Balt. City Police Dept v. Potts

Baltimore City Police Department, et al. v. Ivan Potts, Misc. No. 6, September Term, 2019; Mayor and City Council of Baltimore v. Estate of William James, By Its Personal Representative, Menyonde Lewis, No. 51, Sept. Term, 2019 LOCAL GOVERNMENT TORT CLAIMS ACT – MD. CODE ANN., CTS. & JUD. PROC.

(1974, 2013 REPL. VOL.) § 5-303(b)(1) – SCOPE OF EMPLOYMENT – ACTIONS BY LAW ENFORCEMENT OFFICERS – In two cases, Court of Appeals held that former members of Baltimore City Police Department’s Gun Trace Task Force acted within scope of employment. Court of Appeals concluded that stipulations of fact, which described actions by law enforcement officers, established that officers’ conduct satisfied test for conduct within scope of employment set forth in Court’s case law. Officers’ conduct in both cases was analogous to cases in which Maryland appellate courts have determined that government employees acted within scope of employment.

Under Md. Code Ann., Cts. & Jud. Proc. (1974, 2013 Repl. Vol.) § 5-303(b)(1), which is part of Local Government Tort Claims Act, Mayor and City Council of Baltimore and Baltimore City Police Department are responsible for compensating plaintiffs for officers’ actions by paying settlements that plaintiffs and officers reached.

United States District Court for the District of Maryland Case No. 8:16-cv-03187-CBD IN THE COURT OF APPEALS Circuit Court for Baltimore City OF MARYLAND Case No. 24-C-19-002784 Argued: February 10, 2020 Misc. No. 6 September Term, 2019 ______________________________________ BALTIMORE CITY POLICE DEPARTMENT, ET AL. v. IVAN POTTS ______________________________________ No. 51 September Term, 2019 ______________________________________ MAYOR AND CITY COUNCIL OF BALTIMORE v. ESTATE OF WILLIAM JAMES, BY ITS PERSONAL REPRESENTATIVE, MENYONDE LEWIS ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Wilner, Alan M. (Senior Judge, Specially Assigned), JJ. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document ______________________________________ is authentic.

Suzanne Johnson 2020-04-24 Opinion by Watts, J. 11:42-04:00 ______________________________________ Suzanne C. Johnson, Clerk Filed: April 24, 2020 In the instant cases, we must decide whether certain actions by law enforcement officers were within the scope of their employment.1 The officers involved were members of the Baltimore City Police Department (“the Department”)’s now-defunct Gun Trace Task Force. A few years ago, in a shocking and unfortunate scandal, it was discovered that members of the Department’s Gun Trace Task Force had engaged in what has been described as “a wide-ranging, years-long racketeering conspiracy,” which resulted in the officers being prosecuted and convicted in the United States District Court for the District of Maryland. The instant cases do not involve the facts underlying the federal prosecutions. Rather, the cases arise out of two instances of police misconduct, in which the officers conducted stops and made arrests without reasonable articulable suspicion or probable cause, that were not charged in the federal conspiracy.

Under the Local Government Tort Claims Act (“the LGTCA”), Md. Code Ann., Cts. & Jud. Proc. (1974, 2013 Repl. Vol.) (“CJ”) §§ 5-301 to 5-304, generally, “a local government [is] liable for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government.” CJ § 5-303(b)(1).

The LGTCA does not define “scope of 1 In this Court, in Balt. City Police Dep’t, et al. v. Ivan Potts, Misc. No. 6, Sept. Term, 2019, and Mayor and City Council of Balt. v. Estate of William James, By Its Personal Representative, Menyonde Lewis, Case No. 51, Sept. Term, 2019, the Mayor and City Council of Baltimore and the Baltimore City Police Department filed identical consent motions to consolidate the oral arguments, and this Court granted the motions. Although the cases have not been formally consolidated, we issue one opinion due to the similarity of the facts and applicable law.

Although the Department is not a party to James, we will refer to assertions by “the City and the Department” in both Potts and James, as the City’s contentions in James are almost identical to the City’s and the Department’s arguments in Potts. employment,” but Maryland case law provides an explanation of the term. In Sawyer v. Humphries, 322 Md. 247, 255 , 587 A.2d 467, 470 (1991), this Court explained that there is a two-pronged “general test” for whether an employee acted within the scope of employment (“the Sawyer test”). The first prong of the Sawyer test is whether the employee’s actions “were in furtherance of the employer’s business[,]” and the second prong is whether the employer “authorized” the employee’s actions. Id. at 255 , 587 A.2d at 470 .

