Dissenting and Concurring Opinion by Harrell, J.:

I respectfully dissent in part and concur in part with the majority opinion in this case. Judge Eldridge joins in this opinion and Chief Judge Bell joins in all save Part III, D.

I.

I first note a few points regarding the majority's recitation of the material facts adduced at trial. Despite Officer McGriff's testimony offered during his defense, as to what he recalled hearing in the police dispatcher's bulletin that sent him to the apartment building in the first instance, he acknowledged earlier in the trial, as an adverse witness during the Petitioner's case-in-chief and without qualification, that he had responded "to a call of seven males in a vacant apartment, shots fired." He followed that acknowledgment with:

[Petitioner's Counsel]: So, in response to the report of shots fired by seven males in a dark apartment building on a dark evening, you and Officer Catterton went in alone to confront these seven individuals. Is that correct?

[Officer McGriff]: That is correct.

[Petitioner's Counsel]: And you and Officer Catterton had only one flashlight between the two of you, correct?

[Officer McGriff]: Yes.

Upon confronting the closed kitchen closet door, Officer McGriff, again while testifying as an adverse witness during Petitioner's case-in-chief, acknowledged that the leveling of his weapon and aiming at "center mast" was how he was "trained at the Police Academy." He elaborated that the training referred to was: "[i]n the use of deadly force. I didn't know at the time I was going to be using deadly force. I was in a ready position, as we were trained, to be in a ready position." Called upon to estimate how much time passed between Officer Catterton opening the closet door and the firing of his weapon into Petitioner's abdomen, Officer McGriff stated "[a]nywhere from three to six seconds."

Petitioner testified during his case-in-chief that he did not have the vacuum cleaner tube in his hands at any time that he was hiding in the kitchen closet with his friends. After he was shot, Petitioner recalled that someone, presumably who had not been hiding in the closet, turned on the kitchen lights.

Petitioner sought to introduce, as evidence of Respondent's lack of reasonableness in shooting Petitioner, the written guidelines regarding the police use of deadly force, as delineated in a Baltimore Police Department Training Bulletin (Vol. 20, No. 1) issued by the Police Commissioner on 2 May 1995. Although there was much in the Bulletin that had no facial relevance to Petitioner's claims, the following points are not so easily dismissed:

II. General Rules for Using Deadly Force

A. Officers must use deadly force only as a last resort.

1. Officers should try to avoid putting themselves in a situation where they have no option but to use deadly force.

2. Try to use other less deadly means:

* * * *

d. Talk to suspects in a manner consistent with training which will convince them to comply with orders.

* * * *

III. Confronting a Suspect

A. If officers have a reasonable belief that there is a threat of death or serious injury to themselves or others, they may draw their weapons.

B. Officers should keep their fingers off the trigger and below the trigger guard until they are prepared to shoot and the threat to their lives or the lives of someone else is IMMEDIATE and the potential for serious injury or death is IMMINENT.

* * * * *

IV. . . .

* * * * *

D. Members of this department shall not use firearms in the discharge of their duty, except in the following cases:

1. In self-defense, or to defend another person (unlawfully attacked) from death or serious injury.

a. The attacked officer is the person who has to evaluate the potential seriousness of the attack and determine an appropriate level of response.

b. The evaluation and response must be reasonable from the perspective of a reasonable police officer similarly situated.

c. There is no requirement that an actual, specific injury be inflicted. It is, however, required that the potential for such injury be present and the threat must be immediate.

d. When police officers have done everything they reasonably can to avoid using deadly force and believe the use of deadly force is the only way to prevent serious injury to themselves or someone else, deadly force is justified.

2. To effect the arrest or to prevent the escape, when other means are insufficient, or a person whom the officer has probable cause to believe:

Has committed a felony involving the use or threat of deadly force or serious physical injury; and

Who poses an imminent threat of death or serious physical injury to the officer or others.

a. When other means are insufficient can include but is not limited to:

(1) Using the radio to direct other units to prevent suspect's escape;

(2) Knowing the suspect's identity and that he/she poses no imminent threat to anyone in the immediate vicinity of the area of escape;

(3) Challenging the suspect to halt;

(4) Pursuing suspects until it becomes obvious that capturing them is unlikely and/or further pursuit is likely to endanger the officer or others.

b. The probable cause standard allows officers to act in situations without having absolute knowledge that a violent felony has occurred but requires that their actions be based on more than mere suspicion.

c. Both the element of the officer's probable cause to believe a dangerous felony has been committed and the element that the offender poses an imminent threat to the officer or others in the immediate vicinity of the crime must be present before an officer can use deadly force to arrest the offender or prevent his escape.

(1) Using deadly force to stop an escaping suspect must be based on a specific threat of imminent danger and not on a general threat to the community because of the viciousness of the crime.

* * * *

NOTE: Where feasible, the officer should give verbal warning prior to shooting at the felon. There are, however, situations when the issuance of a warning would be detrimental to the safety of the officers or others. In such a case, the officer need not give warning if to do so would increase the risk to himself or others.

(Emphasis in original).

Anticipating that Petitioner would attempt to offer such evidence at trial, Respondent filed a pre-trial motion in limine seeking to prohibit Petitioner from introducing evidence of any alleged violations of police procedure. Respondent's written motion, although specifically alluding to the 2 May 1995 Training Bulletin and "the Rules and Regulations published June 24, 1988," did not limit its request for relief only to those items. In granting the motion, the trial judge reasoned:

I have reviewed again the complaint, and I don't see any allegations in the complaint that this suit is based upon a violation of police orders, police regulations, police guidelines, and that as a result of the defendants' failing to observe and follow police orders, rules, regulations, guidelines, whatever they may be, the defendant (sic) had been harmed. I don't see that at all in the complaint.

In fact, the final paragraph of the complaint, Paragraph 23, says this:

* * * * *

"At all times relevant hereto, the actions of defendants in (a) brutally assaulting Richardson, (b) filing false criminal charges against Richardson, and (c) subjecting Richardson to humiliation on the face of a lack of probable cause were all performed by defendants without warrant or justification, without probable cause and were negligent, wanton, malicious and reckless."

These are the reasons given for the wrongful acts of the defendants, that they acted in this manner. There is not a single count in the complaint labeled violation of police orders, regulations, guidelines, et cetera.

I think what this comes to is, as I think has been acknowledged by counsel, an effort to prove that the acts of the defendants were wrongful simply because they didn't comply with certain orders. And that there is no emphasis in the case, from what I read the complaint as being, that by reason of the failure of the defendants to follow rule this, rule that, order this, order that, it caused harm to the defendant.

I think to try to bring it in, in the manner that the plaintiff proposes, would be, first of all, causing a trial within a trial, and that we would get very bogged down into the whole history import of these orders and regulations. And then we get into guidelines, and plaintiff's counsel is suggesting that guidelines don't give any discretion because they use the words "shall" and "must." And, you know, are guidelines, guidelines as the word implies or does it mean nothing when it says guidelines because the words "shall" and "must" be used certain times. And we get into those semantics, and the importance and significance of those semantics.

It is somewhat akin, it seems to me, that the plaintiff is seeking to have this be a res ipsa loquitur type of situation, that the jury be told, ladies and gentlemen, this is an order from the Police Department; this is a regulation, and if you find that the defendants did not file a report, and write a report exactly when and where they were supposed to, that proves their guilt. That proves that they were negligent, that they were, you know, whatever the various counts may be, and the jury be told, failure to obey regulations or orders imposes liability on the defendants, and I don't think that's so.

I think further to bring this into the case, could very easily tend to confuse the jury and obfuscate the real issues that have been raised by the plaintiff, and it is for these reasons that I grant the motion.

As the majority also notes (Maj. op. at 11-13), Petitioner sought to adduce testimony from Officer McGriff's and Officer Catterton's immediate supervisor, Sergeant Laron Wilson. After unsuccessfully attempting to elicit the desired information in cross-examination of Sergeant Wilson when he testified for the defense, Petitioner later called Sergeant Wilson as a rebuttal witness. In order to appreciate the full backdrop against which Sergeant Wilson was called in rebuttal, one needs to appreciate also Petitioner's earlier efforts at cross-examination of Officer McGriff when he testified during the defense case-in-chief. Prior to that cross-examination, counsel for the parties approached the bench. Petitioner's counsel informed the trial judge that he intended to ask Respondent three questions. First, he would ask respondent "if he believed his actions were reasonable on the night of January 12, 1996." Second, he would ask if a reasonable "[a]lternative would have been to secure the scene and wait for additional officers to arrive." Third, Petitioner's counsel would ask "[w]ould you agree with your superior, Sergeant Wilson, that odds of seven against two are not good odds[?]"

The trial judge permitted Petitioner to ask the first two questions because they addressed the issue of reasonableness, but not the third. The court reasoned:

The Court: I see no objection to any of the questions except the one about Sergeant Wilson. Because it seems to me that's hearsay. You don't have Sergeant Wilson in evidence here. He hasn't testified. You don't have any report of Sergeant Wilson that's in evidence. So, it just seems to me that's hearsay, and that nobody was here to say that this was what Sergeant Wilson had to say. Is that not true?

[Petitioner's Counsel]: That's true. Sergeant Wilson will be testifying.

The Court: He will be?

[Petitioner's Counsel]: He will be.

The Court: Well, I don't — well, who's calling him?

[Petitioner's Counsel]: I was going to call him, but [Respondent's counsel] indicated that she was going to be calling him. So, I am going to examine him on those points.

[Respondent's Counsel]: I will, I do intend at this point to call him, but the point is, it's not in evidence now.

The Court: The point is what?

[Respondent's Counsel]: The point is that there's no evidence of that now.

The Court: Yes.

[Respondent's Counsel]: He's going to be referring to something that no one has talked about.

The Court: I can not allow that question, because we have nothing in evidence now to allow that question to be asked. And although Sergeant Wilson may be called, I don't know what he's going to say, and maybe what the defense would like him to say, he's not going to be able to say. There may be objections or things of that nature. So, I don't think that I can allow that question but that's the only one that I find fault with, because I don't think it violates the ruling I made with respect to the motion in limine because the heart and soul of this is reasonableness. And I think the questions really address reasonableness.

The ensuing cross-examination of Officer McGriff by Petitioner's counsel proceeded thusly:

[Petitioner's Counsel]: Officer McGriff, you indicated that when you responded to the call, you thought it was an average call.

[Officer McGriff]: Yes.

[Petitioner's Counsel]: You also indicated that you had received a report of several males; shots fired. Is that correct?

[Officer McGriff]: Yes.

[Petitioner's Counsel]: Actually, wasn't the report that you received was, seven males, shots fired?

[Officer McGriff]: I'm not disputing that. I'm just saying what I recall.

[Petitioner's Counsel]: Okay. And you considered that to be an average call?

[Officer McGriff]: Yes.

[Petitioner's Counsel]: Did you believe your actions were reasonable on the night of January 12, 1996?

[Officer McGriff]: Yes.

[Petitioner's Counsel]: Did you have any other reasonable alternative besides entering the apartment building that evening?

[Officer McGriff]: No.

[Petitioner's Counsel]: Would a reasonable alternative have been to secure the scene and wait for additional officers to arrive?

[Officer McGriff]: No.

