Death of adult with Down syndrome shows difference between federal and Maryland interlocutory appeals

By Michael Wein

A Washington Post article dated September 13, 2017, discussed the upcoming oral arguments and the expectation was that it could “takes months” for a decision, in the death of Robert Ethan Saylor, an adult with Down Syndrome, who after refusing to leave a movie theater, to watch a second showing of Zero Dark Thirty, lead to his tragic death by sheriff deputies in Frederick, Maryland. The Fourth Circuit didn’t think months were necessary, and in a one-page opinion, two weeks later, affirmed Federal Judge William Nickerson’s 65-page decision finding genuine disputes of material facts.

The Fourth Circuit concluded, “[t]he deputies filed this interlocutory appeal, challenging the district court’s qualified immunity ruling. Upon reviewing the record, however, we cannot conclude that the district court erred in determining that factual disputes precluded summary judgment. We therefore affirm the court’s ruling on this issue.”

For those not familiar with how and why non-final judgment interlocutory appeals are done, with regard to federal courts, police officers not only have “qualified immunity” but can also seek to appeal a federal judge’s determination denying a motion for summary judgment. Some recent Fourth Circuit cases have raised the specter that this ability to seek interlocutory appeals has been misconstrued as a “right” when there are clearly genuine disputes of material facts, which if believed, show that a police officer was in violation of “clearly established law.” See e.g. Pair v. Burroughs, 2017 U.S. App. LEXIS 15382, *2, 2017 WL 3500070 (August 16, 2017, per curiam, without oral arguments) (“If … the argument on appeal targets the sufficiency of the plaintiff’s evidence in support of his claim, we lack jurisdiction over the interlocutory appeal.”).

Maryland has for a number of years, with the exception of certain enumerated interlocutory appeals in the Courts and Judicial Proceedings article, allowed only a limited amount of interlocutory appeals involving qualified immunity, typically for high executive branch officers. See Ehrlich v. Groves, 396 Md. 550 (2007). As I previously discussed in a post on the Freddie Gray related cases and the interlocutory appeal concerns expected to be addressed in the upcoming decision, recent Maryland Court of Appeals decisions seem to permit more interlocutory appeals, beyond the narrow universe of what existed even a few years ago.

It is likely that this issue will gain significant importance and new case law for the next few years. This January, for example, Judge Robert McDonald, noted this possible trend in Geier, where a six-judge majority of the Court of Appeals, permitted the interlocutory appeal for a discovery issue involving a “high level decision maker” arguing executive privilege in that case. Md. Bd. of Physicians v. Geier, 451 Md. 526, 574-575 (2017) (McDonald, J., concurring and dissenting) (urging reconsideration of Dawkins v. Baltimore City Police Dep’t., 376 Md. 53, 827 A.2d 115 (2003), to bring Maryland interlocutory appeal practice closer to federal practice).

If the Maryland Court of Appeals, does start reconsidering Dawkins, it will be after a 15-year break on nearly all non-final interlocutory appeals, such as discovery orders, and/or dispositive motion denials involving claims of qualified immunity. The obvious place to look first, would be the Fourth Circuit’s experiences handling similar claims, which has continued, after the Hawkins “deviation.” By doing this, if the Court of Appeals is so inclined to even partially reconsider the doctrine, perhaps the Court will at the outset, instill appropriate limits, that at least recently, the Fourth Circuit has been quick about sustaining the trial court’s determination in police brutality suits.

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