United States District Court, D. Maryland
MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT
MARVIN J. GARBIS, District Judge.
The Court has before it Defendants Church, Pilkerton, Ulmer, and Campbell's Motion for Partial Summary Judgment [Document 64] and the materials submitted relating thereto. The Court has held a hearing and had the benefit of the arguments of counsel.
A. The Assumed "Facts"
The Defendants have a version of the facts that is starkly different from Plaintiff's version. However, the Court is not now making factual findings. The Court must, and will, assume the facts to be as Plaintiff contends to the extent there is evidence from which a reasonable jury could find those facts.
Thus, it is assumed that on March 8, 2012, Plaintiff Makia Smith ("Plaintiff") was driving home along Harford Road in Baltimore, Maryland when, due to the stopping of other vehicles, she was forced to stop her vehicle and remain stopped. While stopped, Plaintiff witnessed police officers from the Baltimore City Police Department ("BCPD"), not parties to the instant case, beating a young male while attempting to arrest him.
Plaintiff began filming the arrest and beating of the young male with her cell phone camera.
1. Defendant Church
Upon realizing that Plaintiff was filming the incident of police brutality, Defendant Church ("Church"), in retaliation for Plaintiff's exercise of her First Amendment right to film police action in public, ran over to Plaintiff's car, grabbed the telephone, and smashed the telephone with his foot, destroying it. Moreover, Church, although well aware that Plaintiff's car was not disrupting traffic and that she was unable to move her vehicle, shouted an order for her to move the vehicle, an order that he knew could not be obeyed because of the traffic conditions. Church's order was intended to create a pretext of probable cause to justify arresting Plaintiff. Moreover, Church, in effecting the arrest, used excess force against Plaintiff.
Plaintiff was charged with several criminal and traffic offenses in connection with the incident, including second degree assault against Church and "causing a vehicle to obstruct a free vehicle passage of a roadway." Am. Compl. ¶ 27. "On January 3, 2013, a disposition of nolle prosequi was entered for all of the criminal and traffic charges filed by Officer Church against Plaintiff." Id . ¶ 29.
As a result of the incident, Plaintiff obtained necessary medical treatment for injuries to her face, neck, and body.
2. The Other Officers
Defendants Pilkerton, Ulmer, and Campbell, Baltimore City Police Officers ("the Other Officers"), were on the scene at the time of the incident in question, and, it can be assumed, observed Plaintiff filming other police officers engaging in police misconduct.
B. Procedural Posture
In the Amended Complaint, Plaintiff presents the following claims against Officers Church, Pilkerton, Ulmer, and Campbell:
CLAIM COUNTS CHURCH PILKERTON ULMER CAMPBELL Free speech I, II ✓ ✓ ✓ ✓ retaliation Unlawful arrest III, IX, X ✓ ✓ ✓ ✓ Excess force XII, XIII ✓ ✓ ✓ Battery VIII ✓ ✓ ✓ Intentional Infliction XI ✓ ✓ ✓ ✓ Cell phone deprivation IV, V, VI, VII ✓
On September 29, 2014, the Court permitted the Other Officers (not Church) to file "simplified motions for summary judgment" merely identifying the claims as to which they sought summary judgment. Plaintiff was required to respond, and the movants would be given an opportunity to file a reply if necessary. [Document 59].
The instant "simplified" Motion was filed by all of the Officers, including Church. On October 14, 2014, the Court denied the instant Motion as filed by Church, stating:
As a procedural matter, the summary judgment motion filed by Officer Church lacks an adequate memorandum in support. Defendant Church, as distinct from the other Officer Defendants, was not given leave to file a simplified summary judgment motion. As a substantive matter, there are genuine issues of material fact that prevent Defendant Church from being granted summary judgment.
[Document 67] at 2. The Court provided, however, that Church could "seek reconsideration if there is a grant of summary judgment as to the Other Officer Defendants that should be deemed applicable to him." Id . On November 12, 2014, Church filed a Notice of [Interlocutory] Appeal from the denial of his summary judgment motion.
By the instant Motion, Officers Pilkerton, Ulmer, and Campbell seek summary judgment with regard ...