[Petitioner's Counsel]: Even with the report of seven males, shots fired?

[Officer McGriff]: Yes.

[Petitioner's Counsel]: You testified that when you entered the apartment, you reasonably assumed that there were light switches, correct?

[Officer McGriff]: Light switches, actual switches that you flip up, yeah.

[Petitioner's Counsel]: Okay. Did you or Officer Catterton at any time activate any of those light switches?

[Officer McGriff]: No, we didn't.

When Petitioner ultimately called Sergeant Wilson as a rebuttal witness, the trial court, in the face of Respondent's objection, refused to permit Sergeant Wilson to respond to questions regarding police training and the identification of reasonable alternatives Respondent might have taken. One of the grounds relied on by the trial judge for this restriction was that Petitioner's proffer of what Sergeant Wilson would say was not proper rebuttal evidence because the testimony would be unresponsive to, and beyond the scope of, any matter presented by the defense in its case-in-chief. The basis for this aspect of the Court's ruling seems to be that, although the Respondent had been permitted to answer Petitioner's questions on cross-examination during the defense case-in-chief as to whether he thought he had any reasonable alternatives, defense counsel had not initiated that line of inquiry in her direct examination of Respondent.

At the close of trial, the judge instructed the jury on three counts — battery, gross negligence, and violation of Petitioner's constitutional rights under Article 26 of the Maryland Constitution. The instructions, in pertinent part, were as follows:

With respect to battery, ladies and gentlemen, under our law a battery is the intentional touching of a person without that person's consent. Touching includes the intentional putting into motion of anything which touches another person or touches something that is connected with or in contact with another person.

In order to be a battery, the touching must be harmful or offensive. A touching is harmful if it causes physical pain, injury or illness. A touch is offensive if it offends the other person's reasonable sense of personal dignity.

In this case, ladies and gentlemen, the defendant has the burden of proof by a preponderance of the evidence that he was justified in committing a battery on the plaintiff.

With respect to the count of gross negligence, a person is liable for gross negligence when that person acts with wanton or reckless disregard for human rights or the rights of others. Police officers are not immune from liability for gross negligence. And I emphasize that is the gross negligence is the count and, again, I say to you that gross negligence is when one acts with wanton or reckless disregard for the rights of others or the individual involved.

In this case, ladies and gentlemen, because the defendants were acting in their capacity as law enforcement officers, they are entitled under the law to certain protections against civil liability to enable them to do their jobs properly. This protection insulates them from liability unless you find that they acted maliciously.

Now, I say they. There's one defendant remaining now, so the they should be he. If I used they, now it is just the one defendant, he.

Therefore, before you can consider any award for the actions of the defendants, you must find as a fact that his actions were malicious. To prove malice, the plaintiff must make a factual showing that the defendant acted without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to willfully injure the plaintiff.

Even if you find that the defendant officer was over zealous, you must still find in favor of the defendant officer unless you further find that such actions were done out of malice as I have defined it for you.

If you do not find that the officer acted in this manner, then you must return a verdict for the defendant officer. If you do find that the officer acted in this manner, then you must consider the other elements of the wrong with which he is charged; the wrong in this case was negligence.

With respect to the plaintiff's claim, the count of violation of the plaintiff's constitutional rights, the particular provision of the Constitution that the plaintiff is claiming a violation of and that his rights were violated is Article 26 of the Constitution. And Article 26 of the Constitution says this. And as I say, I'm talking about the Constitution of the State of Maryland. You can have violations of Federal constitutional rights, violations of State constitutional rights or both. It's just this one provision that's involved in this case.

Article 26 says this: That all warrants without oath or affirmation to search suspected places or to seize any person or property are grievous and oppressive, and all general warrants to search suspected places or to apprehend suspected persons without naming or describing the place or the person in special are illegal and ought not to be granted.

Article 26 of the Maryland Constitution protects individuals from warrantless seizures.

Police officers have no immunity for violation of the Maryland State Constitution. A plaintiff may recover compensatory damages for violation of the State Constitution regardless of the presence or absence of malice.

Article 26 of the Maryland Constitution protects Maryland residents from unreasonable searches and seizures in the same manner as the Fourth Amendment of the United States Constitution.

When a police officer shoots an individual, he has seized the individual. Whether the shooting is reasonable under the Maryland Declaration of Rights depends upon the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

I would also advise you, ladies and gentlemen, that under our law an officer may use deadly force when he has reason to believe that the plaintiff was posing a significant threat of death or serious physical injury to the officer or others.

In determining whether the force used by any of the police officers was excessive, I would instruct you, ladies and gentlemen, that police officers in the performance of their duties are entitled to use such force as is reasonable and necessary in order to accomplish their lawful purpose. The reasonableness or excessiveness of any force is a matter to be determined in light of all of the circumstances as they appeared to the officer at that time.

I would further advise you, ladies and gentlemen, that in determining whether force was excessive or not, you must judge it upon an objective basis. That is, whether a reasonable police officer under the same or similar circumstances could have believed that the force used was reasonable. And I would point out to you, ladies and gentlemen, that you must look at this judgment not by way of hindsight, which is always 20/20, but rather under the circumstances as they existed at that moment.

No pertinent exceptions to these instructions were taken.

During jury deliberations, the trial judge received a note from the jury asking whether "[i]n determining the reasonableness of the defendant's actions, do we restrict our consideration to the circumstances surrounding the instant of the shooting, or should we also consider the general circumstances leading up to the shooting (e.g. calling for back-up, lights)?" In addition to reiterating his earlier instructions, the trial judge further responded:

To be very specific, if I may, about your question, and your question, really, I think is directed at one point, are there surrounding circumstances. Do you consider the matter of calling for a back-up, which occurred outside the house before the officers went in. Do you consider what lights they did or did not turn on, what lights they used or did not use. And my answer to that is, you do not consider those particular factors that you have enumerated.

You look at the circumstances as they existed at the moment the force was used, which means in the posture of this case when Officer Catterton, now Detective and then Officer Catterton, opened the closet door and what the circumstances were at that time, as you found them to be when that door was opened, because that is when the excessive force was used. Those were the circumstances that were present.

As I said, you don't use hindsight. You don't say, well, if they called for more back-up and waited for more back-up, it might have been different. You don't say, well, if they had put on more light, it might have been different. You don't analyze it in that way. You analyze it that here is the situation, that whatever the light was, the light was. And you are not to second guess the officers with respect whether they should have put on more light or less light; they should have called for more back-up; they shouldn't have gone in the house until they got more back-up, but rather here they are in that situation, and when that door was opened to the closet, those were the circumstances and that is when excessive force was used. And that is what you are to consider.

The trial judge then summarized that his clarification applied both to the battery count and to the count relating to violation of Article 26 of the Declaration of Rights. Petitioner excepted to the aforesaid limiting instruction. The jury ultimately found that Respondent was not liable on any of the counts.

Petitioner appealed to the Court of Special Appeals arguing that the trial court erred by not admitting the police guidelines regarding the use of deadly force, not allowing Sergeant Wilson to testify that Respondent had reasonable alternatives to his conduct after he responded to the police call of reported shootings, not allowing Petitioner's counsel to examine Respondent on the issue of whether the odds of "two [against] seven" are "not good" odds, and, giving the limiting instructions that the jury could not consider any surrounding circumstances prior to the actual shooting when deciding Respondent's liability for battery or violating Petitioner's civil rights under Article 26 of the Maryland Declaration of Rights. The intermediate appellate court, in an unreported opinion by a divided panel, affirmed the trial court's judgments. The dissent in the Court of Special Appeals reasoned that the police guidelines had been excluded erroneously.

Petitioner sought review by this Court and we granted certiorari. For clarity's sake, I shall first address my views on whether the trial court's jury supplemental instructions, to which Petitioner excepted, were erroneous. My discussion of the issues presented by the jury instructions will provide, in large part, the legal background for my view whether the police guidelines were excluded erroneously.

II. A.

Petitioner argues that the supplemental jury instructions given by the trial court in response to the jury note were too limiting in light of the totality of the circumstances test enunciated in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed. 443 (1989). He asserts:

What Graham v. Connor holds is that a claim against an officer based upon a violation of the Fourth Amendment is analyzed under an "objective reasonableness" standard. The reasonableness of a particular use of force is judged from the perspective of a reasonable officer on the scene. No window of time is circumscribed in the Supreme Court's decision; to the contrary, the Court's statement that the reasonableness of the force used must be judged from the perspective of a reasonable police officer on the scene implies that all facts known to the officer on the scene, whenever gathered, are probative to the analysis. The Supreme Court does not state that the reasonableness of the use of force must be judged from the perspective of a reasonable officer on the scene at the time the force is used.

(Emphasis in original).

He further argues that by instructing the jury that they may consider only what happened from the moment that Respondent's partner opened the kitchen door, the jury was not permitted to consider reasonable and foreseeable alternatives that Respondent could have taken to avoid shooting Petitioner. Specifically, the trial court prohibited the jury from considering whether Respondent should have turned on the lights in the apartment kitchen before the closet door was opened to enable him to better see whether Petitioner was holding a gun or other weapon and whether Respondent should have waited for additional police back-up before entering the apartment.

Respondent and the majority of the Court reason that Graham and certain U.S. courts of appeal limit the time frame of events that may be considered to determine whether the force employed was reasonable to the moment the force was used. As that position goes, the pre-seizure events leading to the use of deadly force are irrelevant to an excessive force claim analysis under the Fourth Amendment and, therefore, under Article 26 of the Maryland Declaration of Rights. Respondent and the majority further assert that a non-restrictive application of the totality of the circumstances would translate into a mental distraction, with potentially adverse consequences, when a police officer exercises the judgment whether to use deadly force (Maj. op. at 24-25). An expansive view of the totality of the circumstances, they claim, would allow the jury to exercise inappropriate hindsight in considering whether the police officer reasonably used deadly force. Id.

B.

"This Court has recognized that a common law action for damages lies when an individual is deprived of his or her liberty in violation of the Maryland Constitution." Okwa v. Harper, 360 Md. 161, 201, 757 A.2d 118, 140, (2000) (citing DiPino v. Davis, 354 Md. 18, 50, 729 A.2d 354, 371 (1999) ; Ashton v. Brown, 339 Md. 70, 101, 660 A.2d 447, 462 (1995); Widgeon v. Eastern Share Hosp. Center, 300 Md. 520, 537-38, 479 A.2d 921, 930 (1984)). In interpreting the Constitution of Maryland, we may look to the federal courts and their interpretation of the United States Constitution's analogous companion provisions, if any. Id. Here, Article 26 of the Maryland Declaration of Rights is at issue. It states:

Article 26. Warrants.

That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are [grievous] and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.

Its federal counterpart is the Fourth Amendment which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In Cartnail v. State, 359 Md. 272, 283, 753 A.2d 519, 525 (2000), we noted:

It has long been said that "[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." "To this end, its main import is the protection against invasions of the sanctity of one's person, home, and the privacies of life."

