The following is a paper I submitted in a criminal law course taught by Professor Byron Warnken at the University of Baltimore School of Law regarding the qualified immunity from tort suits held by law enforcement officers under Maryland law. Since this paper was submitted in April of 1998, the Maryland courts have handed down several new opinions on this issue. As such, some of the specifics of this qualified immunity law enforcement officers enjoy in Maryland may have shifted somewhat since it was written. However, the essentials remain the same: immunity from civil liability for failing to arrest persons involved in criminal acts who then go and immediately harm another citizen. // Michael A. Dean

Under Maryland law, there is no tort⁽¹⁾ liability⁽²⁾ to an injured party resulting from the non-malicious failure of a law enforcement officer to enforce the law.⁽³⁾ This immunity⁽⁴⁾ is based upon the theory that the enforcement of the law protects the public at large and not any one individual citizen, thus under tort law analysis there is neither a general duty nor a special duty to protect that individual.⁽⁵⁾ Law enforcement officer immunity from liability for failure to enforce the law is rule is, generally, the law throughout the United States⁽⁶⁾ and typically is implemented in various states under the doctrines of public duty and qualified government immunity for discretionary functions.⁽⁷⁾

Courts in other states basing governmental officer immunity upon the public duty doctrine do so under a public policy recognizing that governments serve the public as a whole, and no one person in particular.⁽⁸⁾ This doctrine is often considered to be similar in analysis to the doctrine of sovereign immunity.⁽⁹⁾ Courts when applying the doctrine to immunize government officers point to the need to protect the government from the delays, expense, and burdens of litigation, noting the government's efforts are better spent performing its traditional duties and obligations.⁽¹⁰⁾

Courts have recognized the necessity for immunity for discretionary matters as necessary to allow prompt and decisive action by public officers.⁽¹¹⁾ Without immunity, some courts believe that public officers would become unduly fearful in the exercise of their authority and breed an unhealthy timidity.⁽¹²⁾ Also, holding government officials liable for all the consequences of their actions may be unfair since the law sometimes requires these officers, unlike private citizens, to take actions that may cause harm to others.⁽¹³⁾ Some government activities like law enforcement, which result a high risk of causing injury to others, have no real counterpart in private law.⁽¹⁴⁾ Although the impact of these concerns would appear to affect public officers in both their ministerial and discretionary activities, courts have felt it necessary to only provide for immunity for public officers in the performance of their discretionary acts.⁽¹⁵⁾

Currently, all states provide some form of immunity for government officers when acting within a discretionary capacity.⁽¹⁶⁾ Yet some courts and states are uncomfortable with the issue of governmental officer immunity since it denies relief to "a tort victim simply because he had the added misfortune of being injured by a public officer rather than a private citizen."⁽¹⁷⁾ Furthermore, Maryland courts have found that a public officer in Maryland lacks immunity for any acts which would violate a citizen's rights under the Maryland Declaration of Rights.⁽¹⁸⁾

This paper will review the immunity of law enforcement officers in tort law⁽¹⁹⁾ for their failure to enforce the law, as implemented in Maryland caselaw and statute, and discuss some of its implications in situations involving domestic violence and detaining intoxicated drivers.

Legal authority in the United States that there is no liability for the failure to protect individuals by law enforcement officers generally is accepted as originating in South v. Maryland,⁽²⁰⁾ for states implementing it under the public duty doctrine.⁽²¹⁾ In this case, Robinson, a resident of Washington County, owed a judgment debt to Pottle, a resident of Massachusetts. When Pottle and a party consisting of his attorney and a deputy sheriff attempted to assert a levy upon Robinson's property, they were surrounded by a group of workmen armed with stones and other weapons.⁽²²⁾ The workmen threatened violence should any attempt be made to assert the levy. After Pottle and his party took refuge in a nearby house, the workmen (described in the case as "rioters") maintained an armed guard around it.⁽²³⁾ The deputy sheriff left Pottle and his attorney imprisoned in the house and went to consult with the High Sheriff, South. When South returned with the deputy , Pottle demanded that he be protected from the armed workmen, but South refused to do so.⁽²⁴⁾ Pottle and his attorney were released, after four days of imprisonment, when they paid the workmen $2,500, a sum apparently equal to the amount of back wages owed them by Robinson.⁽²⁵⁾

After the federal Circuit Court for the District of Maryland found for the plaintiff Pottle in a civil suit for damages against the sheriff, South appealed to the Supreme Court. The Supreme Court, in reversing the lower court, found no cause of action under Maryland common law.⁽²⁶⁾ The Court held that a sheriff, as a public officer, was liable personally only for misfeasance or nonfeasance of ministerial acts, where the sheriff is bound to an individual for a fee or salary, but not for a breach of his public duty.⁽²⁷⁾ For failure to perform a public duty, where the plaintiff does not allege a special individual right or privilege which "has been restrained or hindered by the malicious act," a public officer is punishable only by indictment.⁽²⁸⁾ In brining the claim, the Court noted that Pottle apparently postulated that every breach or neglect of a public duty subjects an officer to a civil suit by any individual who, as a result, suffers damages,⁽²⁹⁾ which the Court found contrary to any recorded case in American or English law:⁽³⁰⁾

The history of the law for centuries proves this to be the case. Actions against the sheriff for a breach of his ministerial duties in the execution of process are to be found in almost every book of reports. But no instance can be found where a civil action has been sustained against him for his default or misbehavior as conservator of the peace, by those who have suffered injury to their property or persons through the violence of mobs, riots, or insurrections.

