The officer, only six months out of field training, responded to a call about two men fighting. When he arrived on the scene, he found one individual lying on the ground incapacitated and another individual sitting in his truck nearby. As the officer investigated, the individual in the truck walked over to the individual on the ground and kicked him in the head. Although an internal police investigation found that the officer had done nothing wrong, the State prosecuted him for reckless endangerment on the theory that he had a duty to prevent the kick. The trial court found the officer guilty, and the Appellate Court of Maryland affirmed. 

Silverman Thompson appellate specialist Todd Hesel petitioned the Supreme Court of Maryland to take the case, arguing that the officer had no legal duty to prevent the unexpected assault and that the State failed to prove the officer’s inaction was a “gross departure” from what a reasonable, similarly situated police officer would have done.

The Supreme Court granted the petition and reversed. The majority opinion, authored by Justice Booth, agreed with the Silverman Thompson appellate team that the officer had no legal duty to prevent the kick. 

First, the court concluded that a duty to prevent a spontaneous and unforeseeable assault by one member of the public on another was not among the common law duties traditionally imposed upon law enforcement officers. 

Next, the court found that the police department policy statements relied upon by the prosecution reflected only general goals and did not impose a specific duty to act in the circumstances presented.

Finally, there was no “special relationship” giving rise to duty to protect, as the State argued, because the incapacitated individual was not in the officer’s custody at the time of the kick.

Read the Supreme Court of Maryland’s opinion here:  https://www.mdcourts.gov/data/opinions/coa/2025/13a24.pdf

Contact Our Appellate Specialist

If you need assistance with an appellate matter, Todd Hesel can be reached at thesel@silvermanthompson.com or 443-895-4195.