(Citations omitted). Despite this privacy interest, we noted in Okwa that the Supreme Court recognizes "the right of police officers to take necessary measures and use some degree of force when arresting" a suspect. 360 Md. at 199, 757 A.2d at 139. See Graham, 490 U.S. at 396, 109 S.Ct. At 1871-72, 104 L.Ed.2d at 455 (citing Terry v. Ohio, 392 U.S. 1, 22-27, 88 S.Ct. 1868, 1880-83, 20 L.Ed.2d 889, 906-09 (1968)). That necessary privilege, however, has limitations. The use of force to detain an individual, including "the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1, 7 (1985). "[W]hether the application of deadly force is for the purpose of effectuating an arrest or other stop, or for the purpose of self-defense, it is an acquisition of physical control by a law enforcement official that implicates the victim's [F]ourth [A]mendment interest to be free from unreasonable seizures." Reed v. Hoy, 909 F.2d 324, 329 (9th Cir. 1990).

In constructing the judicial limitations on the exercise of police force, Supreme Court jurisprudence has sought to balance an individual's fundamental interest in his or her right to be free from government intrusion against the government's need to enforce the law. See 3 Wayne R. LaFave, Search and Seizure § 5.1(d), at 32 (3d ed. 1996). In Garner, the Supreme Court explained:

To determine the constitutionality of a seizure "[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." We have described "the balancing of competing interests" as "the key principle of the Fourth Amendment." Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out.

471 U.S. at 8, 105 S.Ct. at 1699, 85 L.Ed.2d. at 7-8 (citations omitted). In the end, the real question is "whether the totality of the circumstances justified a particular sort of search or seizure." Garner, 471 U.S. at 8-9, 105 S.Ct. at 1700, 85 L.Ed.2d at 8. See also Graham, 490 U.S. at 396, 109 S.Ct. at 1872, 104 L.Ed.2d at 455. This balancing test underlies other Fourth Amendment violation determinations and is recognized by this Court. See Cartnail, 359 Md. at 286, 753 A.2d at 527.

In Graham, the Supreme Court expressly rejected a rigid formulation in defining the Fourth Amendment standard of reasonableness. The Court recognized that "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application[.]" Graham, 490 U.S. at 396, 109 S.Ct. at 1872, 104 L.Ed.2d at 455 (citing Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 (1979)). Because the reasonableness standard is fluid, "its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. at 1872, 104 L.Ed.2d at 455. See also Sharrar v. Felsing, 128 F.3d 810, 822 (3rd Cir. 1997) (recognizing several factors including "the possibility that the persons subject to the police action are themselves violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time"); Crosby v. Paulk, 187 F.3d 1339, 1351 (11th Cir. 1999) (quoting Sharrar).

Furthermore, the Graham Court explained that:

[t]he "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, nor by the mistaken execution of a valid search warrant on the wrong premises[.] With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

490 U.S. at 396-97, 109 S.Ct. at 1872, 104 L.Ed.2d at 455-56 (citations omitted). See also Okwa, 360 Md. at 200, 757 A.2d at 139. Because "the `reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officer['s] actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397, 109 S.Ct. at 1872, 104 L.Ed.2d at 456.

C.

The issue of establishing a "time frame" on the events that may be considered under Graham's totality of the circumstances test seems to me to have split fundamentally the federal circuits, this Court majority's rationalization notwithstanding ("the disagreement may be more the product of context and factual predicate than doctrinal split" — Maj. op. at 17). Several U.S. courts of appeal have determined that pre-seizure events leading up to the use of deadly force are irrelevant to the determination of whether the force was reasonable under the Fourth Amendment. In Salim v. Proulx, 93 F.3d 86 (2d Cir. 1996), the Court rejected the plaintiff's contention that the circumstances leading up to the police officer's use of force were relevant to a determination of excessive force. The Court stated:

Plaintiff faults [the Officer] for various violations of police procedure, such as failing to carry a radio or call for back-up, and also for failing to disengage when the other children entered the fray. However, [the officer's] actions leading up to the shooting are irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force. The reasonableness inquiry depends only upon the officer's knowledge of circumstances immediately prior to and at the moment that he made the split-second decision to employ deadly force.

Salim, 93 F.3d at 92. See also Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (court should focus on the circumstances at the moment force is used); Dickerson v. McClellan, 101 F.3d 1151, 1162 (6th Cir. 1996) (limiting excessive force inquiry "to the moments preceding the shooting"); Schulz v. Long, 44 F.3d 643, 648 (8th Cir. 1995) (discussing Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993) and holding that only the seizure itself is scrutinized, not pre-seizure events); Bella v. Chamberlain, 24 F.3d 1251, 1256 and n. 7 (10th Cir. 1994) (courts should only consider events immediately before use of deadly force and the moment force was used and should not consider pre-seizure events). But see Anderson v. Branen, 17 F.3d 552, 560 (2d Cir. 1994) ("we can envision cases in which a more specific instruction of excessive force might be appropriate or indeed required, [but] a specific instruction for the jury to consider the reasonableness of the force as a moment-by-moment inquiry was not necessary in this case") ; Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994) (in qualified immunity context, determination of excessive force is "to view it in full context, with an eye toward the proportionality of the force in light of all the circumstances").

These decisions are premised substantially on the Graham Court's recognition that, in determining reasonableness, a degree of deference must be accorded to the situation a police officer may be in when he or she makes a split-second decision to use deadly force. See Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872, 104 L.Ed.2d at 455-56. See e.g., Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991), discussed further infra. To allow the jury to consider other circumstances, i.e., pre-seizure events, allows the jury to engage in perfect hindsight analysis of what the police officer could have done, rather than whether what he or she did was reasonable under the immediate ambient conditions. This type of hindsight analysis, these circuits reason, is forbidden by the objective reasonableness standard required by Graham. Although accepting that 20/20 hindsight is irrelevant to the Graham analysis, other federal circuits nonetheless have refused to confine the excessive force determination to a specific point in time or time period.

In Deering v. Reich, 183 F.3d 645 (7th Cir. 1999), Reinhold Deering was fatally shot by deputy sheriff James Reich. The facts revealed that a warrant was issued for the arrest of Deering for failing to appear at a hearing on an earlier charge of misdemeanor property damage. Three deputy sheriffs went to Deering's home on his farm to arrest him at 12:45 a.m. They parked their police cruisers out of sight. On foot, they approached the home stealthfully and looked through the window of Deering's bedroom where he was asleep. Deering got up and went to the back door to inquire who was there. The officers apparently identified themselves. Deering retrieved his shotgun and the deputies told him to put it down. Events accelerated and Deering moved out of the house and into the yard. Deering apparently shot at one of the officers and Reich shot Deering. Deering's estate sued the deputy sheriff for violation of Deering's Fourth Amendment rights.

One of the principal issues in Deering was what role the "pre-seizure" moments leading up to the use of deadly force played under the reasonableness standard of the Fourth Amendment. The trial judge, in delivering his instructions to the jury, prohibited the jury from considering virtually all pre-seizure evidence. The Deering Court disagreed with the District Court's restrictive interpretation of the totality of the circumstances test in Graham. It stated:

The totality of the circumstances cannot be limited to the precise moment when Deering discharged his weapon. That Deering fired a shot is a very important factor; perhaps the jury could easily conclude that it was the controlling factor, but it is not the only relevant factor, in evaluating the constitutionality of Reich's response, which as we have noted was to discharge 11 rounds of ammunition in Deering's direction. If Deering's firing a shot were the only factor, we would hardly need a trial. And, in fact, the trial judge did not take this extreme view; testimony was not limited to the shooting alone. Some evidence was admitted about matters that occurred prior to the shooting as part of the "totality of the circumstances," a phrase which, in itself, ordinarily gives law enforcement officers a good deal of discretion. In fact, the phrase is most often used to provide justification for police action; usually the totality of the circumstances encompasses some fact or another which validates a search, a seizure, or such things as the reasonableness of force used to carry out an arrest. It includes information which the officer had at the time of his actions, but not information uncovered later.

Id. at 649-50. The Deering Court placed the Graham reasonableness standard in the context of the Supreme Court's recognition in Garner that the Fourth Amendment interests of the individual must be balanced with law enforcement necessity. The Deering Court elaborated: Reasonableness depends on the information the officer possesses prior to and at the immediate time of the shooting; the "knowledge, facts and circumstances known to the officer at the time he exercised his split-second judgment as to whether the use of deadly force was warranted." Reasonableness is evaluated from the officer's perspective at the time, not with 20/20 hindsight. What Deputy Reich knew about Deering and the basis for the warrant would seem to fall within these parameters. After all, we can only assume police do not approach the arrest of a jaywalker and a cop killer in the same fashion.

Id. at 650 (citations omitted).

The Court then discussed Garner and its balancing consideration:

[T]he Court [in Garner] considered the constitutionality of a Tennessee statute which authorized the use of deadly force against an unarmed, nondangerous fleeing suspect. In finding the statute unconstitutional, the Court specifically rejected the idea that the Fourth Amendment has nothing to say about how a seizure is made. Rather, in language which is cited over and over, the Court said that in order to determine the constitutionality of a seizure, one must "balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." At 8, 105 S.Ct. 1694, quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). In the balancing, "it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out." 471 U.S. at 8, 105 S.Ct. 1694.

Id. at 650-51. The Deering Court substantiated this view, by examining Brower v. County of Inyo, 884 F.2d 1316, 1318 (9th Cir. 1989), and explained:

. . . Brower involved a roadblock consisting of an 18-wheeler set up across a 2-lane road out of sight around a curve with the headlights of a police car trained on the approach so as to blind an oncoming driver. Brower, a fleeing suspect, slammed into the roadblock. The primary issue in the case was whether the driver's death constituted a seizure, and the unanimous conclusion was that it did. But the issue remained as to whether the seizure was reasonable. On remand [from the Supreme Court in Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)], the Court of Appeals for the Ninth Circuit assumed the high-speed chase which preceded the crash into the roadblock arguably constituted as a matter of law a substantial threat to the officers which would justify the use of deadly force. Nevertheless, the court said,

[T]here remains the question whether such force was necessary to prevent the escape. Necessity is the second prerequisite for the use of deadly force under Garner. The necessity inquiry is a factual one: Did a reasonable non-deadly alternative exist for apprehending the suspect?

Id. at 651 (citing Brower, 884 F.2d at 1318). "Applied to our case [ Deering], both the time and manner of the execution of the warrant are part of the totality of the circumstances." Id. See also Alexander v. City and County of San Francisco, 29 F.3d 1355, 1357 (9th Cir. 1994).

The Deering Court also refused to restrict the totality of the circumstances because in other cases within the same circuit, the underlying crime could sometimes be a factor in determining whether the police acted reasonably in using deadly force. Specific to Deering, the Court assessed whether the basis for the warrant, i.e., that it was issued for a misdemeanor, could be considered by the jury. Noting that Graham contemplated consideration of the severity of the underlying crime, Deering stated:

Estate of Starks v. Enyart, 5 F.3d 230 ([7th Cir.] 1993), involved both the issue of the underlying crime and the relevance of the police conduct. Considering both issues in the context of an officer's claim of qualified immunity from suit, we said that an officer may use deadly force "only to seize a fleeing felon who has committed a violent crime or who presents an immediate danger to the officer or others." Recognizing that officers may use deadly force to protect themselves "even after choosing a risky course of action," we nevertheless found it relevant to the analysis that the officers knew "that the underlying crime was not accomplished violently." [ Id. at] 233. Again we pointed out that it is necessary to balance the intrusion with the countervailing governmental interests at stake. In the context of fleeing felons, what that meant to us was the not very revolutionary idea that deadly force is allowed against violent fleeing felons in part because they have forfeited the right to a less intrusive seizure and that fleeing felons who have not resorted to violence have a right to less intrusive seizures.

