United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendants Mayor & City
Council of Baltimore (the “Mayor & City
Council”), the City of Baltimore, and former Baltimore
City Mayor Stephanie Rawlings-Blake's (“Mayor
Rawlings-Blake”) (collectively, the “City”
or “City Defendants”) Motion to Dismiss (ECF No.
Also pending is the State of Maryland's Motion to Dismiss
(ECF No. 33), and the Baltimore Police Department and former
Baltimore Police Commissioner Anthony Batts'
(“Commissioner Batts”) (collectively,
“BPD” or “BPD Defendants”) Motion to
Dismiss (ECF No. 34). This action arises out of the civil
unrest that occurred after the arrest and subsequent death of
Freddie Gray while in police custody in April 2015. The
Motions are ripe for disposition, and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2016). For
the reasons outlined below, the Court will grant in part and
deny in part the City Defendants' Motion, grant the
State's Motion, and grant the BPD Defendants' Motion.
April 12, 2015, BPD officers arrested Freddie Gray. (Compl.
¶ 36, ECF No. 2). Gray sustained various injuries and
subsequently fell into a coma. (Id.). Protests in
response to BPD officers' treatment of Gray began around
April 18 at the BPD's Western District police station.
(Id. ¶ 37). After Gray died from his injuries
on April 19, protests “began growing in frequency and
size.” (Id. ¶ 38). The BPD
“regularly communicated” with the City about the
ongoing protests, warning them on April 22 that certain
individuals may use “very aggressive/potentially
violent tactics.” (Id. ¶ 40).
Commissioner Batts also warned the public on April 22
“about the dangers of escalating protests.”
(Id. ¶ 41).
BPD's request, thirty-two Maryland State Troopers with
expertise in crowd control arrived in Baltimore on April 23.
(Id. ¶ 43). The same day, “[v]arious
businesses and city agencies warned their employees and the
public about expected protests, ” many even encouraging
people to leave early. (Id. ¶ 44). News outlets
reported that several hundred protesters gathered in front of
the BPD's Western District station and tossed bottles at
officers, and hundreds more protestors marched in the streets
of downtown Baltimore. (Id. ¶ 42, 45). The
protests impeded rush-hour traffic, and at least two
protestors were arrested for disorderly conduct and
destruction of property. (Id. ¶ 45).
April 24, news outlets began reporting about a protest
planned for April 25. (Id. ¶ 50). BPD sent an
email to the City about the ongoing demonstrations,
explaining that it had received information that certain
individuals “are encouraging others to use aggressive
tactics and even violence against our officers or
others” and that it expected protests to “grow in
size.” (Id. ¶ 48). Commissioner Batts
also contacted various community leaders, warning, “we
must avoid any attempts to create a riot.”
(Id. ¶ 49). BPD cancelled all leave for April
25 to ensure adequate coverage for the impending protests.
(Id. ¶ 46). In spite of these precautions, the
April 25 protest ultimately “turned violent, as
demonstrators reportedly looted a [convenience store],
damaged other storefronts, fought with and threw bricks and
bottles at police officers . . . and damaged police
vehicles.” (Id. ¶ 55).
next day, local business leaders received an email from the
City and participated in a conference call with Mayor
Rawlings-Blake. (Id. ¶ 59). The business
leaders learned that the City was taking steps to ensure
“the least amount of disruption to downtown
businesses.” (Id.). As a result of these
communications with the City, at least one business leader
decided that he would “be open for business as normal
[on April 27].” (Id.). The next day, April 27,
the City sent an email to a local business organization
expressing concerns that “it will look like a ghost
town” if businesses “tak[e] in or lock outdoor
furniture[, ] despite concerns that the furniture could be
used to destroy business storefronts.” (Id.
April 26, the City and BPD began receiving reports about a
“purge”-a term from a movie with the same title
in which citizens “were given a twelve-hour period of
lawlessness to rob, kill, and commit other crimes with
impunity”-scheduled to take place at Mondawmin Mall on
April 27. (Id. ¶ 61). On April 27,
“violence erupted at the Mondawmin Mall.”
(Id. ¶ 66). Violence subsequently began in
other Baltimore neighborhoods. (Id. ¶ 67).
Buildings and vehicles were set on fire, stores were looted
and damaged, and individuals were assaulted. (Id.).
BPD officers were unable to respond to all incidents of
violence that day because, according to Commissioner Batts,
“[w]e had opposite ends of the city pulling us at the
same time.” (Id. ¶¶ 67, 68).
Moreover, even where BPD officers were present, they
“simply watched and/or turned away, and let the
destruction of property continue.” (Id. ¶
69). It was only after this civil unrest on April 27 that
Mayor Rawlings-Blake ultimately issued an executive order
requesting resources from the State and imposing a curfew.
(Id. ¶ 74).
to a report issued by the Baltimore City Fraternal Order of
Police, officers were specifically told “to allow the
protestors room to destroy and allow the destruction of
property” and that BPD “would not respond until
[the protestors] burned, looted, and destroyed the
city.” (Id. ¶ 56). News outlets reported
that the City and BPD had issued a “stand-down
order” to BPD officers, preventing them from
intervening as the destruction of property continued.
