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A jury should decide if Baltimore’s actions failed to protect businesses during the Freddie Gray unrest, judge rules

A federal judge ruled that there’s enough evidence in a lawsuit brought by small business owners affected by the 2015 unrest following the death of Freddie Gray to allow a jury to determine whether the city’s response fell short of its obligations under the Maryland Riot Act.

The lawsuit, brought by nearly 70 plaintiffs, has been winding its way through the courts for four years. But the Thursday ruling by U.S. District Judge Stephane Gallagher sets the stage for a trial — or a settlement.

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Lawyers for the city had argued that its leaders did a reasonably good job curbing the unrest, especially when compared with more recent such events in other cities, and that the plaintiffs were “Monday morning quarterbacking” the events.

Gallagher said the requirements of the Riot Act, however, are “not one of overall reasonableness or of good policy,” but whether the city took action to prevent “theft, damage or destruction.”

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“The City may ultimately be right that it acted reasonably as a matter of overall policy and prioritization, and a reasonable juror could certainly agree,” Gallagher wrote. “However, a reasonable juror could also (and perhaps simultaneously) conclude that the City remains liable for the ensuing property damage arguably attributable to the ‘trade-off’ between more traditional anti-riot measures and the City’s policy decisions in April of 2015.”

The plaintiffs are mostly small-business owners who said their stores were burned or vandalized, and who were attacked and suffered injuries. Among those suing are the owners of the Fireside North Liquors on West North Avenue. One of the store’s owners was beaten and robbed, and another was hurt jumping to escape the blaze.

“Even in locations where BCPD officers were present, business owners helplessly watched their stores being looted and destroyed as BCPD officers also simply watched and/or turned away, and let the destruction of property continue,” the complaint said.

The city argued that there wasn’t a riot at all, but rather “individuals opportunistically taking advantage of unrest in order to commit crimes and property destruction.”

Gallagher called that a “distinction without a difference.”

The judge noted that the city was hearing “talk of a riot” as early as the day of Gray’s death, and the city coordinated with police to manage protest crowds.

“The City instructed the BPD that it did not want the BPD’s response to appear ‘overly aggressive,’ and that the BPD should prioritize protecting the protesters and their First Amendment rights,” Gallagher wrote. “In the lead-up to the April 25th protests, the City remained focused on ensuring that the BPD not ‘silenc[e]’ protesters or ‘interfere[e] with their First Amendment rights.’”

The “discovery” portion of the lawsuit required former city leaders to sit for depositions and revisit the events of April 2015. Their request to have the lawsuit thrown out earlier this year blamed Maryland Gov. Larry Hogan and his administration, saying they ignored city pleas for outside police officers and National Guard members to bolster the city ranks.

“Despite being under-equipped and understaffed as a result of the State and other jurisdictions refusing its requests for assistance in the days leading up to the funeral, BPD managed to suppress the unrest in approximately twelve hours, with no loss of civilian or officer life,” wrote city attorneys, comparing the day favorably with “the violence that has erupted nationwide both before (Ferguson) and after (following the 2020 death of George Floyd), and even the last time Baltimore experienced rioting in 1968.”

Baltimore police in the days leading up to the riot “begged people to come assist, and they did not,” former Police Commissioner Anthony Batts testified in his deposition. Other former city officials also remembered asking for help and being spurned, according to the lawsuit filing.

Hogan has painted the city as downplaying the prospect of a riot and spurning state help. Hogan said Mayor Stephanie Rawlings-Blake told him she didn’t think anything was going to happen, and that city police told state police: “We don’t have any issues.”

“The unmistakable message, delivered to me directly and through the media, was that the city had everything under control,” Hogan wrote in his political biography, published in 2020.

The state enacted the Riot Act in 1835 after a violent disturbance over a bank failure claimed at least five lives. The law 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.”

Gallagher scolded the city for trying a third time to have the claims limited under the Local Government Tort Claims Act, which provides that a local government cannot be liable for more than $200,000 per individual claim or $500,000 for claims stemming from a single incident.

“The City waited nearly two and a half years from the Court’s denial of its motion for reconsideration ... The City offers no justification for that delay, and, accordingly, the Court finds it to be unreasonable,” she wrote.

U.S. District Judge George L. Russell III previously ruled that the statute says plaintiffs in a Riot Act lawsuit can recover damages without exception.

The last use of the Riot Act came after 1968 when businesses sued over the civil unrest following the assassination of the Rev. Martin Luther King Jr.

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