Baltimore Might Be Liable for Riot Damage to Businesses

A federal court so holds, applying Maryland's Riot Act, and quoting the Mayor's famous line that the City "gave those who wished to destroy space to do that."

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From Chae Bros. Limited Ltd. Co. v. Mayor & City Council of Baltimore, decided yesterday by Judge Stephanie A. Gallagher (D. Md.):

Plaintiffs, consisting primarily of small businesses, small business owners, and property owners in Baltimore City, seek to recover for damages suffered during the civil unrest that occurred after the arrest and subsequent death of Freddie Gray in April, 2015….

Maryland's Riot Act provides that "if a structure or personal property is stolen, damaged, or destroyed in a riot, the injured party may recover actual damages sustained in a civil action against the county or municipal corporation of the State in which the riot occurred." However, the county or municipal corporation is not liable unless it:

(1) had good reason to believe that the riot was about to take place or, having taken place, had notice of the riot in time to prevent the theft, damage, or destruction; and

(2) had the ability, either by use of the county's or municipal corporation's police or with the aid of the residents of the county or municipal corporation, to prevent the theft, damage, or destruction.

Moreover, a plaintiff may not prevail under the Riot Act if the county or municipal corporation, "used reasonable diligence and all the powers entrusted to them to prevent or suppress the riot." Because the City has moved for summary judgment, it bears the burden to show that the Plaintiffs have not produced sufficient evidence to raise a genuine dispute of material fact about whether the City may be held liable under the Riot Act. Viewing the facts, as this Court must, in the light most favorable to the Plaintiffs, the City has not met its burden….

The City argues that Plaintiffs have not raised a factual dispute as to whether the City "had good reason to believe" that the rioting on April 27, 2015 "was about to take place or, having taken place, had notice of the riot in time to prevent the theft, damage, or destruction." First, the City argues that the Plaintiffs' damages were not caused in a riot at all, but rather by "individuals opportunistically taking advantage of unrest in order to commit crimes and property destruction."

As Plaintiffs point out, however, the City's attempt to distinguish between individuals who were rioting and individuals who were "opportunistically taking advantage of unrest" is a distinction without a difference. The Riot Act only requires plaintiffs to show that their damages occurred "in a riot[,]" and the Plaintiffs here have offered evidence to support their contention that they were….

Second, the City argues it was not on notice that any rioting would occur on April 27, 2015. But the Plaintiffs have provided evidence that: between April 18th and April 25th, protests in response to Freddie Gray's death had, at times, turned violent and destructive; that the City was preparing for, and expecting, larger and more volatile protests throughout the City on April 27th, the day of Freddie Gray's funeral); and that the City and the BPD had received credible intelligence suggesting that those protests could turn violent. On those facts, a jury could reasonably decide that the City "had good reason to believe" that rioting would occur on April 27th….

The Riot Act precludes a finding of liability against a defendant county or municipal corporation if the defendant "used reasonable diligence and all the powers entrusted to them to prevent or suppress the riot." This limitation, therefore, raises two questions: first, whether the defendant used "reasonable diligence," and, second, whether the defendant used "all the powers entrusted to them to prevent or suppress the riot." Here, there are genuine disputes of material fact on both questions.

Plaintiffs have adduced the following relevant evidence. Once Freddie Gray died, the City anticipated that rioting might occur. Despite that concern, the City closely monitored the BPD's response to the protesters to ensure that the officers did not appear overly aggressive. The City knew that the BPD was understaffed, and that it was making, with little success, mutual aid requests to attempt to call in additional officers and resources.

The City knew that the protests on April 25th turned from peaceful to violent and destructive. Nonetheless, the City coordinated with the BPD to ensure that, to the greatest extent possible, the BPD did not engage with protesters. After the April 25th protests, the Mayor initially admitted that the City "gave those who wished to destroy space to do that[.]" The City anticipated that protesting on April 27th—the day of Freddie Gray's funeral—might again turn violent and destructive. As predicted, the protests on April 27th did, in fact, lead to violence and property damage. The City did not declare a state of emergency, which would have allowed it to assist the BPD in obtaining additional police resources, until several hours after rioting had begun on April 27th. Finally, the City did not announce a curfew until several hours after rioting began, and that curfew did not go into effect until 10:00 PM the following day.

