Schreyer v. Chaplain

BARBERA, J., dissenting, in which HARRELL and BATTAGLIA, JJ., join.

I dissent. I would hold that Petitioner’s conduct entitles him to immunity under Maryland Code (1977, 2009 Repl.Vol.), § 19-103(a)(3)(ii) of the Transportation Article (hereafter “§ 19-103(a)(3)(ii)”), and Maryland Code (2006 RepLVol., 2008 Supp.), § 5-639 of the Courts and Judicial Proceedings Article (hereafter “§ 5-639”).

The majority and I agree that Petitioner, at the time of the accident, was authorized to operate an emergency vehicle. See Md.Code (1957, 2006 RepLVol.), § 11-118 of the Transportation Article. We also agree that the only form of “emergen*121cy service” that Petitioner’s conduct in this case could come within is that described in § 19—103(a)(3)(ii), “[pursuing a violator or a suspected violator of the law.” See Maj. op. at 99-100, 5 A.3d at 1057

Where the majority and I part company is in our construction of the phrase “pursuing a violator or a suspected violator of the law.” I am persuaded that the General Assembly did not intend to restrict its grant of immunity for police officers operating an emergency vehicle only to those circumstances when there is “movement by a suspect or violator of the law, and reactive movement by the officer to apprehend said individual,” as the majority holds. Maj. op. at 99, 5 A.3d at 1057. In my view, proper application of the rules of statutory construction to § 19—103(a)(3)(ii) dictates a broader, more commonsense construction, one that includes an officer’s approach of an individual suspected at that moment to be breaking the law, with the intention of investigating and, if appropriate, intervening and apprehending the suspect.

I need not recount all of the pertinent rules of statutory construction, as the majority does a thorough job of it. I simply repeat, for emphasis, several of them. When construing a statute, the primary objective is to ascertain and effectuate the intent of the legislature. See, e.g., Magnetti v. University of Maryland, 402 Md. 548, 564, 937 A.2d 219, 228-29 (2007). To ascertain the legislature’s intent, “we look first to the plain language of the statute, and if that language is clear and unambiguous, we look no further than the text of the statute.” Newell v. Runnels, 407 Md. 578, 640, 967 A.2d 729, 766 (2009) (internal quotation marks and citations omitted). “The plain language of a provision is not interpreted in isolation. Rather, we analyze the statutory scheme as a whole and attempt to harmonize provisions dealing with the same subject so that each may be given effect.” Magnetti 402 Md. at 564-65, 937 A.2d at 229 (internal quotation marks and citation omitted). As long as the language of the statute is unambiguous, “either inherently or by references to other relevant laws or circumstances, our inquiry as to legislative intent ends.” Newell, 407 Md. at 641, 967 A.2d at 766. *122Further, as the majority points out, Maj. op. at 101, 5 A.3d at 1058 “the absence of an express definition of a term ... does not preclude us from construing its plain meaning.” We are permitted “ ‘to consult the dictionary to elucidate terms that are not defined in the statute.’ ” Id. at 101, 5 A.3d at 1058 (citation omitted). Though consultation with the dictionary is a “ ‘starting point’ ” to ascertaining the Legislative intent, it is “ ‘not necessarily the end.’ ” Id. (citation omitted).

I, like the majority, turn first to the dictionary to define the verb “pursue,” and, for completeness, the noun “pursuit.” The Random House Dictionary of the English Language, in relevant part, defines “pursue” as “1. to follow in order to overtake, capture, Mil, etc.; chase. 2. to follow close upon; go with; attend,” and it defines “pursuit” as: “1. the act of pursuing”; and “2. an effort to secure or attain; quest[.]” 1570 (2d ed.1987). The current version of Black’s Law Dictionary does not define pursue; it defines “pursuit,” however, as: “1. An occupation or pastime. 2. The act of chasing to overtake or apprehend.” Black’s Law Dictionary 1272 (8th ed.2004). These definitions, and those offered by the majority, Maj. op. at 106-10, 5 A.3d at 1061-63 embrace the conduct described by the majority (“movement by a suspect or violator of the law, and reactive movement by the officer to apprehend said individual”). Indeed, it is fair to say that the conduct the majority describes lies at the core of the meaning of “pursue.” But it does not follow that these dictionary definitions exclude the conduct of Petitioner in the present case. A commonsense construction of “pursuing,” in the context of the statute we examine, should include movement by the officer that approaches the suspect in an effort to “overtake” the suspect for purposes of investigation and, if appropriate, to “apprehend” him or her. Application to § 19—103(3)(ii) of this broader definition of “pursuing,” moreover, is consistent with what I suspect was the intent of the General Assembly in enacting that section and § 5-639: to protect law enforcement officers from liability for negligent acts associated with split-second decision-maMng that accompanies the operation of an emergency vehicle in “emergency service.”

