Lemon v. Early, 1996 Md. App. LEXIS 189 (MD Ct. Spec. App. 1996)

DIANA LEMON, et al. v. DARLENE EARLY, et al.

No. 1951, SEPTEMBER TERM, 1995

COURT OF SPECIAL APPEALS OF MARYLAND

1996 Md. App. LEXIS 189

December 24, 1996, Filed
JUDGES:
Wenner, Davis, Hollander, JJ.

OPINION
Per Curiam

This case arises from the unfortunate death of Raleigh Daffron Lemon, who was fatally shot by Baltimore City Police Officer Darlene Early as he was attempting to escape from Early’s custody. Lemon’s widow, his minor children, and his estate, appellants and cross-appellees, filed suit in the circuit Court for Baltimore City against the Baltimore City Police Department (“BCPD”), former Baltimore City Police Commissioner Edward V. Woods, appellees, and Early, appellee and cross-appellant. Prior to trial, the circuit court granted Woods’s motion to dismiss (Ward, J.) and the BCPD’s motion for summary judgment (Gordy, J.). 1 With Early as the sole remaining defendant, the case proceeded to trial (Heller, J.). A jury subsequently found in Early’s favor.

Appellants present a pentad of questions for our consideration, which we have re-ordered:

I. Whether the Circuit Court committed reversible error in refusing to permit Appellants’ deadly force expert to testify regarding the policies, procedures and guidelines of the Baltimore City Police Department on the use of deadly force, and from informing the jury of his expert opinion that Early violated said policies, procedures and guidelines?

II. Whether the Circuit Court abused its discretion by permitting Early to testify regarding the murder of her friend and fellow police officer who was allegedly killed by an unarmed suspect who took the officer’s gun and shot and killed him?

III. Whether the Circuit Court erred in dismissing Appellants’ claim for assault, notwithstanding Early’s admission that she drew her weapon and threatened to shoot Mr. Lemon at a time when she had no right to do so?

IV. Whether the Circuit Court erred in refusing to grant Appellants’ Motion for Judgment as to liability in light of the fact that Early admitted that she drew her weapon and threatened to shoot Mr. Lemon when she knew Mr. Lemon was unarmed and did not possess any weapons, and her admission that Mr. Lemon did not pose a threat of imminent harm to her or others?

V. Whether the Circuit Court erred in holding that the Baltimore City Police Department, and its Commissioner, are immune from suit?

In her cross-appeal, Early presents several questions:

I. Did the Circuit Court err in permitting expert Lonnie Hardin to testify in light of the Plaintiffs’ violation of discovery rules relating to expert witnesses?

II. Did the Circuit Court err in permitting Jerry Wilson to testify as to the reasonableness of Early’s conduct, which was the ultimate issue before the jury?

III. Did the Circuit Court err in permitting Early to be questioned regarding the equipment she was carrying at the time of the shooting?

IV. Did the Circuit Court err in instructing the jury regarding the factors to be used in evaluating the reasonableness of Early’s actions?

We answer appellants’ questions I, II, III, and IV in the negative. Therefore, we shall affirm the judgments in favor of Early. With respect to Question V, we shall affirm the judgment in favor of BCPD, but shall vacate the judgment in favor of Woods and remand that claim for further proceedings. We answer Early’s issue II in the negative. With regard to Early’s issue III, we conclude that questions concerning the equipment Early carried at the time of the occurrence were not relevant to the question of the reasonableness of her use of deadly force. Based on our disposition of these issues, we decline to consider any remaining questions.

PROCEDURAL BACKGROUND

On September 28, 1993, appellants instituted suit, seeking compensatory and punitive damages. In Count One of their second amended complaint, 2 appellants asserted a wrongful death claim, alleging that Early negligently killed Lemon by breaching her duty “to use only such force as was reasonable under the circumstances.” Count Two set forth a survival claim that similarly alleged that Early negligently killed Lemon. In counts Three, Four, and Five, appellants sought punitive damages. Count Three alleged a violation of Lemon’s due process rights under Article 24 of the Maryland Declaration of Rights, while Count Four alleged that the shooting constituted “an unlawful seizure of [Lemon’s] person,” in violation of Article 26 of the Maryland Declaration of Rights. Count Five alleged assault and battery, while Count Six asserted a claim for loss of consortium.

Counts Seven and Eight alleged additional violations of Articles 24 and 26 against Woods and the BCPD, respectively, based on their failure properly to train, supervise, discipline, and control Baltimore City police officers. In particular, Count Seven alleged that Woods had violated Lemon’s constitutional rights

by failing to establish, provide or promulgate procedures, training, disciplinary proceedings, and guidelines to police officers to avoid the use of excessive and deadly force, and the failure to establish, provide, or promulgate these procedures, training or guidelines, is and was reckless and done with callous indifference to the constitutional rights guaranteed by the laws of Maryland. Alternatively, if such procedures, training or guidelines have been promulgated, then Commissioner Woods permitted them to continue to exist as either blatantly inadequate or ha[s] permitted such procedures, training or guidelines to be deliberately ignored with deliberate indifference.

Count Eight asserted an identical claim against the BCPD.

At the conclusion of the evidence, the court denied appellants’ motion for judgment on their constitutional claims under Articles 24 and 26, but it granted Early’s motion for judgment with respect to the claims for assault and loss of consortium. 3 Although we are unable to locate the actual verdict sheet in the record, it appears that only three claims were actually submitted to the jury. The jury found that Officer Early did not violate Lemon’s constitutional rights under Articles 24 and 26 of the Declaration of Rights and concluded that Early was not liable for battery.

FACTUAL SUMMARY

On January 13, 1993, Early was employed as a uniformed patrol officer by the BCPD. On that day, she was guarding Lemon while he was being treated at Bon Secours Hospital in Baltimore City for injuries he allegedly sustained while in police custody. Early had no knowledge of the circumstances of Lemon’s arrest. 4 In the emergency room, Early had no cause for concern, because Lemon was quiet and made no threatening moves or gestures.

At the triage area, Lemon’s right wrist was handcuffed to a chair. A nurse wanted to take Lemon’s blood pressure, but Lemon’s clothing interfered. Early acceded to the nurse’s request to uncuff Lemon’s right wrist in order to allow Lemon to remove some of his clothing.

Upon the nurse’s completion of the medical examination, Early told Lemon that she would have to handcuff him again. Without warning, Lemon pushed Early, ran out of the treatment area, down the emergency room corridor, and toward the hospital’s Fayette Street exit. Early immediately ran after Lemon. While in pursuit, Early shouted, on two or three occasions, words to the effect of “Stop or I’ll shoot.” Early testified that she knew she could not actually shoot Lemon, because he was unarmed and had no hostages. Rather, her intent was to “put fear” in Lemon in order to make him stop. Lemon, however, did not stop or turn around; he continued to run toward the exit.

The exit consisted of sets of double doors that operated electronically. When the doors opened, Lemon ran through them, with Early close behind. Early recalled that she was approximately five or six feet behind Lemon as he exited the hospital, but she was unable to grab him.

At some point during the chase, Early withdrew her Glock 9mm semi-automatic pistol from her holster. Early repeatedly stated at trial that she could not remember exactly when she drew her pistol. Charles Hogans, who had accompanied a family member to the hospital, testified that Early was holding her gun at her side while she was running in the corridor. Robert Shields, a hospital security guard who saw the chase, testified that Early drew the weapon when she was between the double doors. In any event, Lemon went through the second set of double doors and turned towards the right, with Early in pursuit. Moments later, Early fired one shot, which struck Lemon in his back. According to Dr. Donald Wright, the State deputy medical examiner who performed the autopsy, the large caliber bullet entered Lemon’s back and moved upward and toward the left, causing severe injuries. After Lemon fell to the ground, Early called for help, but attempts to save Lemon were unsuccessful.

The parties dispute the circumstances of the shooting. Appellants contend that Early shot Lemon in the back as he was fleeing. Early claims that, after she advanced to within two or three feet of Lemon, he abruptly stopped, turned to his right, and extended his right hand directly toward her gun. Early explained that she “ducked,” both “instinctively” and to avoid being pushed again, and then intentionally fired the shot, because she feared that Lemon would take her gun and shoot her. She testified:

[A]t the time when Mr. Lemon stopped and came around, it was my honest belief that he was going to take my weapon and use it on me. . . . He was going to use my weapon to do death to me or to do serious injury to me and at that time I made the–I had a split second to decide, you know, whether it was me or him and I honestly believed that he was going to take my weapon and use it on me.

Early recounted that one of the reasons for her belief was that she was thinking of another Baltimore City police officer who had been killed four months earlier with his own gun, after his assailant grabbed the gun.

Shields corroborated that Lemon turned to his right and reached toward Early just before the shot was fired. Dr. Wright opined that the bullet’s trajectory was consistent with Lemon’s having been shot while running and turning. 5 He also stated that no gunpowder was found on Lemon’s hand. Dr. Richard Saferstein, appellants’ expert in forensics, opined that Lemon was “at least three feet away, perhaps even further,” from Early when he was shot. Lonnie Hardin, appellants’ expert in the fields of forensics and firearm tool mark identification, opined that, given the type of weapon Early used and the fact that he found no gunpowder on Lemon’s clothes, Lemon was at least three feet away from the gun when it was fired. Another forensic expert, David Schifler, testified that he did not detect any gunpowder residue on Lemon’s clothing. These experts were suggesting that Lemon was not in a position to reach for Early’s weapon, given his distance from Early.

DISCUSSION

I.

In order to consider the parties’ various contentions, we shall first review the law concerning a police officer’s use of deadly force.

Appellants’ constitutional claims were predicated on Articles 24 and 26 of the Maryland Declaration of Rights. 6 Our courts have consistently equated the Due Process Clause in Article 24 with the due process guarantees in the Fifth and Fourteenth Amendments to the United States Constitution. See, e.g., Horace Mann League v. Board of Public Works, 242 Md. 645, 685, 220 A.2d 51, cert. denied, 385 U.S. 97, 87 S. Ct. 317, 17 L. Ed. 2d 195 (1966); State v. Meade, 101 Md. App. 512, 517 n.1, 647 A.2d 830 (1994), cert. denied sub nom. Bewley v. Meade, 337 Md. 213, 652 A.2d 669 (1995). Cf. Murphy v. Edmonds, 325 Md. 342, 353, 601 A.2d 102 (1992). Therefore, Supreme Court decisions construing the Fourteenth Amendment are instructive in analyzing Article 24. Northampton Corp. v. Washington Suburban Sanitary Comm’n, 278 Md. 677, 686, 366 A.2d 377 (1976); Lawrence v. State, 51 Md. App. 575, 582, 444 A.2d 478 (1982), aff’d, 295 Md. 557, 457 A.2d 1127 (1983).

Article 26 is Maryland’s counterpart to the Fourth Amendment. See Gadson v. State, 341 Md. 1, 8 n.3, 668 A.2d 22 (1995), cert. denied, 517 U.S. 1203, 116 S. Ct. 1704, 134 L. Ed. 2d 803 (1996); Gahan v. State, 290 Md. 310, 319, 430 A.2d 49 (1981); Meade, 101 Md. App. at 517 n.1. Like the Fourth Amendment, Article 26 prohibits “unreasonable” searches and seizures, see Pinkney v. State, 12 Md. App. 598, 608-09, 283 A.2d 800 (1971), but it “does not afford . . . any greater protection than . . . the Fourth Amendment.” Henderson v. State, 89 Md. App. 19, 24, 597 A.2d 486 (1991), cert. denied, 325 Md. 396, 601 A.2d 129 (1992). Supreme Court decisions construing the Fourth Amendment are entitled to “great respect.” Gadson, 341 Md. at 8 n.3; Gahan, 290 Md. at 320; Givner v. State, 210 Md. 484, 498, 124 A.2d 764 (1956). According to the Supreme Court, a “seizure” occurs “when there is a governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 596, 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989) (emphasis omitted). See also California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (stating that a seizure occurs upon physical touching by a law enforcement officer or when a civilian otherwise submits to an officer’s show of authority).

In Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), the Supreme Court determined that “all claims that law enforcement officers have used excessive force–deadly or not–in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” “As in other Fourth Amendment contexts,” the Court declared, “the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397. The Court explained:

Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake. Our Fourth Amendment Jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

Id. at 396 (emphasis supplied; citations and internal quotation marks omitted). The Court further stated:

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” Johnson v. Glick, 481 F.2d [1028, 1033 (2nd Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 464, 38 L. Ed. 2d 325 (1973)], violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments– in circumstances that are tense, uncertain, and rapidly evolving–about the amount of force that is necessary in a particular situation.

Id. at 396-97 (emphasis supplied). Moreover, “reasonableness traditionally is a question of fact for the jury. . . .” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994), cert. denied, 515 U.S. 1159, 115 S. Ct. 2612, 132 L. Ed. 2d 855 (1995).

The case of Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985), is also instructive. The Court held unconstitutional a state statute authorizing the use of deadly force against an unarmed, nondangerous, fleeing suspect. It concluded that “apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Id. at 7. Further, the Court declared that “[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable . . . . A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.” Id. at 11. The Court recognized, however, at 471 U.S. 11-12, that,

[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

In State v. Albrecht, 336 Md. 475, 649 A.2d 336 (1994), the Court of Appeals upheld a police officer’s conviction for involuntary manslaughter and reckless endangerment, based on the officer’s gross negligence in the use of a shotgun. The Court observed that “the ‘overriding question’… was whether [the officer’s] conduct constituted a ‘gross and wanton deviation from reasonable conduct’ such as would support” the convictions. Id. at 486-87. The Court also noted that the standard of reasonableness by which the officer’s conduct must be measured is that of a “reasonable police officer similarly situated.” Id. at 501. It determined that the evidence was sufficient to support the conclusion that the officer “did not act as a reasonable police officer under the circumstances. . . .” Id. at 502.

Similarly, in Wilson v. State, 87 Md. App. 512, 590 A.2d 562, cert. denied, 324 Md. 325, 597 A.2d 422 (1991), we affirmed the conviction of a police officer for assault and carrying a deadly weapon openly with intent to injure. We recognized that “a police officer, from the perspective of a reasonable police officer, may use only that amount of force reasonably necessary under the circumstances to discharge his duties.” Id. at 520. Moreover, we said that a police officer may use deadly force only “if he reasonably believes that he is in imminent danger of either losing his own life or suffering great bodily harm.” Id. at 519. In assessing the force used, we noted that “we must judge the reasonableness from the perspective of a reasonable police officer and not from the perspective of a reasonable citizen not sworn to enforce the law.” Id.

As we observed, appellants also asserted a claim of battery against Early. “A battery is the ‘unpermitted application of trauma by one person upon the body of another person.'” Janelsins v. Button, 102 Md. App. 30, 35, 648 A.2d 1039 (1994) (quoting McQuiggan v. Boy Scouts of America, 73 Md. App. 705, 714, 536 A.2d 137 (1988)). The tort “requires intent by the actor “to bring about a harmful or offensive contact. . . . [It is] confined to intentional invasions of the interests in freedom from harmful or offensive contact.'” Id. (quoting 1 Fowler V. Harper, et al., THE LAW OF TORTS § 3.3, at 272-73 (2d ed. 1986)).

II.

Appellants contend that the trial court erred in refusing to allow their expert witness, Jerry Wilson, a former District of Columbia police chief, to testify about the policies and guidelines of the BCPD with respect to the use of deadly force, and to express his opinion that Early had violated them. Given the standard that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene,” Graham, 490 U.S. at 396, appellants maintain that the trial court erred in barring Wilson’s opinion testimony. 7 They argue that, “[i]f the test [under Graham] is from the perspective of a reasonable police officer, it makes sense to consider the policies, procedures, and guidelines promulgated by police officers on the issue of deadly force.” Early counters that the guidelines are irrelevant, because she must be judged by the standard established in Graham and Garner, and not the standard set by a local police department. Early also complains that the court improperly allowed Wilson to opine that Early’s use of deadly force was unreasonable under the circumstances of this case.

Departmental guidelines may have some place in cases involving excessive force. In Garner, the Supreme Court relied in part on guidelines from police departments and the Federal Bureau of Investigation. See Garner, 471 U.S. at 18-19. In Scott v. Henrich, 39 F.3d at 916, the Ninth Circuit indicated that guidelines that “restrict[] the use of deadly force to protect suspects from being shot unnecessarily” would be “germane to the reasonableness inquiry in an excessive force claim.” Similarly, in Albrecht, 336 Md. 475, 649 A.2d 336, the Court considered the police department’s internal guidelines concerning the use of deadly force and firearms and sustained a factual finding that the officer had deviated from the standard of care for a reasonable police officer. Id. at 487-88, 502.

Internal police guidelines, however, are not necessarily dispositive as to the “reasonableness” inquiry. In Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir. 1993), a deadly force case, the court stated: “Conduct by a government official that violates some state statutory or administrative provision is not necessarily constitutionally unreasonable. State legislatures and government agencies are free to hold government officials to higher standards than the Constitution requires.” (Citations omitted.) In United States v. Baker, 16 F.3d 854, 856 n.1 (8th Cir. 1994), the same court stated: “A police violation of state law does not establish a Fourth Amendment violation. However, the question of compliance with state law may well be relevant in determining whether police conduct was reasonable for Fourth Amendment purposes.”

In this case, we need not decide, as a general rule, whether internal police guidelines, policies, and procedures concerning the use of deadly force are always admissible in a deadly force case. In light of the record before us, we conclude that the trial judge did not abuse her discretion in deciding that the testimony would unduly confuse the jury. We explain.

Appellants’ counsel stated that Wilson would testify “that in addition to violating the standard of care of a reasonable police officer under the circumstances, . . . she also violated the procedures of the Baltimore City Police Department.” Counsel proffered that Wilson would

testify that the general policy of the State of Maryland versus the Baltimore City Police Department, the Baltimore City Police Department’s policy is even a little stricter than what the general policy of Maryland is and, therefore, [Early] violated both, not only what the law is in Maryland, but even the stricter policy of her own department.

(Emphasis supplied.) Ultimately, the court excluded the testimony, because the guidelines were more stringent than the Maryland standard by which Early’s actions were to be judged, and thus Wilson’s testimony might have misled the jury. The judge said: “As counsel himself has indicated, the guidelines apparently are more stringent than the standard of care that exists in Maryland and, therefore, I think [they] would be misleading.”

Appellants’ reliance on Albrecht does not persuade us. Although the Court there referred at length to Montgomery County Police Department guidelines concerning the use of deadly force and firearms, it noted that both sides had relied heavily on the guidelines. Moreover, several of the guidelines actually correspond to the applicable Maryland standard. See Albrecht, 336 Md. at 487 (quoting Departmental Directive DD 83-15) (“officers may only use deadly force ‘to defend themselves, or another person from what they have reasonable cause to perceive as an immediate threat of death or serious bodily injury.'”); id. at 488 (quoting the same directive) (“‘[t]he officer’s decision to use deadly force against a fleeing felon will be judged by the reasonableness of his/her action given the facts and circumstances available to the officer at the time the force is employed.'”).

Here, appellants expressly distinguished “the standard of care of a reasonable police officer under the circumstances” and the BCPD’s stricter guidelines on the use of deadly force. Yet appellants concede that Early’s conduct must be judged according to Maryland law. Moreover, appellants never proffered the actual guidelines, thus making it impossible for the trial judge or us to determine exactly how the guidelines compared with the Maryland law or whether they really were more “stringent” than the Maryland standard. 8 For all we know, the BCPD guidelines could prohibit deadly force almost entirely, or prohibit it even in cases in which its use would be reasonable from the perspective of a reasonable police officer. Thus, based on the proffer, Early could have violated the BCPD’s policies without necessarily offending the Maryland standard.

Certainly, the result in this case may have been different if the departmental guidelines corresponded to or explained the Maryland standard. The trial judge expressed a similar view when she stated: “[T]he objective test of what a reasonable police officer would have done in the use of deadly force doesn’t come out of the air. It has to be based on something. It’s not floating there on a cloud. So I assume it’s based on directives or a model standard or something else.” Cf. 16 Maryland Law Encyclopedia Negligence § 8 (1961) (violation of local ordinance, in addition to state statute, may be evidence of negligence); Restatement (Second) of Torts § 286 cmt. a (1965) (same).

Moreover, “[i]t is well-settled that the decision to admit or exclude expert testimony is within the discretion of the trial judge.” Franch v. Ankney, 341 Md. 350, 364, 670 A.2d 951 (1996). Thus, “[a] trial judge’s decision to admit or exclude expert testimony will be reversed only if it is founded on an error of law or some serious mistake, or if the judge has abused his discretion.” Id. See also Md. Rule 5-702; Lynn McLain, MARYLAND EVIDENCE, § 702.1 (1987). Given appellants’ proffer, the trial judge was within her discretion in excluding Wilson’s opinion testimony that Early violated the BCPD’s guidelines and policies as to the use of deadly force.

In any event, Wilson was permitted to testify that, in his expert opinion, Early’s use of deadly force was unreasonable. This, after all, was at the heart of appellants’ claim. Despite Early’s complaint, we conclude that the court properly permitted this testimony, pursuant to Maryland Rule 5-702.

The standard for the admissibility of expert testimony “is not whether the jury could possibly decide the issue without expert help, but whether the expert testimony would be of appreciable help to the jury in resolving the issue.” Nizer v. Phelps, 252 Md. 185, 193, 249 A.2d 112 (1969). See generally McLain, supra, § 702.1, at 212-13. The determination of helpfulness is ordinarily within the sound discretion of the trial court. Radman v. Harold, 279 Md. 167, 173, 367 A.2d 472 (1977); Nizer, 252 Md. at 193. “Most appellate decisions, therefore, have affirmed the trial court’s admission or exclusion of expert testimony on a particular matter.” McLain, supra, § 702.1, at 213 (footnotes omitted).

Early makes no challenge to Wilson’s expert qualifications. Nor does she dispute that “a sufficient factual basis exists” to support his testimony. See Md. Rule 5-702. Instead, Early quarrels with the “appropriateness” of expert testimony on the issue of the reasonableness of Early’s use of force, because it concerned “the ultimate issue before the jury.”

Even if expert testimony was not required to determine whether Early’s use of force was excessive, Wilson, 87 Md. App. at 521, the trial judge did not abuse her discretion in concluding that the jury would benefit from expert testimony to help assess the reasonableness of the officer’s use of force. Indeed, Maryland Rule 5-704(a) expressly provides that “testimony in the form of an opinion or inference otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact.” In Billman v. Maryland Deposit Ins. Fund Corp., 88 Md. App. 79, 593 A.2d 684, cert. denied, 325 Md. 94, 599 A.2d 447 (1991), involving alleged mismanagement of a financial institution, this Court sustained the trial court’s admission of expert testimony that certain conduct was improper and grossly negligent. The Court stated:

[T]he standard for admissibility of relevant opinion evidence is whether the trier of fact will receive appreciable help from it. An expert’s opinion is not per se inadmissible because it is expressed in terms of an ultimate factual issue in the case. Here, the evidence underlying the ultimate factual issue of the defendant’s lack of care involved the operations of a multi-million dollar financial institution. That subject matter was not within the experience of average jurors, so that the trial court did not abuse its discretion in concluding that expert opinion on the ultimate factual issue would be of help to the jurors.