South v. Maryland, 59 U.S. (18 How.) 396, 402 (1856).

Various state courts during the late 1800s began to use South as a method for limiting governmental liability for the acts of its agents.⁽³¹⁾ Gradually, the public duty doctrine took its present form as a method of limiting state liability to a particular person resulting from a general duty owed to the public.⁽³²⁾

Inaction by law enforcement was an issue in a civil action in the 1898 case of Cocking v. Wade.⁽³³⁾ In 1896, following indictment by a grand jury for the murder of his wife and her sister, Cocking was taken into the custody of the sheriff of Charles County, Wade.⁽³⁴⁾ The sheriff placed Cocking in "an old, dilapidated building" in Port Tobacco that was used as a jail and under the care of "an aged and infirm negro," leaving the prisoner "wholly unprotected."⁽³⁵⁾ That night a mob, in the presence of the sheriff, proceeded to lynch Cocking.⁽³⁶⁾ Despite some evidence that the sheriff was told of the possibility of lynching and had been urged to either move the prisoner to Baltimore or to a newer jail, the Court of Appeals upheld the judgment of the trial court in a civil action brought by the family of the hanged man in finding no liability on the part of the sheriff.⁽³⁷⁾ Although Maryland statute required that the sheriff shall "safely keep all persons committed to his custody by lawful authority until such persons are discharged by due course of law," the court relied upon South v. Maryland in finding that the statute did not create a duty to any single person but was a public duty.⁽³⁸⁾ Quoting extensively from South, the court held that a sheriff could not be held civilly liable for violation of a public duty that was not ministerial without malicious intent.⁽³⁹⁾ A concurring opinion also noted that recovery under the then-current Maryland wrongful death law also required a wrongful act, and, since the mob caused the death of Cocking, the sheriff had not committed a wrongful act.⁽⁴⁰⁾

The Cocking court extended, in Maryland, the holding of no liability for failure to enforce the common law duty to keep the peace in South to the failure to enforce a statutory duty.

In 1979, the Court of Appeals upheld a summary judgment in favor of a police officer in a tort action in Bradshaw v. Prince George's County.⁽⁴¹⁾ Two police officers on patrol were summoned to a trash dumpster from which an apparently lifeless child was hanging. The police officers, to preserve the crime scene, did not immediately remove the child from the dumpster.⁽⁴²⁾ A nurse claimed that the child had been revived by pulmonary resuscitation, but the child was pronounced dead upon arrival at the hospital.⁽⁴³⁾ In analyzing a claim alleging negligence against the police officers for acts within the scope of their law enforcement function, with no malice alleged, the court found that the immunity from tort actions of Maryland public officials rested on separate grounds than that of the state.⁽⁴⁴⁾ Although a county could waive its sovereign immunity, as Prince George's County had in its charter, the court determined that the immunity for public officials lies in that a public purpose is served by protecting public officials when they act in an exercise of their discretion.⁽⁴⁵⁾ "Particularly in the case of law enforcement officers, the exercise of discretion may call for 'decisiveness and precipitous action' in response to crises."⁽⁴⁶⁾ Thus, even when the exercise of discretion could result in the death of a child, the public policy is served by providing public officials with immunity from torts resulting from the exercise of their discretionary duties.

In 1986, the Maryland Court of Appeals was again presented in Ashburn v. Anne Arundel County⁽⁴⁷⁾ with an action in civil liability involving the failure of law enforcement to enforce the law. In this case, a police officer, Freeberger, found an intoxicated man in a running pickup truck sitting in front of convenience store.⁽⁴⁸⁾ Although he could have arrested the driver, the police officer told the driver to pull the truck over to the side of the lot and to discontinue driving that evening. Instead, shortly after the law enforcement officer left, the intoxicated driver pulled out of the lot and collided with a pedestrian, Ashburn, who as a direct result of the accident sustained severe injuries and lost a leg.⁽⁴⁹⁾ After Ashburn brought suit against the driver, Officer Freeberger, the police department, and Anne Arundel County, the trial court dismissed charges against the later three, holding Freeberger owed no special duty to the plaintiff, the county was immune from liability, and that the police department was not a separate legal entity.⁽⁵⁰⁾

Ashburn attempted show Officer Freeberger was not acting in a discretionary capacity when he failed to arrest the driver by citing the Transportation Article of the Maryland Code, which required detention of the driver.⁽⁵¹⁾ The Maryland Court of Appeals, however, noted that the full text of the statute stated:

Except as provided in subsection (c) of this section, if a police officer stops or detains any individual who the police officer has reasonable grounds to believe is or has been driving or attempting to drive a motor vehicle while intoxicated or while under the influence of alcohol and who is not unconscious or otherwise incapable of refusing to take a chemical test for alcohol, the police officer shall:

(i) Detain the individual; ...

Ashburn v. Anne Arundel County, 306 Md. 617, 624, 510 A.2d 1078 (1986), quoting Md. Code Ann., Transp. II §16-205.1(b)(2) (1986).

