)(internal

quotation marks omitted). Rather, it is

“[o]nly when the officer, by means of physical

force or show of authority, has in some way

restrained the liberty of a citizen” that we

may “conclude that a ‘seizure’ has occurred.”

Id. (internal quotation marks omitted).

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Liberty has been restrained, and “a person has

been ‘seized’ within the meaning of the Fourth

Amendment . . . if, in view of all the

circumstances surrounding the incident, a

reasonable person would have believed that he

was not free to leave.” Id. at 554, 100 S.Ct.

1870 (footnote omitted).

D., 499 U.S. at 627-28. “[W]hen a person has no desire to leave

for reasons unrelated to the police presence, the ‘coercive effect

of the encounter’ can be measured by asking whether ‘a reasonable

person would feel free to decline the officers’ requests or

otherwise terminate the encounter.’” Brendlin v. California, 551

U.S. 249, 127 S.Ct. 2400, 2405-06 (2007)(quoting Florida v.

Bostick, 501 U.S. 429, 435-36 (1991)).

Neither the Supreme Court nor the Fourth Circuit has

determined whether a Fourth Amendment seizure occurs when a police

establish a perimeter at an individual’s home. In the context of

other types of police activity, the Fourth Circuit has recognized

that, “[a] number of circumstances inform the inquiry of whether a

reasonable person would feel free to disregard the police,

including ‘the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the

person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer’s request might be

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2005)(quoting United States v. Mendenhall, 446 U.S. 544, 554,(1980)

(internal marks omitted).

Cases from other circuits have found that a seizure occurs

when the police establish a perimeter around a suspect’s home. For

2002), the court found that the seizure occurred when the police

surrounded the home of an armed, paranoid schizophrenic suspect.

The Sixth Circuit noted that even though the suspect barricaded

himself in the house and never submitted to police authority, he

had actually been “seized” for Fourth Amendment purposes when “the

police surrounded the house and paraded an armored vehicle in front

of the [suspect’s] house. These actions qualify as an intentional

application of physical force and show of authority made with the

intent of acquiring physical control.” Id. at 506. In Fisher v.

that the suspect was seized “when police surrounded his home and

stationed a sharpshooter to watch him.” The court in Estate of

seizure occurred when police formed a perimeter around the

suspect’s property. In Estate of Escobedo v. City of Fort Wayne,

2008 WL 1971405 (N.D.Ind. 2008)(unpublished), the court held that

establishing a perimeter around the apartment was a seizure. The

court noted that “[a] reasonable person would certainly have been

threatened by the presence of snipers, armor-clad [emergency

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response team] officers carrying shotguns, pistols, or submachine

guns, a mobile command center next to the apartment building, and

numerous uniformed officers around the building.” Id. at *21.

These “circumstances . . . indicat[ed] a seizure, even where the

person did not attempt to leave.” Id. (citing U.S. v. Mendenhall,

446 U.S. 544, 554 (1980)).

Here, Dean told the police that he was not coming out of the

house Dean stated that he wanted the police to “back off.” Dean

was not free remain in the home or to leave the home on his own

accord. His only choice was to exit the home under police

direction and presumably be placed under arrest or into the care of

mental-health professionals. Indeed, the factors examined in

Escobedo to determine whether the suspect was seized are

particularly instructive. The court noted,

The conduct of the Defendants in this case,

starting when the ERT took position outside

Escobedo’s apartment and when numerous

uniformed officers stationed themselves around

the apartment building, fit the definition of

a “seizure” as articulated in Brendlin.

Members of the Fort Wayne Police Department

displayed a show of authority by surrounding

Escobedo’s apartment and building. The

Defendants used a negotiator, members of the

ERT, patrol officers, and a mobile command

center to take control of the situation. This

show of authority would make obvious to a

reasonable person inside Escobedo’s apartment

that he must obey the commands of police,

specifically, to come out of the apartment

unarmed. Bender and Lucker made clear in

their depositions that the Defendants intended

to take control of Escobedo. He was not to be

left alone in his apartment, and he was not to

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shot, the analysis remains unchanged. The use of deadly force to

arrest or detain a suspect constitutes a seizure. “The

intrusiveness of a seizure by means of deadly force is unmatched.”