But we continued:

If a fleeing felon is converted to a "threatening" fleeing felon solely based on the actions of a police officer, the police should not increase the degree of intrusiveness. In other words, we have no countervailing governmental interest in unreasonable police conduct that would justify a greater intrusion on the individual's rights.

[ Id. at] 234.

A further sampling of our cases illustrates our usual view of totality of the circumstances. In Jaffee v. Redmond, 51 F.3d 1346 (7th Cir. 1995), Officer Mary Lu Redmond responded to a report of a fight at an apartment complex. When she arrived at the scene, Ricky Allen was chasing and poised to stab another man with a butcher knife. Because a person's life was in danger, Redmond fired, killing Allen. A jury awarded Allen's surviving family members $545,000. Although we remanded the case for a new trial on other grounds, we approved an instruction which said that the jury should consider "all the facts and circumstances with which Mary Lu Redmond was confronted." In Plakas v. Drinski, [ 19 F.3d 1143, 1148 (7th Cir. 1994)] a deputy sheriff [Drinski] was confronted with a man [Plakas] menacing him with a fireplace poker and threatening him with death. The deputy shot and killed the man. In evaluating the district court's grant of summary judgment, relying on Tom v. Voida, 963 F.2d 952 (7th Cir. 1992), we said that in determining reasonableness, we "carve up the incident into segments and judge each on its own terms to see if the officer was reasonable at each stage." 19 F.3d at 1150.

Deering, 183 F.3d at 651-52. See also Menuel v. City of Atlanta, 25 F.3d 990 (11th Cir. 1994) (citing Plakas with approval).

The Deering Court summarized Seventh Circuit precedent as follows:

These cases — and others too numerous to relate — mean that what Deputy Reich knew at the time — about Deering, his crime, and the warrant, and his perception of the danger he and the other deputies were in — was relevant to the evaluation of the reasonableness of his conduct. In addition, the balancing required by Garner requires a look at the countervailing governmental interest in serving the warrant on Deering, which would include the time and manner in which it was served. Finally, of course, all of the events that occurred around the time of the shooting are relevant. In other words, the totality of the circumstances is what must be evaluated. When a case is tried to a jury, the evaluation of those circumstances must be left to that jury.

Id. at 652.

In St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir. 1995), the Court expressly rejected setting a time frame on the totality of the circumstances test, stating:

We . . . reject defendants' analysis that the police officers' actions need be examined for "reasonableness" under the Fourth Amendment only at the moment of the shooting. We believe that view is inconsistent with Supreme Court decisions and with the law of this Circuit. The Supreme Court in Brower v. Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), held that once it has been established that a seizure has occurred, the court should examine the actions of the government officials leading up to the seizure.

The Court held that petitioners' decedent was "seized" when he crashed into a police roadblock set up in order to stop his flight. "We think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result." Id. at 599, 109 S.Ct. at 1382. The Court remanded the cause for a determination of whether the seizure was "unreasonable" in light of petitioners' allegations that the roadblock had been set up in such a manner as to be likely to kill the decedent. Id. . . .

In Abraham v. Raso, 183 F.3d 279 (3rd Cir. 1999), the Court of Appeals for the Third Circuit reversed the granting of summary judgment to a police officer on the issue of excessive force. In Abraham, the estate of Robert Abraham sued police officer Kimberly Raso after she shot and killed Abraham in a mall parking lot as he tried to escape after being caught shoplifting from a Macy's department store. Raso claimed that she shot Abraham only after he tried to hit her with his car as she tried to block his path. The estate claimed that Abraham was shot from the side, not the front of the car, demonstrating that the police officer's life was not in danger. The claim was that excessive force was used to capture Abraham for evading arrest. The District Court granted summary judgment in favor of Raso because the trial judge determined that Abraham was a threat to the public and it was reasonable for Raso to use deadly force to apprehend him.

The Abraham Court explained that Graham required consideration of whether the suspect was a threat to the officer or public. See 183 F.3d at 289. To determine whether Abraham was a threat to the officer or the public required analysis of the events leading up to the shooting. The Court rejected the reasoning of its sister jurisdictions that have excluded pre-seizure events leading up to the use of deadly force:

[W]e want to express our disagreement with those courts which have held that analysis of "reasonableness" under the Fourth Amendment requires excluding any evidence of events preceding the actual "seizure." See, e.g., Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993) ("we scrutinize only the seizure itself, not the events leading to the seizure"); Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992)("pre-seizure conduct is not subject to Fourth Amendment scrutiny."); Bella v. Chamberlain, 24 F.3d 1251, 1256 (10th Cir. 1994) (quoting Bone and Carter). The District Court alluded to similar cases confining the reasonableness inquiry to the moment the officer used force.

Based on these cases, we apparently should not consider any of the circumstances before the moment Abraham was actually struck by Raso's bullet because, following California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), a suspect is not seized until he submits to the police's show of authority or the police subject him to some degree of physical force. Bone, Carter, and Bella might be understood as only excluding evidence that helps the plaintiff show the force was excessive, so on this more narrow reading, we could consider Abraham's pre-seizure conduct if it undermines the estate's case. But even apart from the problematic justification for such a distinction, there are considerable practical problems with trying to wrest from a complex series of events all and only the evidence that hurts the plaintiff. (What do we say about Abraham's inching forward before he began accelerating? Assuming the inching occurred, does it help him by showing he really did not want to hit Raso and was just wondering whether she would shoot when he drove past her, or does it show that he weighed his options and decided he would hit her? If the evidence can only be considered on the latter interpretation, should a limiting instruction be available upon request?) In any event, since the cases purport to exclude all pre-seizure conduct and do not expressly draw any distinction between who the evidence helps, our discussion will assume the rule applies generally to all pre-seizure conduct.

We reject the reasoning of Bone, Carter, and Bella because we do not see how these cases can reconcile the Supreme Court's rule requiring examination of the "totality of the circumstances" with a rigid rule that excludes all context and causes prior to the moment the seizure is finally accomplished. "Totality" is an encompassing word. It implies that reasonableness should be sensitive to all of the factors bearing on the officer's use of force.

Abraham, 183 F.3d at 291. The Abraham Court was particularly critical of such a time restriction because it is impractical in application:

A more fundamental point is that it is far from clear what circumstances, if any, are left to be considered when events leading up to the shooting are excluded. How is the reasonableness of a bullet striking someone to be assessed if not by examining preceding events? Do you include what Raso saw when she squeezed the trigger? Under at least some interpretations of Hodari, Abraham evidently was not seized until after the bullet left the barrel and actually struck him. See Hodari D., 499 U.S. at 630, 111 S.Ct. at 1552 (dissenting opinion)(suggesting that under the majority's analysis, there may be no seizure when the police shoot and miss). If we accept both this interpretation of Hodari as well as the rule that pre-seizure conduct is irrelevant, then virtually every shooting would appear unjustified, for we would be unable to supply any rationale for the officer's conduct.

Courts that disregard pre-seizure conduct no doubt think they could avoid this problem. But even rejecting the rigorous interpretation of Hodari, courts are left without any principled way of explaining when "pre-seizure" events start and, consequently, will not have any defensible justification for why conduct prior to that chosen moment should be excluded.

The Supreme Court has allowed events prior to a seizure to be considered in analyzing the reasonableness of the seizure. In Brower, the Court remanded for a determination of whether the police acted reasonably in constructing a roadblock used to seize a suspect in a car chase. The suspect's estate alleged that the police designed the roadblock in a way likely to kill by placing a tractor trailer behind a curve and directing car headlights to blind the suspect as he rounded the curve. Brower, 489 U.S. at 599, 109 S.Ct. at 1383. Under the analysis encouraged in Bone, Carter, and Bella, preparations predating the moment of seizure, i.e., the moment the car actually collided with the tractor trailer, must be barred from consideration. But if preceding conduct could not be considered, remand in Brower would have been pointless, for the only basis for saying the seizure was unreasonable was the police's pre-seizure planning and conduct. Hodari itself cited Brower but did not suggest the Supreme Court was now rejecting Brower `s implication that pre-seizure conduct is relevant to the reasonableness of a seizure.

We agree with the First Circuit which concluded that Bone, Carter, and other courts following their rule are mistaken and misread Hodari when they suggest the case supports their rule. As the First Circuit explained:

[T]he question in [ Hodari] was not whether the seizure was reasonable, which requires an examination of the totality of the circumstances, but whether there had been a seizure at all. We do not read this case as forbidding courts from examining circumstances leading up to a seizure, once it is established that there has been a seizure. We understand Hodari to hold that the Fourth Amendment does not come into play unless there has been a seizure . . .

St. Hilaire, [71 F.3d at 26, n. 4]. In sum, we think all of the events transpiring during the officers' pursuit of Abraham can be considered in evaluating the reasonableness of Raso's shooting. Cf. Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994) ("The better way to assess the objective reasonableness of force is to view it in full context, with an eye toward the proportionality of the force in light of all the circumstances. Artificial divisions in the sequence of events do not aid a court's evaluation of objective reasonableness.").

Id. at 291-92.

The Abraham Court did recognize that not all pre-seizure events or facts are equally relevant or important and some may be so attenuated that they have no connection to a police officer's use of force. See 183 F.3d at 292. "But what makes these prior events of no consequence are ordinary ideas of causation, not doctrine about when the seizure occurred." Id.

In Jackson v. Sauls, 206 F.3d 1156, 1170 (11th Cir. 2000), the Court also rejected a bright line rule:

this Court has concluded that "Fourth Amendment jurisprudence has staked no bright line for identifying forces as excessive," that "[t]he hazy border between permissible and forbidden force is marked by a multifactored, case-by-case balancing test," and "[t]he test requires weighing of all the circumstances." Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997).

Despite the split within the federal circuits, the federal courts of appeal universally accord deference to the nature of situations when a police officer is called upon to determine whether deadly force should be used and, therefore, prohibit 20/20 hindsight inquiry of those situations. In Roy v. Inhabitants of the City of Lewiston, 42 F.3d 691 (1st Cir. 1994), the Court affirmed the District Court's grant of summary judgment to a defendant police officer in the context of a § 1983 claim of excessive force. The facts were undisputed. Two police officers, including an officer Whalen, answered a domestic violence call at the home of Michael Roy. Roy's wife told the police when they arrived that Roy had two knifes and that he told her he would use them on the police officers if they approached him. The police officers went to the backyard where they found Roy lying on the ground. Roy, who was drunk, became angry when he learned from the officers on the scene that another officer was on his way to serve Roy with a summons based on a complaint filed by another woman whom he allegedly struck earlier the same day. The third police officer arrived and read Roy his Miranda rights. Roy refused to accept the summons so the police officer pushed it into Roy's pocket. Roy got upset went into the house, got two steak knives, and came out of the house flailing his arms, knives in hand. The officers retreated backwards and gave warnings. They made attempts to distract Roy and disarm him. Roy then lunged toward Whalen and his fellow officer. Whalen shot Roy twice.