In Potts, the officers stopped Ivan Potts, Appellee, without reasonable articulable suspicion as he was walking, beat him, searched him, and found no contraband. Having found no contraband, the officers planted a handgun on Potts, arrested him, and falsely stated in police reports that he had possessed the handgun. The officers did not steal or take anything of value from Potts. At Potts’s trial, the officers falsely testified that they had recovered the handgun from him.

Potts was convicted and sentenced to eight years’ imprisonment, the first five of which to be served without the possibility of parole, and he was incarcerated at various Maryland State prison facilities until his conviction was vacated. From the time of Potts’s arrest to his release, he was in custody approximately nineteen months. In the United States District Court for the District of Maryland, Potts sued the officers and the Department, Appellant, and later the Mayor and City Council of Baltimore (“the City”), Appellant.2 In James, officers stopped William James’s vehicle without reasonable articulable The City and the Department constitute local governments for the LGTCA’s 2 purposes. See CJ § 5-301(d)(4), (d)(21). -2- suspicion and demanded that James provide the name of a person who possessed drugs or a gun.

When James was unable to do so, the officers falsely alleged that a handgun, that they had provided, belonged to James and arrested him. The officers did not steal or take anything of value from James. James was in custody awaiting trial for more than seven months. After his release from custody, in the Circuit Court for Baltimore City, James sued the officers, the Department, and the City, Petitioner.

During the proceedings in the circuit court, James died in an incident that was unrelated to the civil case. James’s estate, Respondent, replaced him as the plaintiff. In both cases, the plaintiffs and the officers agreed to a settlement of the lawsuits in the amount of $32,000 for the plaintiffs. As part of the settlements, the officers assigned to Potts and James’s estate the right to indemnification from the City under CJ § 5- 303(b)(1) and the collective bargaining agreement between the Department and its officers’ union.3 Potts and James’s estate filed supplemental complaints in their respective cases, seeking payment of the settlements by the City.

In both cases, in connection with motions for summary judgment, the parties entered into a “Stipulated Statement of Undisputed Material Facts” (“the stipulation”). In Potts, while motions for summary judgment were pending in federal court, the parties filed a joint motion to certify a question of law to this Court, which the United States 3 The Memorandum of Understanding between the Department and the Baltimore City Lodge No. 3, Fraternal Order of Police, Inc. Unit I, states in pertinent part: “The City will provide indemnification to any member of the [Department] who is made a defendant in litigation arising out of acts [that are] with[in] the scope of [] employment that results in a monetary judgment being rendered against the employee.” -3- District Court for the District of Maryland granted. In James, the circuit court granted James’s estate’s motion for summary judgment, finding that the officers acted within the scope of employment and that the City was required to compensate James’s estate. The City appealed, and petitioned for a writ of certiorari while the case was pending in the Court of Special Appeals.

The certified question of law in Potts and the question presented in the petition for a writ of certiorari in James are identical, and state: Whether, . . . in light of the undisputed facts in the record, the three former Baltimore City Police officers [who are] named in this action are entitled to indemnity for the judgments [that were] entered against them herein; that is, whether, as matter of law[,] on the undisputed facts, the judgment [that was] sought to be enforced by [the p]laintiff is based on “tortious acts or omissions [that were] committed by the [officers] within the scope of [their] employment with [the City].” (Quoting CJ § 5-303(b)(1)) (some alterations in original) (emphasis omitted). This Court accepted the certified question of law in Potts, and granted the petition for a writ of certiorari in James. See Mayor & City Council of Balt. v. Estate of James by Lewis, 466 Md. 309 , 219 A.3d 526 (2019). Before us, the City and the Department contend that the officers’ actions were outside the scope of employment as their actions were outrageous, personally motivated, and willfully criminal.

Potts and James’s estate respond that the officers acted within the scope of employment as there is no evidence that the officers personally benefitted from their actions—i.e., the officers’ actions were designed to further the interests of the Department, not the officers. We conclude that the stipulations in Potts and James establish that the officers’ conduct in each case satisfies the test for conduct within the scope of employment that this -4- Court set forth in Sawyer, 322 Md. at 255-57 , 587 A.2d at 470-71 . The officers’ conduct in Potts and James is analogous to conduct in cases in which Maryland appellate courts have determined that government employees acted within the scope of employment. As such, we hold that, in Potts and James, the officers acted within the scope of employment, and, under CJ § 5-303(b)(1), the City is responsible for compensating Potts and James’s estate for the officers’ actions by paying the settlements that Potts, James’s estate, and the officers reached.