Tennessee v. Garner, 471 U.S. 1, 9 (1985); see also Waterman v.

seized the suspect by shooting and killing him).

the shooting, they make no independent claim for a Fourth Amendment

unlawful seizure separate from the excessive force claim. Such a

claim would fail, in any event. As the United States Court of

Appeals for the Fourth Circuit recently found, “officers have

probable cause to seize a person for a psychological evaluation

when ‘the facts and circumstances within their knowledge and of

which they had reasonably trustworthy information were sufficient

to warrant a prudent man’ to believe that the person poses a danger

to himself or others.” Cloaninger v. McDevitt, --- F.3d --- , 2009

U.S. 89, 91 (1964)). Dean’s threats, communicated through his

sister, the neighbor’s report that shots were fired, coupled with

the knowledge that Dean was heavily armed, justified the first

approach for inquiry. Dean’s own behavior once law enforcement

officers were on the scene only heightened their legitimate

concern.

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leave on his own. He could only leave if he

was in police custody so that he could undergo

a mental health evaluation. A reasonable

person would not have believed he would have

been free to terminate the encounter, either

by ignoring police communications and commands

and simply going about his business inside the

apartment (e.g., sleeping, watching

television) without further police

interaction, or by leaving the apartment and

going about his business in the city at large.

Id. These factors support a finding that the seizure occurred

that there was in fact a seizure, Plaintiff’s Fourth Amendment

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The Supreme Court has held that “all claims that law

enforcement officials used excessive force—deadly or not—in the

course of making an arrest, investigatory stop, or other ‘seizure’

of a free citizen, should be analyzed under the Fourth Amendment

and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S.

386, 395 (1989); Sigman v. Town of Chapel Hill, 161 F.3d 782, 786-

87 (1998). “The test for whether force employed to effect a

seizure is excessive is one of ‘objective reasonableness’ under the

2007)(quoting Graham, 490 U.S. at 399). “The standard of review is

an objective one. The intent or motivation of the officer is

irrelevant; the question is whether a reasonable officer in the

same circumstance would have concluded that a threat existed

justifying the particular use of force.” Id. (citing Graham, 490

U.S. at 396-97). The Graham analysis “requires careful attention

to the facts and circumstances of each particular case, including

the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade

1991). The Fourth Circuit has made clear that “Graham requires us

to focus on the moment force was used; conduct prior to that moment

is not relevant in determining whether an officer used reasonable

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Whether a particular use of force is reasonable “must be judged

from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Greenidge, 927 F.2d at

791.

Here, the Graham factors compel a finding that Sgt. Weaver’s

conduct was reasonable. First, Dean presented a serious threat of

harm. He threatened to shoot the occupied police peacekeeper

vehicle and raised his gun at the vehicle as if in preparation to

do so. Second, Dean pointed the gun directly at the vehicle,

posing an immediate threat to the officers inside. Finally, Dean

was resisting submission to police authority by means of violence

and threats. Under the circumstances, Sgt. Weaver’s use of deadly

force was objectively reasonable and the only action that he could

take to prevent an imminent threat of bodily harm and/or death. He

fired a single shot, striking Dean in the left side and killing him

immediately.

Plaintiffs contend that the court must consider the events

leading up to the shooting to show that the police actions

throughout the course of the standoff were unreasonable.

Plaintiffs argue that because Dean warned the negotiator that he

would shoot at any vehicle that came in front of the house, the

police provoked Dean to shoot by positioning the vehicle in front

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of the front door. Plaintiffs further argue that the court should

take into consideration Dean’s mental condition, and the police

officer’s failure have a psychiatrist at the scene or to allow Dean

to speak to his parents. Plaintiffs insist that “Dean would be

alive today had the police not created a threatening situation,” by

moving the peacekeeper vehicle in front of the house. (Paper 24,

at 11). However, Plaintiffs fail to cite any binding authority

that where a police officer allegedly provokes a suspect, creating

a situation where the officer has no choice but to use deadly

force, the police officer’s actions are deemed unreasonable.

