Plan to limit exposure to GTTF lawsuits risky
Baltimore’s aggressive legal strategy has high stakes
BALTIMORE — Attorneys for Baltimore are waging multiple legal battles to limit the city’s financial exposure to a growing wave of lawsuits, arguing that taxpayers should not be on the hook for the rogue actions of the corrupt Baltimore Police Gun Trace Task Force.
In state court, the city is arguing it should not have to indemnify the GTTF officers — that is, pay damages awarded to their victims — because the officers’ actions went far beyond the scope of their employment. In federal court, it is arguing the Baltimore Police Department is technically a state agency and therefore enjoys broad constitutional immunity from federal lawsuits.
The stakes are incredibly high, according to city officials, opposing counsel and legal observers.
If the city loses, the cost in payouts could be staggering — something Mayor Bernard C. “Jack” Young has said he is “really concerned” about.
If the city prevails, it could have sweeping ramifications for future police victims and their ability to secure compensation. “The city’s position is they don’t want to pay a dime for any of these cases,”
said Mandy Miliman, opposing counsel in a pending state case. “What they are asking for is dangerous.”
More than a dozen people have already sued the city and dozens more have given notice of their intent to sue over the actions of the GTTF, whose members were convicted of robbing residents, planting evidence, selling drugs and stealing overtime over the course of many years. The plaintiffs are seeking tens of millions of dollars — an amount that would never be recouped if the equity of individual officers was the only thing on the line.
Meanwhile, State’s Attorney Marilyn Mosby’s office has said prosecutors will soon seek to vacate 790 criminal cases that were based wholly or in part on the GTTF’s now suspect police work, opening the door to more costly complaints around the underlying arrests.
“I’m sure not all 790 people will file a lawsuit — I hope I’m right about that — but there is no doubt that a large number of them will,” said City Solicitor Andre Davis, the city’s top attorney and the man leading the charge to carve out limits to the city’s financial vulnerability.
The potential cost of so many lawsuits is hard to predict, though it could easily reach into the tens of millions of dollars. The city paid more than $24.5 million in police settlements and judgments in the last five fiscal years, including more than $11.8 million in legal fees.
Mosby, in a statement, said that prosecutors in her office “cannot ignore illegal conduct by sworn Baltimore City police officers simply because righting those wrongs may result in a cost to the city.”
City attorneys acknowledge the GTTF officers’ actions were horrible, likening them to mobsters. But they have used such descriptions not to admit responsibility on the city’s behalf, but to draw a line between the officers and the city.
Davis has argued publicly that the criminal actions of the cops, while occurring on the job, were so far outside the bounds of their employment that the city should not have to cover monetary awards granted to compensate their victims. And attorneys in his office are making the same argument in a case brought by the estate of a deceased GTTF victim.
William James was pulled over and charged with gun possession in 2016, then alleged having the gun planted on him by GTTF leader Sgt. Wayne Jenkins. He sued Jenkins and two other convicted GTTF officers, who consented to a $32,000 judgment in April, a month before James died. His family and estate are now calling on the city to pay the judgment on behalf of the officers, but the city has refused — even though it and Miliman, the attorney for James’ estate, have agreed to the same facts in the case.
The two sides are now waiting for Baltimore City Circuit Judge Jeannie J. Hong to rule on a legal question only: whether the officers were acting within the scope of their employment.
Maryland law and the city’s labor agreement with the police union require the city to indemnify officers for actions within that scope. Courts in the past have ruled some actions by on-duty officers, like rape, were beyond the scope, while other actions, like unlawful stops, were within it.
Regardless of Hong’s decision, Miliman and the city plan to request that it be taken up by the Court of Appeals — Maryland’s highest court — which already is set to consider a similar case brought by another GTTF victim named Ivan Potts. The cases could be consolidated.
The outcome would likely affect other cases against the GTTF, but could have an even broader impact, Miliman said.