To be sure, the City argues that it did everything it could to quell the unrest and to assist the BPD in limiting the violence and property damage that resulted. The City argues that Plaintiffs' suggested responses either would have made no difference in preventing or suppressing the riot, or, in some cases, would have made matters worse. The City relies on City of Baltimore v. Silver, which it cites for the proposition that the Riot Act only requires the City to use "reasonable means" to quell unrest.

But the Silver case undermines, rather than strengthens, the City's position that summary judgment is warranted. In Silver, the Maryland Court of Appeals affirmed the denial of the City's motion for summary judgment and held that, "it is for the trier or triers of facts to determine just what action the City could or should have taken, if any, in the exercise of 'reasonable diligence' to prevent or contain the situation." That holding comports with the general rule that "reasonableness is a question of fact for the trier to determine based on all of the circumstances."

The City accuses the Plaintiffs, with the benefit of hindsight, of "Monday morning quarterbacking" the City's and the BPD's response to the unrest. It focuses on the overall reasonableness of its strategy, noting that, in comparison with other jurisdictions facing unrest following police-involved civilian deaths, Baltimore's unrest spanned a shorter duration and resulted in no loss of life.

This Court is not charged with second-guessing the actions of the BPD or the City during an unprecedented time in the City's recent history. The question the Riot Act poses, however, is not one of overall reasonableness or of good policy, but one of actions taken to prevent "theft, damage, or destruction."

The City may ultimately be right that it acted reasonably as a matter of overall policy and prioritization, and a reasonable juror could certainly agree. However, a reasonable juror could also (and perhaps simultaneously) conclude that the City remains liable for the ensuing property damage arguably attributable to the "trade-off" between more traditional anti-riot measures and the City's policy decisions in April of 2015. Regardless, at this stage, the Plaintiffs have produced enough evidence to allow a reasonable jury to find that the City's response fell short of its obligation to act with "reasonable diligence and all the powers entrusted to [it]." …

NEXT: Daphne Keller, "Amplification and Its Discontents: Why Regulating the Reach of Online Content Is Hard"

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  1. Democrats will find a way to weasel out of this.

    1. In Castle Rock, and many other decisions, no constitutional duty to protect from private crime. Police are worthless.

      Get a gun and kill the Democrat attackers. Best is to gut shoot them, so they take 8 hours of excruciating agony to die, with no response to pain killers.

    2. Well the money is coming from the taxpayer, not directly from the pols bank account like it should.

    3. If the city loses, it just ends up being other city businesses and successful city residents that foot the bill.

  2. Wait…five years between the events in question and the trial court denying a motion to dismiss? I guess they don’t want to rush things…

    1. Wait, I was mistaken, it’s been six years. That’s totally different.

      1. It was a decision on a motion for summary judgment, not a pre-answer motion to dismiss. The time elapsed likely includes significant written discovery and depositions. Plaintiffs also didn’t immediately file the complaint, and as the motion refers to an amended complaint, I assume there was earlier motion practice, including a likely motion to dismiss by the City that was granted in part that precipitated the amended complaint.

        1. Yes, time flies when one is having fun, doesn’t it?

          1. I mean, yes, it all makes sense when you break it down like that, but one’s initial reaction is “slow as molasses.”

          2. I got confused by what which rioting the Democrats encouraged and permitted to happen in the various cities. Silly me thought it was 2020, not as long ago as 2015.

            1. It’ll probably become an annual event. Every summer in Minneapolis, Chicago, New York, etc.; all-year-round in warmer places. (Though, strangely, we haven’t seen much of this “permitted” rioting in the South — probably because there you don’t have Democrats running both the state and the big city.)

              1. Yeah, I did see a BLM demonstration in Greenville one time, but it was remarkably polite, because they knew that the first busted window and they’d be taken down and do time.

