The Maryland Supreme Court is slated to hear oral arguments Monday in the civil case of Korryn Gaines’ son Kodi, who was shot by Baltimore County Police in 2016. The case could have broader consequences for bystanders injured in police shootings.
Kodi Gaines was 5 years old when county police officers came to the door of his mother’s Randallstown apartment in 2016 to serve arrest warrants for her and her fiancé. After a standoff, Kodi was injured in the shooting that killed his mother and had to undergo multiple surgeries, according to court filings.
The hourslong standoff turned fatal when Cpl. Ruby Royce fired through a wall at Korryn Gaines, an action a Baltimore County jury found was unreasonable in 2018 though she was armed with a shotgun and had pointed it at officers. The jury awarded $38 million in damages, with about $32 million allocated to Kodi.
Since then, the litigation has dragged on for nearly six years, leading to two different opinions in the Appellate Court of Maryland. In August, Maryland’s highest court agreed to take up two legal questions arising from the state appeals court’s most recent opinion in April.
Circuit Court Judge Mickey Norman, a former state trooper, threw out the jury’s verdict in 2019, a decision later overturned by the state appeals court. Norman then ordered Baltimore County to pay Kodi a lower amount: $400,000 plus interest of $160,000.
County officials settled with Gaines’ estate, daughter and parents for $3 million in 2021. The jury had originally awarded those family members a total of $5.4 million.
One question for the Supreme Court of Maryland relates to whether Kodi Gaines lost the ability to raise an issue in a second appeal. The other has to do with the doctrine of qualified immunity, a legal concept that protects government officials from liability while performing their duties unless they were violating a constitutional right that was “clearly established” law at the time.
“The qualified immunity doctrine basically says that you, the government, you don’t get penalized … for violating any sort of rule or law or constitutional command that was not at the time that you committed the violation pretty clearly explained,” said Gregory Dolin, a law professor at the University of Baltimore School of Law. “You should be immune, unless the law was absolutely clear that what you did was not permissible.”
Usually the issue of whether qualified immunity applies is resolved early in a case, but the issue was left up to the jury. The Appellate Court of Maryland found that Kodi’s lawyers failed to show there was clearly established law putting Ruby on notice that he would violate the 14th Amendment when unintentionally shooting and injuring an innocent bystander.
Qualified immunity has critics from across the ideological spectrum, including Supreme Court Justices Clarence Thomas and Sonia Sotomayor. A 2020 federal policing reform bill, the George Floyd Justice in Policing Act, would have restricted its use as a defense for police officers had it passed the U.S. Senate.
Kodi Gaines’ attorneys argued in court filings that his “substantive due process rights” against being injured by agents of the state were violated when Ruby shot him, and that the appellate court’s ruling would expand the definition of qualified immunity beyond what federal courts had established.
The appellate court’s ruling would “effectively immunize law enforcement officers who shoot innocent bystanders,” his attorneys wrote. “It is also contrary to the fundamental right to substantive due process and would lead to the perverse result that the target of the officer’s abusive conduct may have a constitutional claim, but innocent bystanders would not.”
“We look forward to a full and fair hearing on the issues,” attorney Leslie D. Hershfield said Thursday.
On that day in 2016, a few hours into the standoff, Korryn Gaines followed Kodi into the kitchen to make him a peanut butter and jelly sandwich, according to testimony from the jury trial. Ruby testified that he shot through the kitchen wall, aiming to hit Gaines in the head. Instead, he hit her in the back with a shot that then lodged in Kodi’s face, according to an appellate court opinion. As Ruby fired additional shots at Korryn Gaines, another hit Kodi and injured him further.
Ruby retired from the police department in June 2021, according to a police spokesperson. The Baltimore County State’s Attorney’s Office did not charge him or other officers in 2016 and found the shooting justified.
Baltimore County argued in an October filing that qualified immunity should apply to Ruby in this case in part because Kodi was effectively a hostage, writing that other federal cases would suggest that accidentally shooting a hostage does not violate that person’s substantive due process rights. The county also argued that Ruby did not violate Kodi’s rights because he did not intend to hurt Kodi when he fired.
County Attorney James Benjamin did not return a call seeking comment. A county spokesperson declined to comment on pending litigation.
In an amicus brief filed by the ACLU of Maryland, the Public Justice Center and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, attorneys argued that while the Maryland court must respect U.S. Supreme Court precedent with regard to qualified immunity, it should not expand the doctrine further.
“This case shows why qualified immunity must not be a rubber stamp for reckless police action,” the organizations wrote. “Police should not be allowed to evade liability when they engage in misconduct merely because that misconduct happens to harm an innocent third party. That is particularly true in this case, where the victim was a five-year-old child.”
The U.S. Supreme Court created the concept of qualified immunity in 1967, envisioned as “good faith immunity” when police were charged with federal civil rights violations, said Deborah Jeon, legal director for the ACLU of Maryland.
“At the time, the court was concerned that when police officers make mistakes — and they’re going to make mistakes — that they’re going to be personally liable. And that’s actually so far from the way things work today,” Jeon said. “Police officers are not personally liable in these cases.”
She said this case will be the first time the Supreme Court of Maryland will rule on qualified immunity as it relates to federal constitutional claims. The court previously held that there is no state counterpart to qualified immunity for violations of Maryland’s constitution.
Some states, including Colorado, Connecticut and New Mexico, have taken steps to limit qualified immunity for police officers.
Dolin, who also serves as senior litigation counsel for the New Civil Liberties Alliance, said that the broader doctrine of qualified immunity does not just apply to law enforcement, but to the actions of any government employee.
“People should care because government officials violate our rights all the time,” Dolin said. “The question is who ought to pay for those violations.”
Korryn Gaines’ shooting sparked conversations about how Baltimore County officers handled race and mental health issues in policing. Gaines was Black and, according to an appellate court opinion, police knew she had a history of mental illness. Her arrest warrant was for failing to appear in court for a traffic case.
When local law enforcement agencies arrested David Linthicum in March after he allegedly shot two Baltimore County officers, the former attorney for some of Gaines’ relatives, J. Wyndal Gordon, questioned the different police responses. Linthicum, who is white, was not seriously injured during his arrest in Harford County.
