Ruling could expand public lawsuits over some illegal arrests

February 22, 2010|By Peter Hermann | peter.hermann@baltsun.com

The Baltimore Police Department must pay $180,000 to a pharmacy technician who was wrongfully snagged in a 2005 drug bust outside Lexington Market, the Maryland Court of Appeals has ruled.

The unanimous decision Friday upended years of precedent and potentially could make it easier for citizens to sue police officers who make arrests they know to be illegal.

The judges unanimously upheld a Baltimore Circuit Court jury's decision against Officer Arnold E. Houghton, who five years ago ordered the arrest of Cheryl Forrest even though other officers protested that she was innocent.

According to the Court of Appeals, on May 25, 2005, Houghton, watching a live video surveillance feed, saw three people engaged in a drug deal on North Eutaw Street. The participants were the dealer, a male buyer and a woman wearing a white shirt or coat and carrying a red umbrella.

Houghton radioed colleagues and told them to arrest the people involved. The officers caught the two men and found drugs, but the woman got away. Houghton, watching on the video from a downtown command center, said he saw the woman embrace another woman nearby and, the court said, "assumed that the embrace concealed the transfer or sale of drugs."

The court said Houghton lost sight of the second woman and then scanned the area with his camera. "The female purchaser was no longer in view, but Houghton could see someone whom he believed to be the second woman," the court said.

That woman was Cheryl Forrest, who was "some distance away" at a bus stop. Unlike the suspect, she was wearing a black jacket and dark jeans, but like her, she was carrying a red umbrella. "Houghton instructed Officer Timothy Williams to arrest Forrest," the court said. Williams searched her but found no drugs.

"Houghton nonetheless instructed Williams to arrest Forrest," the court said. "Williams suggested that Houghton review the video footage to make certain that Forrest was indeed the second woman. Houghton did not do so, but nonetheless confirmed that Forrest was to be arrested."

After Forrest was taken into custody, she testified "that she overheard Williams discussing the possibility that he may have arrested the wrong person," the court said.

Public officials who perform negligent acts generally cannot be sued. But the court decided that Forrest did not have to meet what had been a two-pronged test in similar cases - that the officer acted not only with intentional malfeasance and but also with malice. In other words, to win in the past, a person had to prove not only being purposely and wrongfully arrested, but also that the officer knew the arrest was illegal but did it anyway.

The ruling means that from now on, people who are falsely arrested will only have to prove that the officers acted negligently. The Appeals Court didn't even consider the issue of whether Houghton has acted maliciously, saying it didn't matter.

"For more than 20 years," the ruling said, "this court has held that common law public official immunity does not apply to intentional [acts]. ... This court will not overturn precedent in a vacuum, nor on a whim."

While Houghton can't claim immunity from the false arrest suit, a Baltimore Circuit Court judge ruled previously that Williams can. Criminal charges against Forrest were dismissed.

"The court has now made it clear that when you file these torts, there is no protection regarding malice," Forrest's attorney, James L. Rhodes, said. Houghton joined the department in 1988 but is no longer employed there. He and his attorney for the civil trial, Patrick D. Sheridan, could not be reached for comment Friday.

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