As Baltimore's city solicitor a half century ago, George L. Russell Jr. once argued that "Baltimore has no power, duty or authority whatever to conserve peace or protect persons or property from violence."
He was writing in defense of the city in a lawsuit brought by local business owners John and Hazel Silver. The Silvers were seeking compensation for the damage done to their business during the 1968 riots that followed the assassination of civil rights leader Martin Luther King Jr.
Today, Mayor & City Council of Baltimore v. Silver and the thorny issues it raised have resurfaced as another group of business owners tries to hold the city responsible for riot damage — this time, the looting and burning that erupted three years ago Friday after the death of Freddie Gray.
And in a twist of local history, the case is assigned to U.S. District Court Judge George L. Russell III — Russell's son.
"Why do you think they call it 'Smalltimore,'" observed the current solicitor, Andre M. Davis.
When told that his son was presiding over the case, the elder Russell expressed surprise: "Is that right?" His son declined to comment, given that the litigation is pending.
Dozens of Baltimore merchants filed suit last year, saying the city had ample warning that unrest was building in April 2015, and should have done more to protect their businesses. Their claims revive memories of one of Baltimore's worst nights, when hundreds took to the streets and turned their rage against mostly small neighborhood stores, ransacking and burning them.
Many of the shopkeepers' experiences that day have not been told widely, in part because of a language barrier: most are natives of Korea. But their nearly 700-page complaint details horrifying attacks: Jin Suk Kim and his wife Kil Ja Kim, for example, were trying to close their liquor store on North Avenue in mid-afternoon that day three years ago, according to the lawsuit, but first one, then another wave of rioters pushed their way in.
The Kims were assaulted with bottles and a fire extinguisher, according to the suit. When police arrived, officers drove them a few blocks away and told them to wait for an ambulance. It came about an hour later, according to the suit, and medics dressed the wound on Jin Suk Kim's head, but they were not taken to the hospital until their son arrived and drove them there. Their store was looted, burned and beyond salvage, according to the suit, and Jin Suk Kim required neurosurgery for bleeding in the brain and extensive rehabilitation.
Another plaintiff, Seong Ok Baik, lost a corner store she owned in Broadway East — and, she said, her faith in the city.
"Baltimore businesses were thriving, but now, after the riot, a lot of businesses are fleeing and setting up elsewhere," Baik said through her attorney, who interpreted. "The city doesn't care about them. … The city has turned its back on them."
Baik said the $5,000 grants offered to businesses by the Baltimore Development Corp. after the riot for storefront repair were insufficient. Plus, recipients had to sign a waiver against future claims against the city over disturbance-related damage.
"A lot of families lost everything they built up in the United States," she said. "There are families with no source of income."
The shopkeepers sued because "they want some semblance of justice," Baik said, "and for their voices to be heard."
The lawsuit and those filed in 1968 are based on a Maryland law known as the Riot Act.
It was enacted in 1835 after a violent disturbance over a bank failure that claimed at least five lives. It allows anyone whose property is "taken away, injured or destroyed by any riotous or tumultuous assemblage of people" to sue to recover damages from the "jurisdiction such riot or tumult occurred."
But the act makes recovery of damages conditional on authorities having both reason to believe a riot was imminent and the ability to use police or citizens to prevent the damage, and not doing all in their power to prevent or suppress it.
After the 1968 riot, the elder Russell argued that Baltimore officials were unable to protect the businesses because they don't control the Baltimore Police Department — it's a state agency, not a city agency.
That's part of the city's defense in the current suit as well. Officials sought its dismissal in a filing last summer, saying "The city simply does not have legal control over the actions or inactions of the separate governmental entity known as the Baltimore Police Department."
That may seem preposterous to the typical resident, who doesn't call Annapolis if their house in Baltimore is being burglarized, and who sees the mayor hiring and firing police commissioners and appearing with department brass at crime scenes and on other occasions.
But although the mayor has the authority to appoint police chiefs, as well as budgetary control, the department has been a state agency since 1860. That's when legislators wrested control of the force from the city, whose government had been taken over by the nativist Know-Nothing party. Calls in recent years to return the force to city control have gone nowhere.
Russell dismissed part of the suit in March, but ordered the claims made under the Riot Act to proceed.
"The Mayor & City Council assert that Plaintiffs fail to establish that civil unrest of this magnitude was foreseeable," Russell wrote in his decision. "Plaintiffs counter that they adequately allege a series of events that should have reasonably led the Mayor & City Council to believe that civil unrest in some form was about to take place.
"The Court finds Plaintiffs' argument persuasive at this stage of the litigation," Russell wrote.
In considering the suit's allegations "in the light most favorable to the Plaintiffs," Russell wrote, it was "plausible" that city officials had the ability to prevent at least some of the damage by enlisting the police and local business owners.
Russell cited the ruling in the case that his father argued on the city's behalf after the 1968 riots.
"In Silver, the court noted that because 'the City is the agency responsible for appropriating money for the operation of the police department,' the relationship between the City and the BPD often gives rise to the 'flow and exchange of communications, accommodations and co-operative action,' " the younger Russell wrote.
"Thus, in the context of claims under the Riot Act, it is at least plausible that the Mayor & City Council could have 'conferred with the police commissioner and made requests for specific kinds of police action.' "
He went on to note that the City Hall-police connection was even stronger now than when Silver was decided, because the power to hire and fire the police commissioner was transferred from the governor to the mayor and council in 1976.