The Court of Appeals, applying strict rules of statutory construction, noted that, although the statute contained the word "shall," that word was not invoked until the "police officer stops or detains any individual."⁽⁵²⁾ Since the law enforcement officer had merely found the intoxicated driver in the truck and not stopped or detained him, both of which would require some restraint, the police officer was not acting under the mandatory section of the statute.⁽⁵³⁾ Since the law enforcement officer was still acting in a discretionary capacity, the officer was immune from tort liability.⁽⁵⁴⁾

The Court of Appeals further noted the general tort law rule that, "absent a 'special relationship' between police and victim, liability for failure to protect an individual citizen against injury caused by another citizen does not rely against police officers."⁽⁵⁵⁾ Using terminology from the public duty doctrine, the court noted that any duty the police in protecting the public owed was to the general public and not to any particular citizen, and that failure breach of this duty by a police officer is at most actionable by the public in the form of criminal prosecution or administrative disposition.⁽⁵⁶⁾ The Court of Appeals further noted, in quoting a District of Columbia case, that discretion of the police, to be valid, cannot be reviewed after-the-fact by a jury in a civil lawsuit, otherwise the police might be pressured to make arrests simply to avoid the threat of personal prosecution by a putative victim.⁽⁵⁷⁾ Finding liability in these situations would also create an unnecessary burden upon the judicial system.⁽⁵⁸⁾

To recover in tort, the Court of Appeals cited the special duty rule of the Restatement (Second) of Torts § 315(b) as stating that the victim would have the burden of showing the existence of a special relationship between the victim and the police, which could only occur if the police office was acting for the benefit of the specific victim, Ashburn, or a specific group of individuals like the victim.⁽⁵⁹⁾

Lastly, the Court of Appeals found that the text of the Transportation article did not indicate any legislative intent to impose any civil liability upon a police office for failure to enforce this statute.⁽⁶⁰⁾ The court again cited a District of Columbia case in holding that, for a Maryland statute to create a special relationship between police and victim, thus creating the duty necessary for tort liability, the statute must "set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole."⁽⁶¹⁾ Maryland courts will not construe such liability upon public officers absent express statutory language imposing this liability.⁽⁶²⁾

The Court of Appeals in Ashburn reviewed its decision regarding whether police should be liable for the failure to stop intoxicated drivers with cases from several states to ensure that its decision was consistent.⁽⁶³⁾ This review, which only used cases with similar facts involving police and intoxicated drivers, however, masked how Ashburn would be used in later court decisions in applying the public duty doctrine.⁽⁶⁴⁾

Beginning in the 1980s, Maryland appellate courts have had several cases alleging the failure of law enforcement officers to enforce the law. Generally, Maryland courts have been unwilling to impose any tort liability for discretionary acts to not enforce the law upon the law enforcement officer, instead looking to the holding from Ashburn as providing an immunity for officers for all acts involving discretion.

In Lamb v. Hopkins, a case decided prior to Ashburn, a five-month-old daughter had been rendered a quadriplegic in an automobile accident with an intoxicated driver.⁽⁶⁵⁾ The parents sued the probation officers of the driver, who was serving the suspended portion of a sentence for armed robbery, after discovering that the probation officers had not acted upon several violations of probation involving alcohol-related driving offences.⁽⁶⁶⁾ Although by statute⁽⁶⁷⁾ the probation officers were required to report the violations of probation to the court, the Court of Appeals held that the duty violated was to the court and not to the general public.⁽⁶⁸⁾ The court furthermore found no special relationship since the driver was not within the custody or charge of the probation officers.⁽⁶⁹⁾

In upholding the dismissal of tort claims against a police officer during the unlawful search of a home in Baltimore, the Court of Appeals in Clea v. Mayor of Baltimore in 1988 applied Ashburn in holding that government officials are immune from tort liability for negligent conduct provided the conduct is not intentional or with malice.⁽⁷⁰⁾ In Clea, the court rejected plaintiffs' claim that malice existed in that the house lacked a lamp post in front of it, as described in the affidavit supporting the search warrant, and that police were aware of the discrepancy when conducting the search.⁽⁷¹⁾

In a footnote to a Federal Tort Claims case involving the contract murder of federal witnesses, the District Court of Maryland in 1988 noted that the plaintiffs under Ashburn would not have a viable state tort claim under a failure to protect these witnesses.⁽⁷²⁾

In Jones v. Maryland-National Capital Park & Planning Comm'n, the Court of Special Appeals in 1990 affirmed a judgment of no law enforcement officer liability in facts similar to those of Ashburn.⁽⁷³⁾ An officer of the Maryland-National Capital Park & Planning Commission witnessed a minor automobile accident, and asked the driver who caused the accident to park her car and turn the ignition off.⁽⁷⁴⁾ While the state officer was calling the accident in, the car sped off and was involved in a second accident, crashing head-on with a second automobile driven by Jones.⁽⁷⁵⁾ Here, although the state officer had authority to use police powers in an emergency, the act of directing the driver to park the car was not "taking charge" of that person or taking that person into custody.⁽⁷⁶⁾ Similar to Bradshaw, Ashburn, and Boyer,⁽⁷⁷⁾ the Court of Special Appeals held that Maryland police officers are public officials and when acting "within the scope of their law enforcement function are clearly acting in a discretionary capacity."⁽⁷⁸⁾ When acting in a discretionary manner, the court found that the law enforcement officer has the "public official immunity" described in Bradshaw, and there is no need for the court to determine if a special relationship between the law enforcement officer and the victim exists.⁽⁷⁹⁾

In 1990 the Court of Special Appeals applied Ashburn in upholding a summary judgment for the county government and the county officer in Willow Tree Learning Ctr., Inc., v. Prince George's County.⁽⁸⁰⁾ A child was fatally injured using a private day care center's playground equipment, and the daycare center alleged the county was liable for failure to enforce an ordinance requiring county personnel inspect this equipment. The court held that the purpose of the county ordinance was to protect children at daycare centers throughout the county generally, and not the specific children of that daycare center, or to the specific deceased child.⁽⁸¹⁾

