Gen. 105] 105

FAMILY LAW

DOMESTIC VIOLENCE ) COURTS AND JUDGES ) IMMUNITY )

TORTS ) USE OF FORCE TO RETURN CHILD KEPT IN

VIOLATION OF CUSTODY ORDER

August 10, 1999

Tracy A. Gilmore, Esquire

Deputy State’s Attorney for Carroll County

Early last year, we provided you with an opinion in response

to your inquiry about interpretation of the domestic violence

protective order forms. 83 Opinions of the Attorney General 80

(1998). Specifically, you asked for our opinion on the meaning of

the phrase “reasonable and necessary force,” as used in the optional

portion of the order that directs law enforcement officers to return to

the custodial parent a child kept in violation of the order.

In our prior opinion, we did not address the specific question

you posed because we concluded that the domestic violence statute

itself did not authorize an order to law enforcement officers to

forcibly return a minor child to the custodial parent. Upon further

review and reflection, we believe that we must also examine whether

the equitable power of the courts could provide the requisite

authority. As outlined in Part I of this opinion, consideration of the

courts’ inherent equitable powers raises doubt about the conclusion

expressed in our prior opinion. In any event, the question of judicial

authority to issue such an order is one best left to the determination

of the courts in an appropriate case. Accordingly, we will attempt

to provide an answer to the question that you originally posed on the

premise that the courts have the authority to issue such an order.

In our opinion, the concept of “reasonable and necessary force”

is not amenable to a precise definition. Rather, it connotes an

objective standard that takes into account the specific circumstances

encountered by the officer executing the order. In Part II of this

opinion, we offer general guidance applicable to some of the

circumstances that an officer is likely to encounter.
106 [84 Op. Att’y

I

Judicial Power to Order Use of Force

A. Absence of Statutory Authority and its Significance

The domestic violence law authorizes courts to issue temporary

ex parte orders and, following notice and an opportunity for an

adversary hearing, protective orders that provide various types of

relief to victims of domestic violence. See Annotated Code of

Maryland, Family Law Article (“FL”), §4-501 et seq. Among other

things, such orders may “award temporary custody of a minor child

of the respondent and a person eligible for relief.” FL §§4-

505(a)(2)(vi), 4-506(d)(6). The standard protective order form used

in the courts, Form DV-3, reflects this grant of authority by

including a paragraph 7, in which the court orders “that custody of

____________________ is awarded to ___________________.”

The same language appears in Form DV-2, the standard ex parte

order form.

Your question focused on language that immediately follows

the portion of the order forms that awards custody. The order forms

each include a box that the judge may check for the purpose of

including the following provision: “Law enforcement officers are

ordered to use all reasonable and necessary force to return the minor

child(ren) to the custodial parent at time of service or as soon as

possible after entry of this Order.”

In our prior opinion, we looked solely at the domestic violence

statute and determined that this statute did not grant the courts the

authority to direct law enforcement officers to use force to carry out

an award of temporary custody in a domestic violence order.

Although that conclusion was correct as a matter of statutory

construction, the analysis was unnecessarily truncated. While a

statute may be a source of judicial authority in this area, it need not

be the only source. A statute does not necessarily displace whatever

common law authority the courts possess in the absence of the

statute. There is no indication in the domestic violence law that the

Legislature intended any limitation of the courts’ inherent equitable

powers. Accordingly, an analysis of judicial power to issue such an

order must also consider the courts’ inherent common law powers.
Gen. 105] 107

 Maryland Constitution, Art. IV, §41A; CJ §1-601. 1

B. Common Law Authority

1. Implied Power Generally 

In Maryland, the circuit courts are imbued with “full commonlaw and equity powers and jurisdiction in all civil and criminal cases

....” Annotated Code of Maryland, Courts and Judicial Proceedings

Article (“CJ”), §1-501. See also Maryland Constitution Article IV,

§§ 1, 1A. Although the District Court is ordinarily a court of limited

jurisdiction, in domestic violence proceedings the District Court has 1

the “powers of a court in equity.” CJ §4-404. In addition to the

specific powers conferred on the courts by the Constitution and by

statute, the judiciary enjoys certain “implied or inherent powers.”

The Court of Appeals has adopted the following description of those

powers: 

In order to accomplish the purposes for

which they are created, courts must also

possess powers. From time immemorial,

certain powers have been conceded to the

courts, because they are courts. Such powers

have been conceded, because without them

they could neither maintain their dignity,

transact their business, nor accomplish the

purposes of their existence....

The inherent power of the court is the

power to protect itself; the power to

administer justice...; the power to promulgate

rules for its practice; the power to provide

process where none exists. 

Commission on Medical Discipline v. Stillman, 291 Md. 390, 400,

435 A.2d 747 (1981) (quoting State v. Cannon, 221 N.W.2d 603,

603-4 (Wis. 1928)); Attorney General v. Waldron, 289 Md. 683,

691, 426 A.2d 929 (1981) (same); cf. Hamzavi v. Bowen, 126 Md.