Id. at 113 (citations omitted). See also Kopf v. Skyrm, 993 F.2d 374, 377-79 (4th Cir. 1993).

III.

A.

Appellants challenge the following testimony offered by Officer Early:

[EARLY’S COUNSEL]: Officer Early, with respect to my next question, I don’t want you to identify by name the officer involved but you’ve told us that when Mr. Lemon reached back one of the things that was going through your mind is he was going to take your weapon and use it on you and was there another basis for your state of mind as to that fact?
OFFICER EARLY: Yes, it was. It was a good friend of mine that’s an officer also had his weapon taken by a suspect and the same weapon was used on him to kill him.
[EARLY’S COUNSEL]: How long before the incident of Mr. Lemon did that occur?
OFFICER EARLY: That incident happened in September of ’92.

Early was referring to Officer Ira Weiner, a Baltimore City police officer who was killed with his own gun some four months prior to the shooting of Lemon. Weiner, whose murder was well publicized, was Early’s friend and mentor. While Early did not witness Weiner’s murder, she was standing outside the location where he was killed and heard the fatal gunfire.

Appellants strenuously objected to this testimony, arguing that what Early was “thinking about her former friend who got murdered four months earlier” was irrelevant to a determination of what a reasonable police officer would do under the circumstances. They also asserted that the evidence was “totally prejudicial” and was “offered for no reason other than to get the sympathy of the jury and to prejudice [appellants]. . . .”

The trial judge allowed the testimony, adopting appellee’s argument that it was relevant because it went to Early’s “state of mind” and thus “to what a reasonable police officer would have done under the circumstances.” Nevertheless, she instructed Early not to mention Officer Weiner’s name to the jury or to “go[] into the scenario of what happened.” The judge explained: “I don’t want her to name the officer’s name because it was in the press at the time and I don’t want to bring back memories of that officer and what happened because I think that really does go to a point outside of the case.”

Notwithstanding the judge’s admonition, during closing argument, Early’s counsel mentioned officer Weiner by name while briefly discussing his client’s testimony about her thoughts of the slain officer. Appellants’ objection was sustained. 9 Appellants argue that, by mentioning Officer Weiner’s name during closing arguments, the defense struck “a final deadly blow to the already unfair prejudice injected into the case.”

Appellants forcefully attack the admission of the testimony. They assert:

Early’s state of mind . . . is completely irrelevant and immaterial to the issue of whether Early’s use of deadly force was objectively reasonable from the perspective of a reasonable police officer under the totality of the facts and circumstances facing Early on January 13, 1993. As the Circuit Court recognized, the standard is an objective one. Therefore, what was subjectively believed by Early is irrelevant and immaterial. Likewise, what Early was thinking is completely irrelevant and immaterial.

Both sides present cogent arguments in support of their respective positions on this thorny issue. We conclude, however, that Early’s personal knowledge about the circumstances of Officer Weiner’s death may well be relevant to the issue of the reasonableness of her use of force.

B.

Maryland Rule 5-402 provides, in part, that, “Except as otherwise provided . . . all relevant evidence is admissible. Evidence that is not relevant is not admissible.” Maryland Rule 5-401 further states: “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (Emphasis supplied.)

In an excessive force claim, as we have noted, the officer’s actions are evaluated by an objective standard. Graham, 490 U.S. at 397. Consistent with Wilson and as the trial judge instructed the jury, a police officer may use deadly force “if he reasonably believes that he is in imminent danger of either losing his own life or suffering great bodily harm.” Wilson, 87 Md. App. at 519 (emphasis supplied). This standard plainly contains two elements: first, the officer must actually believe that he is in imminent danger of death or serious bodily harm; second, the belief must be objectively reasonable from the perspective of a reasonable police officer.

We part company with appellants in regard to their construction of what is objectively reasonable. In our view, it is not necessarily improper to permit inquiry into the actual knowledge or personal information possessed by a law enforcement officer at the relevant time. To the contrary, the officer’s personal knowledge may be critical in the application of the test.

We are guided by the law on the use of force in self-defense, which is also measured by an objective standard. 10 In order to prevail on a claim of self-defense, the defendant “must have had reasonable grounds to believe, and have in fact believed, himself in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant.” Guerriero v. State, 213 Md. 545, 549, 132 A.2d 466 (1957) (emphasis supplied). Accord State v. Martin, 329 Md. 351, 357, 619 A.2d 992, cert. denied, 510 U.S. 855, 114 S. Ct. 161, 126 L. Ed. 2d 122 (1993); Rajnic v. State, 106 Md. App. 286, 292, 664 A.2d 432 (1995). Pursuant to the objective test, the defendant’s “belief must coincide with that which would have been entertained under the same circumstances by a person of average prudence.” Guerriero, 213 Md. at 549. See also Baltimore Transit Co. v. Faulkner, 179 Md. 598, 601, 20 A.2d 485 (1941). (“[T]o justify assault and battery in self-defense the circumstances must be such as would have induced a reasonable man of average prudence to make such an assault in order to protect himself.”). As stated in W. Page Keeton, et al., PROSSER AND KEETON ON THE LAW OF TORTS § 19, at 125 (5th ed. 1984):

The belief [justifying force in self-defense] must be one which a reasonable person would have entertained under the circumstances. . . . Evidence as to [the defendant’s] state of mind and nerves, and the threats, past conduct, and reputation of his assailant which may have induced it, is important and admissible on the issue of what was reasonable . . ., but the standard to be applied is the external one of reasonable conduct.

(Emphasis supplied; footnotes omitted.)

Other jurisdictions have recognized that a defendant may have a reasonable belief of imminent danger as a result of knowledge of past events that did not even involve the victim of the force. See, e.g., State v. Wanrow, 88 Wn.2d 221, 559 P.2d 548, 555 (Wash. 1977) (“[T]he justification of self-defense is to be evaluated in light of all of the facts and circumstances known to the defendant, including those known substantially before the killing.”; State v. Tribett, 74 Wash. 125, 132 P. 875, 877 (Wash. 1913) (defendant claiming self-defense should have been allowed to present evidence of the “lawlessness” on the street car line on which the shootings occurred), overruled in part on other grounds by State v. Penn, 89 Wn.2d 63, 568 P.2d 797, 798 (Wash. 1977). See also Rook v. Koons, 289 S.W. 1077, 1078 (Tex. Civ. App. 1926) (“The record discloses . . . that appellee believed that the plaintiffs were the parties who had attacked him on former occasions, and who had threatened his life. He was therefore entitled to all the defenses he could have offered if the plaintiffs had been [those parties].”), aff’d, 295 S.W. 592 (Tex. 1927); Crabtree v. Dawson, 119 Ky. 148, 83 S.W. 557, 26 Ky. L. Rptr. 1046 (Ky. 1904) (defendant had just ejected from a party a man who then threatened to come back and attack him; shortly thereafter, in a poorly lighted area, the plaintiff ran toward the doorway and the defendant, believing that he was the earlier man, struck him).

We also find support for our view in Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987), in which the Supreme Court rejected an argument similar to the one that appellants make here. Anderson involved a claim that an F.B.I. agent had improperly made a warrantless search of the plaintiffs’ home. The issue was whether the agent was entitled to qualified immunity, which is governed by an objective standard. See Harlow v. Fitzgerald, 457 U.S. 800, 815-19, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). 11 The plaintiffs contended that this objective standard precluded inquiry into the F.B.I. agent’s knowledge of the circumstances bearing upon whether he had probable cause for the search of the home. The Court disagreed:

[T]he determination whether it was objectively legally reasonable to conclude that a given search was supported by probable cause or exigent circumstances will often require examination of the information possessed by the searching officials. But contrary to the Creightons’ assertion, this does not reintroduce into qualified immunity analysis the inquiry into [the] officials’ subjective intent that Harlow sought to minimize. . . . The relevant question in this case, for example, is the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. Anderson’s subjective beliefs about the search are irrelevant.

Anderson, 483 U.S. at 641 (emphasis supplied).

Similarly, in Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir.), cert. denied, 513 U.S. 820, 115 S. Ct. 81, 130 L. Ed. 2d 34 (1994), the court stated that the reasonableness of the officer’s use of deadly force should be judged “in light of all that the officer knew.” The point is further illustrated by McCrary-El v. Shaw, 992 F.2d 809 (8th Cir. 1993), cited by Early, in which a prisoner claimed that correctional officers had used excessive force. 12 On appeal, the prisoner claimed that the trial court erred in admitting conduct violation reports about him, offered “to show that [he] had a history of violent behavior and the consequent state of mind of the officers.” Id. at 812. The Eighth Circuit disagreed, saying:

The amount of force reasonably necessary to subdue prisoners is not the same for all prisoners. . . . The question of excessiveness of force, in other words, cannot be assessed in a vacuum; it will vary from circumstance to circumstance. Officers are certainly not required in all cases to wait until they are attacked before they resort to force. Such a rule would expose them to an unnecessary and unreasonable risk of harm.

The officers testified, that they were aware of McCrary-El’s reputation for violence because of several past incidents involving both guards and inmates, in addition to his past convictions for violent felonies . . . The reports were therefore relevant, not just to the question of the subjective state of mind of these officers, but to the objective question as to what was reasonable force by any officer who knew McCrary-El’s reputation.

Id. (emphasis supplied).

In light of the foregoing, we disagree with appellants’ contention that, in an excessive force case, the officer’s subjective or personal knowledge is inherently irrelevant. 13 In the “reasonable police officer” test, we conclude that the fund of the officer’s actual or personal knowledge may bear upon the situation at hand, along with all other relevant circumstances. The fact finder must decide whether a reasonable police officer, with such knowledge, would act as the officer in question acted. Otherwise, we would confront absurd situations in which an officer could be exonerated in a deadly force case, even if the officer actually knew that the citizen posed no threat, merely because a reasonable officer, without that knowledge, would have thought the citizen was dangerous. To illustrate, if a police officer actually knows that a suspect is pointing a toy pistol at him, the officer obviously cannot disregard that knowledge and maliciously shoot the citizen, merely because a hypothetical “reasonable police officer” transplanted onto the scene would not know that the weapon is a toy and that the suspect is therefore unarmed and not dangerous.

The question, then, is whether, Early’s actual knowledge of the circumstances of Officer Weiner’s death was relevant to the propriety of her use of force. We think that it was. How reasonable people act in a particular situation often derives from their experiences or knowledge about other situations; the reasonableness of force cannot be assessed in isolation. If a police officer knows that another officer was killed in a particular manner, and then observes what she reasonably believes is the same thing happening to her, the officer could reasonably and rationally fear the same result. At the very least, a jury could find that if a police officer witnesses a circumstance that she, as a result of her experience, believes could result in her death, then that officer, judged from the perspective of a reasonable officer, should not be required to wait and see whether the situation is really as dangerous as she feared. By then, it could be too late. See Baltimore Transit Co., 179 Md. at 601 (“The question whether the belief of the defendant that he was about to be injured was a reasonable one under all the circumstances of the case is a question for the consideration of the jury.”).