In Boyer v. State,⁽⁸²⁾ the Court of Appeals evaluated the duty owed by police officers to persons injured during high-speed chases. A Maryland State Police Trooper became involved in a high-speed chase through heavy traffic when an intoxicated driver failed to obey an order to pull over at a stop light, which ended only when the intoxicated driver hit another car, killing two persons.⁽⁸³⁾ The family filed suit alleging two claims of negligence by the trooper in that he (1) did not apprehending the driver at the traffic light, but ordering the driver to go through and to pull over, and (2) the decision to pursue and continue pursuit at high speeds.⁽⁸⁴⁾ In upholding a summary judgment for the trooper on two negligence claims, the Court of Appeals relied upon Ashburn and held that the doctrine of public official immunity gave immunity to police in determining whether to apprehend a criminal.⁽⁸⁵⁾ The court further noted that under Ashburn the trooper owed no duty to the deceased third parties for the decision not to immediately apprehend the driver.⁽⁸⁶⁾ In finding no liability for the failure to apprehend the intoxicated driver immediately, the court was restating and not extending its previous holding in Ashburn.⁽⁸⁷⁾ As to the decision to engage in and continue a high-speed chase, the Court of Appeals noted that the Maryland State Tort Claims Act gave immunity to the operator of an emergency motor vehicle driven by a state employee provided the vehicle was not driven in a grossly negligent manner.⁽⁸⁸⁾

The court went further in Boyer to instruct in the issue of the duty owed by police when engaging in an emergency situation.⁽⁸⁹⁾ The Court of Appeals indicated that under these situations, the standard of care is to be evaluated considering the "split-second decisions" a police officer must make, and, as such, a police officer may not be negligent even if the choice he makes results in the death of a third party.⁽⁹⁰⁾ Any breach of duty in emergency situations would require aggravating circumstances to be determined by the courts in a case-by-case basis.⁽⁹¹⁾

In Sheridan v. United States, the federal District Court for Maryland in 1991 applied Ashburn in finding no liability under the Federal Tort Claims Act by the United States for injuries suffered by a passers-by when they were shot and injured by an intoxicated serviceman at a naval hospital.⁽⁹²⁾ The federal court found that the failure to enforce a naval regulation forbidding the possession of weapons was similar to a criminal statute, and in Maryland could not create the special relationship with the victim necessary to maintain a claim for tort liability.⁽⁹³⁾

In upholding a summary judgment in Holson v. State,⁽⁹⁴⁾ the Court of Special Appeals in 1993 applied Ashburn to a case in which an intoxicated passenger was left at the scene of an arrest of an intoxicated driver.⁽⁹⁵⁾ The passenger was later injured when he apparently walked into the path of a vehicle and was struck. Since the law enforcement officer never took charge of the intoxicated passenger, the court found no liability from a special relationship.⁽⁹⁶⁾ In this case, the plaintiff never attempted to assert a claim based upon any general duty of the law enforcement officer to protect intoxicated passengers, instead moving directly to the issue of whether a special relationship existed which would create a duty.⁽⁹⁷⁾

The Court of Special Appeals did not allow Ashburn's immunity to be applied to the situation in Manders v. Brown.⁽⁹⁸⁾ A suit alleged the municipal officers of the City of Crisfield of official misconduct or fraud in the violation of the city code when approving a modification of the Urban Renewal Plan.⁽⁹⁹⁾ The defendants, in arguing that under the Court of Appeals analysis of Ashburn, no tort action could be sustained since the alleged breach was of a duty owed to the public,⁽¹⁰⁰⁾ asked the court to apply legislative immunity to all officials when acting in a legislative or administrative capacity. The court, however, noted that the broad Ashburn immunity was not available where the complaint sufficiently alleged the city officers had acted with malice and that they had not acting within their scope of authority.⁽¹⁰¹⁾ This case, although involving misconduct by elected officials, indicates that courts will not expand the immunity from Ashburn in protecting Maryland law enforcement officers to situations involving deliberate misconduct or to situations outside of normal police duties. In essence, the Court of Special Appeals maintained the limits established in Clea⁽¹⁰²⁾ when actions are taken with malice.

The cases defining the scope of the public official immunity that is available to police officers, as described in Boyer, have used various bases for the immunity. For example, in Bradshaw, the immunity was based upon the need of the police to use discretion in the exercise of their duties.⁽¹⁰³⁾ While the court in Ashburn noted that the police officer was acting in a discretionary capacity,⁽¹⁰⁴⁾ the case uses terminology and language of the public duty doctrine when describing the failure of the law enforcement officer to detain the driver in terms of a duty owed to the general public and not to a particular person.⁽¹⁰⁵⁾ In Jones, public official immunity was defined as occurring when officials are acting within the scope of their law enforcement capacity.⁽¹⁰⁶⁾ The Boyer court defined this immunity in terms of the need to perform discretionary acts.⁽¹⁰⁷⁾ However, the court in Holson analyzed the immunity to tort liability as dependent on whether a special relationship had been created,⁽¹⁰⁸⁾ a public duty doctrine concept. Overall, it appears that Maryland's public official immunity is the discretionary matter immunity, but judicial confusion exists due to statements in cases regarding law enforcement as a duty owed to the public and not a duty owed to any one citizen.