App. 492, 730 A.2d 274 (1999) (circuit court may appoint receiver

under its equity power in absence of statutory authorization). 
108 [84 Op. Att’y

Although the courts have these inherent powers, the

Legislature retains the authority to limit their exercise to the extent

that a power is “not an essential [one] inherent in the courts in the

discharge of their constitutionally mandated duty to administer

justice.” Stillman, 291 Md. at 402 (holding that legislative limitation

on courts’ jurisdiction to stay administrative revocation of license

did not violate separation of powers). The domestic violence law is

statutory in nature and the content of orders issued in proceedings

under that law is specified in detail in the statute. See FL §§ 4-

505(a)(2), 4-506(d). However, unlike the physician licensing

scheme in Stillman, the domestic violence statute did not purport to

restrict the powers that the courts might otherwise be able to

exercise. 

It is possible that the courts’ inherent powers include the

authority to require that law enforcement officers enforce a

temporary custody provision of a order issued under the domestic

violence statute. Such power may be found in a conjunction of the

courts’ equity authority to determine custody of minors and their

inherent power to create process necessary to effect court orders

with “reasonable and necessary” force. 

2. Parens Patriae Authority of Courts Over Minors

Maryland courts have common law authority to act in the best

interests of children within their jurisdiction. The Court of Appeals

has described this authority in broad terms:

The parens patriae jurisdiction of circuit

courts in this State is well established. The

words “parens patriae,” meaning “father of the

country,” refer to the State’s sovereign power

of guardianship over minors and other persons

under disability....It is a fundamental common

law concept that the jurisdiction of courts of

equity over such persons is plenary so as to

afford whatever relief may be necessary to

protect the individual’s best interests.

Wentzel v. Montgomery General Hospital, Inc., 293 Md. 685, 702,

447 A.2d 1244 (1982). The determination of child custody is a

function of the court’s equity powers, regardless of statutory
Gen. 105] 109

 This power may also derive in part from the common law rights of 2

the custodial parent. The Court of Criminal Appeals of Texas has held

that a custodial parent has the right under common law to use reasonable

and necessary force to retain custody of a child against a threat of

abduction. Whitman v. State, 203 S.W.2d 230 (Tex. Crim. 1947). A

protective order could be viewed as transferring this type of authority to

law enforcement officials. Unfortunately, the Texas court did not discuss

the nature and extent of force considered reasonable and necessary.

 The State Constitution grants rulemaking authority to the Court of 3

Appeals and, to the extent permitted by the Court of Appeals or otherwise

by law, to the lower courts. Maryland Constitution, Article IV, §18(a).

The Court of Appeals’ rules are legislative in nature and have the force of

law although they must be consistent with the federal and State

constitutions. See 82 Opinions of the Attorney General 23, 25 (1997).

This rulemaking authority, of course, is limited to “the practice and

procedure in and the administration of the [courts].” Maryland

Constitution, Article IV, §18(a). The Court of Appeals recently noted, but

did not answer, the question whether it could confer on masters by rule the

power to arrest. See State v. Wiegmann, 350 Md. 585, 595 n.4, 714 A.2d

841 (1998).

authorization. Ross v. Hoffman, 280 Md. 172, 174, 372 A.2d 582

(1977). Moreover, when a court has authority to determine the

custody of a minor, such authority might reasonably be thought to

include an ancillary element, such as the power to direct appropriate

court officers to enforce such an order with “reasonable and

necessary force.”2

3. Creation of Process to Forcibly Carry Out Court

Orders

By rule and by the adoption of standard forms, the courts

frequently designate the content and create process for the execution

of court orders. For example, in other contexts involving the civil 3

seizure of individuals, the Court of Appeals has adopted several

rules that provide for “body attachments” ) essentially the forcible

execution of a subpoena by law enforcement officers. See, e.g.,

Rules 2-510(i) (circuit court civil subpoenas); 3-510(i) (District

Court civil subpoenas); 4-266(d) (subpoenas in criminal cases); 4-

267 (material witnesses in criminal cases). There is also statutory

authorization for the issuance of body attachments in most such

instances. See CJ §§9-201, 9-203; see also 81 Opinions of the

Attorney General 102 (1996) (writ of attachment for juvenile
110 [84 Op. Att’y

offender lawful only if court has jurisdiction such that writ

constitutes an “order of court” under CJ §3-814).

However, one of the rules authorizing a body attachment

arguably is not based upon statutory authority. In particular, Rule

16-706(d)(3)(e) of the attorney disciplinary rules allows a court to

issue a body attachment for a witness who has failed to respond to

a subpoena issued in a matter before a bar inquiry panel. There

appears to be no specific statutory authorization for body

attachments in such proceedings. Although this rule contains a cross

reference to the rule for subpoenas in civil cases, it seems unlikely

that its authority derives from CJ §9-201, which pertains to

witnesses summoned to court. Rather, the rule appears to be

ultimately based on the inherent power of the courts to regulate the

practice of law and to discipline attorneys. See generally Attorney

General v. Waldron, 289 Md. at 690-93; 82 Opinions of the Attorney

General 23, 28-29 (1997) (court rule may authorize issuance of

subpoenas and grant absolute immunity to persons involved in

attorney disciplinary process without legislative authorization).

Other court rules specify certain measures that a court may

employ when a person fails to comply with a court order mandating

or prohibiting certain action. See Maryland Rules 2-648(a) and 3-

648. If a person fails to comply with a judgment that mandates an

affirmative act, the court may, among other things, “direct that the

act be performed by some other person appointed by the court...”

