The argument City Solicitor Andre Davis and the Baltimore police union had this month about the city’s policy on paying punitive damages in civil cases when officers are found to have acted with malice is altogether different from the one he raised last week about whether the city should pay any damages at all in civil lawsuits stemming from the Gun Trace Task Force’s crimes. The latter issue is much more complicated and could yield answers to some of the most crucial questions stemming from the case.
Mr. Davis rankled the police union by reiterating a longstanding city policy that such punitive damages are awarded on a case-by-case basis depending on the Law Department’s judgment. That follows from the state’s Local Government Tort Claims Act, which limits a local government’s liability for damages caused by an employee’s “tortious acts or omissions” to $400,000 per individual claim or $800,000 total per incident. The law says a local government can under most circumstances choose to pay for a punitive damages judgment against an officer but cannot be required to. That was the crux of the argument between Mr. Davis and the Fraternal Order of Police about the case Green v. Conway, in which the city ultimately choose to pay most of the punitive damages against five officers after a jury concluded that they acted with malice during a 2013 arrest. The city also persuaded the plaintiffs’ attorneys not to seek the additional damages.
What Mr. Davis is talking about in regard to possible civil liability related to the Gun Trace Task Force is a different matter altogether. He is arguing that the city should not be liable at all — for either actual or punitive damages. The Tort Claims Act says a local government is liable only for “tortious acts or omissions committed by the employee within the scope of employment with the local government,” and Mr. Davis’ argument is that when the task force members were committing the crimes for which they pleaded guilty or were convicted in federal court, they were acting outside the scope of their employment, even if they were officially on the clock.
Putting aside the moral question of whether the city owes damages to the task force’s victims, that argument might work. Maryland’s Court of Special Appeals ruled in 2006 that Baltimore police officer Rodney Price was not acting within the scope of his employment when he shot and killed a man he believed was having an affair with his wife. But does it apply here?
It makes some intuitive sense. Testimony in the trial illustrated that much of the time when these officers were on patrol, their real motivation was to enrich themselves, and that any law enforcement that they performed was incidental or even corrupt.
But how that will play out in individual cases remains to be seen. One of the first complaints against the officers, filed by Baltimore man Ivan Potts, centers on alleged brutality and the planting of evidence, not the kind of freewheeling theft to which the officers either pleaded guilty or were found guilty. In his civil suit, Mr. Potts alleges that three of the officers jumped out of a car and demanded that he submit to a search. Two of the officers grabbed his arms, he said, and when he resisted, they took him to the ground, kicked him and beat him with a baton, and then planted a gun on him. Mr. Potts was convicted based on the officers’ testimony and spent about a year in prison before he was set free. In that instance, were the officers seeking to rob Mr. Potts, or were they looking to pad their gun arrest statistics to please their supervisors?
And even if the officers were acting outside the scope of their employment, plaintiffs’ attorneys will surely seek to show that the unit’s activities were known or at least suspected by others in the department and that they flourished amid the culture of unconstitutional policing described in the Justice Department’s 2016 report about the department. Above all, the question remains: What did the task force’s superiors in the department know or what should they have known?
A lot more than monetary damages is riding on that answer. Developing an understanding of how such lawlessness could exist for so long in the department and whether it was tolerated or even abetted by others who still serve will be critical to restoring the public’s lost trust in the Baltimore police. As taxpayers, we may have an interest in the success of Mr. Davis’ argument, but as citizens, we have an interest in exposing the truth, whatever it may be.