To avoid this confusion, in its next case involving Maryland's public official immunity, the Court of Appeals should determine within which line of national cases Maryland's immunity lies, either the public duty doctrine or the public officer discretionary matter immunity. In the alternative, the Court of Appeals could reference the Restatement (Second) of Torts, which appears to effectively describe Maryland's public official immunity,⁽¹⁰⁹⁾ as the statement of the scope of immunity in Maryland:

(1) Except as provided in this Section a public officer is not immune from tort liability.
(2) A public officer acting within the general scope of his authority is immune from tort liability for an act or omission involving the exercise of a judicial or legislative function.
(3) A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if
(a) he is immune because engaged in the exercise of a discretionary function,
(b) he is privileged and does not exceed or abuse the privilege, or
(c) his conduct was not tortious because he was not negligent in the performance of his responsibility.

Restatement (Second) of Torts § 895D, Public Officers.

Should Maryland adopt this section of the Restatement (Second) of Torts, law enforcement officers engaged in the discretionary functions which the Court of Appeals has determined falls within the public official immunity would have the equivalent immunity described in § 895D(3)(a).

One benefit should Maryland courts adopt § 895D is that it would provide all parties with a definitive explanation of the immunity afforded to law enforcement officers, thereby improving the predictability of court rulings and conserving judicial resources by preventing the filing of unnecessary liability suits. Furthermore, the commentary of the provides guidance to courts on the construction and operation of the Restatement (Second) of Torts immunity described in § 895D.⁽¹¹⁰⁾ In addition, the limited caselaw available from Maryland cases regarding the immunity of law enforcement officers for failure to enforce the law would be augmented to include cases from other states that have also adopted the § 895D formulation of the immunity of public officers.

Maryland plaintiffs have challenged the current application of the public official immunity of state law enforcement officers, using as examples cases from states that have limited their police immunity.⁽¹¹¹⁾ Annotations⁽¹¹²⁾ and reference materials⁽¹¹³⁾ are now also available to aid plaintiffs in attacking a defense of public official immunity. As a result of these challenges, examples of courts providing immunity to law enforcement officers for the failure to perform acts that later result in the death or injury of third parties can provide the public with a basis for urging legislative action. Two common situations where police officers have been found, at least in the recent past, to be reluctant in enforcing the law include cases involving domestic violence and the detention of intoxicated drivers.

One method that has been used to overcome the failure of law enforcement officers to enforce the law in certain situations has been to revise the law to remove the discretion of the police in enforcement of the statute.⁽¹¹⁴⁾

For example, historically, there has been a general reluctance on the part of police to make an arrest in domestic violence cases. Traditionally, police only served as mediators, and were reluctant to become involved because of society's views towards women, the family, and marital privacy rights.⁽¹¹⁵⁾ This reluctance has continued despite studies that have shown that arrest is the best police intervention available to deter future domestic violence.⁽¹¹⁶⁾ Action by the police is often needed because the victim of domestic violence often lacks the strength, courage, or support to file or pursue criminal charges.⁽¹¹⁷⁾ Yet, even when there is no judicial sanction for domestic violence, the very act of arrest alone, even without assistance of the victim, typically results in low recidivism.⁽¹¹⁸⁾

To counter the reluctance of police to become involved in domestic violence cases, Maryland in 1986 enacted legislation to allow for the warrantless arrest of an abuser.⁽¹¹⁹⁾ The Maryland statute gives police officer the discretion to arrest a suspected abuser without a warrant if there is evidence of physical injury to the spouse or other person residing with the abuser and further injuries may result.⁽¹²⁰⁾ In addition, the victim of domestic violence may request police assistance (actually protection) in removing personal property or clothing for the victim or for children from the family home.⁽¹²¹⁾ When so requested, Maryland statutes require a police officer to assist in the removal of these items.⁽¹²²⁾ Since the statute text indicates that this activity is not discretionary, the statute provides for immunity of the law enforcement officer from any civil liability for responding to such a request if the law enforcement officer acts in good faith and in a reasonable manner.⁽¹²³⁾ Other states also follow this pattern in providing for warrantless arrest of the abuser at the discretion of the responding law enforcement officer.⁽¹²⁴⁾

In many states, giving police the sole discretion as to whether to arrest a suspected abuser has not been found sufficiently effective in increasing the arrest rate.⁽¹²⁵⁾ In these states, statutes have been changed to eliminate the discretion of the police office and to require arrest of an alleged abuser when certain criteria are met.⁽¹²⁶⁾ In others, such as California, statutes have been revised to require each law enforcement agency to develop written policies that encourage arrests if there is probable cause that a domestic violence statute has been violated and that require mandatory arrest if a protective order has been violated.⁽¹²⁷⁾

In those states where statutes have been revised to remove some of the discretion of police to arrest violators of domestic abuse, a tort action may lie in breach of the duty to enforce the statute.⁽¹²⁸⁾ For example, the Oregon Supreme Court in 1983, in reversing an appellate court, found that violation of a mandatory arrest statute created a specific duty to protect an individual, and violation of that duty would be actionable under the Oregon state tort claims act.⁽¹²⁹⁾ Such tort actions may be necessary, even after states adopt mandatory arrest laws for domestic violence, to overcome police resistance to arrest offenders or to overcome the inertia of older policies.⁽¹³⁰⁾

