A Brief Legal History of Baltimore Riots
Wracked by feelings of powerlessness regarding Baltimore’s recent troubles, I did one thing I know how to do – I wrote a blog post. I’ve seen debates on social media whether to label the events of this past week a “protest” or a “riot.” It’s a false dichotomy. We’ve had both protests and riots. And my adopted home city in fact has a long history of riots and litigation arising out of them. The decisions of the Court of Appeals of Maryland teach much about the history of Baltimore riots.
Since 1835, Maryland’s Riot Act has imposed liability on municipalities for stolen, damaged, or destroyed property caused by preventable riots. So far as I can tell, the only reported decisions under the Riot Act have involved suits against Baltimore.
A bloody riot, dwarfing this past week’s events, began on April 19, 1861, when pro-Confederate Baltimoreans attacked Union troops traveling through the city. The rioters killed four Union soldiers and wounded 36 others. Eleven rioters died.
Poultney & Trimble, a pro-Union arms merchant house located in Baltimore, sent a note to the mayor on April 19: “As a mob is now raging in our city, we fear our store may be broken into by violence, and arms and other goods taken therefrom, and other damage done. We therefore ask protection at your hands.” The mayor later would not recall seeing that note. As the Court of Appeals would recount, the storekeepers sued the city “for injuries done to the store . . . and for losses sustained in the violent taking and carrying away therefrom of a quantity of arms, ammunition and other goods, by a riotous and tumultuous assemblage of people, on Sunday the 21st of April, 1861, a period of well known excitement and alarm in that city.” The City argued that the “police were on the watch and moving to and fro in all parts of the city; in any and every direction they were to be met, looking out for, and protecting the citizens, quelling disorders and preventing disturbances.” In a terse three-paragraph opinion, the Court of Appeals found a jury question under the Riot Act and affirmed the judgment against the City,
In response to the 1861 riots, the Maryland General Assembly took swift action to enact reforms. By “swift,” I mean 78 years. And by “reforms,” I mean “a celebration in song.” In 1939 – just three years after Thurgood Marshall and the NAACP Legal Defense Fund won integration of the all-white University of Maryland School of Law – the General Assembly passed a bill proclaiming a Confederate war anthem, “Maryland, My Maryland,” the state song. Our state song celebrates the 1861 rioters. The first verse implores Marylanders to “[a]venge the patriotic gore that flecked the streets of Baltimore.” The final verse proclaims: “Huzza! she spurns the Northern scum!” – for example, the four Massachusetts soldiers spurned killed by the mob.
Baltimore saw another bloody riot in 1877, as part of the railroad strikes that swept five states. When rioters trapped two regiments of the Maryland National Guard at Camden Station – yes, the site of yesterday’s zero-fan baseball game – President Grant sent federal troops to rescue the militia. The federal involvement apparently kept the case out of the Maryland courts.
There were a series of Baltimore riots in 1936 and 1937, growing out of strikes against two cab companies. I haven’t found much information on the riots, although, to be fair, the Court of Appeals didn’t either. It wrote in 1937: “The facts in the record are so scrambled and disconnected that it is difficult to write a connected story of the strike, but it seems to have become effective against the Diamond Cab on December 12, 1936, when the first riot or series of riots occurred.” The governor negotiated a brief peace. On January 8, however, “there were about 150 Yellow Cab men picketing [Yellow Cab Company], and about seventeen Yellow Cabs rolled out. That when they came out they were assaulted with missiles, such as rocks, stones, beer bottles, milk bottles, whiskey bottles, umbrellas.” The Court of Appeals affirmed a strike leader’s criminal conviction for inciting riots.
Fast forward to 1968, the last time major riots struck the city. The Court of Appeals, after noting the 1861 riots and their inspiration of “Maryland, My Maryland,” summarized the situation:
On April 6, 1968, some 107 years later, the vestigial winds of prejudice having not yet abated in this land, Dr. Martin Luther King, Jr. was assassinated in Memphis, Tennessee, and in the wake of this event civil disorders broke out in the City of Baltimore and continued for several days. This was a part of a pattern experienced in other large municipalities in the Nation. As a result of damages sustained to real and personal property, citizens and corporations have filed some 40 civil suits against the Mayor and City Council of Baltimore (City) seeking redress. Another 1500 suits are anticipated prior to the expiration of limitations. 
The riots happened shortly after the 1966 Police Omnibus Bill, which made the Baltimore City Police Department an agency and instrumentality of the State. The City argued that it was “legally incapable of controlling the police department and accordingly the application of [the Riot Act] constitutes a deprivation of due process and equal protection of the law to the City and its taxpayers.” The Court of Appeals rejected that argument. It held that the mayor still could have “formed a ‘posse comitatus’ or exercised other common law prerogatives of a conservator of the peace,” and that it was up to a jury to decide whether the city was liable under the Riot Act.
The City didn’t fare well in the resulting trials, and it was still fighting the cases at least as late as 1977. That year, the Court of Appeals affirmed a $4,489.32 judgment in favor of two property insurers against the City under the Riot Act. The court held that, after the insurers paid the homeowners’ loss, the Riot Act permitted subrogation actions against the City.
When I walk my daughter to school, we pass a 1909 monument, commissioned by the Maryland General Assembly, in honor of Union soldiers who lost their lives in the Civil War. Then, at the other side of the same park, we pass a 1946 bronze statue of Stonewall Jackson and Robert E. Lee. That statue was commissioned right around the same time the General Assembly made “Maryland, My Maryland” our state song. That song writes into the Maryland Code high praise for a deadly pro-Confederate riot. I find it striking that, as we debate whether the media places too much emphasis on property damage, the Riot Act elevates property damage over human life. The statute allows recovery only for property losses, not bodily injury or death. Maryland law, just like our city, gives some mixed messages.
 The Riot Act is presently codified at Md. Code, Pub. Safety §§ 14-1001 to 14-1004 (formerly Art. 82 §§ 1–4). Under § 14-1001 and 14-1002, the municipality is liable if it “(1) had good reason to believe that the riot was about to take place or, having taken place, had notice of the riot in time to prevent the theft, damage, or destruction; and (2) had the ability, either by use of the county’s or municipal corporation’s police or with the aid of the residents of the county or municipal corporation, to prevent the theft, damage, or destruction.” As of 1977, Maryland was one of 15 states with a Riot Act. City of Baltimore v. Blibaum, 280 Md. 652, 656 (1977). Among those states, Maryland was one of only three that “disallowed recovery ‘when city or police authorities could not have prevented the riot through the exercise of reasonable diligence’” and among only a few “requiring proof that the authorities ‘have had the actual ability to prevent the injury complained of.’” Id. at 662 n.4 (quoting Note, Riot Insurance, 77 Yale L.J. 541, 553 (1968)).
 Mayor & City Council of Baltimore v. Poultney, 25 Md. 107, 111 (1866).
 Id. at 125.
 Id. at 122.
 City of Baltimore v. Silver, 263 Md. 439, 442 n.1 (1971) (citing Chapter 451, Acts of 1939 (recently re-codified at Md. Code, Gen. Provisions § 7-318)).
 Cohen v. State, 173 Md. 216, 224 (1937).
 Id. at 225.
 Id. at 445.
 Id. at 456.