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Baltimore County authorities seek dismissal of claims against them in class-action sexual assault lawsuit

Attorneys for Baltimore County authorities filed motions this week to dismiss claims against them in a class-action lawsuit that alleges law enforcement and prosecutors fostered a culture to dismiss and cover up complaints of sexual assault.

Five women with ties to the University of Maryland, Baltimore County, allege they were sexually assaulted by UMBC students in separate incidents and that authorities failed to properly investigate, report or prosecute, according to the civil lawsuit originally filed in September and expanded in October. Their complaint states that university and Baltimore County authorities have discriminated against women for years on the basis of gender, denying women “equal access to justice and of equal protection under the law.”

Attorneys for Baltimore County police, prosecutors and UMBC argue that the defendants are immune from lawsuits, that the plaintiffs failed to provide enough facts showing authorities engaged in sex- or gender-based discrimination, and that the alleged conspiracy to conceal rapes did not occur.

Lawyers in Maryland Attorney General Brian Frosh’s office filed motions on behalf of UMBC, Baltimore County State’s Attorney Scott Shellenberger and others. Private attorneys Neil E. Duke and Christopher C. Dahl from Baker, Donelson, Bearman, Caldwell & Berkowitz PC filed on behalf of Baltimore County police.

“We are encouraged to learn that the Maryland Attorney General has filed documents affirming the high priority UMBC and the individuals named gave to carefully reviewing and responding to the sexual assault allegations,” UMBC spokeswoman Dinah Winnick wrote in a statement.

Lawyers for the attorney general described plaintiffs’ allegations that UMBC conspired with Baltimore County law enforcement to underreport incidents of sexual assault “long on hyperbole but devoid of concrete factual allegations.”

They stated that “contrary to Plaintiffs’ outcry of ‘deliberate indifference’ and gender bias against women, [UMBC] responded to each and every complaint of sexual misconduct filed by a student (and even non-students) with deliberate and thorough investigation and, in many cases, found the accused students responsible and disciplined them accordingly.”

In one case involving a UMBC student who said she was assaulted by four members of UMBC’s basketball team in 2014, lawyers representing the university said two of the alleged assailants were expelled after an investigation. The woman said she drank that night and didn’t remember the assault the next day. She only found out two months later when another student told her the alleged assailants had "pass[ed] her around," according to her complaint.

The two men who were expelled were the only two to have admitted to the acts, according to the lawsuit. The woman complained that neither police nor UMBC fully investigated the assault to implicate the other two.

Lawyers for police said her complaint is time-barred. Lawyers for UMBC said the university found just two of the four sexually assaulted her and that their alleged failure to investigate further does not equate to “deliberate indifference.”

UMBC lawyers said the administrative process for a 2017 case involving two former UMBC female students and three baseball players has not yet concluded. They said they have investigated and also overcame a motion filed in Baltimore County Circuit Court by the alleged assailants to stop UMBC from investigating the complaint. The court denied their motion.

Bernadette Hunton, a private attorney hired by UMBC to investigate assault claims and also named as a defendant in the class-action suit, filed a separate motion to dismiss. She argues she should not be sued as she made no final investigative or punitive decisions in connection with the investigations and that the claims against her failed to support any gender or sex bias.

Citing special immunity given to prosecutors, Maryland Assistant Attorney General Wendy Shiff wrote that Shellenberger and other employees in his office were immune from civil liability. She wrote that such protections exist in part so that prosecutors do not make decisions about whom to prosecute based upon the potential for civil damages.

She also referenced the 2018 4th U.S. Circuit Court of Appeals decision to block a lawsuit against Baltimore State’s Attorney Marilyn J. Mosby brought by five city police officers who claimed she maliciously prosecuted them after the death in 2015 of Freddie Gray.

The federal appeals court agreed with Mosby’s lawyers that as a prosecutor, she had immunity.

Prosecutorial immunity does not extend to actions that fall outside their duties, such as intimidating a witness, as the Baltimore County suit alleged happened in at least one case, according to legal experts.

In the 2017 case, two former UMBC female students who were then attending Towson University accused three UMBC baseball players of sexual assault. Bonnie Fox, an investigator in Shellenberger’s office and a defendant in the case, asked a police detective to go to one of the women’s residences to tell her to stop trying to file charges against her alleged assailants, according to police detective notes.

After the state’s attorney’s office declined to charge the men, one of the women applied for charges directly with a commissioner of a Maryland District Court, according to detectives’ notes. She wrote in the application for charges that she was “mentally incapacitated by alcohol and was physically helpless” the night she alleged three UMBC baseball players raped her.

The men told police they drank at bars with the two women and then engaged in consensual sex with them after the women invited them into one of their apartments, according to the police reports.

The Baltimore Sun is withholding the women’s names because it does not identify alleged victims of sexual assault.

Shiff wrote that the woman’s application for charges could have been considered harassment, so that the state’s attorney’s defendants “could have reasonably believed that by sending the police officer, they were attempting to provide a reasonable warning or request to stop her behavior so that she would not be charged with criminal or potentially liable civilly for her actions.”

Both Shiff and the other lawyers representing police and UMBC argued that the plaintiffs’ case lacked evidence showing any violation of equal protection on the basis of sex.

“The cursory allegation that ‘female victims of sexual assault were less likely to have their cases investigated than victims of other crimes’ is without support,” Shiff wrote.

Lawyers wrote that plaintiffs did not provide enough facts to show any constitutional or other federal rights were violated as the result of an intent to treat male and female victims of sexual assault differently.

“Despite 832 numbered paragraphs, the Plaintiffs have not pleaded a single fact to show that either the County or the BCPD adopted any policy out of animus towards women,” wrote private attorneys representing Baltimore County Police Department and several of its current and former employees.

They added that the lawsuit places law enforcement in an “untenable position” as police officers, especially those charged with investigating sensitive crimes, “already walk a tightrope.”

“They are constantly subject to suit should they investigate and prosecute the wrong person. This is heightened in rape and sexual assault cases, where the claims are inherently more sensitive,” they wrote.

In response to the filing, the plaintiffs’ lawyer Rignal W. Baldwin V said he had not had time to review all the motions, which were filed late Monday afternoon, but that he “looks forward to addressing any issues the defendants raise.”

Baltimore County police spokesman Shawn Vinson wrote in an email to The Sun, “We cannot comment on pending litigation.”

State’s Attorney Shellenberger could not be reached before publication.

Attorneys in Frosh’s office wrote an earlier memorandum to support a dismissal of claims against UMBC Police Chief Paul Dillon and also filed motions late Monday night to dismiss claims against UMBC, UMBC President Freeman A. Hrabowski III, Dillon and others.

crentz@baltsun.com

twitter.com/cdrentz

Baltimore Sun reporter Jessica Anderson contributed to this article, which will be updated.

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