Indeed, the Fourth Circuit has specifically rejected Plaintiffs’

argument, holding that an officers’ conduct in creating a dangerous

situation is irrelevant to the determination of whether the use of

deadly force was reasonable.

police officer was informed that a vehicle was being driven in a

reckless manner. After observing the vehicle violate several

traffic laws, the officer ran toward the vehicle with his service

revolver drawn, intending to arrest the driver. The officer did

not display his police badge. While the officer was in front of

the vehicle, the driver activated the headlights and sped towards

the officer, hitting him. The impact caused the officer to roll

over the front fender onto the hood of the vehicle. While on the

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hood, the officer fired two shots through the windshield, striking

the driver.

In analyzing whether the officer’s use of force was

reasonable, the court held that the officer’s failure to follow

proper police procedures, namely displaying his badge when

announcing himself as a police officer, was “irrelevant to the

issue of whether at the moment of the shooting [the officer] had

probable cause to believe that [the suspect] posed a threat of

death or serious bodily harm to him.” Drewitt, 999 F.2d at 780.

The officer’s alleged misconduct leading up to the shooting was

deemed irrelevant, and his actions were held to be objectively

reasonable and protected by qualified immunity. Id.

Here, Plaintiffs allege that Dean was heavily armed, under the

influence of alcohol, agitated, and dangerous. Sgt. Weaver had

unmistakable reason to believe that, at that very moment, Dean

posed a serious threat to the officers. Dean stated that he would

shoot at the peacekeeper vehicle and had previously fired shots in

the direction of police vehicles. When Dean emerged from the house

and pointed the gun at the officers, Sgt. Weaver was forced to make

a split-second decision in the context of a volatile atmosphere

regarding how to protect both the officers in the peacekeeper

vehicle and the officers around the perimeter of the residence from

a known threat of harm. Indeed, other facts alleged by Plaintiffs

point to the finding that Sgt. Weaver’s decision at this moment was

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reasonable. Plaintiffs allege that Dean appeared on the back

porch, deck, and doorway of the house numerous times during the

morning of December 26 and the police did not fire a shot. It was

only when Dean raised his weapon at the occupied peacekeeper

vehicle that Sgt. Weaver decided to use deadly force.

Additionally, the Fourth Circuit recently rejected Plaintiffs’

argument that the police should have summoned assistance from

mental health professional or Dean’s family. In Waller v. City of

police were dispatched to the home of Rennie Hunt after receiving

a 911 call from Teresa Jennings, who was concerned after being

unable to reach Hunt’s live-in girlfriend for two days. Jennings

described Hunt as a mental patient who had been in and out of the

hospital. Id. at *1. Police met Jennings at Hunt’s apartment,

where he refused to let them in and would not let his girlfriend

leave. Id. The “[o]fficers thought Hunt sounded mentally

disturbed.” Id. Upon checking Hunt’s criminal history, one of the

officers ascertained that Hunt had been arrested for public

drunkenness, disorderly conduct, and assaulting his girlfriend.

Id. Nearly two hours after the 911 call, a hostage negotiator

spoke to Hunt through the back door, to which Hunt responded that

he would blow the negotiator’s head off. Id. The negotiator ended

communication with Hunt and sought an arrest warrant for assault.

Id. Thereafter, an emergency response team forced its way into the

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apartment through the back door. Id. Hunt was eventually shot and

killed by three officers after “swinging what appeared to be a

scythe and brandishing what looked like a knife . . . .” Id.

Hunt’s sister brought an action against the City of Danville,

the police department, and the individual officers under § 1983 for

violations of the Fourth and Fourteenth Amendments, the Americans

with Disabilities Act (“ADA”), and the Rehabilitation Act. Id. at

*2. On appeal of the dismissal of the ADA claim, Hunt’s sister

argued that the police failed to accommodate reasonably Hunt’s

mental disability during the standoff. The plaintiff “criticize[d]

officers for banging on Hunt’s door and yelling, . . . argue[d]

that officers could have called mental health professionals,

contacted Hunt’s family members, or sought to administer

medications to Hunt.” Id. at *4. The plaintiff insisted that had

the police accommodated Hunt’s disability, there would have been a

“more benign outcome.” Id.

The Fourth Circuit rejected the plaintiff’s argument, noting

that “[t]o say that officers should have taken certain other

actions during the standoff is to lean far in the direction of

impermissible hindsight.” Id. (citing Hainze v. Richards, 207 F.3d

police attempted to calm the situation by

waiting at least two hours before entering the

apartment. Several officers attempted to

speak with Hunt through the apartment door,

and . . . officers made at least nine phone

calls during the standoff: they summoned

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supervisors, spoke further with Jennings,

contacted [the sister of Hunt’s girlfriend],

and ran a criminal background check on Hunt.

