ANNAPOLIS – A divided Maryland Court of Special Appeals ruled Thursday that Ocean City police violated Wayne Nelson Davis’ free-speech rights when they arrested him for telling a friend that two undercover officers might be “narcs.”
The court said Davis’ lawsuit against the city and a police officer should be allowed to proceed over his 1991 arrest for “obstruction of justice and hindering” an undercover police investigation.
In their dissent, however, six of the 13 judges said Davis does not have the constitutional right to “blow the cover” of undercover police officers.
The case began almost a year before the arrest, according to court records, when Davis asked two undercover officers to sell him marijuana.
But when they showed up for the supposed deal, they brought along Sgt. Gary Holtzman, who Davis recognized. No drug deal was made after Davis told the two undercover officers that Holtzman was a cop.
About a year later, on May 12, 1991, Davis was talking to Frederick R. King near the Boardwalk on Wicomico Street when he spotted the two undercover officers coming out of a sandwich shop about 1 a.m.
“Look, those were the two girls that were going to come in last year and give me some pot and have Mr. Holtzman bust me,” Davis said, according to court documents.
“What are they, narcs?” King asked.
“I don’t know what they are, they could be undercover or anything,” said Davis.
Davis and King said the street was mostly deserted at the time. But the officers, Detectives Bernadette DiPino and Alice Brumbley, said there were a lot of people on Wicomico Street, an area that police said is heavily populated with drug sellers, users and “biker gangs.”
Brumbley testified that she and DiPino were 9 to 10 feet away when she saw “Davis making a statement about `those girls, narc, undercover detectives, undercover officers.'”
DiPino testified that they were in the middle of the street when she “heard Mr. Davis clearly say, and it was in a very loud voice, `Those girls are undercover cops. Those girls are narcs.'”
She testified that there were several bikers outside a nearby bar as well as a bouncer who was suspected of selling marijuana.
“The bikers gave us dirty looks. I was really concerned about our safety,” DiPino testified.
She thought Davis had committed a crime but she was not sure, so she consulted a District Court commissioner who said Davis could be charged with hindering.
DiPino said she put the matter on the “back burner” until July 6, 1991, when she arrested Davis while he was working as a bartender at the Inlet Lodge. He was charged with “obstructing and hindering” a police investigation.
Davis sued DiPino, the Ocean City mayor and council, and District Court Commissioner Donald E. Turner, who issued the arrest warrant. Davis claimed that police did not have cause to arrest him and that his constitutional rights had been violated.
The case has already gone to the Court of Appeals, which in 1994 ordered a hearing for Davis. A Worcester County Circuit judge dismissed Turner from the case in 1995 and then threw out the rest of the case.
But the Court of Special Appeals, in an opinion written by Judge Ellen Hollander, agreed that Davis’ “arrest in July 1991 … violated his state and federal constitutional rights to free speech.” It agreed with the lower court, however, that Turner should be dismissed from the suit.
“There wasn’t much of case against him (Turner),” said Assistant Attorney General Julia M. Freit, who handled the case on appeal.
The full appeals court ordered the case back to circuit court for trial.
In the dissenting opinion, however, Judge Robert C. Murphy said that there appeared to be sufficient probable cause for an arrest warrant against Davis and that the circuit court was not “clearly erroneous” in throwing the case out.
“The constitutional right to blow the cover of an undercover police officer has not been clearly established in Maryland or anywhere else,” Murphy wrote.
An attorney for Davis, Peter Wimbrow III, welcomed the court’s ruling Thursday but declined further comment because he had not seen the decision.