We are mindful that the Supreme Court said in Graham: “An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively, unreasonable use of force constitutional.” Graham, 490 U.S. at 397. This statement is not contrary to our position, however. We do not construe it to mean that the officer’s relevant, subjective knowledge bearing upon the reasonableness of the force must be excluded. Rather, evidence that the particular officer had a pre-existing malice toward the victim would not be relevant to the “reasonableness” issue. See Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1082 (8th Cir. 1990) (finding that an officer’s motivation for rough treatment in the course of an arrest, e.g., retaliation for tearing up parking ticket, was not relevant in excessive force case). But cf. Graham, 490 U.S. at 399 n.12 (“Of course, in assessing the credibility of an officer’s account of the circumstances that prompted the use of force, a factfinder may consider, along with other factors, evidence that the officer may have harbored ill-will toward the citizen.”). Certainly, the officer’s personal beliefs about the propriety of the force are irrelevant. In other words, an officer who uses force that is objectively reasonable under the circumstances will not be held culpable merely because he believed that the force was unlawful, and an officer who uses objectively unreasonable force will not be exonerated because he believed that his actions were proper.

In addition, Early’s testimony about the incident involving Officer Weiner was relevant to her defense against appellants’ claim for punitive damages. The trial court instructed the jury that, in order to recover punitive damages, appellants had to prove, by clear and convincing evidence, that Early’s “conduct was outrageous and performed with evil motive, intent to injure, ill will, and without legal justification or excuse.” See Montgomery Ward v. Wilson, 339 Md. 701, 733, 664 A.2d 916 (1995); Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 450-60, 601 A.2d 633 (1992). The testimony was relevant to whether she genuinely feared for her safety, or whether she used deadly force with an “evil motive” or “intent to injure.”

Contrary to appellants’ suggestion, we do not hold that “an officer [is] justified in shooting and killing an unarmed suspect merely because he or she thought about a fellow police officer killed by his or her own gun.” We also emphasize that our conclusion is not meant to allow any police officer accused of excessive force to testify that he or she was thinking of any unrelated incident in which another police officer was killed.

C.

Alternatively, appellants argue that, even if the evidence was relevant, its probative value was substantially outweighed by the danger of unfair prejudice and confusion of the issues, and thus should have been excluded under Maryland Rule 5-403. This rule provides, in pertinent part, that relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . .” (Emphasis supplied.)

Preliminarily, we are cognizant of the considerations that support appellants’ position; evidence of this nature may inflame the jury. The trial judge evidently had the same view, as she restricted the extent of the testimony.

Nonetheless, our scope of review on this issue is limited; the balancing of probative value against the danger of unfair prejudice is committed to the sound discretion of the trial court. Hunt v. State, 312 Md. 494, 502-03, 540 A.2d 1125 (1988); Brashear v. State, 90 Md. App. 709, 715, 603 A.2d 901, cert. denied, 327 Md. 523, 610 A.2d 796 (1992) and cert. denied, 328 Md. 92, 612 A.2d 1315 (1992); McLain, supra, § 403.1, at 297 (1987). We defer to the trial court’s finding on this question and will not disturb its decision unless it was arbitrary or amounted to an abuse of discretion. State v. Broberg, 342 Md. 544, 555, 552, 677 A.2d 602 (1996). See also North v. North, 102 Md. App. 1, 13-14, 648 A.2d 1025 (1994) (discussing “abuse of discretion” standard of review).

When applying Rule 5-403, the issue is not whether the evidence is “prejudicial.” Indeed, “[e]vidence is never excluded merely because it is ‘prejudicial.’ If prejudice were the test, no evidence would ever be admitted.” Hon. Joseph F. Murphy, Jr., MARYLAND EVIDENCE HANDBOOK, § 506(B), at 248 (2d ed. 1993). See also Dollar v. Long Mfg., N. C., Inc., 561 F.2d 613, 618 (5th Cir. 1977) (“Virtually all evidence is prejudicial or it isn’t material. The prejudice must be ‘unfair.'”), cert. denied, 435 U.S. 996, 98 S. Ct. 1648, 56 L. Ed. 2d 85 (1978). The Advisory Committee Note to Fed.R.Evid. 403, the counterpart to Md. Rule 5-403, defines “unfair prejudice” as “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” In addition, the probative value of the evidence at issue must be “substantially” outweighed by the danger of unfair prejudice to the opposing party, confusion of the issues, or misleading the jury.

In Broberg, 342 Md. 544, 677 A.2d 602, a criminal prosecution for homicide by motor vehicle while intoxicated, the Court sustained a trial court’s admission of two photographs of the eleven-year-old victim of the accident: a sixth-grade school picture, and a picture of the child in a little league uniform. The child’s father wept while identifying the pictures on the stand. The Court held that the pictures were relevant to prove the identity of the victim, reasoning that, “although the photographs were prejudicial to Respondent’s case, they were not unfairly prejudicial.” Broberg, 342 Md. at 561.

The testimony in issue consisted of two brief and relevant responses in the course of a five day trial. Furthermore, the judge adopted several safeguards to protect appellants; she instructed Early not to discuss the “scenario” of Weiner’s murder and not to mention his name. In crafting a reasoned position that was fair to both sides, we cannot say that the judge abused her discretion. Moreover, defense counsel’s limited but unfortunate reference to officer Weiner during summation did not warrant a new trial.

IV.

The trial court granted Early’s motion for judgment on the assault claim. The judge said that “mere words, however violent, do not amount to an assault.” While a police officer’s words, under certain circumstances, may constitute an assault, we are amply satisfied here that, based on the particular facts of this case, the court did not err in granting the motion.

The tort of assault protects one’s “interest in freedom from apprehension of a harmful or offensive contact . . . as distinguished from the contact itself . . . .” Keaton, supra, § 10, at 43. The tort of assault is either an “unlawful attempt to cause a harmful or offensive contact with the person of another or to cause an apprehension of such a contact.” Continental Cas. Co. v. Mirabile, 52 Md. App. 387, 398, 449 A.2d 1176, cert. denied, 294 Md. 652 (1982). See also Lamb v. State, 93 Md. App. 422, 428, 613 A.2d 402 (1992), cert. denied, 329 Md. 110, 617 A.2d 1055 (1993) (recognizing various forms of criminal assault, including attempted battery and placing a victim in reasonable apprehension of an imminent battery). It is the “intent to frighten” variety of assault, rather than the attempted battery type, with which we are here concerned.

At the outset, we note that the jury’s exoneration of Early in connection with the battery claim is not dispositive of the assault claim. 14 Although temporally connected, the facts supporting the alleged assault are distinct from the factual underpinnings of the alleged battery. The shooting formed the basis of the battery claim. Early’s defense to the battery claim rested, inter alia, on her assertion that she resorted to the use of deadly force because she feared for her safety when Lemon allegedly reached for her gun. In contrast, the claim of assault is grounded on Early’s words, coupled with her overt acts and her intent to create an apprehension of imminent harmful contact. The assault allegedly occurred when Early, who was armed, threatened to shoot Lemon, who was injured and unarmed, and chased him through the hospital corridor and into the street. At some point, Early drew her weapon. During the relevant portion of the chase, Lemon had not yet reached for Early’s gun and, therefore, Early would not then have been entitled to use deadly force to subdue Lemon. Nevertheless, Early threatened and pursued Lemon precisely because she wanted to place Lemon, an escapee, in “fear”, so that he would surrender. Our analysis here is confined to the assault claim, and not the subsequent shooting.

Under the common law rule, “mere words,” however violent, do not ordinarily amount to an assault. Keeton, supra, § 10, at 44-45. This is because words alone usually do not convey sufficient “immediacy” or create a reasonable apprehension of “imminent” or “immediate” offensive contact. See Id. Thus, “some overt act,” such as drawing a weapon or shaking a fist, is required in order to establish an assault. Restatement (Second) of Torts § 31, cmt. a (1965).

Modern authorities suggest, however, that this rule should not be inflexibly applied to deny a bona fide claim for assault when the defendant’s words, under the circumstances, actually placed the plaintiff in reasonable apprehension of imminent or immediate harmful or offensive contact. Prosser and Keeton write:

Apparently the origin of this rule [that mere words are not enough] lay in nothing more than the fact that in the early days the King’s courts had their hands full when they intervened at the first threatening gesture, or in other words, when the fight was about to start; and taking cognizance of all of the belligerent language which the foul mouths of merrie England could dispense was simply beyond their capacity. Threats for the future, and insults for the present, are simply not present breaches of the peace, and so never have fallen within the narrow boundaries of this rather antiquated tort.

It would appear, however, that too much emphasis has been placed by the courts upon the idea of motion or gesture, usually described as “some overt act.” The most persuasive reason that mere words should not amount town assault is that ordinarily they create no apprehension of immediate contact. But words are always spoken in context, and in context they may cause apprehension. When they do, there should be an assault no less than when the defendant shakes a fist. . . . It is the immediate physical threat which is important, rather than the manner in which it is conveyed.

Keeton, supra, § 10, at 45 (footnotes omitted).

Similarly, § 31 of the Restatement (Second) of Torts says: “Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.” (Emphasis supplied.) Comment b to this section indicates that the “general rule must . . . be qualified in several respects. While mere words cannot render the speaker liable, words which accompany or precede acts known to the other and understood by him may be decisive evidence of the actor’s intention to commit the assault and of the other’s apprehension.” Comment d states:

Even apart from such cases where the words indicate the intent of an act, there may be other situations in which the words themselves, without any accompanying gesture, are sufficient under the circumstances tob arouse a reasonable apprehension of imminent bodily contact. Words are never spoken in a vacuum, and they cannot be utterly divorced from past conduct, or from the accompanying circumstances. An entirely motionless highwayman, standing with a gun in his hand and crying “Stand and deliver!” creates quite as much apprehension as one who draws the gun; and any rule which insists upon such a gesture as essential to liability is obviously quite artificial and unreasonable.

Even if Maryland law requires the coupling of an “overt act” with threatening words, that requirement was clearly satisfied by Early’s act of chasing Lemon while threatening him, regardless of whether Early had by then drawn her weapon. Moreover, having been in custody, Lemon would have known that Early’s weapon was easily accessible and that she readily could have carried out her threat to shoot. Therefore, contrary to the trial judge’s assertion, this is not a situation in which the alleged assault was based on the officer’s “mere words.”

In her effort to persuade us to uphold the trial judge’s ruling, Early offers several arguments that we find unavailing. For example, we cannot accept Early’s argument that there was no evidence that Lemon actually heard her shouts, so as to be placed in apprehension. At least circumstantially, it is probable that Lemon heard the officer shout “stop, or I’ll shoot,” because the officer wanted Lemon to obey her command and thus she spoke loudly enough to be heard. Moreover, Charles Hogans, the bystander in the hospital who witnessed the chase, heard the threat. The evidence also indicates that Early was close to Lemon throughout the chase. Further, we reject Early’s claim that there was no evidence that Lemon was, indeed, placed in apprehension of being shot, because Lemon did not halt, notwithstanding the officer’s command. The threat may well have propelled Lemon to fear that he would be shot, and thus he may have continued to run in order to avoid harm. We are, however, convinced that, as a matter of law, the end result was correct.

It is undisputed that Lemon was lawfully in custody, unarmed, and then escaped. It is beyond cavil that, at that point, Early was entitled to pursue Lemon in an attempt to apprehend him. Plainly, had Early failed to respond, her inaction would have been a dereliction of duty. Early’s conduct must be evaluated in the context of an officer at the scene of the escape. Even in the light most favorable to appellants, the method employed by Early to capture Lemon was unquestionably reasonable. Indeed, in Graham, 490 U.S. at 396, the Court acknowledged that the Fourth Amendment permits “some degree of physical coercion or threat to effect” an arrest. (Emphasis added.)