                1. It appears Southerners like Southern ways, especially with respect to race.

                  Perhaps better Americans should not have enabled the bigoted, traitorous, southern losers to resume statehood after the Civil War. A string of unincorporated territories along our southern border would have been preferable — imagine an America with no senator from Mississippi, no electoral college delegate from Alabama, no House member from South Carolina.

                  I can’t fault the patriotic, decent Americans who exhibited unwarranted leniency to the Confederates in the immediate wake of that war, however. They beat the bigots when it counted.

                  Carry on, clingers.

                  1. I really do wonder if AK is really a CIA plant.

                    The number of unsavory people that reach a conclusion of “imagine America without (X class of people)….” and its use by AK here is probably not a coincidence.

                    1. At first I thought you were talking about Aktenburg (sp?), the guy who goes on about…other groups. Whatever happened to him?

                    2. I saw someone else speculate that many of the more controversial commenters seemed to disappear from here around January 6th. Maybe that is also not a coincidence….

                    3. AK is the typical Democrat douche bag. They serve the Chinese Commie Party. They are all the same.

  3. ‘First, the City argues that the Plaintiffs’ damages were not caused in a riot at all, but rather by “individuals opportunistically taking advantage of unrest in order to commit crimes and property destruction.”‘

    But with that definition, the property owners could almost never win…oh, yeah, I see…

    1. We’ll, you see, it wasn’t a riot, it was just people destroying things. But they weren’t ALL destroying things, so it wasn’t a riot. You know, like they had in Tulsa when all the Black people burned their own houses down and murdered themselves.

      1. If it was “mostly peaceful” then it can’t be a riot.

        1. Everywhere the woke diverse take a hold of government gets Baltimored.

          Know who destroyed Baltimore? Ivy indoctrinated, scumbag lawyer, Rod Rosenstein. He signed a Draconian consent decree with the police of Baltimore. All police activity stopped. They show up an hour after the 911 call. They take a report and file it. Period. Baltimore is on its own.

          1. Ummm — the consent decree was signed by the Obama administration and by the mayor of Baltimore, Catherine Pugh. It was rushed through right before the Trump administration took office. Rosenstein had nothing to do with it .

            1. The Baltimore Police were legendarily shitty long before that. The consent decree came about after a multiyear investigation to corrupt and abusive police practices dating back to the 1990s (at the latest).

              1. The crime rate had been dropping like a rock in Baltimore. That caused lawyer unemployment. Rosenstein was the US Attorney for Maryland. He imposes this consent decree, and shuts down the police. Murders soar, year over year. The police now does nothing in Baltimore save file reports.

            2. The US Attorney in charge of the investigation had nothing to do with it? Don’t tell me you got schooled by Behar.

              1. Freddie Gray intentionally banged his head into a bolt sticking out in the police van, and died. So said a prisoner in the same van. The police were scapegoated by scumbag, Ivy indoctrinated Rosenstein. The City paid $6 million for this suicide because of the woke diverse Mayor.

                Result? Massive soaring of homicides, resulting in the needless deaths of hundreds of diverses, as the police stopped all policing save for the filing of reports after a 911 call.

                Look at the picture in this article. Who is standing there?

                https://www.police1.com/department-of-justice/articles/police-indicted-baltimore-officers-1930s-style-gangsters-KwnT0yMpAUUHNDE1/

  4. In retrospect, publicly admitting that they’d deliberately let the rioters destroy the businesses might have been a mistake.

    1. Stephanie Rawlings-Blake is really a gift that keeps on giving.

      1. To the construction industry.

      2. But she checks a lot of boxes. And that is what matters most in The City That bReeds

  5. “Because the City has moved for summary judgment, it bears the burden to show that the Plaintiffs have not produced sufficient evidence to raise a genuine dispute of material fact about whether the City may be held liable under the Riot Act.”

    The city bears the burden to do what now? This sentence makes me want to shoot myself.

    Why can’t it be, the city bears the burden to show it isn’t liable (ok I know why, or at least, it must have something to do with immunity reasons, but come on really?)

