The Wire in the (Fourth) Circuit: Civil Rights Claims Proceed Against Police Who Inspired David Simon Characters
On September 24, the U.S. Court of Appeals for the Fourth Circuit issued an opinion in Owens v. Baltimore City State’s Attorney’s Office et al., largely vacating a lower court’s dismissal of a 42 U.S.C. § 1983 action brought by James Owens seeking damages for wrongful conduct by Baltimore City police officers and an assistant state’s attorney that, Owens alleges, resulted in his spending more than two decades in prison for a rape and murder he didn’t commit. If Owens can prove his allegations of intentional suppression of exculpatory evidence by police, it will be a tremendous black eye for the Baltimore City Police Department and perhaps in particular for Jay Landsman, a former BCPD detective sergeant who lent his name to a character in HBO’s The Wire and who also acted in that series.
A brief summary of the facts, as alleged by Owens in his complaint: In August 1987, Colleen Williar was raped, robbed, and murdered in her Baltimore City apartment. One of Williar’s neighbors, James Thompson, came forward to police the next day, seeking a reward for information relating to the murder. Thompson told police he had found a knife outside of Williar’s apartment the previous night, which he had carried home and cleaned before realizing its connection to the crime. Thompson subsequently changed his story seven times under questioning by Landsman, who supervised a homicide squad, and two detectives on the squad, Thomas Pelligrini and Gary Dunnigan.
Thompson went from initially asserting no involvement in the crime to finally claiming that Owens had raped and killed Williar while he, Thompson, had masturbated at the foot of her bed. There were material changes to Thompson’s story in all eight of its iterations. However, the State only elicited two of the eight iterations from Thompson during his two appearances as a witness at Owens’ trial, and did not disclose the six other versions to the defense; thus, the jury never heard about most of Thompson’s inconsistent statements. The assistant state’s attorney who prosecuted the case also allegedly failed to disclose to the defense that a pubic hair belonging to Thompson was found on Williar’s body; this fact also was kept from the jury.
The jury convicted Owens of burglary and felony murder, and he was sentenced to life imprisonment without the possibility of parole. Owens filed an unsuccessful appeal as well as unsuccessful post-conviction petitions.
Meanwhile, Landsman, Pellegrini, and Dunnigan achieved a degree of fame when all were featured in David Simon’s 1991 book Homicide: A Year on the Killing Streets. Simon wrote the book about the year he spent with three of BCPD’s homicide squads, including the one supervised by Landsman. That year was 1988 – the year that Owens’ trial took place. (I don’t know if Owens’ trial is referenced at all in the book, but I suspect that Simon was well-aware of the trial as it was happening.) Homicide: Life on the Street, the excellent NBC television series based on Simon’s book, then featured two characters inspired by Landsman and Pellegrini: John Munch, played by the incomparable Richard Belzer, was based on Landsman, while Tim Bayless, played by Kyle Secor, was modeled after Pellegrini. Landsman later played BCPD Lieutenant Dennis Mello in The Wire, a show that also included a detective sergeant in a homicide unit named Jay Landsman, played by the actor Delaney Williams.
As for Owens, in 2006, a state court granted his petition for post-conviction DNA testing. The results indicated that Owens’ DNA did not match the blood and semen evidence found at the scene of the crime.
On June 4, 2007, a state court granted Owens a new trial. During the next 16 months, Owens remained in state prison awaiting retrial. However, on October 15, 2008, the State’s Attorney entered a nolle prosequi, dismissing the charges against Owens, and Owens was released from incarceration after spending more than 20 years in prison.
On October 12, 2011 – three days before the three-year anniversary of the nolle prosequi – Owens filed an action under 42 U.S.C. § 1983 against multiple defendants, including the Baltimore City Police Department, the Baltimore City State’s Attorney’s Office, and Pellgrini, Dunnigan, and Landsman. U.S. District Judge (and former Baltimore City Circuit Court Judge) George Russell III dismissed all of Owens’ claims as time-barred. Judge Russell alternatively dismissed Owens’ claims against the Baltimore City State’s Attorney’s Office on the basis of sovereign immunity; dismissed the claims against the individual officers on the basis of qualified immunity; and dismissed the claims against the Police Department for, among other grounds, failing to state a claim upon which relief could be granted.