The elder Russell and Davis dismissed the notion that there could be a conflict in a son ruling on a case that refers to a decades-old case involving his father. One law professor with an expertise in judicial ethics said the judge could acknowledge "the elephant in the room" and give the attorneys the opportunity to raise any issues, but he too saw little reason for concern.
"It's pretty distant and long ago and far away," said Indiana University's Charles Gardner Geyh, co-author of the textbook "Judicial Conduct and Ethics."
The Silver case was one of about 400 civil suits filed against the city over damage from the 1968 riot, the Court of Appeals indicated in a 1971 ruling, and more were expected before the statute of limitations expired.
The case delved into history beyond Baltimore and, indeed, modern times, to explore the liability a governing entity has to victims of crime. Attorneys referred to the ancient Code of Hamurrabi, the Babylonian king who ruled in the 1700s BC and established one of the earliest sets of laws, carved into a stone pillar.
A footnote in a filing quotes the ancient code: "If the brigand be not captured, the man who has been robbed shall, in the presence of god, make an itemized statement of his loss, and the city and the governor … shall compensate him for whatever was lost."
Much of the dispute centered on what Baltimore could have done to prevent damage from a riot, even if the city's police force is a state rather than a municipal entity. That led to much back and forth on the concept of posse comitatus, or "power of the county."
The notion dates back to ancient English law, when "all persons, except clergymen, persons decrepit, women, and infants under fifteen" were required to assist lawmen in suppressing a riot. (The term came back into use among anti-government militia groups in the 1990s.)
As it turns out, the 1860 act that put the Baltimore police force under state control included a scenario in which Maryland officials could call upon the city sheriff to form a posse comitatus "for the purpose of preserving the peace," the appellate court noted in its opinion.
The court acknowledged that the city argued "vigorously" that this was absurd, and "an anachronism in the context of a present day civil disturbance of the magnitude experienced by Baltimore."
The city's brief to the court calls the idea of forming a posse comitatus at a time when a curfew and other riot-quelling measures had been imposed an argument that "pierces the perimeter of reason."
"Where would the Mayor get the members of the posse?" the city asked. "The only persons lawfully on the streets were military and police forces. Likewise, the sale of firearms and ammunition was prohibited. Or should they have used clubs?
"Can the thought be even entertained that a posse created by such a sudden emergency would be anything more than legalized rabble, hardly as well disciplined as the assemblages it was attempting to disperse, and serving no purpose other than to compound the havoc?
"The law does not deal in absurdities," the city said, and went on to decry the potential of Baltimore citizens being liable for riot damages "because, in 1968, their Mayor did not don his armor, mount his horse and … descend to do battle — with his posse comitatus?"
The appellate court judges said "we think the City is missing the point." They wrote that the mayor, as "conservator of the peace," had other actions available, although it was not for them to say what the city should or shouldn't have done. The judges sent the case back to the lower court.
Given that court records from that era are more difficult to access now, it is unclear what happened next.
In the current case, the central issue remains much the same: should the city have anticipated the violence, and did it do enough to quell it and protect people and property?
George Nilson was solicitor at the time of the 2015 riot. Until Monday, April 27, he said, the protests over Gray's death had been manageable.
Even on Saturday, April 25, when a large demonstration turned violent, with protesters destroying police cars and the Orioles opting to temporarily keep fans locked inside Camden Yards, Nilson said the disorder didn't rise to the level "that would have strongly indicated calling the National Guard."
"It was satisfactorily handled by the police department," he said.
By Monday, the day of Gray's funeral, tensions had risen and rumors of trouble later in the day were circulating. Police say they heard of a possible "purge" — a period of lawlessness depicted in a series of dystopian movies.
"There were threats that something might happen," Nilson said. "And something did."
Students and others began clashing with police in the Mondawmin area, and soon the disturbance escalated and spread, to Penn-North and elsewhere. Gov. Larry Hogan declared a state of emergency and activated the National Guard — a move he said he had been ready to make days earlier, but had waited until the mayor, Stephanie Rawlings-Blake, requested it.
Nilson said even if the Guard had been called after bricks and rocks began flying that afternoon, it would not have prevented the violence that followed and worsened after nightfall.
"It takes time to muster and come in," Nilson said. "Even if they had been called at two in the afternoon, the National Guard would not have been able to get there in time."
While the lawsuit goes into great detail re-creating those chaotic days in 2015, it also seeks accountability for what the city did after the fires were extinguished and business owners were left with the charred remnants of their stores.
"The plaintiffs are entitled to compensation under the law, but this is more than that," said the merchants' lawyer, Peter K. Hwang. His clients "suffered a great deal, with many losing their businesses or properties because of the riots, and their concerns and cries for help simply fell upon deaf ears."
Rather than help the business owners, Hwang said, he believes the city was focused instead on limiting its own liability — leaving his clients "no choice but to file a lawsuit."
No trial date has been set for the case.
Hwang said he has not seen the generation-spanning Russell connection posing any problems.
"While I may disagree with some of his rulings, which is inevitable for any attorney in any case before any judge, I do not see the source of any disagreement arising from any bias on the part of the judge or any predetermination by him as to how this case should go," Hwang said. "I believe Judge Russell is a man of integrity and an impartial judge, and that his ability to be objective should not be questioned just because his father incidentally happened to represent the city decades ago."