All of these actions reflect the officers’

considered judgment that a period of waiting

might calm Hunt and bring a peaceful

resolution to the standoff.

. . .

We note that “reasonable accommodation” in

this case bears a resemblance to how police

might have addressed a hostage situation that

did not involve a disabled individual. In any

potentially violent standoff, the officers may

have summoned a hostage negotiator and may

have waited several hours before entering the

apartment. . . . [W]e think plaintiff has not

indicated what the officers reasonably might

be expected to do that they in fact did not

do.

Id. at *5.

While this case is distinguishable from Waller because Dean

was not holding a third-party hostage and Plaintiffs’ claims are

not brought under the ADA, the court’s reason for rejecting the

plaintiff’s ADA claim is instructive. Here, police summoned a

negotiator, attempted to communicate with Dean by phone, tried to

talk Dean out of the house through a childhood friend, and waited

over fourteen hours before deploying chemical munitions into the

house. The facts alleged by Plaintiffs show that the police took

multiple steps to diffuse the situation. Moreover, whether Sgt.

Weaver or the other officers at the scene made tactical errors at

any point leading up to the shooting is irrelevant in determining

the reasonableness of Sgt. Weaver’s decision to employ deadly force

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at the moment Dean raised his gun at the officers. Accordingly,

Sgt. Weaver’s choice to fire one shot at Dean to prevent him from

shooting at the officers in the vehicle was objectively reasonable.

Sgt. Weaver fired the shot at Dean, and for purposes of this

analysis is the only “active” defendant. Plaintiffs allege no

specific acts of any other individual defendant that could have

violated decedent’s constitutional rights against unreasonable

force. In light of the finding that Sgt. Weaver’s actions were

reasonable under the circumstances, there is no need to “address .

. . the plaintiffs’ federal claims against the police

department[s], the chief of police, and the [County Defendants]

because ‘[i]n the absence of any underlying use of excessive force

. . . , liability cannot be placed on either the non-shooting

officers, supervisors, or the [County Defendants].’” Sigman, 161

F.3d at 788 (quoting Hinkle v. City of Clarksburg, 81 F.3d 416, 420

excessive force, “it follows that the other defendants cannot be

liable under the federal causes of action.” Id.

Plaintiffs seem to assert that they have a separate Fourteenth

Amendment claim, but that “this is clearly not a procedural due

process claim,” presumably leaving a substantive due process claim.

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(Paper 29, at 7). There is no separate due process claim, however,

for excessive force claims:

Today we make explicit what was implicit in

Garner’s analysis, and hold that all claims

that law enforcement officers have used

excessive force-deadly or not-in the course of

an arrest, investigatory stop, or other

“seizure” of a free citizen should be analyzed

under the Fourth Amendment and its

“reasonableness” standard, rather than under a

“substantive due process” approach. Because

the Fourth Amendment provides an explicit

textual source of constitutional protection

against this sort of physically intrusive

governmental conduct, that Amendment, not the

more generalized notion of “substantive due

process,” must be the guide for analyzing

these claims

Graham, 490 U.S. at 395.

The remainder of Plaintiffs’ complaint purports to assert

state law causes of action for wrongful death and survival,

involving negligence, gross negligence or malice. Defendants

challenge Plaintiffs’ wrongful death and survival claims based on

either negligence (counts three and four) or gross and malicious

misconduct (counts five and six) on a variety of grounds.

Defendants argue that malicious conduct is not an independent cause

of action, but rather, is a state of mind that must be proved to

overcome an immunity defense or to warrant an award of exemplary

damages. (Paper 33, at 9). Defendants further argue that while

gross negligence is a separate cause of action, Plaintiffs’

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allegations fall far short of the very high standard of proof.

(Id.).

A party may maintain an action for wrongful death against a

person whose “wrongful act causes the death of another.” Md.Code

Ann., Cts. & Jud. Proc. § 3-902(a)(1998). In a survival action, a

personal representative of a decedent’s estate may bring a

“personal action which the decedent might have commenced or

prosecuted . . . against a tortfeasor for a wrong which resulted in

the death of the decedent.” Beynon v. Montgomery Cablevision Ltd.

