STATE OF MARYLAND, ET AL.
VADIM ROSHCHIN, ET AL
October 5, 2015
Circuit Court for Anne Arundel County. Case No.
Petitioners: Julia Doyle Bernhardt, Assistant Attorney
General (Brian E. Frosh, Attorney General of Maryland William
C. Lindsey, Robert J. Sager, Sharon B. Benzil, Assistant
Attorneys General of Maryland of Baltimore, MD) on brief.
Respondents: Ryan A. Mitchell (Kramon & Graham, P.A. of
Baltimore, MD) on brief.
C.J., Battaglia, Greene, Adkins, McDonald, Watts, Harrell,
Glenn T., Jr., (Retired, Specially Assigned), JJ. Opinion by
McDonald, J. Adkins, J., dissents.
Md. 131] McDonald, J.
law authorizes Petitioner Maryland Aviation Administration
(" MAA" ) to adopt regulations governing commercial
ground transportation services at Baltimore Washington
International Thurgood Marshall Airport (" BWI" ).
The law [446 Md. 132] classifies a violation of those
regulations as a misdemeanor. While a police officer is
generally authorized to arrest an individual who commits a
misdemeanor in the officer's presence, a statute directs
a police officer who observes a misdemeanor violation of an
MAA regulation to issue a citation for the violation and also
provides that an officer " need not" make an
arrest, except in certain circumstances. This case concerns
whether an officer retains authority to arrest for such an
offense even when the officer " need not" do so.
time of the incident giving rise to this case, Respondent
Vadim Roshchin was employed as a driver by Respondent
American Sedan Services, Inc. (" American Sedan" ).
American Sedan is a commercial transportation service that
has a permit from MAA to provide ground transportation
services at BWI. In February 2010, Mr. Roshchin was picking
up passengers at the airport without the required permit in
his possession. Providing commercial transportation services
at BWI without displaying a permit as required by an MAA
regulation is a misdemeanor. Maryland Transportation
Authority (" MdTA" ) police, who happened to be
conducting a special enforcement effort of the permit
requirement that night, arrested Mr. Roshchin and impounded
American Sedan's car. Both were released early the next
day. The criminal charges against Mr. Roshchin were
years later Mr. Roshchin and American Sedan sued MAA, MdTA,
MdTA police, and the State for false arrest, false
imprisonment, and related claims. They asserted that the
arrest of Mr. Roshchin and impoundment of the car without the
issuance of a citation were unlawful, because issuing a
citation is mandatory and, in these circumstances, exclusive
of an arrest. They also argued that the regulation had to be
posted at the airport to be enforceable and that it had not
that nothing in the MAA regulation or the Transportation
Article deprives a police officer of the general authority
under Maryland law to arrest an individual who commits [446
Md. 133] a misdemeanor in the presence of the officer. Thus,
the arrest of Mr. Roshchin and the impoundment of the
American Sedan car for noncompliance with the permit
requirement were lawful. The regulation requiring commercial
transportation services to display permits need only have
been published in accordance with the State Administrative
Procedure Act and State Documents Law and was not required to
be posted at the airport as a prerequisite to its
enforcement. On the basis of the undisputed facts, the claims
of Mr. Roshchin and American Sedan fail as a matter of law.
Regulation of Ground Transportation at BWI
operates BWI, a State-owned airport. Maryland Code,
Transportation Article (" TR" ), § 5-412. MAA
has established certain rules concerning the discharge and
pick-up of passengers by commercial transportation services
on the roadways adjacent to the airport terminal. MAA enters
into contracts with certain transportation companies, which
pay fees for the privilege of using the " inner
roadway" near the baggage claim to pick up passengers
who have not previously arranged for transportation.
other categories of commercial vehicles are authorized to use
the " outer roadway" under permits issued by MAA.
One such category is for-hire commercial transportation
services that arrange in advance to pick up arriving
passengers. COMAR 11.03.01.05-1A(6) (" Regulation
05-1A(6)" ). These services are prohibited from
picking up a passenger who has not made an arrangement with
the service in advance. Regulation 05-1C(1).
Md. 134] MAA regulations require operators of commercial
vehicles conducting business at BWI to obtain and display a
permit from the MAA. Regulation 05-1A(1), (3), C(5). A
commercial operator that falls within this category must
display the permit on the rearview mirror of the vehicle.
There is no dispute that the failure to obtain or display the
permit is a misdemeanor, although the parties disagree as to
the statute that sets forth that offense.
MdTA Police Force, a law enforcement
agency created by State law, provides law enforcement
services at BWI. In particular, MdTA police officers have the
powers " of a peace officer and a police officer"
under State law on airport property. TR § 4-208(a)(2),
(b). Among other things, MdTA police officers enforce the
rules relating to the pick-up and discharge of passengers by
time to time, in response to numerous complaints about the
unauthorized operation of commercial vehicles at
BWI, MAA and the MdTA police have conducted
" enforcement initiatives" at the airport to deter
such illegal activity. During such initiatives, police
officers stop operators of commercial vehicles to determine
whether they are operating legally. Initially, officers
conducting enforcement initiatives issued citations to first
time offenders and arrested recidivists. [446 Md. 135]
However, the MdTA police eventually concluded that arresting
all violators was a more effective deterrent. One such arrest
resulted in this case.
The Arrest and Impoundment
circumstances of the arrest of Mr. Roshchin and the
impoundment of American Sedan's vehicle are undisputed.
