REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1091
September Term, 1999
TERRENCE D. CALLAHAN
v.
DEBORAH A. BOWERS,
PERSONAL REPRESENTATIVE OF THE
ESTATE OF STEVE B. BOWERS, ET AL.
Moylan,
Davis,
Getty, James S., (retired,
specially assigned),
JJ.
Opinion by Davis, J.
Filed: March 13, 2000
Steven Bowers, an employee of the Giant Food Store, was shot
and killed while working on November 19, 1996, by Charles Thomas,
a suspected shoplifter in the store on Sinclair Lane in Baltimore
City.
Subsequently,
appellees
Deborah
Bowers,
as
personal
representative of the estate of Steven Bowers and his surviving
wife, as well as his surviving children, sued appellant Terrence
Callahan in the Circuit Court for Baltimore City for negligence in
his capacity as a security guard on duty at the store.
On May 14,
1999, appellant filed for summary judgment, claiming an entitlement
to qualified public immunity in his capacity as a special police
officer, commissioned, pursuant to MD. CODE, art. 41 (1997 Repl.
Vol, 1999 Supp.),
§ 4-901 et seq.
appellant’s motion on June 25, 1999.
A hearing was held on
An opinion was issued by the
court on June 29, 1999, in which the judge found that special
police officers are not entitled to qualified public official
immunity
and
denied
appellant’s
motion
for
summary
judgment.
Subsequently, appellant filed this appeal and presents us with the
following questions, which we rephrase:
I.
Did the trial court err as a matter of
law in denying appellant qualified public
immunity in his capacity as a special
police officer?
II.
Did the trial court err in suggesting
gross negligence as an alternative basis
to deny appellant summary judgment?
We answer question one in the affirmative; we decline to
answer appellant’s second question.
the judgment of the circuit court.
Accordingly, we shall reverse
- 2 -
FACTUAL BACKGROUND
The events giving rise to this appeal occurred on November 19,
1996, at the Giant Food Store on Sinclair Lane in Baltimore City.
At approximately 3:00 a.m., appellant, who was the security guard,
apprehended and detained Thomas on suspicion of shoplifting.
Upon
being seized, several items thought to be from the store fell from
beneath Thomas’s coat, in addition to a plastic bag containing a
white
substance.
Appellant escorted Thomas to the manager’s
office, searched him, and instructed another employee to call the
police.
Thomas was not handcuffed or restrained and he attempted
to escape the office through a ceiling tile.
Appellant pulled
Thomas down by his legs, pulled out his gun, pointed it to Thomas’s
back, and instructed him to lay on the ground.
After Thomas
refused to comply, what occurred next is in dispute.
Appellees
state that appellant placed his gun in its holster but did not
secure it.
Appellant does not concede that fact.
The parties do
agree that it was at that time that Thomas struck appellant in the
face, and again tried to escape through the ceiling.
Appellant
again pulled Thomas down by his legs and attempted to strike Thomas
with a
chair,
at
which
time
obtained control of the gun.
Thomas
approached
appellant
and
He then shot appellant in the side
and proceeded to escape from the office.
In the course of fleeing
the store, Thomas fatally shot Steven Bowers, a stock clerk.
- 3 Subsequently,
on
February
8,
1999,
appellees
brought
a
wrongful death action in the Circuit Court for Baltimore City
against appellant alleging negligence.
Appellant filed a motion
for summary judgment, claiming immunity due to his status as a
special police officer and, on June 25, 1999, a hearing was held on
the motion.
appellant
was
On June 29, 1999, the circuit court found that
not
entitled
to
public
official
immunity
accordingly, denied his motion for summary judgment.
and,
From that
order, appellant timely filed this appeal.
DISCUSSION
I
Preliminarily, appellant’s brief includes argument that this
appeal from the court’s summary judgment ruling qualifies under the
collateral order doctrine.
Appellees concede this point and we
concur that the decision below satisfies the four requirements of
a final appealable judgment as articulated in Harris v. Harris, 310
Md. 310, 316 (1987)(quoting Public Service Comm’n v. Patuxent
Valley, 300 Md. 200, 206 (1984)).
The order in this case: 1)
conclusively determined as a matter of law that appellant did not
qualify for qualified immunity, 2) resolved an important issue
because if appellant is entitled to immunity, he may be entitled to
forego trial, 3) decided the issue of immunity, which is separate
from the underlying claim of negligence, and 4) concerned an issue
- 4 that is effectively unreviewable on appeal.
Id.
We, therefore,
will proceed to evaluate the primary substantive issue appellant
raises.
Appellant contends that the circuit court erred in deciding
that he is not subject to public official immunity in his capacity
as a special police officer.