Confronted with the exigent circumstances attendant to an accused’s sudden escape from custody, we are satisfied that this officer’s actions in threatening and pursuing Lemon–as distinct from the subsequent shooting–were not excessive. To the contrary, the officer’s conduct was entirely justified. Cf. Taft v. Vines, 83 F.3d 681 (4th Cir. 1996); Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995). But see Restatement (Second) of Torts § 132 (“The use of force against another for the purpose of effecting the arrest or recapture of the other, or of maintaining the actor’s custody of him, is not privileged if the means employed are in excess of those which the actor reasonably believes to be necessary.”). It is of no moment that Early would not actually have had a right to shoot Lemon at the time that she made her threat; the lawfulness of the subsequent shooting of Lemon is an entirely distinct matter, which was considered separately at trial.

We recognize that, in Ashton v. Brown, 339 Md. 70, 117, 660 A.2d 447 (1995), the Court said that common law public official immunity is not a defense to an intentional tort, such as assault. See also Cox v. Prince George’s County, 296 Md. 162, 169, 460 A.2d 1038 (1983) (“[A] police officer does not enjoy this immunity if he commits an intentional tort or acts with malice.”). Nevertheless, writing for the Court in Ashton, Judge Eldridge observed that if the arrests in issue were not themselves tortious, “neither was the physical force used to effectuate them.” Ashton, 339 Md. at 119 n.24. Thus, in the absence of a tortious arrest or a claim of excessive force, there would be no claim for assault and battery. Applying that logic here, Early was clearly entitled to pursue and apprehend Lemon. If she was entitled to use reasonable force to effect a lawful arrest, common sense dictates that she surely could–and should–employ a threat or warning to accomplish the arrest. Indeed, in Tennessee v. Garner, 471 U.S. at 11-12, the Court recognized that, under certain circumstances, “it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon . . . deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” (Emphasis added.)

At the point in time when Early uttered her threat, there could be no viable claim for assault; the officer’s conduct did not amount to an “unlawful attempt . . . to cause an apprehension of [harmful or offensive] contact.” Continental Cas. Co., 52 Md. App. at 398 (emphasis added). Moreover, we decline to impose verbal handcuffs upon an officer who lawfully attempts to effect the recapture of a prisoner who has suddenly escaped from custody. Nevertheless, we do not suggest that a verbally abusive officer may never be civilly liable for assault, based on threatening words and conduct. To illustrate, if a civilian parks his car illegally, the civilian may well have a viable claim for assault if an officer approaches the citizen, with a gun drawn, shouting, “If you don’t move your car, I’m going to blow your brains out.” The instant matter, however, is a far cry from that hypothetical.

In view of the foregoing, we need not address Early’s remaining contention that, because she is a police officer, appellants had to show that she acted with “malice” in order to establish liability for the intentional tort of assault. We have defined “malice” as “‘an act without justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and wilfully injure the plaintiff.'” Leese v. Baltimore County, 64 Md. App. 442, 480, 497 A.2d 159, cert. denied, 305 Md. 106, 501 A.2d 845 (1985) (citation omitted). See also H & R Block v. Testerman, 275 Md. 36, 338 A.2d 48 (1975), overruled in part by Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992). Although we decline to address appellee’s assertion, suffice it to say that, at least during the chase, which is when the threat was uttered, the record does not support a claim of malice. See Clea v. City of Baltimore, 312 Md. 662, 679, 541 A.2d 1303 (1988).

V.

Prior to trial, and then at the close of all the evidence, appellants moved for judgment on their claims based on Articles 24 and 26. Appellants contend that the court erred in denying the motion.

Appellants primarily relied on State v. Meade, 101 Md. App. 512, 647 A.2d 830, which involved a civil claim arising out of a police officer’s use of excessive force in shooting an unarmed citizen during an unlawful attempt to effect an arrest, without probable cause. The officer chased a fleeing citizen with his gun drawn. After the officer captured the citizen, a struggle ensued and the gun discharged. The jury found that the officer was liable for assault and battery, false arrest, and false imprisonment, but that he acted without malice. Based on Meade, appellants essentially argued that, whenever a police officer draws a weapon and shoots a civilian whom he knows is unarmed, the officer is liable as a matter of law, even if the citizen attempted to grab the officer’s gun, or the shooting was accidental or unintended.

In Meade, the trial court instructed the jury “that an officer may use reasonable force to discharge his official duties and that he may use deadly force if he reasonably believes that he is in imminent danger of losing his life or suffering great bodily harm.” Meade, 101 Md. App. at 526-27. The court also instructed that, “if it accepted Meads’s account that he was frisked by [Officer] Bewley and that Bewley thus knew Meade was unarmed, ‘then officer [Bewley] could not be said to have a reasonable belief he was in imminent danger . . . .'” Id. at 527. The officer challenged an instruction that stated: “‘Thus, even if you found that the shooting was accidental in the end, if you find, as I have instructed you, that Officer Bewley did not have the privilege to use deadly force that evening, he would be liable for a constitutional violation even if he did not act with malice.'” Id. (emphasis in Meade).

The Court said that the instruction was proper; the officer could be held liable for the accidental discharge of the gun. The Court reasoned that, if a police officer unlawfully seizes a citizen whom he has no right to arrest, then he is liable for all reasonably foreseeable events, including the accidental discharge of the officer’s gun during a struggle. Our conclusion emphasized the significance of the unlawful arrest:

As the instruction was framed, liability was premised on the court’s finding that Officer Bewley had no probable cause, and therefore no legal right, to arrest and chase Mr. Meade and upon the jury’s further finding that he had no right under the circumstances to use deadly force — to draw his loaded weapon and aim it at Mr. Meade. Assuming that major premise, the question engendered by Officer Bewley’s testimony that the gun discharged when Mr. Meade grabbed it is whether, having wrongfully (negligently, in light of the jury’s finding that Officer Bewley did not act with malice) set the deadly circumstances in motion, he can be held liable if the actual firing of the weapon was unintended, accidental, or the product of Meade’s reaction.

Id. at 527-28 (emphasis supplied). We also said:

When a police, officer unlawfully attempts to arrest an individual, who has a right to flee and resist, and unlawfully pursues and confronts the individual with a drawn and loaded weapon, the officer must anticipate that the individual may attempt to deflect the aim of the officer, or even attempt to disarm him, by grabbing at or for the weapon or the arm holding it. The attempt may, under the circumstances, be foolish, but it is certainly foreseeable and is neither extraordinary nor “entirely improbable.” It is equally foreseeable that, in such an event, the weapon may discharge and may cause significant harm. The officer thus remains culpable under articles 24 and 26.

Id. at 529 (emphasis supplied).

Appellants assert that, even if Lemon tried to grab Early’s gun, she is still liable for excessive force because, like the officer in Meade, by drawing her weapon on an unarmed citizen, she unreasonably created the circumstances that led to Lemon’s action and necessitated the use of deadly force. Appellants have overlooked important factual distinctions between Meade and this case. Unlike in Meade, Early certainly did not unlawfully attempt to apprehend Lemon and there was no issue as to probable cause. Nor did Lemon have any right to flee or resist; the use of force to escape a lawful arrest is not warranted. Kellum v. State, 223 Md. 80, 85, 162 A.2d 473 (1960). Nor did Meade decide when officers may draw their weapons while in pursuit of an escapee. Certainly, Meade did not hold that, when an escapee tries to grab an officer’s gun, even if drawn as a result of an officer’s negligence or poor judgment, the officer may not do anything about it. What the Ninth Circuit said in Hopkins v. Andaya, 958 F.2d 881, 887 (9th Cir. 1992) is pertinent here: “While we might question the competence of an officer who is disarmed by a single, unarmed, mentally deranged man, we really can’t quibble with his use of deadly force to avoid being bludgeoned to death with his own club.”

We acknowledge that appellants’ position finds support in at least two cases from other jurisdictions. See, e.g., Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993) (“Police officers who unreasonably create a physically threatening situation in the midst of a Fourth Amendment seizure cannot be immunized for the use of deadly force.”); Pleasant v. Zamieski, 895 F.2d 272, 276 (6th Cir.) (officer accidentally shot suspect during attempt to make arrest; court stated that issue was “whether (the officer’s) actions in the course of his attempt to arrest [the suspect] were objectively reasonable under the circumstances.”), cert. denied, 498 U.S. 851, 111 S. Ct. 144, 112 L. Ed. 2d 110 (1990). Yet the same court that decided Enyart has also decided Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992), in which it was alleged that an increased chance of a deadly gunfight was created due to poor planning of an arrest by the police. The court rejected the proposition “that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect.”

We are persuaded by the reasoning of numerous federal courts that are in accord with Early’s position. In these cases, facts bearing on whether the officer “set in motion a chain of events,” Schulz v. Long, 44 F.3d 643, 647 (8th Cir. 1995), culminating in the need to use deadly force, are not ordinarily relevant to the reasonableness of the force itself.

In Romero v. Board of County Comm’rs, 60 F.3d 702 (10th Cir. 1995), cert. denied, 516 U.S. 1073, 116 S. Ct. 776, 133 L. Ed. 2d 728 (1996), a sheriff stopped to assist a stranded motorist who was drunk. Subsequently, the motorist punched the deputy in the nose, drew a knife, and walked toward the deputy “in an attack position.” Id. at 703. The deputy then shot and fatally wounded the motorist. The motorist’s parents complained that the deputy had carelessly contributed to the circumstances that led to his use of deadly force by failing to handcuff the decedent after determining that he was intoxicated. The court disagreed, stating that the reasonableness inquiry in an excessive force case was confined “‘to whether the officer was in danger at the moment of the threat.'” Id. at 704-05, (quoting Wilson v. Meeks, 52 F.3d 1547, 1554 (10th Cir. 1995)).

Along the same lines is Greenidge v. Ruffin, 927 F.2d 789 (4th Cir. 1991). There, a Baltimore City police officer working on the vice squad attempted to arrest two persons performing an “illegal sex act” in a parked car. Id. at 790. The officer drew her revolver, opened the car’s door, identified herself as a police officer, and ordered the two occupants to put their hands in sight. After neither complied, the officer repeated the order. Then, the man in the car reached for “a long cylindrical object.” Id. Thinking that the object was a shotgun, the officer shot the man.

The plaintiff contended that the trial court erred in refusing to allow him to present evidence that the officer “violated standard police procedure for night time [sic] prostitution arrests by not employing proper backup and not using a flashlight.” Greenidge, 927 F.2d at 791. The plaintiff asserted that the evidence was “probative to the reasonableness inquiry because the [officer] recklessly created a dangerous situation during the arrest.” Id. The Fourth Circuit disagreed, citing the Supreme Court’s references in Graham to the “‘standard of reasonableness at the moment'” and “‘split-second judgments'” by the officers to indicate that the proper focus must be on the moment when the decision to use force was made. Id. at 792 (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The Fourth Circuit determined that the officer’s liability must be determined “‘exclusively upon an examination and weighing of the information [the officers] possessed immediately prior to and at the very moment [they] fired the fatal shot[s].'” Id. (quoting Ford v. Childers, 855 F.2d 1271, 1275 (7th Cir. 1988)) (emphasis omitted). Thus, it concluded that the plaintiff’s proffered evidence was not relevant because “events which occurred before Officer Ruffin opened the car door and identified herself to the passengers [were] not probative of the reasonableness of Ruffin’s decision to fire the shot.” Id. See also Drewitt v. Pratt, 999 F.2d 774, 779-80 (4th Cir. 1993) (following Greenidge; officer’s failure to display badge when announcing himself as police officer not relevant to issue whether officer had probable cause to believe that suspect posed threat of death or serious bodily injury at moment of shooting).