On appeal, a divided Fourth Circuit reinstated most of Owens’ claims, with Judge Motz authoring the majority opinion. In my view, the most interesting question addressed by the Court was whether the Baltimore City State’s Attorney’s Office is an entity that is capable of being sued. The majority – on this issue, Judge Motz and Chief Judge Traxler – answered that question in the negative, relying heavily on Boyer v. State, 594 A.2d 121 (Md. 1991). In Boyer, the Maryland Court of Appeals made clear that, absent a statutory or constitutional provision creating a government agency, an “office” or “department” bears no unique legal identity, and thus, it cannot be sued under Maryland law. In this case, the majority concluded that no constitutional or statutory provision establishes a “Baltimore City State’s Attorney’s Office.” To be sure, the State’s Attorney is a constitutional officer, but because no constitutional provision or statute creates something called the “Baltimore City State’s Attorney’s Office,” Owens could not proceed against what most of us probably think of as a distinct governmental entity. The majority noted that Owens could have sued the State’s Attorney for Baltimore City in his individual or official capacity, had he wanted to do so. But he could not sue something called the “Baltimore City State’s Attorney’s Office,” which the majority described as “a term of convenience only” that “refers to the collection of government employees who work under the supervision of the Baltimore City State’s Attorney.” Slip Op. at 27. Because the majority held that the State’s Attorney’s Office is not an entity that can be sued, it didn’t address the alternative argument raised on behalf of that “entity,” namely that it is an “arm of the State” and therefore entitled to sovereign immunity.
Judge Wynn disagreed with the majority on this issue. He read the Maryland Constitution as having effectively created an Office of the State’s Attorney for Baltimore City and therefore an entity that is amenable to suit. He would have remanded for further proceedings concerning whether the State’s Attorney’s Office was entitled to sovereign immunity.
Judge Motz and Chief Judge Traxler parted company on two of the other issues decided by the Court. (However, Judge Wynn sided with Judge Motz on both of those issues, so Judge Motz’s opinion also spoke for a majority of the panel throughout.) First, Judge Motz and Chief Judge Traxler had a lengthy debate about when the applicable three-year limitations period for a Brady-type Sec. 1983 claim begins to run. The majority held that Owens’ claims were timely because, applying the most analogous Maryland common-law tort – malicious prosecution – they did not accrue until the criminal proceedings were terminated in Owens’ favor in such a manner that they could not be revived. Judge Motz explained that the grant of a new trial to Owens in 2007 did not meet this requirement. It was not until October 15, 2008 – slightly less than three years before Owens filed his Sec. 1983 action – that the nolle prosequi resolved the criminal case in Owens’ favor with sufficient finality to commence the running of the limitations period. The point that Chief Judge Traxler struggled with was that, although Owens could not have filed a malicious-prosecution case under Maryland law until October 15, 2008, he could have filed his Sec. 1983 claim based on a Brady violation well before that date. Owens indisputably knew of the Brady issue no later than 2007, when he was granted a new trial.
Second, Judge Motz delivered bad news to Landsman and the other two police officer defendants, holding that the district court had erroneously applied qualified immunity to the claims against the officers. All three judges agreed that Owens alleged a plausible claim that the officers had suppressed evidence favorable to Owens; that they had done so in bad faith; and that Owens was prejudiced thereby. Judges Motz and Wynn further held that it was clearly established by the time Owens was tried in 1988 that police officers may not intentionally suppress exculpatory evidence. Judge Traxler dissented on this point, reasoning that applicable precedent prior to 1988 stood only for the proposition that a police officer’s knowledge of exculpatory evidence will be imputed to the prosecutor for Brady purposes, and did not put officers on notice that they could be sued under Sec. 1983 for intentionally suppressing exculpatory evidence. The majority found this to be a distinction without a difference for purposes of the “clearly established” analysis.
Finally, all three judges agreed that Owens had stated a plausible Sec. 1983 claim against the Baltimore City Police Department. In this regard, the Court noted Owens’ allegation that, during the relevant period, BCPD maintained a custom, policy, and/or practice of condoning its officers’ conduct in knowingly, consciously, and repeatedly withholding and suppressing exculpatory evidence. In addition, Owens pointed to the existence of reported and unreported cases from before and during 1988 that tended to show that BCPD had a custom, policy, or practice of knowingly and repeatedly suppressing exculpatory evidence. Thus, Owens sufficiently alleged a theory of municipal liability under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). The Court noted that proving this sort of municipal liability “is no easy task.” Slip Op. at 46. But Owens had alleged the Police Department’s liability with enough specificity and plausibility to survive a motion to dismiss under Rule 12(b)(6).
So now the case comes back to the district court. It will be interesting to see if the case settles relatively quickly, or whether the City gears up for discovery and possibly a trial.
This opinion underscores Judge Motz’s position of power on the current Fourth Circuit. My sense is that, just as Justice Kennedy is a key vote in close cases at the Supreme Court, Judge Motz is more often than not the linchpin in a close case that comes to a panel that she is on. (In a subsequent post, I am going to do an empirical analysis of which judges on the Fourth Circuit can stake a claim to linchpin status.)