He explains that a special police
officer has been deemed by the courts of Maryland to possess police
powers and is considered under the law to be a peace officer.
Huger v. State, 285 Md. 347, 352 (1979).
Because special police
officers perform the functions of police officers within their
approved
jurisdictions,
appellant
argues
entitled to a qualified public immunity.
that
they,
too,
are
Appellees, on the other
hand, assert that, because special police officers function solely
in the interest of their employers, they are not public officials
and, therefore, do not qualify for immunity.
We begin our discussion with an explication of the authority
of a special police.
security guard.
A special police officer is not a private
While a special police officer may be employed as
a private security guard, he or she is separate and distinct, and
the State entrusts him or her with certain powers not available to
a regular private security guard.
The Court of Appeals has said,
“The statutory powers and duties of a ‘special policeman’ [or
policewoman] readily distinguish him [or her] from a ‘security
guard’ or a ‘private guard.’”
Huger, 285 Md. at 353.
The Governor
- 5 is authorized to appoint special police officers who receive a
commission designating the property the commission covers or other
purpose for which the commission is issued.
Art. 41, § 4-901.
Those who may apply for a special police commission include:
1)
any State or agency thereof with a property interest in this State,
2) any municipal county or governmental body of the State with a
property interest to protect, 3) any college, university, or public
school system with an interest to protect its property or its
students,
and
4)
“any
firm,
corporation,
partnership,
sole
proprietorship, or other entity existing and functioning for a
legitimate and legal business purpose, in order to protect its
business
property.”
Art.
41,
§
4-904
(1997
Repl.
Vol.).
Additionally, the statute governing special police officers confers
upon them the following powers and duties:
Each person appointed under this subtitle as a
special police officer is charged with the
protection and preservation of peace and good
order on the property described in the
application for the commission. The officer
has the powers to arrest persons who trespass
or commit offenses thereon. The officer has,
and may exercise, the powers of a police
officer upon the property described in the
application for the commission and may
exercise these powers in any county or city of
the State in connection with the care,
custody, and protection of other property of
the requesting authority or other property,
real or personal, for which it has assumed an
obligation to maintain or protect.
. . .
- 6 The officer may exercise this power only upon
the property of the officer’s employer as
described
in
the
application
for
the
commission unless the officer is in active
pursuit of an individual for the purpose of
immediate apprehension. . . .
Art. 41 § 4-905 (emphasis added).
We recently considered whether
a police officer had qualified immunity while working as a security
guard, Lovelace v. Anderson, 126 Md. App. 667, cert. granted, 355
Md. 610 (1999);
however, no cases have directly addressed whether
a special police officer is entitled to qualified immunity by
virtue of his or her status as a special police officer.
In Huger, the Court of Appeals addressed a challenge to the
validity of a special police officer’s signature on a criminal
charging document.
Huger was arrested, pursuant to a statement of
charges sworn out by the special police officer who worked for
Giant Food Store and had apprehended Huger after witnessing him
shoplifting some delicatessen meat.
The Court upheld the validity
of the officer’s signature on the statement of charges and, in
doing so, conducted an analysis of the powers of special police
officers.
Huger, 285 Md. at 349-52.
A peace officer was defined
as “a person charged with the duty ‘to enforce and preserve the
public peace, . . . .’”
(4th ed. Rev. 1968)).
Id. at 352 (quoting BLACK’S LAW DICTIONARY
The Court concluded that, “[s]ince a special
policeman [or policewoman] may exercise to the full the powers of
a police officer in the circumstances here, he [or she] also is a
peace officer.”
Id.
- 7 We concluded in Gray v. State, 38 Md. App. 343, 347 (1977),
cert. denied, 282 Md. 732 (1978), that the statute expressly
provides special police officers with “the powers of a police
officer.”
That power is limited to “any place in the State (i.e.,
away from particular property described in the application) but
only ‘in connection with the care, custody, and protection of other
property . . . for which (the employer) has assumed an obligation
to maintain or protect.’” Id. (quoting Art. 41, § 4-905).
We
pointed out in Gray, that it is not the police power itself that is
limited, but only when the special police can enforce it.
Id.
In
other words, special police have full police powers in their
respective jurisdiction.
We further explained that, when enforcing
the criminal law, the duties of these special police officers are
the same as police officers.
Id. at 348.
After conducting an
evaluation of previous cases construing the special police officer
statute,1
we
concluded
that
these
officers
possess
“a
dual
identity, being primarily State officers but also agents of their
sponsor/employer.”
Id.