Rules 2-648(a), 3-648. Again, these rules do not appear to be based

on any specific statutory authorization but on the inherent power of

the courts to create process to vindicate court orders. 

The special ad hoc committee of the courts that created the

domestic violence form orders apparently believed that the courts

currently possess the authority to order law enforcement officers to

enforce custody orders with reasonable and necessary force in the

absence of specific legislation. See Coburn v. Coburn, 342 Md. 244,

254 n.9, 674 A.2d 951 (1996) (describing origin of domestic

violence form orders). There apparently have been no reported

judicial decisions either affirming this authority or finding it

wanting. 
Gen. 105] 111

It may be the case that courts are reluctant to make custody 4

determinations in a domestic violence proceeding, in the absence of an

indication of danger to the child. One court applying the Florida rule in

a case not involving the use of force lamented that domestic violence

proceedings are ill-suited to make permanent determinations of child

custody and related matters. See O’Neill v. Stone, 721 So. 2d 393 (Fla.

App. 1998)

4. Similar Process in Other States

The Florida Supreme Court has adopted a form for domestic

violence cases that provides that “Law enforcement officers shall

use any and all reasonable and necessary force to physically deliver

the minor children ... to the custodial parent.” See In re Family Law

Rules of Procedure 663 So.2d 1049, 1205 (Fla. S. Ct. 1995); In re

Amendments to the Florida Family Law Rules of Procedure, 717

So.2d 914, 918, 924 (Fla. S.Ct. 1998). We did not locate any

reported cases construing this provision in an actual order.4

However, it is notable that the Florida domestic violence statute, in

contrast to the Maryland statute, explicitly authorizes law

enforcement agencies to enforce protective orders. In particular, the

Florida statute provides that a protective order may include a

provision “[o]rdering such other relief as the court deems necessary

for the protection of a victim of domestic violence including

injunctions or directives to law enforcement agencies ....” Fla. Stat.

§741.30(6)(a)(7). Thus, the Florida form order does not derive

solely from the court’s inherent equity powers.

At least two other states have adopted legislation that

authorizes law enforcement officers to arrest a respondent who

resists a temporary custody order entered in a domestic violence

case. See La. Rev. Stat. Ann., Title 14, §79(E) (“Law enforcement

officials shall use every reasonable means, including but not limited

to immediate arrest of the violator, to enforce [a protective order that

may include a custody provision].”); Mo. Ann. Stat. §455.085(5)

(“When a person against whom an order of protection has been

entered fails to surrender the children to the person to whom custody

was awarded in an order of protection, the law enforcement officer

shall arrest the respondent, and shall turn the minor children over to

the [custodial parent].”). Neither of these provisions has been tested

in the courts or has otherwise been the subject of a reported judicial

interpretation. 
112 [84 Op. Att’y

 This uniform law is intended to update the Uniform Child Custody 5

Jurisdiction Act which was adopted in substance by all 50 states, including

Maryland. See FL 9-201 et seq.

To date, only Alaska and Oklahoma have adopted the UCCJEA. 6

9 Uniform Laws Annotated, 1999 Supp. at p. 257.

Finally, the Uniform Child Custody Jurisdiction and

Enforcement Act (“UCCJEA”), a model statute published in 1997 5

by the National Conference of Commissioners on Uniform State

Laws, contains a provision that allows courts to issue warrants to

law enforcement officials to take immediate custody of a child if the

parent who has physical custody is likely to cause harm to the child

or to flee the jurisdiction with the child. UCCJEA at §311, 9

Uniform Laws Annotated, 1999 Supp. at 289-90. The commentary

to the UCCJEA states: “The warrant may authorize entry upon

private property to pick up the child if no less intrusive means are

possible. In extraordinary cases, the warrant may authorize law

enforcement to make forcible entry at any hour.” Maryland has not

adopted the UCCJEA. There are no reported cases applying this 6

provision of the UCCJEA. 

There appears to be little guidance from other states on the

inherent power of the courts to order law enforcement officers to

effect temporary custody orders in domestic violence proceedings,

much less on the use of reasonable and necessary force to carry out

such an order. 

C. Authorization to Enforce Order 

The form orders direct “[l]aw enforcement officers” to effect

the temporary custody portion of the order. However, absent

statutory authorization, not all law enforcement officers may be

authorized to carry out such an order.

When a Maryland court issues an order based upon its common

law powers directing enforcement of a custody order by means of

“all reasonable and necessary force,” the court may require the

sheriff to carry out the order. At common law, it was the sheriff’s

obligation, among other things, to serve various writs, summonses,

and other orders on behalf of the courts. Soper v. Montgomery

County, 294 Md. 331, 336-37, 449 A.2d 1158 (1982); Green v.
Gen. 105] 113

 One court has suggested that such power exists only when the 7

child is at concrete risk of harm. In re Rose, 54 A.2d 297, 300 (Pa. Super.

