The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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."


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]." …