Roy did not dispute that these events happened. Rather, he claimed that the police officers were not properly trained in alternative methods of using non-deadly force. An expert on police procedure submitted an affidavit stating that the police officers should have used mace, but they did not because the police force does not supply mace to its officers. He went further to say the police officers should have stayed at least 20 feet away from Roy, according to proper procedures, but that they were only a few feet away. In comparing common law negligence to the Fourth Amendment reasonableness standard, the Court of Appeals stated:

the Supreme Court's standard of reasonableness is comparatively generous to the police in cases where potential danger, emergency conditions or other exigent circumstances are present. In [ Graham], the Court said that the "calculus of reasonableness" must make "allowance" for the need of police officers "to make split second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Id. at 396-97, 109 S.Ct. at 1871-72. Cf. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (negligence not a due process violation).

Also pertinent is the Court's more general statement in Anderson v. Creighton addressed to qualified immunity for a Fourth Amendment violation. The Court used as its standard the "reasonable officer" and what "could reasonably have been thought lawful" by such an officer, 483 U.S. at 638, 107 S.Ct. at 3038, terms suggesting a measure of deference. The Court then quoted earlier decisions saying that immunity protects "all but the plainly incompetent or those who knowingly violate the law" or those who act where "the law clearly proscribed the actions" taken. Id. at 638-39, 107 S.Ct. at 3038. See also Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 1097, 89 L.Ed.2d 271 (1986) (qualified immunity leaves "ample room for mistaken judgments").

What these precedents dictate is this: whether substantive liability or qualified immunity is at issue, the Supreme Court intends to surround the police who make these on-the-spot choices in dangerous situations with a fairly wide zone of protection in close cases. Decisions from this circuit and other circuits are consistent with that view. And in close cases, a jury does not automatically get to second-guess these life and death decisions, even though the plaintiff has an expert and a plausible claim that the situation could better have been handled differently.

Roy, 42 F.3d at 695.

After this background analysis, the Court held:

we think that the district court properly granted summary judgment on the section 1983 claim in favor of Whalen. Perhaps a jury could rationally have found that Whalen could have done a better job; but in our view a jury could not find that his conduct was so deficient that no reasonable officer could have made the same choice as Whalen — in circumstances that were assuredly "tense, uncertain, and rapidly evolving. . . ." Graham, 490 U.S. at 397, 109 S.Ct. at 1872. Put differently, Whalen's actions, even if mistaken, were not unconstitutional.

Id. at 695-96. The Court then conceded:

We have labored over this single point — the Supreme Court's objective reasonableness standard — without any hope of articulating a more concrete or precise gloss of the Court's language. What can be said is that the term reasonableness is used in different ways in different contexts; and in this one — the use of deadly force by the police in dangerous situations — the Supreme Court has allowed more latitude than might be customary in a simple tort case involving careless driving. Terms like "plainly incompetent" or concepts like what "a reasonable officer could have believed" are inherently general, but they add nuance and provide a sense of direction.

Id. at 696.

The standard set forth by Roy has been applied by the other federal courts of appeal. See Katz v. United States, 194 F.3d 962, 968-69 (9th Cir. 1999) ("To resolve the merits of an excessive force claim, the question is whether a reasonable officer could have believed that the force used was necessary under the circumstances" or in other words "[a]n officer cannot have an objectively reasonable belief that the force used was necessary . . . when no reasonable officer could have believed that the force used was necessary); Scott v. District of Columbia, 101 F.3d 748, 759 (D.C. Cir. 1997) ("[T]he proper question for the jury is whether `the excessiveness of the force is so apparent that no reasonable officer could have believed in the lawfulness of his actions'")(citations omitted); Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995) ("no rational jury could have found that the force used was so excessive that no reasonable officer would have made the same choice").

To this end, it has been recognized that alternative strategies the police officer could have used before effecting deadly force do not necessarily mean that the strategy chosen was unreasonable. See Deering, 183 F.3d at 650 (whether the force was necessary under the totality of the circumstances does not necessarily mean "whether it was reasonable for the police to create the circumstances" or that the police must consider all viable alternatives before engaging in deadly force); Scott, 101 F.3d at 759 ("a plaintiff cannot demonstrate excessive force if the mode of arrest is one that a reasonable officer might have applied"); Hegarty v. Somerset County, 53 F.3d 1367, 1377 (1st Cir. 1995) (courts should not determine which strategy was the most prudent but rather whether the strategy chosen was); Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994) ("the appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them"); Plakas, 19 F.3d at 1149 ("The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable. We do not believe the Fourth Amendment requires the use of the least or even a less deadly alternative so long as the use of deadly force is reasonable")(citations omitted)).

I think it impractical to confine the "totality of the circumstances" to a particular period of time. The reality is that the U.S. courts of appeal that have attempted such a confinement, despite taking great pains to assert that the only circumstances that are used to determine reasonableness when deadly force was used is at the moment, or just prior to, the deadly force being applied, nonetheless rely on pre-seizure facts and activities to make their determination as to whether excessive force was used. Without reference to and consideration of pre-seizure events, no context for reasonableness evaluation of the totality of the circumstances can be illustrated. How else is the jury to understand the setting in which the force was used ultimately? How else is the jury to acquire the facts known to, or which should have been known by, the defendant police officer at the moment the force was used? Those same facts are vital for the jury to determine whether a reasonable police officer in the ambient situation at issue would have used deadly force. Indeed, the shortsightedness of the majority's and Respondent's position is readily apparent in light of the Deering Court's recognition that pre-seizure events might very well be needed by a defendant police officer to prove his or her use of deadly force was reasonable under the totality of the circumstances.

Furthermore, a standardized time frame or line of demarcation for considering deadly force reasonableness would be contrary to the spirit of Graham in that it would foreclose a myriad of other factors Graham contemplates as apt for consideration, i.e. assessing the suspect's danger to the public or the officer, the severity of the crime the suspect allegedly committed, and the suspect's actions in his or her attempt to evade arrest. Some of the facts necessary to make these determinations will not arise necessarily at the moment the deadly force is used. Indeed, as noted supra, Graham recognized that a strict definition for assessing reasonableness under the Fourth Amendment would be an exercise in futility. Rather, the numerous factors considered must be placed on a scale in order to balance the individual's Fourth Amendment rights against law enforcement needs.

In deadly force cases where individuals are killed, they obviously are unavailable to give their account of the circumstances leading up to their "seizure." As such, scrutiny of the facts and pre-seizure events is necessary to reinforce the integrity of the legal process, as well as law enforcement generally, and to ensure that justice is served during trial. See Scott, 39 F.3d at 915. This means the presentation of witnesses, physical evidence, medical reports, and other evidence will be needed to assess the credibility of the surviving police officer's account of the facts. See id. The courts cannot simply accept the circumstances of the incident as offered by the defendant survivor. See id. The entire purpose of the trial is for the jury to determine the credibility and weight of facts as presented by both sides, and make its determination of whether deadly force was reasonable under the totality of the circumstances.

I would hold, therefore, that the trial judge erred in his supplemental instructions by confining the jury's consideration of the totality of the circumstances to the moment the shot was fired and that such instruction prejudicially impacted fair consideration of Petitioner's claims. There may be circumstances where, regardless of what transpired before the shooting, that a suspect's or individual's actions at the moment just before the shooting would give an officer reason to believe that deadly force was necessary. See e.g., Fraire v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992). Indeed, "[t]he Fourth Amendment does not require police officers to wait until a suspect shoots to confirm that a serious threat of harm exists." Elliott, 99 F.3d at 643. This determination, however, is made upon consideration of the totality of the relevant circumstances.

III. A.

Petitioner argues that the trial court erroneously granted the motion in limine to exclude the police guidelines because whether the guidelines are probative, and thus relevant, to the counts of gross negligence, battery, and to the violation of his civil rights under Article 26 of the Maryland Declaration of Rights must be assessed individually. Instead, in this case, the trial judge granted the motion in limine as a blanket prohibition to the admission of the guidelines without first making an individual assessment of probity and relevance as to each cause of action. I agree with Petitioner that "analysis of the probative value of the excluded evidence for each count is different" and that the trial judge should have assessed whether the guidelines were probative as to each cause of action.

Respondent argued to this Court that the Fourth Circuit has prohibited the introduction of police procedures and guidelines, a position the majority here appears to accept (Maj. op. at 20-21). He argued that, in light of these cases, such guidelines are irrelevant to the jury's assessment of whether deadly force was reasonable or whether the police officer acted in self-defense and that we should hold that such guidelines are inadmissible per se. Moreover, as to the gross negligence claim, Respondent asserted that even if the police guidelines were relevant, he is immune from suit under the qualified public official immunity doctrine.

B. Article 26

I would dispose of this sub-issue with relative brevity in light of Part II of this dissent. This Court frequently has considered police procedures and guidelines in determining whether police activity was reasonable under given circumstances. See e.g., Williams v. Mayor City Council of Baltimore, 359 Md. 101, 139-40, 753 A.2d 41, 61-62 (2000); Albrecht, 336 Md. at 502-03, 649 A.2d at 349-50; Boyer v. State, 323 Md. 558, 591, 594 A.2d 121, 137 (1991).

Indeed, the Supreme Court's holding in Garner was based partially on consideration of police procedures. In Garner, the Court held that the common law rule enabling officers to use all necessary means, including deadly force, to effect an arrest of a fleeing felon was unconstitutional particularly "when viewed in light of the policies adopted by the police department themselves" which narrowed the circumstances of when deadly force could be used as compared to the common law. See 471 U.S. at 18, 105 S.Ct. at 1705, 85 L.Ed.2d at 14.

Federal courts of appeals have determined, in excessive force contexts, that police procedures are admissible in determining whether police actions were reasonable. See Ludwig v. Anderson, 54 F.3d 465, 472 (8th Cir. 1995) ("Although these `police department guidelines do not create a constitutional right,' they are relevant to the analysis of constitutionally excessive force") (citations omitted); Scott, 39 F.3d at 916 (police procedures are admissible if they are germane to the reasonableness inquiry in an excessive force claim); Samples v. City of Atlanta, 916 F.2d 1548, 1551 (11th Cir. 1990) (proper for expert to testify to law enforcement standard for exercising deadly force); Kladis v. Brezek, 823 F.2d 1014, 1019 (7th Cir. 1987) (expert could testify on proper police procedures for disarming suspect in excessive force case); Peraza v. Delameter, 722 F.2d 1455, 1456 (9th Cir. 1984) (trial judge did not commit error in admitting canine policy in excessive force case).

Neither the majority nor the Respondent has convinced me that Fourth Circuit precedent is settled on the issue of whether police procedures are inadmissible per se in excessive force cases. In Greenidge, 927 F.2d at 791, 793 the Court of Appeals for the Fourth Circuit held that the District Court did not abuse its discretion in prohibiting the plaintiff from introducing police procedures to show that the defendant police officer's deviance from police procedures may have lead to the use of deadly force. In particular, the police procedures at issue related to night time prostitution arrests. The police officer observed an illegal sex act in progress. With her badge displayed, she opened the car door and identified herself as a police officer. She ordered the two occupants to place their hands in view. Neither complied. The police officer drew her revolver, pointed it into the car, and repeated her instructions. The plaintiff then reached for an object from behind the seat. The object the officer thought was a shotgun turned out later to be a wooden nightstick. The officer fired her gun and shot the plaintiff, causing him permanent injury. The plaintiff alleged that the police officer should have called for back-up before making the arrest and should have used a flashlight in accordance with police procedures.