Still other decisions are consistent with this view. In Schulz v. Long, 44 F.3d at 648, the court held that evidence was properly excluded that two police officers had created the need to use deadly force. The court determined that “the reasonableness inquiry extends only to those facts known to the officer at the precise moment the officers effectuate the seizure.” Id. Moreover, the evidence was irrelevant because “‘[t]he Fourth Amendment prohibits unreasonable seizures, not unreasonable or ill-advised conduct in general. Consequently, we scrutinize only the seizure itself, not the events leading to the seizure, for reasonableness under the Fourth Amendment.'” Id. (quoting Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993)). The court specifically rejected the Seventh Circuit’s position in Estate of Starks, 5 F.3d at 233-34 as “counter to the spirit of Graham, wherein the Court indicated that only facts known to the officer immediately prior to the moment of seizure were to be factored into the ‘reasonableness’ calculation.” Id. at 649 n.3. See also Fraire v. City of Arlington, 957 F.2d 1268, 1275-76 (5th Cir.) (rejecting suggestion that officer had “manufactured the circumstances that gave rise to the fatal shooting”), cert. denied, 506 U.S. 973, 113 S. Ct. 462, 121 L. Ed. 2d 371 (1992). 15

Under appellants’ rationale, a criminal could take a “free shot” at an officer who makes a mistake, without fear of a legally justified response by the officer. That an officer makes a mistake, and carelessly puts himself in a dangerous situation, does not mean that the officer is legally powerless to defend himself; even a blundering officer has the right to protect himself. 16

It is noteworthy that the Supreme Court has hesitated to make simple “negligence” the basis for a constitutional violation. 17 In Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986), the Court held that “mere lack of due care by a state official” does not deprive an individual of life, liberty, or property within the meaning of the Fourteenth Amendment’s Due Process Clause. Id. at 330-31. Holding otherwise, said the Court, “would trivialize the centuries-old principle of due process of law.” Id. at 332. Accord Davidson v. Cannon, 474 U.S. 344, 347, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986). In Catterton v. Coale, 84 Md. App. 337, 347, 579 A.2d 781 (1990), cert. denied, 321 Md. 638, 584 A.2d 67 (1991), a case arising under Article 24, we also recognized that “mere negligence does not rise to the level of a constitutional violation.” 18

Appellants also suggest that when a police officer has the ability to repel a threat with non-deadly force, such as pepper mace, or fails to have the proper equipment, such as a baton, and thus resorts to the use of deadly force, that force cannot be reasonable. Federal precedent is to the contrary. In Plakas v. Drinski, 19 F.3d at 1149, the court stated: “The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable.” Similarly, in Schulz v. Long, 44 F.3d 643, the court held that evidence that police officers should have used a lesser degree of force was properly excluded. The court stated:

Id. at 649. See also Scott v. Henrich, 39 F.3d at 915 (“[A]s the text of the Fourth Amendment indicates, the appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them.”).

Cole v. Bone, 993 F.2d 1328, is also instructive. There, a police officer used deadly force to stop the driver of a tractor trailer that led him and other officers on a dangerous, high-speed chase. The court stated:

It could be argued, of course, that Trooper Rice’s decision to use deadly force might not have been the most prudent course of action; other courses of action, such as another stationary roadblock, might conceivably have been available. The Constitution, however, requires only that the seizure be objectively reasonable, not that the officer pursue the most prudent course of conduct as judged by 20/20 hindsight vision.

Id. at 1334.

Courts cannot second-guess a police officer’s split-second decision; requiring an officer to employ the “least intrusive means” available, or even “less intrusive means,” would necessarily create such a phenomenon. As the Ninth Circuit aptly stated in Scott:

Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. In the heat of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment.

Scott, 39 F.3d at 915. Cf. Plakas v. Drinski, 19 F.3d at 1150 n.6 (“There are a wide variety of devices available for non-lethal control of those who refuse to surrender, including tasers, capture nets, sticky foam, rubber bullets, and beanbag projectiles. . . . None of these devices is unfailingly effective and safe, and courts and juries are unlikely to be capable of judging when they ought to be used.”). We conclude that evidence that Early could have used pepper spray, or “should have” had her baton, so as to avoid the use of deadly force, was irrelevant to a determination of the reasonableness of the force used.

Nor does the fact that Early knew Lemon was unarmed mean that it was necessarily unreasonable for Early to fear death or serious bodily injury. In Tom v. Voida, 963 F.2d 952 (7th Cir. 1992), a policewoman struggled with a suspect that she was attempting to apprehend. It became apparent, that the officer could not physically subdue the suspect. As she had no nightstick, and she feared that reaching for her chemical repellent would allow the suspect to grab her gun, she decided to unholster her gun to prevent the suspect from taking it. After doing so, the officer said, “Please, don’t make me shoot you.” When the suspect moved toward her, she fired into his chest. The Seventh Circuit upheld summary judgment in favor of the officer, saying that she “was justified in concluding that [the suspect] could not be subdued except through gunfire.” Id. at 962.

In sum, whether Early’s actions were reasonable in the emergency situation in which she found herself was for the jury to decide. We perceive no error by the court in denying appellants’ motion for judgment.

VI.

We next consider appellants’ challenge to the pre-trial disposition in favor of the BCPD and Commissioner Woods under Articles 24 and 26. Appellants’ theory of liability against the BCPD and Woods is twofold: first, they claim that these defendants are liable for Early’s alleged constitutional violations based on respondeat superior; second, they claim that these defendants directly violated Articles 24 and 26 by failing properly to train and supervise Baltimore City police officers. These issues require us to consider the liability of a State agency and its supervisory officials for constitutional violations committed by their employees, whether the BCPD is an entity with the capacity to be sued, and whether the BCPD is protected by sovereign immunity.

A.

We need not address the respondeat superior issue. The exoneration of officer Early on the constitutional claim renders moot appellants’ claim that Woods and the BCPD are liable for her actions under the doctrine of respondeat superior. If the servant has not committed a tort, then there is nothing for which the master may be held vicariously liable.

The more difficult issue, however, concerns whether the exoneration of Early renders moot appellants’ claims of failure to train. These claims derive from the Supreme Court’s decision in City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989), which held that, in a claim under 42 U.S.C. § 1983, a municipality may be liable for constitutional violations based on failure to train municipal employees, but “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” Id. at 388. See also id. at 392. Liability requires that the failure to train must reflect the deliberate or conscious choice by a municipality, so as to constitute a policy. Id. at 389-90. In addition, the plaintiff must prove that the failure to train actually caused a constitutional injury. Id. at 390. “[F]or liability to attach . . . the identified deficiency in a city’s training program must be closely related to the ultimate injury . . . . [R]espondent must still prove that the deficiency in training actually caused the police officers’ indifference to her medical needs.” Id. at 391.

In this case, appellants have not asserted a claim under 42 U.S.C. § 1983. Instead, they have grounded their claims exclusively in Maryland constitutional law. To our knowledge, no Maryland court has yet decided whether to recognize failure to train as a basis for governmental liability for constitutional violations. As none of the defendants has contested the issue, we shall assume, solely for purposes of our discussion, that Maryland recognizes failure to train, under the standard set forth in City of Canton v. Harris, as a basis for governmental liability for constitutional violations.

A failure to train, in and of itself, does not amount to a constitutional violation. Rather, failure to train is a mode of governmental liability for a constitutional violation. See Canton, 489 U.S. at 380 (stating the question presented as whether “a municipality can ever be liable under 42 U.S.C. § 1983 for constitutional violations resulting from its failure to train municipal employees” [emphasis supplied; footnote omitted]); id. at 385 (“our first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation” [emphasis supplied]); id. at 392 (“while claims such as respondent’s–alleging that the city’s failure to provide training to municipal employees resulted in the constitutional deprivation she suffered–are cognizable under § 1983, they can only yield liability against a municipality where that city’s failure to train reflects deliberate indifference to the constitutional rights of its inhabitants” [emphasis supplied]). The key to our inquiry, then, is identifying a potential constitutional violation for which Woods and the BCPD may be liable based on failure to train.

We first conclude that the judgment in favor of Early with respect to appellants’ State constitutional claims renders moot their contention that Woods and the BCPD committed a constitutional violation by providing inadequate training on the use of deadly force. In City of Los Angeles v. Heller, 475 U.S. 796, 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986) (per curiam), the Supreme Court held that a judgment in favor of a police officer in an excessive force case necessarily required the dismissal of the plaintiff’s claim against the city and members of its police commission, even if the city had authorized the use of force that violated the Constitution. The Court stated: “If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.” Id. at 799.

Heller applies here. The jury found that Early’s use of deadly force did not violate the Maryland Declaration of Rights. Therefore, the question of whether the police officers were inadequately trained on the use of deadly force, thus producing the possibility that an officer may use constitutionally excessive force, is “beside the point.”

The decisions of numerous federal circuit courts support our conclusion. In Scott v. Henrich, 39 F.3d at 916, the court said that “there was no violation of the decedent’s constitutional rights, and thus no basis for finding the officers inadequately trained.” Similarly, in Cole v. Bone, 993 F.2d at 1334, an excessive force case, plaintiffs failed to show that decedent’s constitutional rights were violated by the officers, and thus they had no claim against the supervisors on a failure to train theory. In Burns v. Loranger, 907 F.2d 233 (1st Cir. 1990), the officers who performed a warrantless strip search of plaintiff were found to have acted reasonably. Therefore, the court said that the city could not be liable for failing to provide adequate training to its officers on strip searches, as “there was no causal connection between the city’s training (or lack of it) and the alleged violation of plaintiff’s rights.” Id. at 239 n.9.

We next consider whether the judgment in favor of Early is dispositive of appellants’ more general claim that Woods and the BCPD are liable for the failure to train their officers properly in areas other than the actual use of deadly force. They essentially argue that Woods and the BCPD are liable because, as a result of Early’s poor training, Lemon escaped and then Early carelessly drew her weapon, creating the situation that resulted in her need to use deadly force. Appellants contend that this claim survives the exoneration of Early, even if Early’s use of deadly force was reasonable.

The Court in Canton did not address whether a municipality may be liable even if an inadequately trained officer did not violate the Constitution. There is a division of authority in the federal courts as to whether a municipality may be held liable on a failure to train theory, notwithstanding a finding that the individual municipal employee did not commit a constitutional violation.

Appellants rely on Hopkins v. Andaya, 958 F.2d 881, in which, on two distinct occasions, a police officer fired multiple shots at a man who had taken the officer’s night stick and attacked him. The decedent’s mother and daughter sued the officer, the City of Oakland, its police department, and its police chief. Because the court could not conclude, as a matter of law, that the officer acted reasonably when he fatally shot the victim during the second shooting, the Ninth Circuit reversed summary judgment in favor of all defendants. It stated:

The district court dismissed the claims against the chief of police and the city on the theory that, if [Officer] Andaya is not liable, neither are they.
* * *

In any event, the police chief and the city might be held liable for improper training or improper procedure even if Andaya is exonerated, since they put an officer on the street who is so badly trained and instructed he lets his baton be taken away from him and then has to kill an unarmed civilian to save his own life.

Id. at 888 (emphasis supplied). See also Chew v. Gates, 27 F.3d 1432, 1437 (9th Cir. 1994) (claim for improper training distinct from claim for excessive force), cert. denied,513 U.S. 1148, 115 S. Ct. 1097, 130 L. Ed. 2d 1065 (1995).

