- The Washington Times - Sunday, December 29, 2002

BALTIMORE (AP) The state's second-highest court has rejected a racial-profiling charge, ruling that a Frederick County deputy sheriff who detained a black driver for a fruitless drug search is immune from the driver's lawsuit.
Finding the officer liable would contradict the purpose of the Maryland Tort Claims Act, which was designed to shift liability from employees to the state in such cases, the Maryland Court of Special Appeals said in an opinion issued Thursday.
Although Deputy Gary Cline works for Frederick County, he is a state employee for purposes of the tort claims act, and the complaint did not name the state as a defendant, the court ruled.
The court did not address the reasonableness of the detention but affirmed a lower court's rejection of Keith A. Lee's charge. Judge Sally D. Adkins wrote that Mr. Lee, a black investment adviser's, arguments did not "raise an inference of malice" sufficient to overcome Deputy Cline's immunity defense.
"If we were to define every violation of constitutional rights as a malicious act, individual public officials could become personally liable for even the most 'innocent' constitutional torts that they might commit," Judge Adkins wrote.
Neither Mr. Lee nor his attorney, William J. Mahone, immediately returned telephone calls by the Associated Press seeking comment.
The opinion seems at odds with a ruling in 2000 by the Court of Appeals. In that case, Okwa v. Harper, the court found that state personnel have no immunity against state constitutional tort charges. Judge Adkins wrote that the Court of Special Appeals "cannot reconcile" the top court's pronouncement with earlier cases and the plain language of the tort claims act.
Although the Court of Special Appeals has relied on Okwa in at least two other cases in the past two years, "closer examination of Okwa persuades us that it should not be applied in that manner," Judge Adkins wrote.
According to court documents, Mr. Lee was stopped in 1994 while driving a BMW in Frederick County and detained for 33 minutes until a drug-sniffing dog arrived and didn't find anything suspicious.
Deputy Cline pulled Mr. Lee over on Route 355 because the BMW was missing its front license plate, according to court records. The tag had been mangled in a carwash that morning and was on the floor behind Mr. Lee's seat, his complaint states.
After Mr. Lee explained what happened, Deputy Cline asked for permission to search the car for drugs. Mr. Lee refused, and Deputy Cline who had already called for a canine unit became angry and declared that he didn't need Mr. Lee's permission, according to Mr. Lee's complaint.
The dogs did not find drugs, and Deputy Cline issued Mr. Lee a traffic citation.

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