It is clear from the analyses in Huger and Gray that special
police officers are deemed to have the full power of a law
1
A footnote in Gray cites the following cases as construing the special police officer
statute, primarily in the context of the sponsor/employer’s civil liability to third parties. Balto. &
Ohio R. Co. v. Strube, 111 Md. 119 (1909); B., C. & A. Ry. Co. v. Ennalls, 108 Md. 75 (1908);
Tolchester Co. v. Scharnagl, 105 Md. 199 (1907); Balto. & Ohio R. Co. v. Deck, 102 Md. 669
(1906); Tolchester Imp. Co. v. Steinmeier, 72 Md. 313 (1890).
- 8 enforcement officer when they are within their jurisdictions, as
defined in the statute.
Appellant reasons, therefore, that he is
a public official and entitled to immunity.
In
Maryland,
governmental
immunity
is
derived
from
two
sources: 1) common law public official immunity and 2) statutory
immunity.
Common law immunity exists if: 1) the actor is a public
official, not merely a government employee or agent; 2) the conduct
occurred
when
the
actor
was
performing
discretionary,
not
ministerial duties; and 3) the act performed is within the scope of
the actor’s official duties.
App.
440,
452
(1997).
If
Thomas v. City of Annapolis, 113 Md.
all
three
elements
are
met,
the
individual enjoys a qualified immunity in the absence of “malice.”
Id.
It is not always necessary, however, to meet all three
elements.
The circumstances of each case must be weighed to determine if
a classification as a public official is warranted.
Heverin, 44 Md. App. 358, 362 (1979).
Macy v.
In Thomas, we recognized
that, generally, a police officer, in carrying out discretionary
police duties, would fall under the protection of public official
immunity.
Thomas, 113 Md. App. at 457; see also Lovelace, 126 Md.
App. at 690.
of
In Lovelace, we observed that, otherwise, the effect
“[h]olding
police
officers
liable
in
hindsight
for
every
injurious consequence of their actions would paralyze the functions
of law enforcement.”
Lovelace, 126 Md. App. at 690 (quoting Pinder
- 9 v. Johnson, 54 F.3d 1169, 1173 (4th Cir. 1995)).
Generally, the
Local Government Tort Claims Act (LGTCA) applies to all suits
against local governments arising from incidents occurring on or
after July 1, 1987.
MD. CODE (1998 Repl. Vol., 1999 Supp.), CTS. &
JUD. PROC. (C.J.) §§ 5-301 - 5-304; see Thomas, 113 Md. App. at 457.
The LGTCA applies to all employees, and not, as the common law
does, just
to
public
officials.
Additionally,
C.J.
provides immunity to officials of municipal corporations.
§
5-321
Thomas,
113 Md. App. at 458.
Moreover, the legislature has drafted several
statutes
immunity
conferring
employees.2
on
special
types
of
government
Appellant here does not claim immunity under any
statutory authority; rather, he asserts that he qualifies for
immunity under the common law as a public official.
In our recent decision in Biser v. Deibel, 128 Md. App. 670,
678 (1999), cert. denied, ___ Md. ___ (No. 580, February 10, 2000),
we iterated what constitutes a public official.
The necessary
elements are: 1) the position was created by law and involves
continuing, not occasional duties; 2) the holder of the office
performs an important public duty; 3) the position calls for
2
Article 65, § 8A (granting the same immunity that sheriffs, constables, police or peace
officers enjoy to approved members of the Maryland National Guard); C.J. § 5-604 (granting
immunity for civil liability to fire or rescue companies); C.J. § 5-605 (granting immunity to law
enforcement officers who act outside their jurisdiction); C.J. § 5-611 (granting immunity to
federal law enforcement officers regarding warrantless arrests). We note that the preceding
citations are only a partial listing of statutes granting immunity and are not intended to represent
all statutes in which the legislature has conferred immunity.
- 10 exercise of some portion of the sovereign power of the State; and
4) the position has a definite term for which a commission was
issued and a bond and an oath were required.
Appellees simply state that appellant does not qualify as a
public official and, therefore, is not entitled to public official
immunity.
They posit that special police officers do not exercise
sovereign power, and they act primarily on behalf of their employer
and any subsequent benefit to the public from their actions is
merely incidental.
The cases of Huger and Gray make it clear that, when a special
police
officer
enforces
the
criminal
law
jurisdiction, he or she is a peace officer.
320
Md.
52
(1990),
the
Court
of
within
his
or
In Waters v. State,
Appeals
addressed
the
constitutionality of a warrantless search and seizure by a private
duty security guard.
In the course of determining the validity of
the search, the Court looked to the authority and status of special
police
officers.
The
security
guard
in
Waters
was
not
a
commissioned special police officer and, as a consequence, his
seizure of a plastic bag containing cocaine from Waters’s pocket
did not constitute State action.
The Court explained that, had the
security guard been a special police officer, commissioned under
Art. 41 §§ 4-901 - 4-913, the seizure would have been subject to
the Fourth Amendment.