In line with Hopkins is Fagan v. City of Vineland, 22 F.3d 1283 (3rd Cir. 1994), aff’d on reh’g, 22 F.3d 1296 (3rd Cir. 1994), which provides a thorough discussion of this issue. Fagan involved a suit over the deaths and injuries of innocent motorists resulting from a high-speed police chase. The plaintiffs contended that the manner in which the chase was conducted violated substantive due process. One of the issues was whether the city could be held independently liable for the chase although none of the individual officers who were involved violated the Constitution. The Third Circuit held that it could. It said: “Unlike in Holler, the plaintiffs in this case brought separate, independent constitutional claims against the pursuing officers and the City. These claims are based on different theories and require proof of different actions and mental states.” Id. at 1292. The court further stated that conditioning municipal liability on an individual officer’s liability could lead to “illogical results.” Id. It reasoned that a “municipality would escape liability whenever the conduct of the acting police officer did not meet the ‘shocks the conscience’ standard, even though municipal policymakers, acting with deliberate indifference or even malice, implemented a policy which dictated his injury-causing actions.” Id. The court added that, if the officer’s conduct does not “shock the conscience,” it “does not follow . . . that the city should also escape liability.” Id. Rather, “the officer was following a city policy reflecting the city policymakers’ deliberate indifference to constitutional rights. . . .”

There is, however, a contrary view. In Schulz v. Long, 44 F.3d 643, the Eighth Circuit concluded that “a municipality may not be held liable on a failure to train theory unless an underlying Constitutional violation is located.” Id. at 650. Thus, if the individual officer is found not liable on the underlying substantive claim, the municipality may not be held liable for failing to train the officer properly. See also Abbott v. City of Crocker, 30 F.3d 994, 998 (8th Cir. 1994); Cole v. Bone, 993 F.2d at 1334. The Fourth Circuit has also adopted this view. In Temkin v. Frederick County Comm’rs, 945 F.2d 716, 723-24 (4th Cir. 1991), cert. denied, 502 U.S. 1095, 112 S. Ct. 1172, 117 L. Ed. 2d 417 (1992), which also involved a high-speed police chase, the court held that the exoneration of the officer precluded a failure to train claim against the county, although county policy made it inevitable that collisions would occur as a result of life-threatening, high-speed pursuits. The court stated: “A claim of inadequate training under section 1983 cannot be made out against a supervisory authority absent a finding of a constitutional violation on the part of the person being supervised.” Id. at 724.

Also in accord with this position is Dodd v. City of Norwich, 827 F.2d 1 (2nd Cir. 1987), cert. denied, 484 U.S. 1007, 108 S. Ct. 701, 98 L. Ed. 2d 653 (1988). There, a police officer attempted to handcuff a suspected burglar while pointing a gun at him in accordance with his training and city policy. The suspect tried to grab the gun and, during the struggle, the weapon accidentally discharged, killing the suspect. The plaintiff’s expert testified, “that the policy of keeping a gun in hand while attempting to handcuff a suspect was contrary to the practice of most police departments, and was particularly dangerous because it puts the gun within reach of the suspect, and, in effect, invites a struggle with a possibility that the gun will go off.” Id. at 5. After reargument, the Second Circuit determined that, because the shooting was accidental, it was not a seizure. It concluded that Heller required a judgment in favor of the city; “since [Officer] Larson did not violate Dodd’s fourth amendment rights, the city cannot be held liable for a constitutional violation under 42 U.S.C. § 1983.” Id. at 8.

We agree with the position of the Hopkins and Fagan courts that claims against the municipality and the individual officer may rest on separate theories with independent legal grounds. Here, the jury found that Early’s conduct comported with the Declaration of Rights. It could have reasoned, pursuant to the trial court’s instructions, that Lemon attempted to grab Early’s gun and she was reasonable in determining that she needed to defend herself. This is, however, separate and independent from appellants’ allegation that Early would not have been in this dangerous situation if she had been properly trained not to allow a suspect to escape, and not to draw her weapon when chasing an unarmed, injured escapee through a hospital corridor and into a public street, particularly if she had no idea why he was in custody and did not know if he was dangerous. Appellants contend, in short, that Woods and the BCPD put an officer on duty who was so badly trained that she carelessly created a situation in which she had to kill a citizen to save her own life. If proven true, their acts, independent of anything that Early did, could constitute a deprivation of Lemon’s life without due process of law. As the Fagan court said: “The . . . police officer is merely the causal conduit for the constitutional violation committed” by the government. Fagan, 22 F.3d at 1292.

Heller is not inconsistent with this position. There, the City and its Police Commission were sued “because they were thought legally responsible” for the officer’s actions. Heller, 475 U.S. at 799. Heller held that a municipality may not be liable for a particular constitutional violation alleged against an officer when that officer is exonerated, because there is no respondeat superior liability under § 1983. As the Court observed in Fagan, 22 F.3d at 1291, when the “jury determined that the arrest was lawful, there was no underlying constitutional violation” on which to hold the other defendants liable. Heller does not speak, however, to the situation in which the constitutional violation alleged against the municipality is separate and distinct from the violation alleged against the individual officer.

We hold, therefore, that the exoneration of Early on appellants’ constitutional claims does not render moot appellants’ constitutional claims against Woods and the BCPD, alleging that Early’s inadequate training caused her negligently to create the situation that led to the need to use deadly force. Appellants, however, may not pursue their claim that Early’s training on the use of deadly force was inadequate; this claim is moot because of the judgment in Early’s favor.

Woods also contends that appellants’ failure to train counts were insufficiently pleaded in their complaint. This issue was not raised below. Therefore, we shall not consider it here. See Davis v. DiPino, 337 Md. 642, 655 A.2d 401 (1995); Md. Rule 8-131(a).

B.

Our holding requires us to consider the BCPD’s contention that it is not an entity subject to suit. Since 1867, the BCPD has been an agency of the State of Maryland, and not of Baltimore City. Ashton, 339 Md. at 104 n.18; Clea, 312 Md. at 668-69; Adams v. Baltimore Transit Co., 203 Md. 295, 311, 100 A.2d 781 (1953) (collecting cases). See also Act of 1867, ch. 367. Its status is currently codified in the Public Local Laws of Maryland, Article 4, § 16-2(a), which states, in part: “The Police Department of Baltimore City is hereby constituted and established as an agency and instrumentality of the state of Maryland.”

The BCPD argues that, as an agency of the State, it has no separate or independent legal existence and lacks the power to sue or be sued. It asserts that it is merely an instrumentality of the State. The BCPD also points out that neither § 16-2 nor any other statute expressly gives it the power to sue or be sued.

It is unclear whether the BCPD has the “capacity” to be sued. Maryland Rule 2-202(a) provides: “Applicable substantive law governs the capacity to sue or be sued of an individual, a corporation, a person acting in a representative capacity, an association, or any other entity.” One case from the last century held that the BCPD’s predecessor, the “Board of Police Commissioners for the City of Baltimore,” had no existence as a body corporate or body politic, and thus could not be sued. See Brotherton v. Board of Police Comm’rs for the City of Baltimore, 49 Md. 495 (1878). 19 But a statute enacted by the General Assembly in 1993, which governs service on the BCPD, suggests that the Legislature has contemplated that the BCPD is an entity subject to suit. Maryland Code (1974, 1995 Repl. Vol.), § 6-308 of the Courts and Judicial Proceedings Article, provides: ” In a suit against the Police Department of Baltimore City, process may be served on the Police Department of Baltimore City in the same manner as service is made on an agency of the State as provided in Maryland Rule 2-124.” (Emphasis supplied.)

In our research, we have found a handful of published opinions in Maryland State courts in which the Baltimore City Police Department is a named party. Those cases include: Baltimore Police Dep’t v. Etting, 326 Md. 132, 604 A.2d 59 (1992); Baltimore City Police Dept v. Andrew, 318 Md. 3, 566 A.2d 755 (1989); Kaufman v. Taxicab Bureau, Baltimore City Police Dep’t, 236 Md. 476, 204 A.2d 521 (1964); Blondell v. Baltimore City Police Dep’t, 104 Md. App. 69, 655 A.2d 34 (1995), aff’d, 341 Md. 680, 672 A.2d 639 (1996); Biscoe V. Baltimore City Police Dep’t, 96 Md. App. 1, 623 A.2d 666 (1993); Wilson v. Baltimore City Police Dep’t, 91 Md. App. 436, 604 A.2d 942 (1992); Nichols v. Baltimore Police Dep’t, 53 Md. App. 623, 455 A.2d 446 (1983). 20 Five of these cases involved officers subject to disciplinary proceedings who sought injunctive relief against the BCPD in the circuit court for perceived due process violations, pursuant to § 734 of the Law Enforcement Officers’ Bill of Rights, Maryland Code (1957, 1996 Repl. Vol.), Art. 27 §§ 727 et seq. See Etting, 326 Md. at 136; Andrew, 318 Md. at 6; Blondell, 104 Md. App. at 73; Wilson, 91 Md. App. at 437; Nichols, 53 Md. App. at 625. Art. 27, § 734 authorizes injunctive relief, providing:

Any law enforcement officer who is denied any right afforded by this subtitle may apply at any time prior to the commencement of the hearing before the hearing board, either individually or through his certified or recognized employee organization, to the circuit court of the county where he is regularly employed for any order directing the law enforcement agency to show cause why the right should not be afforded.

(Emphasis supplied). The other two cases involved appeals from adverse administrative decisions. See Kaufman, 236 Md. at 476 (appealing denial of taxicab operator’s license pursuant to Maryland’s Administrative Procedure Act); Biscoe, 96 Md. App. at 1 (appealing denial of pension benefits pursuant to Baltimore City’s employee retirement laws).

Thus, the BCPD may be “an entity subject to suit,” when the “suit” is an action for relief pursuant to a statute, or is one seeking review of an administrative decision, as provided by statute. We have not uncovered any reported state appellate case involving a suit for damages lodged directly against the BCPD, claiming constitutional violations. We are also mindful that, in Condon v. State, 332 Md. 481, 492, 632 A.2d 753 (1993), the Court recognized: “For many years, th[e] Court has held that the State and its agencies could not be sued unless the General Assembly authorized suit and enabled State agencies to obtain funds necessary to satisfy judgments.” (Emphasis added.)

In any event, we need not resolve whether the BCPD has the “capacity” to be sued, because we conclude that the BCPD, as a State agency, is protected by sovereign immunity. 21 The doctrine of sovereign immunity has its origin in the historical right of the king to be free from suits brought by his subjects, unless he consented to suit. See 1 D. Pickering, The Statutes at Large from Magna Carta to the 14th Year of K. Edward III (1962) (translating 3 Edward I, ch. L (1275)). The doctrine, which is “firmly embedded in the law of Maryland,” Katz v. Washington Suburban Sanitary Comm’n, 284 Md. 503, 507, 397 A.2d 1027 (1979), bars suit against the State. Its purpose is to allow the government to function without interference and to maintain control of its agencies and funds. Condon, 332 Md. at 492.

“(S)overeign immunity is a defense to a claim asserted against the State or one of its agencies, unless the immunity has been waived by statute, expressly or by necessary inference, and funds are or can be available for satisfaction of a judgment against the State.” State v. Hogg, 311 Md. 446, 464, 535 A.2d 923 (1988) (emphasis supplied). In Mayor and City Council of Baltimore v. State, for Use of Blueford, 173 Md. 267, 271, 195 A. 571 (1937), the Court said that the State’s sovereign immunity “extends to such agencies of the state as have no separate corporate existence but are employed by it merely as hands or instruments to execute its will.” Thus, sovereign immunity precludes a damages action for a violation of State constitutional rights against the State, absent a legislative waiver. Ritchie v. Donnelly, 324 Md. 344, 369, 597 A.2d 432 (1991); State v. Meade, 101 Md. App. at 522-23. In contrast, public officials who violate a plaintiff’s rights under the Maryland Constitution are not entitled to immunity. Ashton, 339 Md. at 100-08; Clea, 312 Md. at 680-82; Weyler v. Gibson, 110 Md. 636, 654, 73 A. 261 (1909).