In focusing on the Graham Court's emphasis on the moment when the police officer makes the split-second judgment to use deadly force, the Court held "we are persuaded that events which occurred before [the officer] opened the car door and identified herself to the passengers are not probative of the reasonableness of [the officer's] decision to fire the shot. Thus, the events are not relevant and are inadmissible." Greenidge, 927 F.2d at 792. See Elliott, 99 F.3d at 643-44 (approving and applying Greenidge's reasoning); Drewitt v. Pratt, 999 F.2d 774, 779 (4th Cir. 1993).

In Kopf v. Syrm, 993 F.2d 374, 378-80 (4th Cir. 1993), however, the Court reversed the District Court's grant of summary judgment in favor of the defendant police officers. In Kopf, three police officers chased down a robbery suspect, Anthony Casella. The police officers used various means to subdue Casella, including a slapjack and an attack dog named "Iron." Casella was severely beaten and suffered from multiple dogs bites. He suffered permanent mental disabilities from which he never recovered. He filed suit against the police officers. During the pendency of the case, he was killed in prison while serving the sentence for the robbery conviction. His mother, Ada Kopf, was substituted as plaintiff.

The District Court granted the defendants' motion in limine that two of the plaintiff's expert witnesses would not be permitted to testify as to the standard of how to use a police dog nor on the proper use of slapsticks. The plaintiff was then forced at trial to call one of the defendant police officers to examine him on the use of the dog and the slapstick. Ms. Kopf also introduced police lesson plans which stated that the police should not strike the aggressor's head, neck, or throat. The trial judge permitted the defendant officers to call in their case the author of the lesson plans to testify that the police may be able to hit an aggressor's head if necessary on rare occasions. The plaintiff's experts thereafter were not allowed to be called to rebut the author's assertions. The jury found in favor of the defendants.

On appeal, the plaintiff argued that her two experts — Thomas Knott, a retired canine unit trainer for the Baltimore City police, and Robert diGrazia, former Montgomery County, Maryland, Chief of Police — would have testified that the modalities of deadly force used by the police officers were excessive in light of accepted police practices on the use of dogs and slapsticks. The Court of Appeals reversed:

The district court held that the excessive force standard — "objective reasonableness" — is comprehensible to a lay juror and that expert testimony would therefore not assist the trier of fact. . .

As a general proposition, the "objective reasonableness" standard may be comprehensible to a lay juror. On the other hand, any "objective" test implies the existence of a standard of conduct, and, where the standard is not defined by the generic — a reasonable person — but rather by the specific — a reasonable officer — it is more likely that Rule 702's [of the Federal Rules of Evidence] line between common and specialized knowledge has been crossed.

The district court seems to have deduced a blanket rule that expert testimony is generally inappropriate in excessive force cases from Wells v. Smith, 778 F. Supp. 7 (D.Md. 1991). To the contrary, expert testimony has often been admitted in such cases. Davis v. Mason County, 927 F.2d 1473, 1484-1485 (9th Cir.), cert. denied, 502 U.S. 899, 112 S.Ct. 275, 116 L.Ed.2d 227 (1991); Samples v. City of Atlanta, 916 F.2d 1548, 1551-1552 (11th Cir. 1991); Kerr v. City of West Palm Beach, 875 F.2d 1546, 1551 (11th Cir. 1989) (expert testimony concerning expected dog bite ratios in canine units); Kladis v. Brezek, 823 F.2d 1014 (7th Cir. 1987). Nonetheless, a blanket rule that expert testimony is generally admissible in excessive force cases would be just as wrong as a blanket rule that it is not.

The facts of every case will determine whether expert testimony would assist the jury. Where force is reduced to its most primitive form — the bare hands — expert testimony might not be helpful. Add handcuffs, a gun, a slapjack, mace, or some other tool, and the jury may start to ask itself: what is mace? what is an officer's training on using a gun? how much damage can a slapjack do? Answering these questions may often be assisted by expert testimony.

A dog is a more specialized tool than a gun or slapjack. How to train a poodle to sit or roll over is not everyday knowledge and could be explained by an expert in a case where it was relevant. How to train and use a police dog are even more obscure skills. Both Knott and diGrazia were qualified to testify about this specialized knowledge by their long experience.

diGrazia's proffered testimony about the use of slapjacks is a closer issue. A club and the damage it can cause when it strikes a person's head are easily understood by most laymen. Still, diGrazia should clearly have been permitted to testify as to the prevailing standard of conduct for the use of slapjacks, even if he had been precluded from giving an opinion on the ultimate issue of whether the use in this case was reasonable.

The total, in limine exclusion of Knott and diGrazia's testimony was an abuse of discretion.

Kopf, 993 F.2d at 378-79.

While I do not assay to reconcile these two cases, I note that both Greenidge and Kopf dealt with the admissibility of facts that purported to show that police conduct deviated from police training or operating procedures. Whether these facts were to be introduced via witness testimony or documents is not material to the issue of whether police training or procedures are inadmissible per se because, as the majority and Respondent claim, they allow the jury to engage in 20/20 hindsight analysis of how a police officer should have acted in the ideal, rather than whether the police officer acted reasonably under the totality of the circumstances. Here, the trial court seemingly granted Respondent's motion in limine based not just on the belief that the guidelines were irrelevant to the issue of whether the deadly force was necessary at the moment the shot was fired, but also because the trial court was concerned that Petitioner was attempting to show that a deviation from the guidelines was unreasonable per se.

In light of Part II of this dissent and that police guidelines are often considered as a factor in determining the reasonableness of police conduct, I conclude that the trial court erred in refusing, at least for the reasons offered, to allow the guidelines to be admitted. The previously highlighted portions of the guidelines Petitioner sought to admit in the case sub judice were relevant to and probative of the issue of whether reasonable force was used by Respondent. These procedures are part of a Baltimore City police officer's ongoing training. They aid the Baltimore City police department in molding the "reasonable police officer." The guidelines, like the consideration of pre-seizure events discussed supra, may not be restricted neatly to a temporal setting. In combination with other training and experience in the field, they resonate with the police officer when he or she confronts a decision to use deadly force, whether that decision is made ten seconds, three to six seconds (as Respondent estimated the critical period to be here), or a nanosecond before a shot is fired. As such, they also aid lay persons — such as usually populate a jury— in appraising whether a police officer acted reasonably in cases where deadly force is used. Part of that reasonableness, according to the guidelines, is for the police officer to determine, under the situation he or she faces, when to use deadly force.

A more restrictive approach would be unwise. While deviance from police procedures can be used as evidence to show that the police officer may have acted unreasonably, those procedures might also be used to show that he or she acted reasonably. This well may be the case here, where the guidelines provide the police officers with wide discretion under exigent circumstances.

I share the trial court's concern that Petitioner may have intended to show, through introduction of the guidelines, that a deviation from police procedures demonstrates that the police officer per se acted unreasonably. Police procedures are not necessarily the gold standard for determining self-defense, nor is a deviance from police procedures in itself a cause of action in Maryland. The proper method of placing in proper context the consideration by a jury of police guidelines and procedures is by instructing the jury that they are but some of the many factors to be considered and should not alone be deemed dispositive of the question of reasonableness.

I am not unaware of the many dangerous situations police officers confront on a daily basis. The police officer's privilege to use deadly force, however, must be balanced against a citizen's right to be free from unjustified injury or death. One way to balance these interests is for a jury to weigh relevant evidence, fairly presented by both sides. These factors must be balanced and weighed by the jury, not the trial judge. The determination of reasonableness under the circumstances here is an issue for the trier of fact to decide. See Guerriero v. State, 213 Md. 545, 549, 132 A.2d 466, 468 (1957); Baltimore Transit Co. v. Faulkner, 179 Md. 598, 601, 20 A.2d 485, 487 (1941) ; Wilson v. State, 87 Md. App. 512, 521, 590 A.2d 562, 566 (1991).

C. Battery

Petitioner asserts that the per se exclusion of the police guidelines was error because those guidelines were relevant to the issue of Respondent's assertion of self-defense with regard to his battery claim. He argues:

In determining whether or not [Respondent's] actions were justifiable self-defense to a battery claim, one cannot look at his actions in a vacuum. One cannot claim he is acting in self-defense when he creates a danger which necessitates the act which he claims is self-defense.

The Baltimore Police Department Training Bulletin Guidelines on Use of Deadly Force state in pertinent part that "[o]fficers must use deadly force only as a last resort," "[o]fficers should try to avoid putting themselves in a situation where they have no option but to use deadly force," and should "[w]ait for [a] sufficient number of officers to handle [the] situation without undue force."

[Respondent's] claim of self-defense weakens considerably in light of his violation of the Guidelines. Clearly, [Respondent] did not avoid putting himself in a situation where he had no option but to use deadly force and did not wait for a sufficient number of officers to handle the situation without undue force. The call the officers received indicated that they were outnumbered seven to two, and shots had been fired. Entering such a situation in which he was outnumbered greatly increased the likelihood that Officer McGriff would place himself in a situation where he would use deadly force due to a perceived need for self-defense. Accordingly, by his violation of the Guidelines, [Respondent] created the circumstances which compelled him to act in "self-defense." Furthermore, [Respondent's] failure to turn on the lights in an "extremely dark" kitchen also greatly increased the likelihood that he would misperceive what was in the closet and result in [Respondent] discharging his weapon in "self-defense." By not turning on the lights in the "extremely dark" kitchen, [Respondent] failed to avoid putting himself in a situation where he had no option but to use deadly force.

Respondent relies on his argument that the guidelines are inadmissible per se under Graham.

It is fundamental that a public official has no immunity if he or she commits an intentional tort. See Ashton v. Brown, 339 Md. 70, 117, 660 A.2d 447, 470 (1995); Cox v. Prince George's County, 296 Md. 162, 169, 460 A.2d 1038, 1041 (1983). Respondent's defense to the tort of battery was that it was justified by self-defense.

In Jones v. State, 357 Md. 408, 422, 745 A.2d 396, 403 (2000), this Court noted that the majority of Maryland cases relating to self-defense have occurred in murder contexts. We delineated the elements of perfect self-defense as follows:

(1) the defendant actually believed that he or she was in immediate or imminent danger of bodily harm;

(2) the defendant's belief was reasonable;

(3) the defendant must not have been the aggressor or provoked the conflict; and

(4) the defendant used no more force than was reasonably necessary to defend himself or herself in light of the threatened or actual harm.

Jones, 357 Md. at 422, 745 A.2d at 403. See also State v. Faulkner, 301 Md. 482, 485-86, 483 A.2d 759, 761 (1984); Guerriero v. State, 213 Md. 545, 549, 132 A.2d 466, 467 (1957). This Court has recognized, however, that the doctrine of perfect self-defense also applies to non-murder crimes, such as common law assault, in both criminal and civil contexts. See Jones, 357 Md. at 425, 745 A.2d at 405 (perfect self-defense is a defense to common law assault charges); Baltimore Transit Co., 179 Md. at 600, 20 A.2d at 487 ("If an injury was done by a defendant in justifiable self-defense, he can neither be punished criminally nor held responsible for damages in a civil action").

