‘Qualified immunity’ protects police in shooting of Korryn Gaines’ son, Supreme Court of Maryland rules

Maryland’s highest court has ruled that a Baltimore County officer who shot and injured a 5-year-old boy in a 2016 standoff with his mother cannot be held liable for violating his due process rights under the 14th Amendment.

Police fatally shot Korryn Gaines after a six-hour standoff in which Gaines, accompanied by her young son Kodi, brandished a shotgun at officers from inside her Randallstown apartment. Kodi was struck by a bullet police fired through a wall that ricocheted and hit his face.

In 2018, county jurors found that it was unreasonable for Cpl. Royce Ruby to fire through the wall at Gaines and awarded her son about $32 million. After a circuit court judge overturned that verdict, years of appeals followed. A later ruling ordered the county to pay Kodi only about $400,000, plus interest.

The most recent twist in the legal saga hinged on qualified immunity, a legal doctrine that protects government officials from liability while performing their duties unless they violate a constitutional right that was “clearly established” law at the time.

Under the state Supreme Court’s ruling Tuesday, the lower award stands.

Kodi’s lawyers said they will appeal.

“We’re disappointed in the five-to-two opinion, but we will be pursuing all available appellate rights, including the [U.S.] Supreme Court,” attorney Leslie D. Hershfield said Wednesday.

Gregory Dolin, a law professor at the University of Baltimore School of Law, said it’s difficult to say whether the nation’s high court would take up a case hinging on qualified immunity, a judicial doctrine that has its critics across the ideological spectrum.

Justices Clarence Thomas and Sonia Sotomayor have each criticized qualified immunity, but the court requires four votes to take up a case. “There’s been some interest in this from particular justices. They’ve questioned the underpinning of this doctrine,” Dolin said. “There has been a push for the court to address this.”

The death of Gaines, who is Black and had a history of mental illness, raised questions about how county officers dealt with race and mental health issues.

Erica Palmisano, a spokesperson for Democratic County Executive Johnny Olszewski Jr., said Olszewski’s administration “has remained committed to doing right by the family of Korryn Gaines following this tragic incident.”

“After many years in court, the County believes this case is now resolved. Moving forward, we remain committed to continuing to do all we can to provide closure to our communities,” Palmisano said in a statement.

The county State’s Attorney’s Office did not charge Ruby and found the shooting justified. Ruby retired in 2021.

In the Maryland Supreme Court’s 43-page majority opinion, the justices found that it was not “clearly established” that Ruby would violate Kodi’s “substantive due process rights” against being injured by agents of the state when he shot Korryn Gaines.

The majority wrote that the standard used to evaluate Ruby’s decision to shoot at Gaines was higher when it came to Kodi’s constitutional rights, since different amendments applied to him and to his mother.

Additionally, there was no “controlling authority or robust consensus of authority” at the time to put Ruby on notice that shooting at Gaines would violate Kodi’s rights, the justices said.

“Corporal Ruby was held to account for what the jury determined was an excessive use of force and nothing in our decision today implicates that decision or in any way gives license to officers to use unreasonable or excessive force,” the majority opinion said. However, the majority wrote that the law related to the substantive due process rights of an injured bystander like Kodi who “a law enforcement officer did not intend to harm” is “largely unsettled.”

The opinion was issued by the Supreme Court of Maryland as a whole, but Justice Shirley M. Watts and Senior Judge Michele D. Hotten wrote dissents on the qualified immunity question. Hotten was an active judge when she heard the case.

Watts disputed the majority’s assertion that the law wasn’t clear enough when it came to Kodi’s rights. “It would have been clear to any reasonable officer that, in these circumstances, taking a head shot at an adult with a child behind a wall (where the child could not be seen) would have violated the child’s clearly established right to be free of arbitrary and unlawful police conduct,” she wrote.

David Rocah, a senior staff attorney at the ACLU of Maryland, said Wednesday that the Supreme Court of Maryland got the case “tragically wrong.”

Calling qualified immunity “made-up” and “pernicious,” Rocah said the doctrine prevents victims of police misconduct from holding government officials accountable for illegal actions.

“What it does do is reinforce police officers’ sense of impunity, because they know the courts will never be willing to hold them accountable for their misconduct, and that does make it more likely that people will be injured again,” he said.