    1. I agree the sentence does not trip gaily off the tongue, but it kinda made sense to me.

      I got the impression that this wasn’t the actual trial on the actual suit, but a preliminary procedural thing, whereby the Defendant wanted the motion dismissed under Rule XVI-2B whereby whatever the rioty facts the Plaintiff can’t win the suit if the Defendant was wearing pink pants when it did or failed to do whatever was complained of. So this about the color of the Defendants pants. And it appears that the Plaintiffs have successfully thrown into doubt whether the Defendant was really wearing pink pants, as claimed. Hence the actual suit may proceed, unblocked by Rule XVI-2B.

      I trust that paragraph was harder to follow than the judge’s effort.

      1. I think that I correctly understood that pink pants are riot pants.

        1. They were wearing pink pants? What a riot!

    2. This was a motion for summary judgment, which means the defendant has to convince the court that the complaint cannot win as a pure question of law. Courts cannot decide questions of disputed facts for this motion. So if the complaint alleges a plausible fact pattern that supports a ruling against the defendant (“may be held liable”, emphasis on “may”), even if the plaintiff is probably wrong, the motion is denied. That’s why the defendant has that specific burden right now.

      During the trial, the trier of fact (probably a jury, but maybe the two sides agreed to a bench trial) will consider whether the city is actually liable.

  6. I’m old enough to remember when the phrase “read him the Riot Act” was a commonly used to explain when someone received a dressing down for misbehavior.

    1. Obviously, not in a Democrat jurisdiction.

      Your comment is the Laugh of the Day.

    2. The original Riot Act was a lot more fun, with a rather splendid proclamation, which it would have been wise to heed :

      “Our Sovereign Lord the King chargeth and commandeth all persons being assembled immediately to disperse themselves and peaceably depart to their habitations or to their lawful business, upon the pains contained in the Act made in the first year of king George the First for preventing tumults and riotous assemblies.”

      The pains included :

      (a) making it a felony punishable by death without benefit of clergy for “any persons unlawfully, riotously and tumultuously assembled together” to cause (or begin to cause) serious damage to places of religious worship, houses, barns, or stables and

      (b) anyone assisting with the dispersal of the riotous assembly was specifically indemnified against any legal consequences in the event of any of the crowd being injured or killed

  7. I don’t know about 2015, but during last summer’s riots, we had professors talking about how violence and destruction was justified. As one commentator around here might say, logic demands violence.

    But wouldn’t that be exhortation to lawless behavior?

    Now I have no free speech problem with talk like this, as inherent to freedom is resistance to wrongful government (action is something else). But shouldn’t that be “dangerous” speech that should be banned or flagged on social media?

    1. It would have been more appropriate to directing the rioting and looting to the neighborhoods where those professors lived.

  8. I’ve yet to be convinced that such legal actions have an affect on Government. They don’t hold anyone directly accountable. In the end, it’s just another transference of funds one set of taxpayers to another. That’s not saying that the wronged set of taxpayers aren’t entitled to some form of justice. Still…without real accountability it’s not a particularly productive mechanism.

    1. MP, I agree with you.

  9. Lathering the rubes
    Lathering the rubes
    A White, male right-wing law blog
    Lathering its rubes

    1. Is this what you thought “winning the culture war” would look like? Posting in impotence? May you continue to achieve this level of success.

      1. I hoped the culture war would lead to victory for tolerance over bigotry,

        reason over superstition,

        science over childish dogma,

        modernity over backwardness,

        education over ignorance,

        freedom over authoritarianism,

        the reality-based world over fairy tales,

        progress over insularity, and

        American improvement over pining for ‘good old days’ that never existed.

        And . . . my preferences have prevailed in the marketplace of ideas! For more than a half-century! And I expect the liberal-libertarian mainstream to continue to shape American progress against the wishes and works of conservatives for the rest of my life and beyond.