Waters, 320 Md. at 58.
The Court held that,
“[w]hen special police officers are enforcing the criminal law,
- 11 they are exercising governmental powers which involve [S]tate
action.”
Id. (citing Griffin v. Maryland, 378 U.S. 130, 135 (1964)
(emphasis added)).
The plain words of the statute charge a special police officer
with the duty to protect generally and preserve the peace and good
order
on
the
Specifically,
property
in
the
within
instant
his
case,
or
her
appellant
jurisdiction.
was
engaged
in
enforcing MD. CODE (1996 Repl. Vol, 1999 Supp.), art. 27 §§ 341 and
342 (Theft Statutes), when he was subjected to civil liability
during the course of his employment as a special police officer.
He was thus enforcing the criminal law and, in doing so, exercising
governmental powers.
Once a special police officer undertakes to
enforce those powers, his or her duty mirrors that of a regular
police officer.
See Gray, 38 Md. App. at 348.
Under Huber, Gray,
and Waters, it is clear that a special police officer’s actions to
enforce the criminal law constitute State action.
In Gray, we
quoted with approval an opinion of the Attorney General, which
concluded that “‘the power which a special officer exercises under
authority of the subtitle is a power of government, not his
employer.’”
Gray, 38 Md. App. at 348 (quoting 49 Op. Att’y Gen.
353, 355 (1964)).
Pellucidly, then, when special police officers are enforcing
the criminal law, they possess all of the powers of a regular
police officer and are acting for the benefit of the sovereign and
- 12 the public at large.
This duty, conferred by statute on special
police officers, coincides with their duty to their employer.
The
Court of Appeals has held “that a police officer is a ‘public
official’
when
acting
within
enforcement function.”
the
scope
of
his
[or
her]
law
Bradshaw v. Prince George’s County, 284 Md.
294, 302 (1979) (citations omitted).
Qualified immunity attaches
for civil liability with respect to duties performed within the
scope of the police officer’s authority by reason of his status as
a public official.
Id. at 303.
Because special police officers
act as regular police officers when enforcing the criminal law,
with the full powers of a police officer, a special police officer
is considered a public official when acting to enforce the criminal
law.
We now turn to the remaining elements of qualified public
immunity to determine appellant’s status.
As stated, supra, in
addition to
being
order
immunity
attach,
to
ministerial.
a
public
the
official,
conduct
in
must
be
for
qualified
discretionary,
Thomas, 113 Md. App. at 452.
not
Additionally, the
action must be within the scope of the actor’s official duties.
Id.
Appellant meets these further standards.
The decision to
detain Thomas was clearly a discretionary act and it was within his
scope
of
authority
as
a
special
police
officer
suspected shoplifter within his jurisdiction.
to
detain
a
We hold, therefore,
that appellant, acting within the scope of the authority of a
- 13 special police officer enforcing the criminal law, is entitled to
qualified public immunity, and is consequently shielded from civil
liability in the absence of malice or gross negligence.
II
Appellant next contends that the circuit court erred in
providing an alternative basis to deny summary judgment based on
gross negligence.
The court’s opinion stated:
In this case, [appellant’s] conduct is not so
patently reasonable as to require granting him
summary judgment.
Unlike the officer in
Lovelace v. Anderson, [126] Md. App. [667]
(No. 1249 June 3, 1999), who was faced with
two armed robbers, [appellant’s] actions may
have served to escalate a routine, unarmed
shoplifting into a fatal shooting.
At the end of the above paragraph, the court made the following
footnote:
Even if a qualified immunity defense is
available at trial, it may be insufficient to
prevent a liability finding for grossly
negligent conduct. The [appellees] could, of
course, amend their Complaint to allege gross
negligence.
Then, should the trial judge —
who would not be bound by this ruling — permit
the defense, the jury could determine whether
the
[appellant’s]
conduct
was
grossly
negligent.
(Citations omitted.)
Appellant contends that the court’s opinion
provides an alternative basis for denying the immunity claim when
neither party raised that basis.
- 14 Appellees concede that gross negligence was not a claim raised
in the case sub judice.
gross
negligence.
The court’s opinion makes no finding of
The footnote does not constitute separate
grounds for denial of the motion; it is merely dicta that includes
an
anticipated
argument
and
is
not
binding
on
the
court.
Accordingly, whether gross negligence provides an alternative basis
for denying summary judgment is not before us.
In view of our
reversal of the court’s ruling on qualified immunity, appellees may
raise the issue of whether appellant’s actions constitute gross
negligence on remand.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY REVERSED;
CASE
REMANDED
FOR
FURTHER
PROCEEDINGS
CONSISTENT
WITH
THIS OPINION.
COSTS TO BE PAID BY APPELLANT.
