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Gray v. Kern

United States District Court, D. Maryland

August 21, 2015


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          For 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.

         For 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.

         For Officer Efren Edwards, Individually and in his official capacity, Defendant: Patrick Dugan McKevitt, Whiteford Taylor and Preston LLP, Baltimore, MD.

         For 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.

         For Baltimore County, MD, Baltimore County Police Department/Baltimore County, Defendants: Paul McLane Mayhew, Baltimore County Law Department, Towson, MD.

         For Mayor and City Council of Baltimore City, Defendant: Michael Patrick Redmond, LEAD ATTORNEY, Baltimore City Law Department, Baltimore, MD.

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         William M. Nickerson, Senior United States District Judge.

         Before 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.


         This case arises out of a well-publicized shooting incident that occurred during a police training exercise in Baltimore County, Maryland.[1] 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.

         The 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

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the groin, throat, head, and hands in addition to the standard-issue service vest.

         While 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.[2] 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 affirmative.

         Officer 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."

         After 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.

         Although the concept of " fatal funnels" was not an element of that day's bunker training,[3] Officer Kern decided that the

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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.

         Officer 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[4] 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.

         Mr. 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.[5] 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).[6]


         Summary 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 from

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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)).


         A. Officer Kern's Motion for Summary Judgment

         a. Plaintiffs' Claims of Negligence and Gross Negligence

         i. Negligence

         Plaintiffs 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 ...

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