While self-defense contains both subjective and objective elements, it is the objective element of reasonable force that was argued by both parties here. See Burch v. State, 346 Md. 253, 282, 696 A.2d 443, 458 (1997) (discussing Faulkner, 301 Md. at 500, 483 A.2d at 768-69 and the subjective and objective elements of self-defense); Bell v. State, 114 Md. App. 480, 503, 691 A.2d 233, 244 (1997) (state of mind is an integral element of self-defense). In Baltimore Transit Co., we explained:

One who seeks to justify an assault on the ground that he acted in self-defense must show that he used no more force than the exigency reasonably demanded. The belief of a defendant in an action for assault that the plaintiff intended to do him bodily harm cannot support a plea of self-defense unless it was such a belief as a person of average prudence would entertain under similar circumstances. The jury should accordingly be instructed that to justify assault and battery in self-defense the circumstances must be such as would have induced a reasonable man of average prudence to make such an assault in order to protect himself.

179 Md. at 601, 20 A.2d at 487. See also Jones, 357 Md. at 425, 745 A.2d at 405 ("when an individual reacts, in an honest and reasonable belief, to a threat of imminent danger that may cause his or her death or serious bodily harm and uses no more force than the situation requires, that individual is legally exonerated from the criminal liability his or her actions may create . . .").

Harper, James, and Gray have noted that in assessing reasonableness, the trier of fact must keep several factors in mind:

"The reasonable character of the means which the actor uses is determined by what a reasonable man, under the circumstances which the actor knows or has reason to know to exist at the time, would regard as permissible in view of the danger threatening him. In determining this, account must be taken of the fact that the other's conduct has put the actor in a position in which he must make a rapid decision. The test is what a reasonable man in such an emergency would believe permissible and not that which, after the event and when the emergency is past, a reasonable man would so recognize as having been sufficient."

Fowler V. Harper, et al., The Law of Torts § 3.11, at 314 2d 1986) (citing Restatement (Second) of Torts § 63, Comment j, (1965)).

In cases alleging lack of reasonableness by a police officer, the objective analysis must be determined in light of the reasonable police officer, rather than the average reasonable layman. In Albrecht, we reasoned:

Under almost all circumstances, the gratuitous pointing of a deadly weapon at one civilian by another civilian would almost certainly be negligence per se, if not gross negligence per se. A police officer, on the other hand, is authorized and, indeed, frequently obligated to threaten deadly force on a regular basis. The standard of conduct demanded of a police officer on duty, therefore, is the standard of a reasonable police officer similarly situated.

336 Md. at 501, 649 A.2d at 349 (citing Albrecht v. State, 97 Md. App. 630, 642, 632 A.2d 163, 169 (1993)). In Wilson v. State, 87 Md. App. 512, 521, 590 A.2d 562, 566 (1991), the Court of Special Appeals elaborated on the use of reasonable force when police make an arrest:

What amounts to reasonable force on the part of an officer making an arrest usually depends on the facts in the particular case, and hence the question is for the jury. The reasonableness of the force used must be judged in the light of the circumstances as they appeared to the officer at the time he acted, and the measure is generally considered to be that which an ordinarily prudent and intelligent person, with the knowledge and in the situation of the arresting officer, would have deemed necessary under the circumstances.

With this heightened standard in mind, I cannot, without sacrificing intellectual honesty, deny that the Fourth Amendment reasonableness standard is similar to the reasonableness standard under the self-defense doctrine as it applies to conduct by police officers. I decline, however, to equate the two doctrines. Unlike the purely objective standard required by Graham, the self-defense doctrine contains both subjective and objective elements. Subjectiveness has been excluded by the Supreme Court from excessive force evaluation under the Fourth Amendment. Furthermore, the federal standards under Fourth Amendment analysis may evolve in ways that might not comport with Maryland's evolution of the law of self-defense. While I decline to equate the two standards, however, I do not restrict myself from looking to federal constitutional reasonable standards where it makes sense to do so.

Some of the concepts in Graham, for example, resonate in our cases that discuss police officer civil liability. In Boyer, this Court explained, albeit in an emergency vehicle pursuit context, that, despite the fact that police officers may owe a duty of care to innocent third party individuals when chasing a suspect, the nature of a police officer's dangerous daily activity mandated some deference to the officer's conduct in an emergency situation. See 323 Md. at 589, 594 A.2d at 136. We opined:

It must be remembered that the police officer's conduct should be judged not by hindsight but should be viewed in light of how a reasonably prudent police officer would respond faced with the same difficult emergency situation. The officer is not to be held to the same coolness and accuracy of judgment of one not involved in an emergency vehicle pursuit. Any officer, confronted with the situation where an individual who poses a threat to others refuses to stop, and instead attempts to flee at a high rate of speed, must make a split-second decision as how to respond. Risks are attendant upon the officer's decision to pursue and on his decision not to pursue. A high-speed chase may aggravate an already dangerous situation by causing a driver who appears to be operating his vehicle dangerously to do so at higher speeds. On the other hand, if the officer does not pursue an individual believed to be dangerous on the road, such as an intoxicated driver, that individual may nonetheless continue on a dangerous course of conduct and seriously injure someone.

Boyer, 323 Md. at 589-90, 594 A.2d at 136-37 (citations omitted).

We recognized, in vehicular chase situations, a police officer "must take into account a number of factors, such as road conditions, vehicular traffic, pedestrian traffic, time of day, weather, dangerousness of the person fleeing, and make what is virtually an instantaneous judgment." Boyer, 323 Md. at 590, 594 A.2d at 137. We then cited to numerous sister jurisdictions for the proposition that a "police officer deciding to maintain pursuit may not be negligent even if the course of action he chooses leads to serious injury to an innocent third person." Boyer, 323 Md. at 590, 594 A.2d at 137 (citing "Lee v. City of Omaha, 307 N.W.2d 800, 804 (Neb. 1981) (in affirming the trial court's finding that officers engaged in a high-speed pursuit resulting in injuries to innocent third parties were not negligent, the Supreme Court of Nebraska stated that `[i]t must be remembered that foresight, not hindsight, is the standard by which negligence is determined, and that even an action which in retrospect turns out to have been ill-advised may still have been reasonable under all the circumstances'); Simmen v. State, 81 A.D.2d 398, 400 (N.Y. App. Div. 1981), affirmed, 434 N.E.2d 242 (N.Y. 1982) (`the actions of the police officer are to be considered as of the time and under the circumstances in which they occurred, not by subsequent facts or in retrospect'); DeWald v. State, 719 P.2d 643, 652 (Wyo. 1986) (`we will not unfairly use hindsight in assessing official actions challenged in litigation'). See West v. United States, 617 F. Supp. 1015, 1017-1018 (C.D.Cal. 1985), affirmed, 807 F.2d 178 (9th Cir. 1986) (in light of the circumstances under which the officers were operating, they were not negligent in conducting a high-speed pursuit of suspected law violators); Bailey v. L.W. Edison Charitable Foundation, 284 N.E.2d 141, 145 (Ind. App. 1972) (`Thus, the protection of life and property by capturing a fleeing offender who, by not stopping his vehicle, wantonly and wilfully endangers public safety must be weighed against the possibility of endangering life and property by commencing or continuing the pursuit')").

I glean from Boyer that this Court adheres to the principle that the actions of a police officer are not to be determined unreasonable through hindsight or in retrospect, but rather that they must be evaluated taking into consideration the circumstances under which it occurred and the facts known to, or which should have been known by, the police officer when he or she acted. See Boyer, 323 Md. at 590, 594 A.2d at 137. Furthermore, there are no hard rules in evaluating the reasonableness of police conduct and "each case depends upon its own facts." Boyer, 323 Md. at 591, 594 A.2d at 137.

I would hold that the trial court erred, as a threshold matter, in refusing for the reasons given to consider admission of at least the portions of the guidelines highlighted in this dissent with regard to Petitioner's battery claim vis à vis Respondent's assertion of self-defense. As I explained, supra, portions of the guidelines may be relevant to, although not dispositive of, the determination of whether a reasonable police officer would have used deadly force in self-defense under the totality of the circumstances.

D. Gross Negligence

Petitioner argues that the guidelines were relevant to the gross negligence claim in that they tend to prove that Respondent's actions amounted to a wanton and reckless disregard for the rights of others. Petitioner states:

Not only did [Respondent] violate the Guidelines, the information contained in the Guidelines is what all officers are taught at the police academy. Simply, [Respondent] knew about the Guidelines, but consciously failed to follow them. The violation of the Guidelines certainly could be considered evidence of a wanton or reckless disregard for the rights of others.

Respondent counters that we need not resolve whether the guidelines are admissible because the gross negligence claim against Respondent is barred by public official immunity. Respondent cites to cases addressing both statutory and common law public official immunity and argues that he is immune from suit on the gross negligence count. The Court majority, because of its holding as to the inadmissibility of the guidelines, does not reach Respondent's immunity argument. I would reach it and agree with Respondent.

This Court has repeatedly explained that Maryland public officials — both at common law and under certain statutes — are entitled to qualified immunity from tort liability for conduct that may have been negligent in the performance of his or her job duties. See Parker v. State, 337 Md. 271, 285, 653 A.2d 436, 443 (1995); Ashburn v. Anne Arundel County, 306 Md. 617, 621, 510 A.2d 1078, 1080 (1986); James v. Prince George's County, 288 Md. 315, 336, 418 A.2d 1173, 1184 (1980). Under common law, a police officer is considered a public official encompassed by this tort immunity if he or she acts within the scope of law enforcement functions. See Clea v. Mayor and City Council of Baltimore, 312 Md. 662, 672, 541 A.2d 1303, 1308 (1988); Bradshaw v. Prince George's County, 284 Md. 294, 302-03, 396 A.2d 255, 260-61 (1979), overruled in part on other grounds, James, 288 Md. at 336, 418 A.2d at 1184. We have determined that police officers act on behalf of the State of Maryland and thereby exercise sovereign police power in the course of their duties. See James, 288 Md. at 336, 418 A.2d at 1184; Harris v. City of Baltimore, 151 Md. 11, 133 A. 888, 892 (1926). Because the exercise of discretionary force is inherent in the everyday duties of a police officer, we have long recognized that police officers are not subject to traditional tort liability and should remain immune civilly, under such circumstances, from scrutiny by judge or jury as to the wisdom of their actions. See Parker, 337 Md. at 285, 653 A.2d at 443. We have explained further that:

The term "discretion" denotes freedom to act according to one's judgment in the absence of a hard and fast rule. When applied to public officials, "discretion" is the power conferred upon them by law to act officially under certain circumstances according to the dictates of their own judgment and conscience, and uncontrolled by the judgment or conscience of others.

Ashburn, 306 Md. at 623, 510 A.2d at 1081.