1947). Moreover, as noted in our prior opinion, it is another of the court’s

inherent powers ) contempt ) that is the ordinary means by which courts

secure compliance with their orders. Lynch v. Lynch, 342 Md. 509, 519,

677 A.2d 584 (1996). 

State, 122 Md.288, 295 (1914) (common law “power and authority”

of sheriff necessary to work of courts). Other law enforcement

officers, however, do not have a comparable common law duty to

carry out court orders. For example, most police departments are the

creature of statute and possess only the powers contained in their

authorizing legislation. See Soper v. Montgomery County, 294 Md.

at 344-45 n.6 (comparing powers of sheriffs with various local

police agencies). Whether a law enforcement officer other than a

sheriff is authorized to enforce a temporary custody order in a

domestic violence case would depend upon the power conferred

upon that officer by statute.

D. Judicial Construction of Inherent Powers

Thus, there is a possible basis for judicial authority to order the

use of force to compel compliance with a custody order under the

domestic violence statute and general authority for a sheriff to carry

out such an order. Although we have expressed reservations about

the circumstances in which such power, if it exists, could be

exercised, it is the province of the judiciary to define its common 7

law and equity powers, and we will not attempt to demarcate those

powers in this opinion. The courts’ future adjudication of cases with

specific facts are the better and more appropriate vehicle for defining

those powers. As suggested in our prior opinion, an amendment of

the domestic violence law would resolve any question of the court’s

authority to issue such an order and a law enforcement officer’s

authority to execute it. For purposes of this opinion, we will accept

the premise that the “reasonable and necessary force” provision of

the domestic violence order form is a permissible exercise of the

court’s common law authority. In the remainder of this opinion, we

attempt to provide the guidance that you seek for those charged with

carrying out such an order.
114 [84 Op. Att’y

 The fact that an officer has authority to use force in a particular 8

circumstance does not necessarily imply that the officer has a duty to use

force. Cf. Ashburn v. Anne Arundel County, 306 Md. 617, 510 A.2d 1078

(1986). Rather, the law generally treats the use of force as “privileged” if

necessary to carry out the officer’s underlying duty to execute a court

order. See Restatement Torts 2d, §145 (“One ... executing an order of a

court ... is privileged, if such process or order is valid or fair on its face,

to use such force against the person of another ... as is authorized by the

order or is reasonably necessary for ... the execution of the order.”)

II

Use of Reasonable and Necessary Force

A. Objective Standard

The “reasonable and necessary force” that is authorized by

court orders issued on the domestic violence forms is not defined in

the forms or in the domestic violence statute. We must therefore

look to other sources to interpret this phrase – most appropriately,

the extent of force that the law permits officers to exert in executing

similar types of court orders. The cases demonstrate that the phrase

“reasonable and necessary force” cannot be reduced to a formula.

Law enforcement officials charged with executing such orders may

understandably adopt a cautious approach to this new area of

enforcement.8

The courts have applied the concept of “reasonable and

necessary force” in a variety of circumstances in which the use of

force by law enforcement officers has been challenged. The phrase

“reasonable and necessary force” has been consistently interpreted

by the courts as requiring a law enforcement official to act in an

objectively reasonable fashion. In a case arising out of an

investigatory stop, the Supreme Court described the test as follows:

Determining whether the force used to

effect a particular seizure is ‘reasonable’ ...

requires a careful balancing of the nature and

quality of the intrusion on the individual’s

Fourth Amendment interests against the

countervailing governmental interests at

stake.... [T]he test of reasonableness under

the Fourth Amendment is not capable of
Gen. 105] 115

precise definition or mechanical application,

however, its proper application requires

careful attention to the facts and

circumstances of each particular case....

. . . 

The ‘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

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.

Graham v. Connor, 490 U.S. 386, 396-97 (1989) (quotations

omitted). Maryland courts have repeatedly relied upon Graham for

a framework to analyze whether challenged law enforcement action

constituted excessive force. See Branch v. McGeeney, 123 Md. App.

330, 348-49, 718 A.2d 631 (1998) (arrest of minor); Williams v.

Prince George’s County, 112 Md. App. 526, 547, 685 A.2d 884

(1996) (warrantless arrest); Wilson v. State, 87 Md. App. 512, 520,

590 A.2d 562, cert. denied, 324 Md. 325, 597 A.2d 422 (1991)

(arrest following chase); see also Taylor v. McDuffie, 155 F.3d 479

(4 Cir. 1998) (arrestee in pretrial detention); Elliott v. Leavitt, 99 th

F.3d 640, 642 (4 Cir. 1996), cert. denied, 117 S.Ct. 2512 (1997) th

(DWI arrest). In each case the specific circumstances surrounding

the questioned use of force are determinative.

Law enforcement officers may encounter a variety of

circumstances when they execute the temporary custody provision

of a domestic violence order. Service of the custody order may be

the culmination of a series of proceedings involving the same parties

and children or it may be the first notice a respondent receives of any

legal proceeding. Officers may encounter resistance from a number

of persons including the respondent, other adults who are caring for

or have actual custody of the children, and even the minors who are

the subject of the custody order. The likely presence of children

requires consideration of their safety when force is used. Although

we cannot prescribe the actions that an officer should take under
116 [84 Op. Att’y

 For example, if the officer is uncertain whether particular conduct 9

violates the court order, the officer could return to the court for

clarification or perhaps for an order initiating a contempt proceeding

against the respondent. 

every conceivable scenario, we will attempt to offer general

guidance based upon common situations. 

It is beyond dispute that an order to forcibly carry out a child

custody order places even the most scrupulous law enforcement

officer in a difficult position. In our opinion, the order form should

not be construed as diminishing the broad discretion that an officer

needs when executing such an order in light of particular

circumstances. In volatile situations involving the custody of a

child, emotions inevitably run high. A person’s initial resistance to

a lawful order may recede as emotions cool. A tactful approach by

an officer may accomplish more with less emotional or physical

damage to the child than a demand for instantaneous compliance and

an impulsive resort to force. Accordingly, an officer who reasonably

refrains from using force should not be found in violation of the

order. Similarly, when there is no suggestion that the child is in

danger, the officer cannot be faulted for seeking additional guidance

from the court that issued the order.9

B. Circumstances Under Which Force May Be Used

1. Notice of Order and Authority

In most circumstances, an officer executing an order should

first identify himself or herself and inform the individuals present of

the order and its contents, furnishing a copy if appropriate. This is

akin to the general rule that requires a law enforcement officer to

give notice to an individual to be arrested of the officer’s authority

and intention to effect the arrest. 5 Am. Jur. 2d Arrests §§92, 93; cf.

Miller v. United States, 357 U.S. 301, 307 (1958)(common law

requires officer to announce his lawful authority and purpose prior

to entering a home to make an arrest or perform a search). See also

Wynn v. State, 117 Md. App. 133, 153-65, 699 A.2d 512 (1997),

rev’d on other grounds, 351 Md. 307, 718 A.2d 588 (1998)

(surveying law on knock and announce rule).
Gen. 105] 117

 Officers may consider whether to have the custodial parent 10

accompany them for this purpose. The presence of the custodial parent

may permit the officers to turn the child over to that parent immediately

and avoid the myriad issues that can arise concerning the care and custody

of the child after the child is obtained from the respondent. Cf. Shoemaker

v. Smith, 353 Md. 143, 725 A.2d 549 (1999) (tort action based in part on

actions of sheriff’s deputies who handcuffed and held children at police

station after seizing them as part of investigation of suspected child

abuse).

This initial step may avoid resistance that may result from a

misunderstanding of the officer’s authority and purpose.

Identification of the officer and the officer’s purpose may be

particularly important when serving a temporary ex parte order as it

may be a respondent’s first notice of the court proceedings. In

addition, this initial step will inform others present who are not

parties to the underlying action of the court order, perhaps increasing

the likelihood that those individuals will cooperate with the officer’s

request to transfer a child to the officer’s custody. An explanation

by the officer as to why and where a child is to be taken may also

minimize the stress suffered by a child subject to the order. 

It is also important that the officer identify the children subject

to the temporary custody order. The need to use force may be 10

avoided in some circumstances by announcing the identity of the

child named in the temporary custody order. As in the case of an

arrest, the officer should verify, as best the officer can under the

circumstances, that the child taken into custody is in fact the child

named in the temporary custody order. See Green v. Brooks, 125

Md. App. 349, 725 A.2d 596 (1999).

2. Determining the Extent of Force Necessary

If it appears that the custody transfer will take place voluntarily

and without incident, no force need be exerted to effect the transfer.

If, however, it becomes apparent to the officer that cooperation is

not forthcoming, the officer must consider whether the use of force

is reasonable and, if so, the extent of force appropriate under the

circumstances. Essentially the officer may use the force necessary

to enable an officer to carry out the order. 5 Am. Jur. 2d Arrest

§105; cf. Watkins v. State, 288 Md. 597, 610, 420 A.2d 270 (1980).

The duty that an officer is directed to perform under a protective or

temporary ex parte order is to return the child to the custodial parent,
118 [84 Op. Att’y

which includes removing the child from the custody of the noncustodial parent or third party and transporting the child to the

custodial parent. The officer may take into account the age and

vulnerability of the child, the nature and extent of the opposition

from the respondent, third party or child, and the officer’s personal

safety. 

3. Forcing Entry Into Dwelling

Ordinarily, forcible entry is not permitted to effect service of

civil process. See 82 Opinions of the Attorney General 154, 162-64

(1997). Moreover, law enforcement officers may not enter a

residence, much less use force to do so, without a search warrant for

that location. 5 Am. Jur. 2d Arrest, §119. “[T]he plain wording of

the Fourth Amendment admits no exemption from the warrant

requirements when the search of home is for a person rather than for

a thing.” Steagald v. United States, 451 U.S. 204, 214 n.7 (1981).

Although an arrest warrant suffices to allow law enforcement

officers to enter the residence of the person named in the warrant to

effect the arrest, a search warrant must be obtained to enter the house

of a third party. Id. at 221-23; cf. Herd v. State, 125 Md. App. 77,

724 A.2d 693 (1999) (affirming burglary conviction of bondsman

who entered third party’s residence to search for fugitive).

We could find no case law suggesting that a temporary child

custody order by itself would be considered the equivalent of an

arrest warrant that would permit law enforcement officers to enter

the child’s current residence without the consent of the adult who

owns or possesses that residence. See Karoly v. Lehigh County

Sheriff’s Department, 1988 WL 85743 at *7 (E.D. Pa. 1988) (not

objectively reasonable for an officer experienced in serving warrants

and custody orders to interpret an ex parte temporary custody order

“as co-extensive with a search warrant”). Nor is it clear that the

consent of a petitioner in a domestic violence proceeding for law

enforcement officers to enter a residence shared with the respondent

would satisfy Fourth Amendment concerns. Compare State v.

Verhagen, 272 N.W.2d 105 (Wis. 1978) (wife who had recently left

marital home had no authority to consent to warrantless search of

home) and May v. State, 780 S.W. 2d 866 (Tex. App. 1989) (consent

of estranged spouse not sufficient to justify warrantless search) with

United States v. Lawless, 465 F.2d 422 (4 Cir. 1972) (valid search th

of defendant’s trailer when done with consent, and at initiative, of
Gen. 105] 119

 That provision states: 11

(a) A person who fails to comply with the

relief granted in an ex parte order under §4-

505(a)(2)(i), (ii), (iii), (iv), or(v) of this subtitle or

in a protective order under §4-506(d)(1), (2), (3),

(4), or (5) of this subtitle is guilty of a

misdemeanor and on conviction is subject, for

each offense, to:

(1) for a first offense, a fine not

exceeding $1,000 or imprisonment not exceeding

90 days or both; and 

(2) for a second or subsequent

offense, a fine not exceeding $2,500 or

imprisonment not exceeding 1 year or both.

(b) An officer shall arrest with or without a

warrant and take into custody a person whom the

officer has probable cause to believe is in

violation of an ex parte order or protective order

in effect at the time of the violation.

FL §4-509. It is notable, however, that this section does not make failure

to comply with a child custody order under either FL §4-505(a)(2)(vi) or

FL §4-506(d)(6) a basis for a criminal charge. Accordingly, an officer

would be unable to obtain an arrest warrant under FL §4-509 for a person

who violated only the child custody provisions of an order.

If the General Assembly amends the statute to provide explicit

authority for an officer to use force to carry out a custody order in a

domestic violence case, such an amendment might also add failure to

comply with a custody order to the list of offenses in FL §4-509.

estranged wife); State v. Ratley, 828 P.2d 78 (Kan. 1992) (wife who

had left house as result of abuse could consent to search). See

generally United States v. Matlock, 415 U.S. 164, 169-72 (1974)

(discussing third party consent to searches of premises). 

 Accordingly, if officers serving an order containing a

temporary child custody provision are refused entry to a residence

where the child is located, prudence dictates that the officers refrain

from forcible entry. The officers may be able to obtain an arrest

warrant for an uncooperative respondent for violation of a protective

order under FL §4-509. In the course of entering the residence and 11

arresting the respondent for that violation, the officers may also

carry out the custody provision of the order.
120 [84 Op. Att’y

 An older child’s wishes may have a strong bearing on the ultimate 12

decision concerning custody. For example, a child may initiate a petition

regarding the child’s custody at age 16. FL §9-103. Similarly, an

orphaned child of 14 may appoint the child’s own guardian with approval

of the court. Annotated Code of Maryland, Estates & Trusts Article, §13-

702. In making custody decisions, courts generally give considerable

weight to the wishes of a mature child unless it is clear that the child’s

decision would place the child in danger. See Newkirk v. Newkirk, 73 Md.

App. 588, 595, 535 A.2d 947 (1988)(placing significant weight on the

wishes of the 13 and 15 year old children to live with their adult halfbrother rather than their father).

The officer may also make a forcible entry into a residence in

certain circumstances if necessary to take custody of a child in

serious, immediate danger. In particular, FL §5-709 authorizes a

representative of the local social services agency to obtain assistance

of law enforcement, including forcible entry into a residence, if the

representative has previously been denied entry into the residence

and there is probable cause to believe that the child is in serious,

immediate danger.

C. Persons Against Whom Force May Be Used

1. Use of Force Against the Child

If a child who is the subject of the custody order resists the

officer, the officer must consider the child’s age and vulnerability in

determining whether to obtain custody of the child by using force

against the child. A hysterical 10-year old may be readily subdued

by minimal force and persuasive conversation. A threatening

teenager may not be as easily controlled, which may require a

decision whether to use significant physical force against a minor.

Such force should rarely be employed against a minor. But see

Branch, 123 Md. App. at 351 (holding that the use of force against

a minor, namely forcibly handcuffing a minor arrestee for her own

protection, was “entirely reasonable under the circumstances”). The

situation presented by a hostile older child may be better addressed

by social workers, the custodial parent, an attorney appointed for the

child, or even a judge.12
Gen. 105] 121

Under Maryland law, the offense of hindering consists of the 13

following elements: (1) the officer is engaged in lawful duty, (2) an act or

omission of the defendant hinders the officer’s performance of that duty;

(3) the defendant was aware of officer’s duty, and (4) the defendant

intended to interfere. Davis v. DiPino, 354 Md. 18, 729 A.2d 354, 362

(1999); see also Cover v. State, 297 Md. 398, 466 A.2d 1276 (1983).

2. Use of Force Against Respondent

If the resistance comes from the respondent named in the

domestic violence order, the officer should not hesitate to use

reasonable and necessary force to carry out the order. The order

itself is based upon a finding that the respondent has acted in an

abusive manner against the petitioner. In the case of a protective

order, the respondent has already had notice of and an opportunity

to participate in the proceedings and to contest the allegations of

abuse giving rise to the order. See FL §§4-504, -505 and -506. In

addition, the respondent may be subject to arrest and prosecution for

hindering a police officer under these circumstances. See 13

Wildberger v. State, 74 Md. App. 107, 114-15, 536 A.2d 718 (1988)

(mother convicted of hindering for interfering with officer’s attempt

to examine child for evidence of abuse). The facts in each case will

determine the nature and extent of the force reasonably necessary to

execute the order.

As noted above, certain other states permit or require the

officer to arrest the non-custodial parent subject to the protective

order upon that parent’s failure or refusal to return the children to the

custodial parent. See, La. Rev. Stat. Ann., Title 14, §79; Mo. Ann.

Stat. §455.085(5). Maryland’s order form does not itself grant such

authority to an officer executing a protective order. Such

authorization could be an appropriate subject of clarifying

legislation.

3. Use of Force Against a Third Party

Should the officer encounter opposition from a third party not

subject to the protective or temporary ex parte order ) e.g., a

grandparent or day care provider ) the decision of whether to use

force should be weighed carefully. Absent an indication of danger

to the child, it may be best for the officer to withdraw from the

situation. The officer could wait to execute the order until the child
122 [84 Op. Att’y

 There may be procedural and substantive issues associated with 14

making such a change to the order. For example, the domestic violence

law directs that a protective order be served upon the parties and, among

others, “any affected person eligible for relief” and “any other person the

court determines is appropriate.” FL §4-506(f). By contrast, the statute

only directs that a temporary ex parte order be served on “the alleged

abuser.” FL §4-505(b). In any event, we offer this suggestion to highlight

the distinction between using force against the individual subject to the

protective order and using force against a third party. Cf. FL §9-210

(requiring joinder of a third party with physical custody of a child subject

to custody litigation). An amendment of the domestic violence law might

also address issues relating to a third party custodian who is not otherwise

a party to the action.

is in the custody of the respondent named in the order or the officer

could return to the issuing court, identify the individual with custody

of the child, and seek an amendment to the order specifically

addressing this individual.14

D. Considerations of Safety

1. Safety of the Child

Presumably, the child or children subject to the order will be

present at the time an officer attempts to execute the temporary

custody portion of the order. In determining whether and to what

extent force should be used, the officer should weigh heavily the

child’s physical and emotional safety. If the officer is considering

using force against the non-custodial parent or third party care giver,

the officer should consider whether such force will place the child

at risk of physical harm. This determination should be based upon

the child’s proximity to the officer and other individual, the level of

hostility facing the officer, and the age of the child. Unless the

officer has reason to fear for the child’s safety if not removed

immediately, it would be a rare circumstance in which a child’s

physical safety should be placed in jeopardy. Even if the officer

would be privileged to use force against the non-custodial parent or

third party, the officer owes a duty to the child to use that force in a

reasonable manner with respect to the child. Essentially, an officer

has a “double responsibility–one to the prospective arrestee not to

use unnecessary force against him, and one to the public at large to

use even reasonable force in a reasonable manner.” Giant Food v.

Scherry, 51 Md. App. 586, 589-90, 444 A.2d 483 (1982)(finding that
Gen. 105] 123

use of deadly force to stop a fleeing felon, though permissible as

against the felon, was not reasonable where innocent bystanders

were placed in jeopardy by the officer’s action); see Restatement 2d

Torts §§75, 137. Although most children may be upset when taken

into custody by an officer, the officer should also consider the

additional emotional harm to the child if force is used against the

child’s parent or other care giver in the child’s presence.

If the officer has reason to believe that the child is in danger in

the custody of the respondent or a third party, then the scales tip in

favor of using whatever force is necessary to remove the child. Cf.

Restatement 2d Torts §§76 (privilege to defend third person when

that person would be entitled to act in self-defense), 156 (privilege

ancillary to duty of protection). This analysis would be the same as

that performed under the statutes permitting law enforcement and

social service officials to obtain immediate custody of a child

believed to be in serious, imminent danger. FL §5-709 (permitting

removal of a child and the use of “reasonable force, if necessary,” to

gain entry if the officials have probable cause to believe the child to

be in “serious, immediate danger”); CJ §3-814(a)(3) (permitting a

law enforcement officer to take custody of a child when there are

“reasonable grounds” to believe the child is in immediate danger).

2. Officer Safety

Finally, an officer must consider the officer’s own safety in

determining whether and to what extent force is reasonably

necessary. If the officer reasonably believes that he or she is in

danger, the officer should retreat or use whatever force is reasonably

necessary for self-protection. 5 Am Jur. 2d Arrests §109; see

Tennessee v. Goren, 471 U.S. 1 (1985); Elliott v. Leavitt, 99 F.3d

640, 642 (4 Cir. 1996), cert. denied, 117 S.Ct. 2512 (1997). th

E. Civil Liability and Immunity

Even officers who follow these guidelines and exercise the

utmost discretion in using force to execute a custody order may still

encounter civil litigation challenging their actions. Such litigation

typically may assert claims based upon alleged violations of federal

constitutional or statutory rights under 42 U.S.C. §1983, violations
124 [84 Op. Att’y

 In a recent decision, the Court of Appeals discussed these 15

potential claims in some detail and the immunities available to municipal

police officers. DiPino v. Davis, 354 Md. 18, 729 A.2d 354, 367-73

(1999).

In the parlance of §1983, an officer is a “person” subject to suit 16

for damages. The State, and State officials sued in an “official capacity,”

are not persons subject to suit for monetary damages under §1983. By

contrast, a local government is a “person” under that statute and is

therefore susceptible to such claims. Ritchie v. Donnelly, 324 Md. 344,

355-57, 597 A.2d 432 (1991).

of State constitutional provisions, and common law torts. This 15

opinion is not the occasion for canvassing all possible claims that

might be conceived against law enforcement officers or the defenses

that the officers may have. However, we offer some brief comments

on official immunities that are available. 

To the extent that an officer is sued in an individual capacity

under §1983 by a person against whom the officer used force, the

officer may assert qualified immunity as a defense. An inquiry into 16

a qualified immunity defense follows the objective reasonableness

test: if the force employed was reasonable and necessary, there is no

constitutional violation and the officer is entitled to qualified

immunity. See Branch, 123 Md. App. at 348-49 (discussing

defendants’ entitlement to immunity under the Graham standard).

This holds true regardless of the officer’s intentions: “[A]n officer’s

evil intentions will not make a Fourth Amendment violation out of

an objectively reasonable use of force; nor will an officer’s good

intentions make an objectively unreasonable use of force

constitutional.” Shoemaker v. Smith, 353 Md. 143, 725 A.2d 549,

558 (1999) (quoting Graham, 490 U.S. at 397).

An officer of a local police department may also be sued in an

official capacity under §1983 only to the extent that the complaint

challenges “a statute, regulation, policy, or custom of the

governmental entity” the officer is implementing. Ashton v. Brown,

339 Md. 70, 111-12, 660 A.2d 447 (1995). Although there is no

qualified immunity available to the officer in such an action, neither

is the officer liable individually for damages. DiPino v. Davis, 354

Md. 18, 729 A.2d 354, 369 (1999).
Gen. 105] 125

 Under the LGTCA, a local government entity is liable, up to 17

certain limits, for its own tortious conduct and for compensatory damages

assessed against its employees for tortious conduct committed within the

scope of employment. CJ §§5-302(b), 5-303(b); DiPino v. Davis, 729

A.2d at 370.

With respect to common law tort claims, an officer may assert

public official immunity. An officer who asserts public official

immunity may be relieved of liability so long as the officer acted

without malice or gross negligence and within the scope of the

officer’s public duties. See Annotated Code of Maryland, State

Government Article, §12-105 (referencing the immunity of State

personnel set forth in CJ §5-522(b)); Shoemaker v. Smith, 353 Md.

143, 725 A.2d 549, 557 (1999). This immunity would apply to an

allegation of excessive force made against an officer executing a

protective order. See Branch, 123 Md. App. at 349; see also Davis

v. Muse, 51 Md. App. 93, 98-99, 441 A.2d 1089 (1982)(holding that

lower court erred in failing to instruct jury that it must find malice to

hold a police officer liable for state tort claims in an excessive force

case). Local law enforcement officers enjoy a similar immunity.

See DiPino v. Davis, 354 Md. 18, 729 A.2d 354, 369-71 (1999);

James v. Prince George’s County, 284 Md. 294, 396 A.2d 255

(1979) (public officials who perform discretionary acts in

furtherance of official duties entitled to qualified immunity); CJ §5-

302(b) (under Local Government Tort Claims Act, local government

employees protected against execution of a tort judgment where the

employee did not act with actual malice). 

17

Neither the officer or the officer’s jurisdiction has immunity

under Maryland law from suits based upon violations of State

constitutional rights. Clea v. Mayor and City Council of Baltimore,

312 Md. 662, 667 n.3, 541 A.2d 1303 (1986). Unlike the law under

§1983, no distinction is made as to whether such claims are asserted

in an individual or official capacity. Ritchie v. Donnelly, 324 Md.

344, 373-74, 597 A.2d 432 (1991). Similarly, while a local

government entity has no respondeat superior liability under §1983

with respect to alleged State constitutional violations, a local

government entity is subject to liability for the officer’s actions

under the doctrine of respondeat superior, although the LGTCA may

assess and distribute liability differently than would the common

law. DiPino v. Davis, 354 Md. 18, 729 A.2d 354, 371-73 (1991).

Ashton v. Brown, 339 Md. 70, 112, 660 A.2d 441, 468 (1995). 
126 [84 Op. Att’y

III

Conclusion

In summary, the direction to use “reasonable and necessary

force” to execute a temporary child custody provision in a domestic

violence order may be based on the inherent powers of the courts,

although this proposition is not free from doubt. An amendment of

the domestic violence law that explicitly authorizes law enforcement

officers to enforce child custody orders could resolve that question.

When an officer uses such force, the officer’s conduct must be

objectively reasonable, taking into consideration the specific factual

circumstances presented to the officer. An officer will be protected

from liability under §1983 for use of objectively reasonable force

and may be immune from tort liability for actions taken without

malice or gross negligence.

J. Joseph Curran, Jr.

Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice

Jack Schwartz

Assistant Attorney General

Kathleen Hoke Dachille

Assistant Attorney General