        Gun nuts, racists, anti-abortion absolutists, superstitious gay-bashers, White nationalists, misogynists, xenophobes, half-educated clingers, the Bradley-Olin-Heritage-Scaife-Federalist-Republican world, and fans of White, male, ankle-biting, right-wing blogs hardest hit.

        1. Artie, the culture war is an internal operation in the USA by the Chinese Commie Party. After the next major terror attack out of Afghanistan, all internal enemies get rounded up. I care about your welfare. I want you to shop the Caracas apartment as soon as possible so nothing happens to you.

  10. I’d make this a lot simpler and just make it strict liability on the part of the municipality. If there’s a riot, no second-guessing about whether the response was “reasonable” or not. Just make the city indemnify property owners. Somebody has to bear the cost, and the entity most in a position to actually prevent these losses was the city.

    1. I actually tend to think that entity is the rioters. But if the city choses not to capture them so that they can be forced to indemnify the victims, sure, the city makes a good plan B.

    2. I would appreciate the legal analysis or path that leads to that outcome. I do not see it.

  11. “had the ability, either by use of the county’s or municipal corporation’s police or with the aid of the residents of the county or municipal corporation, to prevent the theft, damage, or destruction.”

    Wait, seriously? So the law contemplates just deputizing random citizens as a de facto riot squad? Interesting plan. I suspect the city’s best argument is that they couldn’t do anything to stop the riot, but this should lose. When the rioting starts, the shooting with rubber bullets starts, and if that doesn’t work start on the real bullets. Rioters should dissipate real fast. And if your own city authorities can’t handle this, we do have the National Guard for a reason.

  12. This is a great law. Every State should have it

  13. So if the businesses prevail, does that make the insurance companies who denied claims under “riot” clauses have to finally pay up?
    Asking for an ambulance chasing lawyer.

  14. It seems the defendants – govt. officials mostly – removed this case from state court to federal court.

    I know they get to do this, but I’m wondering why Congress allows it.

    Specifically, if state officials are sued in state court for violating constitutional rights, what is the basis for removing into federal court?

    The traditional rational for having a federal court rather than a state court decide a case is that the state court would be biased in favor of the state.

    So we could understand a *plaintiff* preferring federal court in a complaint against state authorities.

    But why should the *defendants,* being state or municipal officials, be able to disrespect their own state’s courts by taking the case to federal court?

    Don’t they trust their own state’s courts? And if they don’t, that’s too bad, because I don’t think the federal courts were designed to protect *state* officials against bias from *their own* state courts.

  15. What in the world is a dispute between Baltimore residents and businesses and the City of Baltimore based entirely on Maryland state municipal law doing in federal court.

    The opinion, as best as I can tell, contains neither findings of fact nor legal analysis on the subject of jurisdiction. It has a background section going into the history of the riot, and an analysis section going through the relevant Maryland law. But it doesn’t appear to say anything at all to explain why this case belongs in federal as distinct from state court.

    1. I see, the case was originally filed in state court, was removed to federal court, and then all claims except the Maryland state-law Riot Act claim against Baltimore were dismissed.

      But then why didn’t the judge send the whole case back to state court? Liability of a state instrumentality to private parties is a quintessentially state matter and as the opinion notes, fraught with policy consideration. As the district court notes, what the City of Baltimore did might well have been the best thing it could do, and yet it might still be liable to the plaintiffs under the Riot Act.

      Isn’t the fact that too literal an interpretation of the law could result in a tension between legal duty to specific plaintiffs and overall duty to protect life and property for all, which the court flatly acknowledges, an indication that this case involves political questions and sensitive matters of state governance policy which it shouldn’t be the business of federal courts to decide?

      First federal courts decide foreign policy based on administrative law. Now they assume authority to decide whether police should have shot at rioters or not based on a technical reading of state municipal governance law?

  16. Interesting companion to the recent decision in another circuit saying city leaders could threaten to look the other way if politically unsound visitors got beaten to death.

    1. I believe courts have generally held that the government can’t be sued for failure to come to your aid, but this case deals with a cause of action derived from a specific state statute. I don’t know how many (if any) other states might have analogous statutes.

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