While the city is using the salaciousness of the claims against the GTTF to bolster its argument that their actions were well beyond the scope of their employment, the premise of that argument could set a bad precedent in far more mundane police abuse cases, Miliman said.
“This is a slippery slope, because where do you draw the line?” Miliman said. “The city is saying that this isn’t conduct for which they were trained, but neither is excessive force; neither is false arrest.”
If the city prevails, Miliman said, “it will leave a lot of citizens without any means of recovery, which is scary.”
Meanwhile, in the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, Davis is pursuing another line of defense.
At issue is a lawsuit brought in 2018 by Umar Burley and Brent Matthews, who had drugs planted in their car by Jenkins as part of an effort to justify a 2010 car chase that killed a man. Jenkins pleaded guilty to that and other offenses as part of the federal government’s sweeping corruption investigation that took down nearly the entire gun unit and several co-conspirators.
U.S. District Judge Ellen Hollander earlier this month let stand for trial Burley and Matthews’ lawsuit, which alleges fabricated evidence, malicious prosecution and intentional infliction of emotional distress.
The appeal speaks to a Supreme Court ruling known as Monell v. Department of Social Services of the City of New York, which found a municipality can be sued for policies that infringe on people’s constitutional rights, under certain conditions. Burley and Matthews’ attorneys say the Monell doctrine applies to the Baltimore Police because it functions as a municipal agency, with the mayor appointing and the City Council confirming the police commissioner. And they say GTTF supervisors and the department itself are liable for having allowed the abuses to develop into a pattern in the department that was known and facilitated for years.
Davis, in rebuttal, cites a separate precedent, under the Eleventh Amendment to the U.S. Constitution, holding that state agencies cannot be sued in federal court, and appealed Hollander’s order “to get an answer once and for all on whether BPD is subject to suit under Monell,” he said. The appeal has since been consolidated with another hinging on the same question.
If he loses, Davis said he will continue to argue the city isn’t liable under other provisions of the law, including one requiring evidence of a “deliberate indifference” to the alleged abuses. No trial date has been scheduled; discovery is to be completed by March.
Joanna Schwartz, who teaches police accountability at the UCLA School of Law, said given the significant financial threat the city faces, it “absolutely makes sense for them, from a strategic perspective, to try to figure out where, if at all, they can have these protections” against liability.
But she also questioned the wisdom of the strategy in the long run, especially given the desperate need to restore community trust.
“Lawsuits are borne of injury, of course, but also of distrust and anger, and I don’t think that the police department is doing much to address either of those things when it is spending goodness knows how much in attorney time and resources trying to fight on procedural grounds what everybody understands to be a grievous wrong,” Schwartz said.
She said the city is going to “lose a ton of money unless they can shoot the moon on both” of its legal arguments against liability, which she thinks is unlikely — in part because the alleged abuses by the GTTF are so intertwined with their actual work of getting guns and drugs off the streets of Baltimore, for which they were rewarded by the department.
“I don’t feel confident these legal theories are going to hold water, in which case it is time and money wasted,” Schwartz said.
Young said he hopes judges hold the GTTF officers personally liable, or that the state will step in to foot the bill for some of the damages.
“We can’t afford to raise any more taxes in the city of Baltimore,” the Democratic mayor said.
The city’s fear of litigation came into full view earlier this month, when Police Commissioner Michael Harrison testified in Annapolis that his department has “not done a deep dive” into the GTTFcorruption in part because it could encourage more lawsuits.
Davis said that he, Harrison and U.S. District Judge James K. Bredar, who is overseeing a federal consent decree mandating sweeping reforms of the police department, agree such a review must be done, but in a “careful and prudent” manner.
Andrew Freeman, an attorney for Burley and Matthews, said the city’s efforts to avoid responsibility were disgraceful.
“I’m just outraged that instead of trying to do the right thing and trying to prevent harm, Solicitor Davis and Commissioner Harrison are sticking their heads in the sand and focusing entirely on hiding the truth,” Freeman said. “They really should be ashamed.”