In Maryland, police officer immunity for failure to enforce the law was defined through a series of tort cases, Ashburn, Jones, and Boyer, involving the failure to detain drunk drivers. Maryland courts have consistently held that law enforcement officers are not liable to the victims of intoxicated drivers which the police officers, through use of discretion within their law enforcement capacity, fail to detain.⁽¹³¹⁾

As in the above discussion regarding the police response to reports of domestic violence, one method of increasing the likelihood of detaining intoxicated drivers would be to remove some of the discretion of the law enforcement officer in encounters with these drivers.⁽¹³²⁾ For example, although Maryland mandates the arrest of an intoxicated driver, the police officer has some discretion at the start of the encounter as to whether to require the administration of the test needed to determine if the driver is, in fact legally, intoxicated.⁽¹³³⁾ By creating mandatory duties for the police officer, the immunity provided under Maryland's public official immunity doctrine would no longer be applicable, and courts would have the latitude to apply normal tort liability where the elements of negligence could be proven and the facts demanded it.

In general, there are many benefits in providing Maryland law enforcement officers immunity from liability for discretionary decisions made within the scope of their law enforcement duties. These benefits have been recognized by Maryland courts as including allowing law enforcement officers to make split-second decisions⁽¹³⁴⁾ without fear of personal tort liability by a second-guessing jury,⁽¹³⁵⁾ not exposing the state and local governments to liability for duties owed to the public at large, and placing an unnecessary burden on the state courts.⁽¹³⁶⁾ Yet, when applied to decisions by police officers to not enforce the law in some situation, the immunity of law enforcement officers can result, when actual decisions cause harm to real, innocent persons,⁽¹³⁷⁾ in a perception by the public that the state does not protect groups with relatively less political power such as victims of domestic violence,⁽¹³⁸⁾ inner-city residents living in high-crime areas, and victims of drunk drivers.⁽¹³⁹⁾ As always, when a court grants immunity to a tort action, a wrong has been committed to which there is not redress.

One method of reducing this perception is, for those cases which the public believes that the failure to enforce the law would result in inequitable results, is for the legislature to revise the statutory law to limit the discretion of the law enforcement officer. With this discretion removed, the act of law enforcement in these situations becomes more ministerial, and the immunity provided under the public duty doctrine would not be available in any resulting tort action.⁽¹⁴⁰⁾ Removing these small number of situations from those in which immunity would be granted would eliminate many of the "hard facts" cases in which, for example, a child dies with no one apparently responsible (meaning liable).⁽¹⁴¹⁾

The Court of Appeals should establish the limits of Maryland's public official immunity. Recent cases defining the basis for this immunity have mixed elements of the public duty doctrine and the qualified immunity for discretionary matters. In the alternative, the court could define the public official immunity as the equivalent of the discretionary matter immunity that all states provide government officers or of the immunity defined in Restatement (Second) of Torts § 895.

Lastly, Maryland courts, when determining whether to apply an immunity to a situation in which a police officer's decision to not enforce the law has harmed an innocent third party, must fully explain the basis for any decision to grant this immunity. The court opinions resulting from these situations could serve to educate the public as to the background and sound public policy basis for the immunity provided for discretionary acts of law enforcement officers, and avoid perceptions that would serve neither the courts, the law enforcement community, nor the public.

1. A tort has been defined as a private or civil wrong independent of a contract, and a tortious act as the commission or omission of an act by one, without right, whereby another receives some injury in person, property, or reputation. See Black's Law Dictionary 4th; 74 Am. Jur.2d, Torts § 1.

2. Tort liability is imposed only when the defendant owes a legally recognized duty of care to refrain from acts harmful to or to take action to avoid harm to the plaintiff. See 74 Am. Jur.2d, Torts § 10, 11; Lamb v. Hopkins, 303 Md. 236, 241, 492 A.2d 1297 (1985).

3. Ashburn v. Ann Arundel County, 306 Md. 617, 622, 510 A.2d 1078 (1986). The law typically does not impose a legal duty to take action to avoid harm to others except in certain special relationships. See 74 Am. Jur.2d, Torts § 11.

4. The lack of tort liability can be analyzed as a lack of duty of care by the defendant to the plaintiff in situations where such a duty would normally be imposed or as a defense to the action. Both types will be described in this paper as an immunity to the tort liability.

5. Ashburn at 625-32.

6. See, e.g., 70 Am. Jur.2d, Sheriffs, Police, and Constables § 94 (the rule throughout the United States is that there is no liability on the part of a law enforcement officer to individuals damaged as a result of an officer's failure to preserve the peace or arrest lawbreakers).

7. Kelly Mahon Tullier, Note, Governmental Liability for Negligent Failure to Detain Drunk Drivers, 77 Cornell L. Rev. 873, 875 (1992).

8. Timothy B. Richards, Tenth Circuit Survey -- Torts Survey: Governmental Liability, 72 Denv. U.L. Rev. 821, 822 (1995).

9. Id.

10. Id. at 823.

11. George Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum. L. Rev. 1175, 1178 (1977).

12. Id.

13. Id. at 1179.

14. Id.

15. Id.

16. Tullier at 880.

17. Bermann at 1178. The issue of immunity for public officers is considered by some to be controversial. See, e.g., Shelly K. Speir, Comment, The Public Duty Doctrine and Municipal Liability for Negligent Administration of Zoning Codes, 20 Seattle U.L. Rev. 803 (1997) (urging abolishment and use of normal tort analysis, notes several states have done so); Richards at 823-4 (some courts and states have abolished public officer immunity, finding that limiting governmental liability is inequitable and a hardship to victims).