P’ship, 351 Md. 460, 718 A.2d 1161, 1168 (1998)(quoting Md.Code

Ann., Est. & Trusts § 7-401(y), (y)(2)). Both wrongful death and

survival actions are predicated upon finding that the decedent’s

death was caused by an underlying wrongful act. See, e.g.,

Benjamin v. Un. Carbide Corp., 162 Md.App. 173, 203 (2005)(“[I]n

order for a beneficiary to maintain an action for wrongful death,

there must have been a wrongful act.”), aff’d sub. nom., Georgia-

Pac. Corp. v. Benjamin, 394 Md. 59 (2006); Hurley v. U.S., 923 F.2d

only be invoked against a person whose wrongful act caused the

death of another.”). Maryland defines a wrongful act as “an act,

neglect, or default including a felonious act which would have

entitled the party injured to maintain an action and recover

damages if death had not ensued.” Md. Code. Ann., Cts. & Jud.

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Proc. § 3-901(e). Thus, the key threshold inquiry is, whether the

decedent, had he lived, would have been able to assert a claim

against the alleged tortfeasor. See Benjamin, 162 Md.App. at 189.

If the answer is no, then a wrongful death or survival action will

not lie.

Here, Dean’s death was the result of reasonable police

conduct, not excessive force, and he would not have had a viable

claim against any of the police officers had he lived. As

explained above, Plaintiffs have failed to state claims under §

1983. Tragically, Sgt. Weaver’s shot resulted in Dean’s death, but

this fact alone does not automatically give rise to a wrongful

death or survival action. Furthermore, even if Dean’s death was

caused by wrongful conduct, Plaintiffs’ state law claims would fail

because Defendants would be shielded from liability by immunity.

Plaintiffs assert state law claims for wrongful death and

survival based on negligence (counts three and four) against St.

Mary’s County, Calvert County, and Charles County.

The doctrine of governmental immunity is “deeply ingrained in

Maryland law” and may not be waived in the absence of express or

implied statutory authorization.” Nam v. Montgomery County, 127

Md.App. 172, 182, 732 A.2d 356, 362 (1999); see also Khawaja v.

Mayor & City Council, City of Rockville, 89 Md.App. 314, 325

(1991)(explaining that Local Government Tort Claims Act (“LGTCA”)

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Md.Code Ann., Cts. & Jud. Proc. § 5-301 et seq., which in certain

instances, imposes liability on local governments, does not operate

as a waiver of governmental immunity). A municipality, such as a

County, is entitled to governmental immunity. Nam, 127 Md.App. at

183, 732 A.2d at 362. (“When the state gives a city or county part

of its police power to exercise, the city or county to that extent

is the state.”). Specifically, municipalities are generally immune

from common law tort suits when engaged in governmental, as opposed

to proprietary, acts. Id.; see also Ashton v. Brown, 339 Md. 70,

101 (1995)(citing Clea v. City of Baltimore, 312 Md. 662, 667, 541

A.2d 1303, 1305 (1988)). “The operation of a police force is a

governmental function.” Hector v. Weglein, 558 F.Supp. 194, 206

(1982)(citations omitted). Thus, the County is immune as to common

law tort claims asserted against it based on torts committed by its

police officers. See Williams v. Prince George’s County, 112

Md.App. 526, 532, 554 (1996)(holding that the County was shielded

by governmental immunity when tort claims were asserted against it

in its individual capacity for torts allegedly committed by County

officers).

Plaintiffs’ allegations in counts three and four are based on

the alleged negligence of police officers employed by each of the

County Defendants. The County Defendants are immune from suit

based on torts committed by its police officers. Accordingly,

Plaintiffs’ claims against the County Defendants will be dismissed.

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Plaintiffs assert wrongful death and survival actions against

the individual officers based on gross negligence and malicious

conduct (counts five and six). Plaintiffs have pled gross

negligence and malicious conduct in the context of wrongful death

and survival actions, not as separate causes of action, in an

apparent attempt to overcome an immunity defense. Malicious

conduct is not a separate cause of action under Maryland law.

Defendants note that gross negligence has often been pled as a

separate cause of action, but Plaintiffs have not done so here.