In Welsh, 308 Md. at 65, the Court held that, “in the context of the facts presented by th[e] case,” an action to quiet title could be maintained against a State agency or public officials in which it was alleged that the agency or officials had taken private property without just compensation. The Court relied on an earlier case, Dunne V. State, 162 Md. 274, 159 A. 751,-288, cert. denied, 287 U.S. 564, 53 S. Ct. 23, 77 L. Ed. 497 (1932), which stated:

The State, in the exercise of that power [of eminent domain], can only act lawfully; and any taking of property alleged to have been made by an agency of the State, not done in the mode prescribed by law, is not the act of the State, but the unlawful usurpation by the individual taking or appropriating the property.

In other words, the “State” can do no wrong; if a public official commits an unconstitutional act, it is not the act of the State, but is instead the wrongful act of an individual. Id. at 284, 288. Welsh also followed the statement of the Dunne Court that “[a]nother remedy open to owners of property . . . is that the State’s agencies could be restrained from appropriating the property unless and until condemnation proceedings in accordance with law be had, and just compensation awarded and paid or tendered.” Id. at 291.

Appellants cite Welsh to support their contention that an action may be maintained against the BCPD, as a State agency, for a violation of their constitutional rights. We disagree. Welsh was an action against a State agency to quiet title; it did not seek damages from the public treasury. We rejected an argument similar to appellants’ in Catterton v. Coale, 84 Md. App. 337, 579 A.2d 781 (1990), cert. denied, 321 Md. 638, 584 A.2d 67 (1991), in which we affirmed the grant of a motion to dismiss on the ground that sovereign immunity barred a claim against the Anne Arundel County Department of Social Services, a State agency, for damages based on an alleged violation of Article 24. We stated:

While Welsh outlined the rudimentary principles inherent in sovereign immunity, further application of its discussion to the instant case is inappropriate. Appellant relies on Welsh to argue that his claim against AADSS is viable. Welsh is, however, inapposite. In Welsh, the Court of Appeals ruled that sovereign immunity did not bar a quiet title action based on an alleged taking by the Department of Natural Resources without just compensation. The Court expressly limited its holding to the facts of the case. Welsh, 308 Md. at 65. We, therefore, decline to expand Welsh beyond its original stricture.

Id. at 346.

On the authority of Catterton, we are constrained to hold that appellants’ constitutional claims against the BCPD are barred by sovereign immunity. Appellants make no allegation of a legislative waiver of the State’s sovereign immunity applicable to this case. Cf. Meade, 101 Md. App. at 521-24 (holding that Baltimore city police officers are not “State personnel” under the Maryland Tort Claims Act and, therefore, the State has not waived its sovereign immunity under that Act for torts committed by them). Appellants may not avoid their inability to proceed against the State by re-casting their claim against the BCPD, an agency of the State.

Appellants’ reliance on our recent decision in Blades v. Woods, 107 Md. App. 178, 667 A.2d 917 (1995), is also unavailing. There, we held that, for purposes of a federal civil rights statute, 42 U.S.C. § 1983, the Commissioner of the Baltimore City Police Department was a Baltimore City official, rather than a State official, and thus could be a defendant, in his official capacity, in a suit under that statute. 22 The holding of Blades, however, is limited only to federal law. The Court of Appeals in Clea made clear that, for purposes of State law, the BCPD is a State agency. Clea, 312 Md. at 668-70. Our ruling in Blades was grounded, in part, on a footnote in Clea in which the Court recognized “that the General Assembly’s designation of the [BCPD] as a state agency would not be controlling for all purposes,” including, for example, “with regard to federal law liability under 42 U.S.C. § 1983.” Id. at 670 n.5. For the foregoing reasons, we hold that appellants’ suit against the BCPD is barred by sovereign immunity.

JUDGMENTS IN FAVOR OF EARLY AFFIRMED.

JUDGMENT IN FAVOR OF WOODS VACATED; CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

JUDGMENT IN FAVOR OF BALTIMORE CITY POLICE DEPARTMENT AFFIRMED.
COSTS TO ASSESSED AS FOLLOWS: TWO-THIRDS TO APPELLANTS AND ONE-THIRD TO WOODS.

FOOTNOTES:

1 Appellant also sued the State. That claim, which was dismissed before trial, is not at issue here.

2 By the time of the second amended complaint, Woods had retired as commissioner of the BCPD.

3 Appellants have not challenged the decision as to loss of consortium.

4 The circumstances of Lemon’s arrest were excluded at trial.

5 Lemon may well have been turning to surrender. It is not our province, however, to resolve factual disputes.

6 Article 24 provides:

“That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”

Article 26 provides:

That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grevious [grievous] and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.

7 Appellants’ counsel advised the trial court that the BCPD had investigated Early’s use of deadly force in this incident, and determined that she had complied with the guidelines. The trial judge stated at a bench conference that, if she allowed appellants to present Wilson’s testimony on the BCPD’s guidelines, she would also allow Early to establish that the BCPD had investigated and cleared her.

8 During a bench conference, the trial judge remarked that appellants had “given to the Court no citation on policies, and directives, et cetera.” At oral argument before this court, counsel conceded that the policies had not been marked for identification and are not in the record.

9 Appellants did not move for a mistrial, but in a subsequent action for a new trial, they cited counsel’s mention of Weiner’s name.

10 Early pleaded self-defense in her answer to appellants’ complaint. The law of self-defense appears to have been incorporated in the trial court’s instructions on appellants’ constitutional claims.

11 “Qualified immunity,” in federal civil rights law, is an affirmative defense that shields public officials performing discretionary functions from liability for civil damages, if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). In an excessive force case arising under the Fourth Amendment, “the qualified immunity inquiry is the same as the inquiry on the merits.” Hopkins v. Andaya, 958 F.2d 881, 885 n.3 (9th Cir. 1992). See also Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994), cert. denied, 515 U.S. 1159, 115 S. Ct. 2612, 132 L. Ed. 2d 855 (1995).

12 Although the court did not state the particular constitutional right allegedly violated, prisoners’ claims for maltreatment are often brought under the Eighth Amendment’s prohibition against cruel and unusual punishment. The standard for violations of the Eighth Amendment contains a subjective component. See Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992) (“[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”); Whitley v. Albers, 475 U.S. 312, 319-21, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986). Nevertheless, the court discussed the “excessiveness” and “reasonableness” of the force used by the guards. Therefore, its analysis is pertinent here.

13 In addition, appellants’ argument concerning the irrelevancy of “what Early was thinking” is internally inconsistent with several of appellants’ other arguments. For example, in their argument on the motion for judgment concerning their constitutional claims, infra, appellants repeatedly emphasize that Early “knew” that Lemon was unarmed and also “knew” nothing about the circumstances of his arrest or anything else about him. Obviously, in these arguments, appellants take the position that what Early was thinking was relevant and material.

14 In the criminal context, of course, “(assault and battery, although closely related, are nonetheless distinct crimes.” Claggett v. State, 108 Md. App. 32, 47, 670 A.2d 1002 (1996), cert. denied, 342 Md. 330, 675 A.2d 992 (1996). See also Ford v. State, 330 Md. 682, 699, 625 A.2d 984 (1993); State v. Duckett, 306 Md. 503, 510, 510 A.2d 253 (1986); Lamb v. State, 93 Md. App. 422, 441, 613 A.2d 402 (1992), cert. denied, 329 Md. 110, 617 A.2d 1055 (1993).

15 Appellants rely on State v. Albrecht, 336 Md. 475, 649 A.2d 336 (1994), to support their contention that Maryland has already rejected the position of the majority of federal courts. Appellants’ reliance on Albrecht is misplaced. That case, as we have noted, involved a criminal prosecution for involuntary manslaughter and reckless endangerment.

16 We express no opinion as to how we would rule in a situation as that presented in Estate of Starks, 5 F.3d 230 (7th Cir. 1993), in which it was alleged that the police officer’s conduct gave the suspect no opportunity to avoid harming the officer. In that case, three police officers shot and killed a suspect who allegedly attempted to run over one of the officers with a stolen taxicab. The plaintiff claimed that the officer had jumped in front of the taxicab so quickly that the suspect had no opportunity to brake and avoid hitting the officer. Whether a police officer, under Maryland constitutional law, would be authorized to employ deadly force in such a situation is an issue that will have to await another day.

17 Neither party has posed the question of whether gross negligence could implicate the due process guarantee of Article 24. See, e.g., Medina v. City of Denver, 960 F.2d 1493, 1496 (10th Cir. 1992).

18 We need not decide whether a suspect should be held accountable for any contributory negligence on his part, or whether a suspect who attempts to flee is contributorily negligent if he is injured during the course of his capture.

[T]he Fourth Amendment does not allow this type of “Monday morning quarterback” approach because it only requires that the seizure fall within a range of objective reasonableness.
* * *
The Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but instead whether the seizure actually effectuated falls within a range of conduct which is objectively “reasonable” under the Fourth Amendment. Alternative measures which 20/20 hindsight reveal to be less intrusive (or more prudent), such as waiting for a supervisor or the SWAT team, are simply not relevant to the reasonableness inquiry.

19 Prior to 1920, the BCPD was administered by the Board of Police Commissioners, and the Board was regarded as a State board or as a body of State officers. Phillips v. Ober, 197 Md. 167, 170, 78 A.2d 630 (1951); G. I. Veterans’ Taxicab Ass’n v. Yellow Cab Co., 192 Md. 551, 555, 65 A.2d 173 (1949).

20 This list includes two cases in which the “Baltimore Police Department” appears as a named party, and the body of the opinion makes clear that the Department against whom relief is sought is the Baltimore City Police Department. See Baltimore Police Dep’t v. Etting, 326 Md. 132, 604 A.2d 59 (1992); Nichols v. Baltimore Police Dep’t, 53 Md. App. 623, 455 A.2d 446 (1983).

21 Although the issue of sovereign immunity was raised by the BCPD below, and is included in appellants’ fifth issue, the BCPD has not argued for affirmance in this Court on the ground of sovereign immunity. Nevertheless, “in the absence of statutory authorization, neither counsel for the State nor any of its agencies may, ‘either by affirmative action or by failure to plead the defense, waive the defense of governmental immunity . . . .'” Brohawn & Bros. Inc. v. Board of Trustees of Chesapeake College, 269 Md. 164, 166, 304 A.2d 819 (1973) (quoting Board of Education v. Alcrymat Corp., 258 Md. 508, 266 A.2d 349 (1970)); see also Dept. of Natural Resources v. Welsh, 308 Md. 54, 60, 521 A.2d 313 (1987) (recognizing that State agencies may not waive sovereign immunity by failure to plead immunity). Therefore, we shall reach the issue of sovereign immunity. See Maryland-National Capital Park and Planning Comm’n v. Crawford, 307 Md. 1, 10 n. 3, 511 A.2d 1079 (1986).

We also observe that the motion judge did not specify the ground on which he granted the motion to dismiss. In the absence of any explication of the court’s reasons, we must assume the lower court “carefully considered all of the asserted grounds and determined that all or at least enough of them . . . were meritorious.” Bond v. NIBCO, Inc., 96 Md. App. 127, 133, 623 A.2d 731 (1993).

22 Section 1983 authorizes suits against a “person” who deprives the plaintiff of his or her federally protected rights under color of state law. The Supreme Court has held that a municipality is a “person” within the meaning of the statute, see Monell v. Department of Soc. Servs. of New York, 436 U.S. 658, 690-95, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), but that a state, a state agency, or a state official in his official capacity, is not. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989).