18. Maryland lacks an implementing statute similar to 42 U.S.C. § 1983 that provides for qualified immunities to public officers that violate the constitutional rights of citizens. See Stephen J. Shapiro, Suits Against State Officials for Damages for Violations of Constitutional Rights: Comparing Maryland and Federal Law, 23 U. Balt. L. Rev. 423, 425-6 (1994).

19. For an analysis of public official liability for violations of constitutional rights in Maryland, see Shapiro, supra.

20. South v. Maryland, 59 U.S. (18 How.) 396 (1856).

21. Tullier at 886, Richards at 822.

22. South at 396.

23. Id.

24. Id.

25. Id.

26. Id. at 403.

27. Id. at 402-3.

28. Id. at 403.

29. Id. at 396.

30. Id. at 402.

31. Richards at 823.

32. Id.

33. Cocking v. Wade, 87 Md. 529 (1898).

34. Id. at 537.

35. Id. at 537-8.

36. Id.

37. Id. at 537-8, 542, and 544.

38. Id. at 540, 543-4.

39. Id. at 542-4.

40. Id. at 544-5.

41. Bradshaw v. Prince George's County, 284 Md. 294, 396 A.2d 255 (1979).

42. Id. at 296.

43. Id.

44. Id. at 303-4.

45. Id. at 304-5.

46. Id.

47. Ashburn, 306 Md. 617, 510 A.2d 1078 (1986).

48. Id. at 619-20.

49. Id.

50. Id. at 620.

51. Id. at 624, quoting Md. Code Ann., Transp. II § 16-205.1(b)(2) (1986).

52. Id. at 625.

53. Id. at 626.

54. Id.

55. Id. at 628.

56. Id. at 628-9. The Court of Appeals did not refer to this as the public duty doctrine, and did not cite any Maryland cases is support of this proposition.

57. Id. at 629-30, quoting Morgan v. District of Columbia, 468 A.2d 1306 (D.C. 1983).

58. Id.

59. Id. at 631.

60. Id. at 634-5.

61. Id. at 635, quoting Morgan at 1314.

62. Id. at 634-5.

63. Id. at 632-4.

64. See, e.g., Mary B. Baker et al., Developments in Maryland Law, 1986-87, 47 Md. L. Rev. 975-80 (1988) (Ashburn is indication that Maryland courts will limit the scope of liability in alcohol-related liability tort cases, no other application of its holding is contemplated).

65. Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985).

66. Id. at 238-40.

67. Md. Code Ann., Art. 41 § 4-609(a):

Whenever any court shall suspend the sentence of any person convicted of crime, and shall direct such person, to continue, for a certain time, or until otherwise ordered, under the supervision of the [Probation] Division, it shall be the duty of the said Division to supervise, when so requested by said court, the conduct of such person and to ascertain and report to said court whether or not the conditions of such probation or suspension of sentence are being faithfully complied with by such person.

Lamb at 252-3.

68. Id. at 252-3.

69. Id. at 244-51.

70. Clea v. Mayor of Baltimore, 312 Md. 662, 673, 541 A.2d 1303 (1988).

71. Id. at 672-9.

72. Piechowicz v. United States, 685 F. Supp. 486, n.33 (D. Md.), aff'd, 885 F.2d 1207 (4th Cir. 1989).

73. Jones v. Maryland-National Capital Park & Planning Comm'n, 82 Md. App. 314, 571 A.2d 859 (1990).

74. Id. at 317.

75. Id. at 319.

76. Id. at 331.

77. The court was referring to the Court of Special Appeals opinion in Boyer v. State, 80 Md. App. 101, 560 A.2d 48 (1989), later upheld on appeal to the Court of Appeals as discussed below.

78. Id. at 336.

79. Id. at 334-6.

80. Willow Tree Learning Ctr., Inc., v. Prince George's County, 85 Md. App. 508, 584 A.2d 157 (1991).

81. Id. at 514-7.

82. Boyer v. State, 323 Md. 558, 594 A.2d 121 (1991).

83. Id. at 562-3.

84. Id. at 563-4.

85. Id. at 577-8.

86. Id.

87. Phillip M. Pickus, Note, Torts--Government Immunity--Police Officer Pursuing Suspect Owes Duty of Care to Third Parties Injured by the Fleeing Suspect; Injured Plaintiff Can Recover From State and Political Subdivisions if Officer was Negligent in Commencing and Maintaining Pursuit. Boyer v. State, 323 Md. 558, 594 A.2d 121 (1991), 21 U. Balt. L. Rev. 363 (1992).

88. Boyer at 578-81. For an evaluation of Boyer decision regarding the immunity provided under the State Torts Act for state drivers of emergency motor vehicles, see Pickus, supra, at 376-9.

89. Id. at 589.

90. Id. at 589-90.

91. Id. at 591. Some of the aggravating circumstances suggested by the court include whether there was a violation of department policies or regulations, failure to turn on warning devices, and extremely high speeds in congested areas. The instruction provided by the Maryland Court of Appeals here may become moot later this year since the Supreme Court has agreed this term to consider the liability of police for injuries to third parties caused during high-speed chases in its review of Lewis v. Sacramento County, (9th Cir. 1996) (reversal of trial court's grant of summary judgment to police officer defendant given under doctrine of qualified immunity). See <http://www.ljx.com/ LJXfiles/supreme/lewis.html> for the text of 9th circuit decision.