(Paper 33, at 9)(citing Richardson v. McGriff, 361 Md. 437 (2000)).

Defendants maintain that whether Plaintiffs assert gross negligence

as a separate tort or as a defense to immunity, Plaintiffs’

allegations fall far short of the very high standard of proof.

(Id.).

“The [Maryland Tort Claims Act (“MTCA”)] provides immunity to

‘state personnel’ who commit tortious acts within the scope of

their employment and without malice or gross negligence. See

[Md.Code.Ann. State Gov’t] § 12-105; [Cts. & Jud. Proc.] § 5-522.”

Houghton v. Forrest, 183 Md.App. 15, 41 (2008). “Actual malice .

. . normally refers to conduct characterized by evil or wrongful

motive, intent to injure, knowing and deliberate wrongdoing, illwill

or fraud . . . .” Lee v. Cline, 384 Md. 245, 268

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(2004)(quoting Shoemaker v. Smith, 353 Md. 143, 163 (1999)(internal

marks omitted).

Plaintiffs allege that the conduct of the individual

defendants was malicious and accompanied by an intent to injure,

knowing and deliberate wrongdoing, or ill will toward Dean. (Paper

1, ¶¶ 100, 107). They claim that Defendants had knowledge of

multiple personal traits related to Mr. Dean, but failed to take

these factors into consideration during the standoff, thus giving

rise to an inference of malice, including that Mr. Dean suffered

from PTSD and was an Army Reservist.

Plaintiffs argue that Lee v. Cline, 384 Md. 245 (2004),

supports their argument that Defendants’ actions, taken as a whole,

are sufficient from which to infer malice. In Lee, a motorist was

stopped by the police for failure to properly affix a front license

plate to his car. When the driver was stopped by the police, he

explained that the plate was damaged during a trip to the car wash

earlier in the day. The officer asked to search the car. When the

driver refused to consent to the search, the officer prolonged the

traffic stop for over 30 minutes. During the traffic stop, the

officer took the motorist’s driver’s license and registration,

referred to him as a “suspect,” called a canine unit, and yelled at

him. Prior to calling the canine unit and yelling at the motorist,

the officer was informed that the license and registration were

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valid and that the motorist’s arrest and driving record were clean.

The court held that the officer’s actions, viewed together, could

support an inference of ill-will toward the motorist, thus

defeating the officer’s assertion of immunity under the MTCA. Id.

at 270.

Plaintiffs also cite Barbre v. Pope, 402 Md. 157 (2007). In

Barbre, the plaintiff alleged that a police officer shot him in the

neck while his hands were raised in surrender. The court held that

the officer acted with actual malice and was not entitled to invoke

immunity under the MTCA, noting that the plaintiff “was not

intoxicated, incapacitated, a threat to the safety of himself or

others, or disorderly.” Id. at 186. The court further noted that

the officer did not have “an excuse to use excessive or deadly

force” and “the facts as alleged in this case could demonstrate

malice . . . .” Id.

Similarly, in Okwa v. Harper, 360 Md. 161 (2000), the court

found that the officer’s actions could give rise to an inference of

malice after what began as a dispute over a plane ticket resulted

in the plaintiff being handcuffed, dragged away from the counter,

forced to the ground, and beaten. The court noted that:

[i]t would not be unreasonable for a fact

finder to infer that Appellees were motivated

by an extreme and overzealous desire to punish

Mr. Okwa. The alleged fact, if believed, that

peace officers beat a citizen about his head

and neck while they twisted his thumbs, could

support an inference that Appellees were

inspired with malicious intention. Such

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behavior fits the type of conduct which would

strip the actor’s immunity otherwise provided

under the MTCA.

Id. at 182.

Each case cited by Plaintiffs is distinguishable from the

current facts because the victim of the police conduct did not pose

a threat to police. While Plaintiffs’ opposition attempts to

characterize Dean as an innocent bystander who was doing nothing

wrong (see Paper 29, at 13-14), Plaintiffs’ complaint clearly

states that Mr. Dean shot in the direction of the police cars,

verbally threatened the police, and neighbors were cleared from the

area due to the threat that he caused. Plaintiffs’ further alleged

that Dean was intoxicated, agitated, and uncooperative. Unlike the

cases above, the facts alleged by Plaintiffs do not give rise to an

inference of malice.

