DOUGLAS B. WHITE
STATE OF MARYLAND TRANSPORTATION AUTHORITY, ET AL.
The opinion of the court was delivered by: J. Frederick Motz, United States District Judge.
June 1, 2001
The relevant issue to our readers in this case revolves around disorderly conduct and the decisions of a police officer in charging a person with this crime.
Douglas White was charged with failure to obey a lawful order of a police officer, intoxication in a public place, and possession of cocaine. The state prosecutor ultimately filed a nolle prosequi on all three charges.
White then filed thirteen charges against the MTA and Justice, under the U.S. Constitution, the Maryland Declaration of Rights, and Maryland common law. The courts decision ruled on several separately filed motions for summary judgment by all three parties.
Late on November 22, 1998, Douglas White attempted to check in at Gate C-13 for a flight on Southwest Airlines. White testified on deposition that he had shared a bottle of wine with friends at dinner several hours earlier, that he had spilled coffee on himself en route to the airport, and that he otherwise appeared disheveled because he had been roller-blading earlier in the day. Two employees of Southwest Airlines, Sheila Michael and her supervisor Melissa Chalupa, concluded that he was drunk and was behaving erratically. White was informed that he would not be permitted to board the plane. Officer Justice arrived with Officer Westbrook in response to a call by one of the airline employees, and eventually ordered White to sit. In response to the order White remained standing and said nothing. Justice arrested him.
White has filed thirteen charges against the MTA and Justice, under the U.S. Constitution, the Maryland Declaration of Rights, and Maryland common law. Justice moves for summary judgment on all counts against him on two grounds: failure to state a claim upon which relief can be granted and qualified immunity.
Testimony on the presence of onlookers varies between airline employees and the two police officers. Similarly, the behavior of any crowd that was present is in dispute. White says he did not disturb any other passengers, and other witnesses who remember a crowd being present do not recall any comment by or interaction with the crowd. The charge of possession came when Justice found capsules containing white powder in White’s possession. White told the officers that the capsules were medication that would test positive in a simple cocaine test. Later, more precise testing revealed that the substance in the clear capsules was indeed a prescription medicine, not cocaine.
White spent five hours in a holding cell before being taken before a District Court Commissioner in Anne Arundel County.
White’s claims against Justice include the federal claims for false arrest, false imprisonment, and malicious prosecution. In all three of these charges, the dispositive question is probable cause. Probable cause requires “facts and circumstances sufficient to warrant a prudent [person] in believing that the [suspect] committed or was committing an offense.” DiPino v. Davis, 354 Md. 18, 32 (1999). Under Maryland law, a person “may not willfully act in a disorderly manner to the disturbance of the public peace” and “may not willfully fail to obey a reasonable and lawful order of a law enforcement officer made to prevent a disturbance to the public peace.” Md. Ann. Code of 1957, art. 27 § 121(b)(2). The Maryland Court of Appeals has repeatedly characterized this offense as “the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area,” or “conduct `of such a nature as to affect the peace and quiet of persons who may witness the same and who may be disturbed or provoked to resentment thereby.’” In addition, failure to obey a lawful police order designed to protect the public peace may amount to disorderly conduct, Md. Ann. Code of 1957, art. 27 § 121(b)(3), although “[t]o be guilty of disorderly conduct on this basis, . . . there must be a sufficient nexus between the police command and the probability of disorderly conduct.” Both White’s conduct and his speech are at issue.
The Maryland statute criminalizing disorderly conduct makes it plain that the “public peace” is a central element of the crime under both § 121(b)(2) and under § 121(b)(3). The public must be present for its peace to be threatened. The witnesses’ accounts of whether a crowd was present differ substantially. Whether a crowd was present when White disobeyed Justice’s order to sit down is genuinely in dispute, as is the behavior of the crowd if one was present. If there was no one around when Justice ordered White to sit down and arrested him for refusing, and all other reasonable inferences are drawn in favor of White, Justice would have had little reason to believe he had a lawful reason to give the order to sit. (“The police officer’s request . . . must be intended to prevent someone from inciting or offending others.”). Similarly, drawing all reasonable inferences in favor of White, in the absence of onlookers before the order, Justice would have had little reason to believe that he had probable cause for an arrest based on disorderly conduct. On the other hand, if there was a crowd, probable cause for the arrest depends in material part on the crowd’s reactions to White’s behavior, an issue on which the witnesses differ substantially. Drawing all reasonable inferences in favor of the defense, a vocal crowd had gathered, passengers using the check-in counter were being disturbed, and an airline employee was frightened by White’s behavior into moving away from him. Justice could reasonably have believed that he had probable cause under such circumstances.
Because of the genuine disputes as to the presence of a crowd and crowd behavior described above, Justice is not entitled to summary judgment on the federal claims for false arrest, false imprisonment, and malicious prosecution. Nor, for the same reason, is White.