Qualified immunity from certain tort liability for police officers is necessary from both a practical perspective as well as sound public policy. In Williams v. Prince George's County, 112 Md. App. 526, 543, 685 A.2d 884, 893 (1996), the Court of Special Appeals aptly explained:

When police officers perform discretionary functions, the rationale in insulating officers against all but flagrant abuses of their position, is the necessity to permit police officers, especially in the context of police work, to make the appropriate decisions in an atmosphere of great uncertainty. The theory is that holding police officers liable in hindsight for every injurious consequence of their actions would paralyze the functions of law enforcement. Moreover, permitting unwarranted lawsuits against officers would entail substantial social costs including inhibition and fear of potential liability among peace officers and would further consume much of the officer's time preventing him or her from performing his or her duties. Because of these considerations, immunity is granted to officers who act reasonably, albeit mistakenly, in light of clearly established law and the information they possessed without the benefit of hindsight.

(citations omitted).

As its name suggests, however, qualified tort immunity has its limitations. In James, we identified a three prong test for determining whether immunity attaches:

Before a governmental representative in this State is relieved of liability for his negligent acts, it must be determined that the following independent factors simultaneously exist: (1) the individual actor, whose alleged negligent conduct is at issue, is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties. Once it is established that the individual is a public official and the tort was committed while performing a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the individual involved is free from liability. The rationale underlying this grant of immunity is that a public purpose is served by protecting officials when they act in an exercise of their discretion.

288 Md. at 323-24, 418 A.2d at 1178 (citations and internal quotations omitted). See also DiPino v. Davis, 354 Md. 18, 48-49, 729 A.2d 354, 370 (1999); Ashton, 339 Md. at 116-17, 660 A.2d at 470. The only way to pierce the shield is by showing that the police officer's negligent conduct was committed with actual malice.

Petitioner's argument suggests that gross negligence, if proven, would lead to Petitioner piercing public official immunity. Under the circumstances of this case, it would not. Public official immunity is a defense to a negligence suit. See Ashton, 339 Md. at 118, 660 A.2d at 471 (affirming the trial court's grant of summary judgment in a civil action against police officer for negligence and gross negligence counts in the absence of malice); Parker, 337 Md. at 285, 653 A.2d at 443 ("our cases indicate that qualified public official immunity under Maryland law may apply only to negligence actions").

To the extent that Petitioner believes proof of gross negligence can amount to the quality of malice necessary to pierce public official immunity, such a belief is misplaced. It is true that at common law in civil contexts Maryland has recognized at least two forms of malice: actual and implied. For example, implied malice, it has been said, may be shown by proving grossly negligent conduct. See Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 451-52, 601 A.2d 633, 648 (1992) (discussing implied malice arising from gross negligence as "constructive knowledge" which does not supply the "actual knowledge" requirement for the receipt of punitive damages). Implied malice, however, differs from the subjective element of actual malice in tort law. See Shoemaker v. Smith, 353 Md. 143, 163, 725 A.2d 549, 559 (1999); Owens-Illinois, Inc., 325 Md. at 461-63, 601 A.2d at 653-54. The term "malice" as used in civil common law does not denote a tort. It is, instead, a frame of mind accompanying an act. "The actual malice needed to defeat official immunity requires an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and wilfully injure the plaintiff." Williams, 359 Md. at 131, n. 16, 753 A.2d at 57 (citing to Leese v. Baltimore County, 64 Md. App. 442, 480, 497 A.2d 159, 179 (1985), overruled on other grounds, Woodruff v. Trepel, 125 Md. App. 381, 725 A.2d 612 (1999)). See also Shoemaker, 353 Md. at 163, 725 A.2d at 560 (noting with approval that the Court of Special Appeals has long applied the standard of actual malice in the context of common law or statutory law public official immunity); Thomas v. City of Annapolis, 113 Md. App. 440, 454, 688 A.2d 448, 454-55 (1997). While actual malice connotes a subjective intent to injure, reckless, wanton or wilful misconduct is different than intentional wrongdoing for tort law purposes. In Johnson v. Mountaire Farms of Delmarva, Inc., 305 Md. 246, 253-54, 503 A.2d 708, 712 (1986), we cited to Comment f of the Restatement (Second) of Torts, § 500 (1965), and explained:

While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results. [Emphasis supplied.]

The General Assembly knows how to express itself when it wishes to withdraw public official immunity for acts of gross negligence. For example, a Baltimore City Police Officer would not be entitled to immunity for grossly negligent acts occurring outside the police officer's jurisdiction. Md. Code (1974, 1998 Repl. Vol.), Courts Judicial Proceedings Article (CJP), § 5-605, states:

§ 5-605. Law enforcement officer acting outside jurisdiction.

(a) When not civilly liable. — A law enforcement officer acting outside the officer's jurisdiction but in the State, is not civilly liable, except to the extent that he would be if acting in his own jurisdiction, for any act or omission in preventing or attempting to prevent a crime, or in effectuating an arrest, in order to protect life or property if:

(1) The action is not grossly negligent; and

(2) The action is taken at the scene of the crime or attempted crime.

(b) Defense by employer. — A law enforcement officer sued for acting under subsection (a) of this section shall be defended in any civil action by the law enforcement officer's employer as if the incident had occurred in the officer's jurisdiction.

(c) Benefits. — A law enforcement officer who is injured in taking action under subsection (a) of this section is entitled to workers' compensation, disability, death benefits, life insurance and all other benefits to the same extent as if the injury had been sustained in the officer's jurisdiction.

Another example of a similar legislative intent is found within the scheme of the Maryland Tort Claims Act. See Md. Code (1999 Repl. Vol.), State Government Article, §§ 12-101, et seq. The immunity from tort liability of one who qualifies as "State personnel," as defined in the Act, for his or her tortious act or omission is waived when the act or omission is made with malice or gross negligence. Md. Code (1998 Repl. Vol., 199 Supp.), § 5-522(b).

That gross negligence has been expressly provided for as a cause of action for civil liability against certain public officials under certain provisions, and not under others, comports with our recognition in Shoemaker that "the Legislature conceived of malice as something beyond the merely reckless or wanton conduct that would be embodied within gross negligence." 353 Md. at 164, 725 A.2d at 560. I conclude, therefore, that based on traditional common law requirements of actual malice, that the implied malice derived from gross negligence in tort law does not satisfy the malice requirement necessary to pierce public official immunity under the common law.

Petitioner argues that admission of the police guidelines aids in proving that Respondent acted in a grossly negligent manner. Petitioner mounts no argument that the guidelines would be probative of actual malice. I would hold, therefore, that even if the Circuit Court erred in not admitting the guidelines, such error did not prejudice Petitioner with regard to the gross negligence count.

Although I have no quarrel with the majority's reasoning and disposition of Petitioner's Batson issue (Maj. op. at 32-35), I would not reach or decide it under my view of the other issues explained supra.

Judge Eldridge has authorized me to indicate that he agrees entirely with this dissenting in part, concurring in part opinion. Chief Judge Bell also agrees with this opinion, save Part III, D (Gross Negligence) and the reference to the majority's resolution of the Batson issue, upon which he writes separately.

Dissenting Opinion follows:

Dissenting opinion by Bell, C. J.

I join most enthusiastically in all but Part D of Judge Harrell's well reasoned and stated opinion and, thus, share his and Judge Eldridge's rejection of the majority's refusal to allow the petitioner to offer evidence of the violation, by the respondent police officer, of police departmental guidelines as evidence bearing on the respondent's civil liability for the injuries to the petitioner that his actions, alleged by the petitioner to have been grossly negligent, caused him to suffer. This separate opinion is prompted by the majority's disposal of the petitioner's Batson challenge to the respondent's exercise of his peremptory challenges on a procedural and purely technical ground. The ground of decision not raised, or argued, by either party and was not the basis for the Court of Special Appeals' decision. Moreover, the Batson issue was one of the issues on which we granted certiorari; although it was specifically argued in the petitioner's Petition for Certiorari, we did not exclude it from our grant of the petition.

The majority refuses to review the merits of the petitioner's Batson challenge because it was made after the jury was sworn, opining,

"The problem is that [the petitioner] waited too long to register his objection. In Stanley v. State, 313 Md. 50, 69, 542 A.2d 1267, 1276 (1988), we concluded that "[a] Batson objection is timely if the defendant makes it no later than when the last juror has been seated and before the jury has been sworn. ."

361 Md. 437, 466, 762 A.2d 48, 63 (2000) [slip. op. at __].

Maryland Rule 8-131, in pertinent part, provides:

* * * *

"(b) In Court of Appeals — Additional Limitations.

"(1) Prior Appellate Decision. Unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appeals or by a circuit court acting in an appellate capacity, the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for review by the Court of Appeals. Whenever an issue raised in a petition for certiorari or a cross-petition involves, either expressly or implicitly, the assertion that the trial court committed error, the Court of Appeals may consider whether the error was harmless or non-prejudicial even though the matter of harm or prejudice was not raised in the petition or in a cross-petition."

This case came to us from the Court of Special Appeals, which reviewed the judgment of the Circuit Court for Baltimore City. In that court neither party raised the timeliness of the Batson ruling and, in any event, the intermediate appellate court decided the issue on the merits. What's more, as already mentioned, the propriety of the trial court's Batson ruling was one of the issues presented, and argued, in the petition for certiorari that the petitioner filed. And this Court granted certiorari to review that issue, among others; we very pointedly did not "otherwise provide by the order granting the writ of certiorari." Clearly, the petitioner is entitled to a decision on the merits of this issue. This is especially so since an outcome favorable to the petitioner will avoid the result the majority reaches on the issues it does decide on the merits, for it would mean that the petitioner gets his new trial anyway.

I do not contend that the Batson challenge was timely under our cases. At this stage of the proceedings, that really is not the point. Where this Court grants certiorari on an issue, it is the cert. petition to which we look to determine preservation, not what happened in the trial court, particularly when the appellate court that initially reviewed the issue decided it notwithstanding, and perhaps despite, the procedural default. A procedural default such as that here at issue does not implicate fundamental jurisdiction and, so, is not raisable at any time, even for the first time in this Court. But, as already mentioned more times than necessary, I suspect, it was this Court that decided to review the very issue that the majority now wants to avoid on this really technical ground.

I would reverse the judgment of the Court of Special Appeals on the Batson issue. The latest cases to explicate Maryland law on the subject are Gilchrist v. State, 340 Md. 606, 667 A.2d 876 (1995) and Harley v. State, 341 Md. 395, 671 A.2d 15 (1996). See also Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), discussed by both Gilchrist and Harley. Neither case was cited, not to mention discussed, by the intermediate appellate court. In fact, the only Batson case mentioned wasStanley v. State, 313 Md. 50, 542 A.2d 1267 (1988). More important, the court's discussion of the issue provides no basis for any belief that the trial court, or the intermediate appellate court, for that matter, were aware of or appreciated the application of Purkett to the facts of the case.

It is clear to me that, whether the reasons offered by the respondent were race neutral or not, the trial court simply did not appreciate its role in the process and certainly did not properly apply the test explicated in Purkett, see 514 U.S. at 767-68, 115 S.Ct. at 1770-71, 131 L.Ed.2d at 839, clarified in the context of this State's Batson jurisprudence in Gilchrist, see 340 Md. at 619-20, 667 A.2d at 885-86 (Chasanow, J. concurring) and applied in Harley, see 341 Md. at 402, 671 A.2d at 19.