*123I read the majority’s construction of § 19-103(a)(3)(ii) as not requiring that the individual being pursued be aware that he or she is being pursued. See Maj. op. at 115-16, 5 A.3d at 1066-67. I agree that knowledge by the pursued is not necessary to application of the immunity afforded by the statute. I also agree with the majority that the statute requires the existence of “exigent circumstances.” Maj. op. at 113, 5 A.3d at 1064. The required exigency in the scenario at bar is, of course, the need of the police officer to intercept a crime in progress in or near the officer’s presence.

In a given case, the need to act may be more or less exigent than in other situations. Yet I do not read the majority opinion as intending to limit the applicability of the immunity statute to the officer’s pursuit of only those individuals who are known or suspected of having committed a certain class of crimes. Neither would I read such a limitation into the statute. Suppose, for example, that Petitioner had observed from his police cruiser persons whom he suspected had just committed an armed bank robbery, standing near or walking from the crime scene; he pursued them in the fashion done here; and, in doing so, he acted negligently and caused an accident. In my view, it defies the obvious intent of the immunity statute not to have it apply to the officer’s negligent act committed while employing his vehicle to pursue, even stealthily (if that were the officer’s choice) the suspected armed robbers.

I disagree with the majority, see Maj. op. at 109-110, 115— 16, 5 A.3d at 1062-63, 1066-67, that the officer’s approach of the crime suspect (or violator) must be triggered by some movement on the part of the individual herself, before the approach can be deemed a “pursuit,” for immunity purposes. Returning to the bank robbery scenario, it makes no sense to me that the General Assembly would not have intended to afford immunity to an officer who commits a negligent act while pursuing suspected bank robbers, even if, at the time the officer launched the pursuit, the suspects were standing still. In my view, Petitioner was no less in pursuit of the suspected drug dealer he spotted in the alley than he would *124have been had the suspect moved in a direction away from Petitioner, and Petitioner reacted to that movement.

At trial, Petitioner testified that the most effective way to pursue or “catch ... narcotics violators” is to use stealth. Petitioner intended to confirm, upon his arrival at the scene, that the suspects were engaged in illegal narcotics sales and (I presume), if appropriate, arrest one or more of them. Before he could confront the suspects, however, Petitioner’s vehicle collided with the vehicle in which Respondents were traveling, and the suspects dispersed. Even though the suspects escaped before Petitioner could initiate contact, these facts demonstrate that Petitioner’s conduct before the accident was an immediate attempt to intercept criminal activity and apprehend the perpetrators. It is the officer’s decision to apprehend a suspect, not a suspect’s awareness of law enforcement efforts, that determines whether the officer is “trying to overtake or apprehend,” or “pursuing,” the suspect within the meaning of the operative immunity statute. Petitioner’s conduct, as we just described it, fits the bill.

The majority acknowledges, Maj. op. at 110-111, 5 A.3d at 1063-64 that the purpose of §§ 19-103 and 5-639 is to protect police officers who operate emergency vehicles in furtherance of the performance of their duties. See, e.g., Public Local Laws of Baltimore City § 16-2(a) (establishing that the Baltimore City police officers have “the specific duty and responsibility ... to detect and prevent the commission of crime [ ] ... [and] to apprehend and arrest criminals and persons who violate [the laws of this State or of the Mayor and City Council of Baltimore] or are lawfully accused of violating such laws and ordinances”). Rather than leave any ambiguity as to whether the officers are protected under other statutes or common law principles for liability incurred while operating emergency vehicles, §§ 19-103 and 5-639 provide officers with specific protection. Furthermore, just as the public official immunity doctrine (to which I refer simply as a point of reference) protects public officials from liability incurred while exercising their discretionary authority, §§ 19-103 and 5-639 ensure that law enforcement officers have “the freedom and *125authority to make decisions and choices” while operating emergency vehicles in “emergency service,” without fear of personal economic responsibility. Lee v. Cline, 384 Md. 245, 261, 863 A.2d 297, 306 (internal quotation marks and citations omitted). The narrow interpretation the majority gives to “pursuing,” as used in § 19-103(a)(3)(ii), seriously undermines that function.

In sum, I would reverse the judgment of the Circuit Court on the ground that Petitioner is entitled to immunity under § 5-639 for the emergency service he performed in pursuing a person suspected of violating the law. I would remand the case to the Circuit Court for Baltimore City with directions to vacate the judgment of the District Court and enter judgment in favor of Petitioner.

Judges HARRELL and BATTAGLIA have authorized me to state that they join in this opinion.