During the evening of February 23, 2010, MAA and the MdTA
police were conducting an initiative at BWI focused on
enforcement of the regulations requiring commercial
transportation services to obtain and display a permit. As
part of that effort, police officers stopped commercial
vehicles to check for permits.
evening, Mr. Roshchin was operating a commercial vehicle on
behalf of American Sedan to make a pre-arranged pick-up of
two passengers at BWI. American Sedan had a valid permit for
the vehicle, but Mr. Roshchin had left it in a
different American Sedan vehicle. As a result, he was
picking up the passengers without displaying a permit, in
violation of the regulations.
around 7:40 p.m. on that night, officers stopped Mr. Roshchin
and determined that he was not displaying a permit. They
arrested him and impounded American Sedan's vehicle. Mr.
Roshchin was processed
at the MdTA police facility at BWI and then transported with
other arrestees to a District [446 Md. 136] Court
Commissioner in Anne Arundel County. The Commissioner issued
a charging document alleging that Mr. Roshchin had violated
Regulation 05-1 and released him on his own recognizance
early the next morning. American Sedan recovered its vehicle
that day after paying a $150 towing fee. The State's
Attorney for Anne Arundel County eventually decided not to
prosecute Mr. Roshchin.
years later, in February 2012, Mr. Roshchin and American
Sedan filed a complaint in the Circuit Court for Anne Arundel
County against the State of Maryland, MAA, MdTA, and the MdTA
police (collectively, " the State" ). The counts
seeking relief for Mr. Roshchin alleged false arrest, false
imprisonment, and a violation of Article 24 of the Maryland
Declaration of Rights -- the due process clause of the
Maryland Constitution. The counts seeking relief for American
Sedan asserted tort claims for trespass to chattels and
tortious interference with business relations.
State moved for summary judgment on the basis that the arrest
was supported by probable cause and did not violate Mr.
Roshchin's rights under Article 24, and that the
impoundment of the American Sedan vehicle was appropriate in
light of the lawful arrest. The Circuit Court granted
summary judgment for the State on all counts, relying on
Maryland Code, Criminal Procedure Article (" CP" ),
§ 2-202, which authorizes a police officer to make a
warrantless arrest for a misdemeanor committed in the
presence of the officer.
Roshchin and American Sedan appealed. The Court of Special
Appeals reversed the grant of summary judgment. 219 Md.App.
169, 100 A.3d 499 (2014). The court concluded that the arrest
did not violate Mr. Roshchin's constitutional [446 Md.
137] rights because the arresting officer had probable cause
to believe that Mr. Roshchin had committed a misdemeanor in
the officer's presence. Nonetheless, it also held that
the officer lacked legal justification for the arrest. In
particular, the court concluded that TR § 5-1104, which
provides that an officer " shall prepare" a
citation and " need not" arrest an individual
charged with a misdemeanor under the State aviation law,
limited the officer's discretion to take Mr. Roshchin
into custody. The court further reasoned that, because TR
§ 5-1104 is the more specific statute, it prevailed over
the general arrest authority conferred on police officers by
CP § 2-202. The court also held that the regulation that
Mr. Roshchin had allegedly violated was required to be posted
to be enforceable and that there was a factual dispute as to
whether the regulation had been properly posted, rendering
summary judgment inappropriate. For the same reasons, the
court also reversed the Circuit Court's award of summary
judgment on the two tort claims of American Sedan.
granted the State's petition for a writ of
certiorari to consider whether there was legal
justification for the arrest of Mr. Roshchin and whether
posting of the regulation affects that determination.
issue before us is whether the State is entitled to summary
judgment on Mr. Roshchin's claims of false arrest and
false imprisonment and American Sedan's related tort
claims. Summary judgment is appropriate when
" there is no genuine dispute as to any material fact
and [a] party is entitled to judgment as a matter of
law." Maryland Rule 2-501(a). Because the decision turns
on resolution of a legal issue, a trial court's grant of
summary judgment is " subject to [446 Md. 138] a
non-deferential review on appeal." Muskin v. State
Dep't of Assessments & Taxation, 422 Md. 544,
554, 30 A.3d 962 (2011).
Whether There was Legal Justification to Arrest Mr. Roshchin
that Precludes Potential Tort Liability in this Case
The relationship between tort liability and police authority
to arrest a driver and impound a vehicle
plaintiff to succeed on a false arrest or false imprisonment
claim, the plaintiff must establish that the defendant
deprived the plaintiff " of his or her liberty without
consent and without legal justification." Okwa v.
Harper, 360 Md. 161, 190, 757 A.2d 118 (2000) (internal
quotation marks omitted). One possible legal justification
for an arrest is set forth in CP § 2-202(b), which
provides that a police officer " may arrest without a
warrant a person who commits ... a ... misdemeanor in the
presence or within the view of the police officer." This
provision codifies the common law concerning the authority of
a peace officer to make an arrest in those circumstances.
See D. Kauffman, The Law of Arrest in
Maryland, 5 Md. L.Rev. 125, 155-57 (1941). In other
words, a police officer who observes a person committing a
misdemeanor and makes a warrantless arrest of the offender
ordinarily will not be liable for false arrest or false
imprisonment, because CP § 2-202 provides legal
justification for the deprivation of liberty.
one is not liable for trespass to chattels when one " is
acting in discharge of ... authority created by law to
preserve the public safety, health, peace, or other public
interest, and [one's] act is reasonably necessary to the
performance of [one's] duty ..." Restatement
(Second) of Torts § 265. Police have authority to "
seize and remove ... vehicles impeding traffic or threatening
public safety and convenience." Wilson v.
State, 409 Md. 415, 430 n. 5, 975 A.2d 877 (2009).
Pursuant to Regulation 05(B)(2), a vehicle may not be left
unattended at curbside at BWI, because it poses a threat to
public safety and an impediment to public convenience. [446
Md. 139] There is no exception to this rule when the vehicle
is unattended because the driver was arrested. Thus, ...