(Id. ¶ 72). Mayor Rawlings-Blake and
Commissioner Batts also publicly spoke about the response to
the civil unrest. (Id. ¶ 58). Mayor
Rawlings-Blake stated that “we [ ] gave those who
wished to destroy space to do that as well.”
(Id.). Commissioner Batts explained that BPD
“couldn't be seen as the aggressors or
instigators.” (Id.). These public statements
“were consistent with the ‘stand-down'
orders” given on April 25 and April 27. (Id.).
19, 2017, Plaintiffs filed the instant 264-count Complaint
(ECF No. 2), which individually alleges each Plaintiff's
claims against each Defendant. Sixty-two of the sixty-five
named Plaintiffs allege 250 counts: (1) violations of the
Maryland Riot Act (the “Riot Act”), Md. Code
Ann., Pub. Safety [“PS”] § 14-1001 et
seq. (West 2018), against the Mayor & City Council
and City of Baltimore (Counts 1-50); (2) violations of the
Due Process Clause of the Fourteenth Amendment to the United
States Constitution for deprivation of property without due
process against all Defendants (Counts 51-100); (3)
violations of Article 24 of the Maryland Declaration of
Rights for deprivation of property without due process
against all Defendants (Counts 101-150); (4) violations of
the Fifth Amendment to the United States Constitution for
takings without just compensation against all Defendants
(Counts 151-200); and (5) violations of Article III, §
40 of the Maryland Constitution for takings without just
compensation against all Defendants (Counts 201-250). (Compl.
at 53 ¶¶ 1-1750). Plaintiffs seek compensatory and
punitive damages. (Id. at 680).
smaller subset of the Plaintiffs-John Han Chae, Han Bok Chae,
Young Park, Jong Youn, Julie Youn, Jin Suk Kim, and Kil Ja
Kim-allege: (1) violations of the Fourteenth Amendment for
unjustified intrusions on personal security against all
Defendants (Counts 251-257); and (2) violations of Article 24
of the Maryland Declaration of Rights for unjustified
intrusions on personal security against all Defendants
(Counts 258-264). (Compl. at 645 ¶¶ 1751-1862).
Plaintiffs seek compensatory and punitive damages.
(Id. at 680).
bring all federal constitutional claims under 42 U.S.C.
§ 1983 (2018).
Defendants now move to dismiss all Counts against them for
failure to state a claim upon which relief can be granted.
(ECF Nos. 27, 33, 34). Plaintiffs oppose the Motions.
Standard of Review
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint, ” not to “resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” King v.
Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting
Edwards v. City of Goldsboro, 178 F.3d 231, 243-44
(4th Cir. 1999)). A complaint fails to state a claim if it
does not contain “a short and plain statement of the
claim showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), or does not “state a claim to
relief that is plausible on its face, ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Twombly,
550 U.S. at 555). Though the plaintiff is not required to
forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each
element. Goss v. Bank of Am., N.A., 917 F.Supp.2d
445, 449 (D.Md. 2013) (quoting Walters v. McMahen,
684 F.3d 435, 439 (4th Cir. 2012)), aff'd sub
nom., Goss v. Bank of Am., NA, 546 F.App'x
165 (4th Cir. 2013).
considering a Rule 12(b)(6) motion, a court must examine the
complaint as a whole, consider the factual allegations in the
complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff. Albright v.
Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm'rs of Davidson Cty., 407 F.3d 266, 268 (4th
Cir. 2005) (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). But, the court need not accept unsupported or
conclusory factual allegations devoid of any reference to
actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions
couched as factual allegations, Iqbal, 556 U.S. at
Maryland Riot Act
bottom, the Court concludes that it will not dismiss
Plaintiffs' Maryland Riot Act claims against the Mayor
& City Council of Baltimore.
state a claim against a municipal corporation under the Riot
Act, a plaintiff must first allege that his or her
“structure or personal property [was] stolen, damaged,
or destroyed” during an event of civil unrest. PS
§ 14-1001(b). Next, a plaintiff must assert that the
authorities of the municipal corporation “had good
reason to believe that the [event] was about to take place
or, having taken place, had notice of the [event] in time to
prevent the theft, damage, or destruction. Id.
§ 14-1002(a). Finally, the plaintiff must show the
municipal corporation “had the ability, either by use
of the . . . municipal corporation's police or with the
aid of the residents of the . . . municipal corporation, to
prevent the theft, damage, or destruction.”
Mayor & City Council submit that Plaintiffs fail to state
each of these elements. The Court considers them in turn.
Mayor & City Council argue that Plaintiffs fail to
adequately plead damages under the Riot Act because
Plaintiffs do not specifically state that their property was
damaged by rioters. Plaintiffs contend that it is sufficient
to plead that their property was Rather, only the entity
known as the “Mayor and City Council of
Baltimore” may sue and be sued. Baltimore City Charter,
art. I § 1. Accordingly, the Court will dismiss all
claims against the City of Baltimore with prejudice. stolen,
damaged, or destroyed during civil unrest without attributing
the damage to rioters. The Court agrees with Plaintiffs.
the plain language of the Riot Act, Plaintiffs need not
allege that individual rioters caused their property damage.
Rather, the Act provides that Plaintiffs “may recover
actual damages” in a civil action “if a structure
or personal property is stolen, damaged, or destroyed in
a riot.” PS § ...