92. Sheridan v. United States, 773 F. Supp. 786 (D. Md. 1991), on remand to evaluate state tort claims, 487 U.S. 392 (1988).

93. Id. at 778.

94. Holson v. State, 99 Md. App. 411, 637 A.2d 871 (1994).

95. Id. at 413-4.

96. Id. at 415-420.

97. Id. at 414-5.

98. Manders v. Brown, 101 Md. App. 191, 643 A.2d 931 (1994).

99. Id. at 194-6.

100. Id. at 218.

101. Id. at 219.

102. See Clea at 673.

103. Bradshaw at 304-5.

104. Ashburn at 626.

105. Id. at 628-9.

106. Jones at 331, 336.

107. Boyer at 577-8.

108. Holson at 410-20.

109. This would avoid issues regarding whether Maryland uses the public interest doctrine immunity or discretionary immunity since the Restatement (Second) of Torts is a statement of the law, and not an analysis of its origins.

110. For example, Restatement (Second) of Torts § 895D, comment f, provide seven factors to be used by a court in determining whether the law enforcement officer is acting within a discretionary function.

111. See Ashburn at 634 (suggesting the court follow Irwin v. Town of Ware, 467 N.E.2d 1292 (Mass. 1984) (police liable for failure to detain drunk driver)); Jones at 328 (same).

112. See, e.g., Alexander C. Black, Annotation, Liability of Municipal Corporation or Other Governmental Entity for Injury or Death Caused by Action or Inaction of Off-Duty Police Officer, 36 A.L.R.5th 1; Joseph T. Bockrath, Annotation, Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection, 46 A.L.R.3d 1084; Allan L. Schwartz, Annotation, Liability of United States Under Federal Tort Claims Act for Injuries Resulting From Failure to Provide Police Protection, 22 A.L.R. Fed. 903; Robert A. Shapiro, Annotation, Personal Liability of Policeman, Sheriff, or Similar Peace Officer or His Bond, for Injury Suffered as a Result of Failure to Enforce Law or Arrest Lawbreaker, 41 A.L.R.3d 700; and Jay M. Zitter, Annotation, Liability for Failure of Police Response to Emergency Call, 39 A.L.R.4th 691.

113. See, e.g., Proof of Equal Protection Violation by Municipal Police Department in Failing to Protect Victims of Domestic Violence, 28 Am. Jur. Proof of Facts 3d 1; Negligent Failure to Detain Intoxicated Motorist, 1 Am. Jur. Proof of Facts 3d 545; and Inadequate Response to Emergency Telephone Call, 2 Am. Jur. Proof of Facts 3d 583.

114. Schuerman at 372-4.

115. Sue Ellen Schuerman, Note, Establishing a Tort Duty for Police Failure to Respond to Domestic Violence, 34 Ariz. L. Rev. 355 (1992).

116. See, e.g., Statement of L. Tracy Brown, Chairperson of Baltimore City Mayor's Domestic Violence Coordinating Committee, Regarding Senate Bill 434 -- Domestic Violence - Warrantless Arrest -- As Prepared for a Hearing Before the Senate Judicial Proceedings Committee on March 5, 1986 (retained in Senate Bill 434 legislative history file).

117. Id.

118. Id. See also Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Caselaw, 21 Hofstra L. Rev. 801, note 26 (1993).

119. Laws of Maryland, 1986, chapter 668; Senate Bill 434.

120. Specifically, a police officer may arrest a person without a warrant for an incidence of domestic abuse if:

(i) The officer has probable cause to believe that:
1. The person battered the person's spouse or other individual with whom the person resides;
2. There is evidence of physical injury; and
3. Unless the person is immediately arrested:
A. The person may not be apprehended;
B. The person may cause injury to the person or damage to the property of one or more other person; or
C. The person may tamper with, dispose of, or destroy evidence; and
(ii) A report to the police was made within 48 hours of the alleged incident.

Md. Code Ann., Art. 27 § 594B(d) (1996).

121. Md. Code Ann., Art. 27 § 798(b) (Supp. 1997).

122. Id.

123. Md. Code Ann., Art. 27 § 798(c) (Supp. 1997); Courts & Jud. Proc. § 5-610.

124. Klein & Orloff, at 1152.

125. Schuerman at 359; Klein & Orloff at 1149.

126. Klein & Orloff at 1149-53.

127. Cal. Penal Code § 13701 (West Supp. 1998).

128. Schuerman at 369-74.

129. Nearing v. Weaver, 670 P.2d 137 (Or. 1983); Schuerman at 369-71.

130. Schuerman at 360, notes 38 and 39.

131. See, e.g., Boyer at 577-8.

132. Tullier at 902-3.

133. Id. at 902-3, and note 179 (citing the former version of Md. Code Ann., Transp. II § 16-205.2(a) as an example of a state statute which gives police officers discretion to give alcohol tests).

134. Boyer at 589-90.

135. Ashburn at 629-30.

136. Id.

137. See, e.g., Boyer (both parents killed).

138. Schuerman at 357-8.

139. Consider, for example, those third party victims killed in Ashburn or Boyer, or the five-month-old rendered a quadriplegic in Lamb.

140. Schuerman at 372-4.

141. See, e.g., Willow Tree Learning Ctr., Inc.

© copyright 1998-9 Michael A. Dean. My thanks to the people at the Tripod Network of Lykos for providing this space. Initially posted on April 8, 1998, last revised on May 29, 1999. Send your comments to deanlaw@hotmail.com.