United States District Court, D. Maryland
[Copyrighted Material Omitted]
For William Meyers, Sr, Individually; as the next best friend of and Personal Representative of the Estate of Ryan Meyers, Anna Mae Meyers, Individually; as the next best friend of and Personal Representative of the Estate of Ryan Meyers, Plaintiffs: Ted Justice Williams, LEAD ATTORNEY, Law Offices of Ted J Williams, Washington, DC; Gregory L Lattimer, Law Offices of Gregory L Lattimer PLLC, Washington, DC.
For Baltimore County, Maryland, Police Officer Stephen Mee, Baltimore County Police Department in both his official and individual capacities, Police Officer Vincent Romeo, Baltimore County Police Department in both his official and individual capacities, Police Officer Karen Gaedke, Baltimore County Police Department in both his official and individual capacities, Defendants: Paul McLane Mayhew, Baltimore County Law Department, Towson, MD.
Ellen Lipton Hollander, United States District Judge.
Ryan Meyers (the " decedent" or " Ryan" ) died in 2007, after he was repeatedly tased during the course of an arrest. In 2010, the decedent's parents, William Meyers, Sr. and Anna Mae Meyers, and his brother, William Meyers, Jr., as personal representative of Ryan's estate, filed suit against Baltimore County and three of its police officers, including Officer Stephen Mee. Plaintiffs alleged, inter alia, the use of excessive force, in violation of federal and Maryland law. See Complaint (ECF 1) and Amended Complaint (ECF 3, " Am. Compl." ).  Among
the federal and state claims raised in the Amended Complaint, plaintiffs asserted in Count III a claim under 42 U.S.C. § 1983, predicated on defendants' alleged violation of the decedent's Fourth Amendment rights. Am. Compl. ¶ ¶ 31-37. In Count V, plaintiffs alleged that defendants' actions violated Articles 24 and 26 of the Maryland Declaration of Rights. Id. ¶ ¶ 42-45.
All four defendants moved for summary judgment. ECF 33. The motion was fully briefed and, after argument, Judge Benson Legg granted summary judgment on September 28, 2011. See ECF 45; see also Meyers v. Baltimore Co., 814 F.Supp.2d 552 (D. Md. 2011). In doing so, Judge Legg analyzed plaintiffs' claims under the Fourth Amendment. ECF 45 at 6. With respect to Officer Mee, Judge Legg found that the officer was entitled to the protection of qualified immunity.
Thereafter, plaintiffs noted an appeal to the Fourth Circuit. ECF 47. The Fourth Circuit focused on plaintiffs' Fourth Amendment claim, stating in a footnote that it need not address the legal standards applicable to the Maryland constitutional claims because plaintiffs did not address their State claims. See Meyers v. Baltimore County, Md., 713 F.3d 723, 730 n.7 (4th Cir. 2013). In a published opinion, the Fourth Circuit reversed Judge Legg's entry of summary judgment as to Officer Mee, and remanded the case to the trial court for further proceedings. See id. at 732; see also Memorandum to Counsel (ECF 55), at 1 (" Judge Legg's judgment in favor of Officers Romeo and Gaedke was affirmed in its entirety, and plaintiffs' claims against those officers are no longer viable." ).
As a result of Judge Legg's retirement, the case has been reassigned to me. Trial is scheduled for November 2013.
Following the remand, Officer Mee has asserted that plaintiffs are precluded from arguing at trial that different legal standards apply with respect to Count III, the Fourth Amendment excessive force claim, and Count V, the claim of excessive force under the Maryland Declaration of Rights. ECF 65 (" Mee Mem." ). In essence, Mee maintains that the defense of qualified immunity is available to him under both Maryland and federal law, because plaintiffs did not argue otherwise on appeal. In support of his argument, Mee cites the " law of the case" doctrine, the " mandate rule," and principles of waiver. Id. at 2-4. Subsequently, in a Proposed Pretrial Order dated October 28, 2013, plaintiffs asserted, under the " mandate rule," that, in light of the Fourth Circuit's opinion, Officer Mee is barred from raising any defense based on qualified immunity. See ECF 75 at 2.
For the reasons stated below, I conclude that plaintiffs have not waived their right to argue that, with respect to the Maryland constitutional claim, qualified immunity does not apply. I also conclude that Officer Mee is not precluded under the " mandate rule" from raising the defense of qualified immunity as to the federal claim of excessive force.
Plaintiffs' Amended Complaint contains multiple counts: Count I (" Survival Act" ); Count II (" Wrongful Death" ); Count III
(excessive force claim brought under 42 U.S.C. § 1983, alleging violation of the Fourth Amendment); Count IV (negligent training and supervision claim, brought against Baltimore County); Count V (Maryland constitutional claims for excessive force); and Count VI (negligence claim against Baltimore County). 
Defendants moved to bifurcate, so as to proceed first with discovery and a trial on the claims brought against the individual defendants, and to stay discovery as to the " custom, policy, and practice" claims against Baltimore County until after completion of the first trial. See ECF 9, 9-1. Plaintiffs did not oppose the motion to bifurcate, ECF 11, which Judge Legg subsequently granted. ECF 32.
On December 21, 2010, defendants moved for summary judgment as to all claims. ECF 33. As Officer Mee notes, Mee Mem. at 1, defendants had argued:
Since there is no Fourth Amendment violation the plaintiffs' claims under the Maryland Declaration of Rights also fail. See, Richardson v. McGriff, 361 Md. 437, 762 A.2d 48, 56 (Md. 1999) (federal case law interpreting the Fourth Amendment is controlling authority for excessive force claims under Article 26 of the Declaration of Rights because " we have ...