In Maryland, gross negligence is defined as:

[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 guilty of gross negligence or

acts wantonly and willfully only when he

inflicts injury intentionally or is so utterly

indifferent to the rights of others that he

acts as if such rights did not exist.

Marriot Corp. v. Chesapeake & Potomac Tel. Co. of Md., 124 Md.App.

463, 478 (1998)(citations omitted). Plaintiffs rely on the facts

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alleged regarding malice to show that Defendants committed gross

negligence. (Paper 29, at 14).

Plaintiffs have failed to allege that Defendants acted

willfully or wantonly or were utterly indifferent to the rights of

Mr. Dean. Indeed, as noted above, Sgt. Weaver did not use deadly

force against Mr. Dean until there was an imminent threat of harm

to the police officers. Plaintiffs have failed to satisfy the high

threshold necessary to satisfy allegations of gross negligence.

See, e.g., Young v. City of Mt. Ranier, 238 F.3d 567, 578 (D.Md.

2000)(noting a plaintiff must cross a high threshold to establish

malice and gross negligence). Other than conclusory assertions,

Plaintiffs do not allege that Defendants intentionally failed to

perform a duty with a wanton and reckless disregard of the

consequences. See Barbre, 402 Md. at 188 (“conclusory allegations

of gross negligence were not enough to bring the claim outside of

the immunity and non-liability provisions of the MTCA”). Thus, the

state personnel immunity doctrine shields State police officers

Runk, Gibbons, Wayne, Trosbach, Forchion, Weaver, Hutchins, and Tom

from liability.

Section 5-507 of the Maryland Code, Courts and Judicial

Proceedings Article provides:

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

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official or individual from any civil

liability for the performance of the action.

Md.Code.Ann., Cts. & Jud. Proc. § 5-507(b)(1). “Police [officers]

. . . in the line of duty, act with discretionary authority.” Mora

v. City of Gaithersburg, 462 F.Supp.2d 675, 697, aff’d as modified

Md. 437 (2000)). “To prove malice, there must be an appropriate

showing of ill will, improper motivation, or evil purpose.” Davis

v. Muse, 51 Md.App. 93, 99 n.3 (1982).

The public official immunity doctrine applies where (1) the

actor whose conduct is at issue must be a public official rather

than a mere government employee or agent; and (2) the tortious

conduct occurred while performing discretionary rather than

ministerial acts in furtherance of his official duties. Baltimore

Police Dep’t v. Cherkes, 140 Md.App. 282, 328 (2001). Public

official immunity “has no application in tort actions based upon

alleged violations of state constitutional rights or tort actions

based upon most so-called intentional torts.” Lee, 384 Md. at 258

(internal marks omitted). The doctrine “is generally applicable

only in negligence actions or defamation actions based on allegedly

negligent conduct.” Id.

To defeat public official immunity, a plaintiff must

demonstrate that the official acted with actual malice. “The

actual malice needed . . . requires an act without legal

justification or excuse, but with an evil or rancorous motive

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influenced by hate, the purpose being to deliberately and wilfully

injure the plaintiff.” Williams v. Mayor & City Council of

Baltimore, 359 Md. 101, 131 n.16 (2000)(quoting Leese v. Baltimore

County, 64 Md.App. 442, 480 (1985), cert. denied, 305 Md. 106

(1985), overruled on other grounds by Harford County v. Town of Bel

Air, 348 Md. 363, 380 n.8 (1998)).

Here, “[i]t is clear that policemen are ‘public officials’ .

. . and that when they are within the scope of their law

enforcement functions they are clearly acting in a discretionary

capacity.” Baltimore Police Dept. v. Cherkes, 140 Md.App. 282, 329

(2001). Thus, police officers are entitled to immunity unless

Plaintiffs have alleged actual malice. As noted above, Plaintiffs

have failed to allege that Defendants acted with actual malice.

Therefore, County police officers Alexander, Becker, Cameron,

Campbell, Johnson, Morley, Raddatz, and Salvis are protected from

liability for the wrongful death and survival claims in counts five

and six by public official immunity.

For the foregoing reasons, the motions to dismiss will be

granted. The motion to bifurcate will be denied as moot. A

separate Order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge