United States District Court, D. Maryland
RAYMOND GRAY et al.
OFC WILLIAM SCOTT KERN et al
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Raymond Gray, Sheri Gray, Jointly as Husband and Wife,
Plaintiffs: A Dwight Pettit, Law Offices of A. Dwight Pettit,
P.A., Baltimore, MD; Allan B Rabineau, Law Office of Allan
Rabineau, Baltimore, MD.
Officer William Scott Kern, Individually and in his official
capacity, Defendant: Michael L Marshall, LEAD ATTORNEY, Chaz
Romeo Ball, Schlachman Belsky and Weiner PA, Baltimore, MD.
Officer Efren Edwards, Individually and in his official
capacity, Defendant: Patrick Dugan McKevitt, Whiteford Taylor
and Preston LLP, Baltimore, MD.
Commissioner Anthony Batts, Individually and in his official
capacity, Baltimore Police Department, Defendants: Kristin
Elizabeth Blumer, LEAD ATTORNEY, Glenn Todd Marrow, Baltimore
Police Department, Baltimore, MD; Lauren Alise Seldomridge,
Baltimore City Law Department, Baltimore Police Department
Legal Affairs Division, Baltimore, MD UA.
Baltimore County, MD, Baltimore County Police
Department/Baltimore County, Defendants: Paul McLane Mayhew,
Baltimore County Law Department, Towson, MD.
Mayor and City Council of Baltimore City, Defendant: Michael
Patrick Redmond, LEAD ATTORNEY, Baltimore City Law
Department, Baltimore, MD.
M. Nickerson, Senior United States District Judge.
the Court is a Motion for Summary Judgment, ECF No. 78, filed
by Defendant Officer William Scott Kern and a Motion for
Summary Judgment filed by Defendants Officer Efren Edwards
and Major Eric Russell. ECF No. 86. The motions are ripe.
Upon a review of the pleadings and the applicable case law,
the Court determines that no hearing is necessary, Local Rule
105.6, and Officer Kern's Motion will be granted in part
and denied in part, and Major Russell and Officer
Edwards' Motion will be granted.
FACTUAL AND PROCEDURAL BACKGROUND
case arises out of a well-publicized shooting incident that
occurred during a police training exercise in Baltimore
County, Maryland. Raymond Gray, a University of Maryland
Police trainee, attended a February 12, 2013, training
exercise held at the Rosewood facility in Baltimore County.
The training was conducted by the Baltimore Police Department
(BPD) for trainees of the BPD, Baltimore City Sheriff's
Office, and University of Maryland Police. At the time of the
incident, Major Russell was the Director of Education and
Training who oversaw the recruit program in which Mr. Gray
was participating. Normally apprised of daily training and
locations, Major Russell was out of the office for his own
training on the day in question and was not aware of the
exercise or that it was to be held at the Rosewood facility.
goal of the training - conducted by Officers Kern and Edwards
in their capacity as Safety Officers -- was to teach handling
of police shields, known as bunkers, through replication of
real-life scenarios using simulation firearms. The simulation
firearm -- or simunition -- used in this training was a
pistol that was meant to re-create the feel and operation of
a standard-issue Glock .22, was marked with a blue handle,
and fired non-lethal ammunition. Nonetheless, because
simunition ammunition is capable of causing bodily injury, as
a matter of policy, any participant in training involving
simunition weapons is required to wear protective gear around
the groin, throat, head, and hands in addition to the
standard-issue service vest.
simunition weapons were in use during training, live weapons
were prohibited from the training site. Despite this
prohibition, Officer Kern and Officer Edwards discussed in
advance that each were to take turns carrying an unloaded
service weapon. It was decided that Officer Kern
should keep his service weapon with him on the first day of
training. In the morning when he arrived at Rosewood, Officer
Edwards unloaded his weapon, placed the ammunition in his
car's glove box, placed his weapon in a locked black bag,
and locked the black bag in the trunk of his car. Officer
Kern chose to keep his live weapon on his person, feeling
that the Rosewood site was not a " secure
facility." Officer Edwards asked if Officer Kern
conducted a safety check on the weapon before bringing it
into the facility, and Officer Kern replied in the
affirmative. After running an errand off campus during lunch,
Officer Edwards returned his live weapon to his car using the
same procedure. At that time, he again asked Officer Kern if
he conducted a safety check, as Officer Kern continued to
carry his live weapon. Officer Kern again replied in the
Kern stored his live weapon in an off-duty holster around his
waist and placed the simunitions weapon in his pocket. Both
the live weapon and the simunitions weapon were kept on
Officer Kern's dominant right hand side. Officer Kern
unholstered his live weapon twice during the training before
the incident in question. He first demonstrated how an
officer knows that his service weapon is empty of ammunition,
in response to a trainee question. Then, in the afternoon, he
used his live weapon to demonstrate how to load a weapon with
one hand while holding a bunker. A trainee pointed out to
Officer Kern that he was using his live weapon and not the
simunitions weapon. Officer Kern apologized and said that he
grabbed the live weapon from " muscle memory."
lunch, Officer Kern was conducting bunker training with three
trainees inside a gymnasium. Mr. Gray stood with other
trainees in a hallway outside the gymnasium while waiting to
take a turn in the training exercise lead by Officer Kern.
The gymnasium and the hallway were separated by a closed
door. The closed door was wooden and had a window through
which Officer Kern could see Mr. Gray and the other trainees
milling about while they waited. The site of the idling
trainees reminded Officer Kern of the danger of " fatal
funnels," or doorways, hallways, stairways, and windows
that can present a unique risk of attack to police officers.
the concept of " fatal funnels" was not an element
of that day's bunker training, Officer Kern decided that
trainees awaiting their turn needed to be reminded of the
danger of " fatal funnels." Officer Kern determined
that a shot from his simunitions weapon at the closed door
would alert the trainees that they were near a potential
" fatal funnel" and would remind them that they
should " stay out of [fatal funnels], don't
congregate, don't talk to people in those because
typically throughout the country police work [sic], those are
the biggest areas that police get killed in." Kern Trial
Testimony, ECF No. 78-3, 30:24-31:2. Without checking the
color of the weapon handle, he pulled a weapon and aimed it
at the window of the door.
Kern fired the weapon. Upon firing, Officer Kern realized
that he had discharged his live weapon and not the
simunitions weapon. The bullet from his live weapon traveled
through the glass window of the door and struck Mr. Gray
in the head, causing serious injury. Officer Kern ran into
the hallway, where other recruits told him that he shot Mr.
Gray. Officer Kern ran to Officer Edwards to tell him that he
shot Mr. Gray and then called 9-1-1.
Gray, joined by his wife Sheri Gray, subsequently filed a
Complaint in the Circuit Court for Baltimore City on June 14,
2013, against Officer Kern, Major Russell, Officer Edwards,
BPD Commissioner Anthony Batts, the BPD, the Mayor and City
Council of Baltimore City, Baltimore County, and the
Baltimore County Police Department. Defendants moved to this
Court on August 5, 2013. Plaintiffs filed an Amended
Complaint on May 27, 2014, alleging: False Imprisonment
(Count I), Violation of Maryland Constitutional Rights (Count
II), Battery (Count III), Assault (Count IV), Intentional
Infliction of Emotional Distress (Count V), Gross Negligence
(Count VI), Negligence (Count VII), Excessive Force (Count
VIII), Deprivation of Federal Rights (Count IX), and Loss of
Consortium (Count XI).
judgment is appropriate if the record before the court "
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). A fact is material if it might "
affect the outcome of the suit under the governing law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether
there is a genuine issue of material fact, the Court "
views all facts, and all reasonable inferences to be drawn
them, in the light most favorable to the non-moving
party." Housley v. Holquist, 879 F.Supp.2d 472,
479 (D. Md. 2011) (citing Pulliam Inv. Co. v. Cameo
Prop., 810 F.2d 1282, 1286 (4th Cir. 1987)).
Officer Kern's Motion for Summary Judgment
Plaintiffs' Claims of Negligence and Gross
bring claims that sound in negligence, (Count VII) and gross
negligence (Count VI). As to the negligence claim, Officer
Kern asserts that as a public official acting in a
discretionary capacity, he is immune from claims of
negligence. Further, as to gross negligence, Officer Kern
reasserts that his conduct was not so reckless as to rise to
liability. Plaintiffs counter that not only was Officer Kern
acting recklessly to rise to the level of gross negligence,
he acted with malice such that he is not protected from their
negligence claim by the ...