Evaluating the first prong of the Sawyer test, we conclude that the officers’ actions were in furtherance of the Department’s business as their actions were at least partially motivated by “a purpose to serve the” Department, and because there is no indication that the officers were “acting to protect [their] own interests[.]” Sawyer, 322 Md. at 255-57 , 587 A.2d at 470-71 (citations omitted). Our conclusion is supported by the well- established principle in Maryland case law that, generally, an officer’s arrest of a person is within the scope of employment. See Sawyer, 322 Md. at 260 , 587 A.2d at 473 . Although it is despicable that the officers stopped Potts and James without reasonable articulable suspicion and arrested them based on fabricated evidence, these circumstances alone do not render it inconceivable that the officers were acting within the scope of their employment.

The stipulations in Potts and James contain no indication that the officers took or received anything of value from Potts or James, or were otherwise serving their own personal interests in making the arrests. The officers’ misconduct in Potts and James is distinguishable from their conduct in the conspiracy for which they were prosecuted in federal court. In contrast to the circumstances here, in furtherance of the federal -5- conspiracy, in incidents that did not involve Potts or James, the officers seized money and drugs and kept the money and drugs for themselves and, as a result, were charged with racketeering. The lack of evidence of any personal benefit that the officers received from their conduct in these cases leads to a determination that, in arresting Potts and James, the officers were acting at least in part in furtherance of the business of the Department.

In assessing the second prong of the Sawyer test, it is plain that the Department did not authorize (and, in fact, expressly forbade) the officers’ misconduct involving Potts and James—which included disregarding a lack of reasonable articulable suspicion for the stops, planting handguns, beating Potts, making false statements in police reports, and testifying falsely at trial. In Sawyer, id. at 256 , 587 A.2d at 471 , though, this Court set forth ten factors for determining whether an employee’s actions were incidental to those that the employer authorized and thus within the employee’s scope of employment. Here, weighing the ten factors set forth in Sawyer leads to the conclusion that the officers’ conduct was incidental to conduct that the Department authorized. Although the Department clearly did not authorize the officers’ misconduct, and indeed their conduct violated the Department’s “express . . . orders[,]” under the factors set forth in Sawyer, the officers’ actions were “incident[al] to the performance of the duties” that the Department entrusted to them, and those actions did not render the officers’ overall conduct outside the scope of employment.

Id. at 255 , 587 A.2d at 470 (cleaned up). BACKGROUND Potts The following information is derived from the stipulation in Potts. -6- On September 2, 2015, in Baltimore City, Potts began walking from his home to a grocery store. Evodio Calles Hendrix, Wayne Earl Jenkins, and Maurice Kilpatrick Ward exited an unmarked Department vehicle and stopped Potts. At the time, Hendrix, Jenkins, and Ward were on-duty officers of the Department and members of the Department’s Gun Trace Task Force.

The officers lacked reasonable articulable suspicion for the stop or probable cause to believe that Potts had committed, or was committing, a crime. To the contrary, at all relevant times, Potts was not breaking any law. Potts declined to consent to a search of his person. The officers became angry, slammed Potts to the ground, and kicked him.

One of the officers beat Potts with a police baton. The other two officers made no effort to stop the beating. Potts was injured, and started bleeding. The officers handcuffed Potts and searched his person, but did not find any contraband.

One of the officers produced a handgun that Potts had never seen before. Jenkins tried to put the handgun in Potts’s hands so that his fingerprints would get on it. Potts resisted. Ward and Hendrix punched and kicked Potts again.

Potts suffered a large gash on his leg, bruises on his ribs, and injuries to his head. The Department’s booking unit declined to accept Potts until after the officers took him to a hospital for treatment. The stipulation does not indicate that any of the officers took or received anything of value from Potts. The officers authored police reports in which they falsely stated that Potts had a handgun on his person when they arrested him.

The officers did so to prevent Potts from being released on bail, and to encourage prosecutors to charge him. In the circuit court, the State charged Potts with handgun-related crimes. At Potts’s trial, the officers falsely -7- testified that they had recovered a handgun from Potts. On March 2, 2016, a jury convicted Potts.

The circuit court sentenced Potts to eight years of imprisonment, the first five of which to be served without parole. Potts remained imprisoned until April 12, 2017. On that date, the circuit court vacated Potts’s convictions on a motion by the State’s Attorney for Baltimore City. James The following information is derived from the stipulation in James.

On August 18, 2016, in Baltimore City, James was driving his vehicle, in which his girlfriend was a passenger. Two Department vehicles cut in front of James’s vehicle, forcing him to pull over. Jenkins, Jemell Lamar Rayam, and Marcus Roosevelt Taylor were inside the Department vehicles. At the time, Jenkins, Rayam, and Taylor were on- duty officers of the Department and members of the Department’s Gun Trace Task Force.

The officers lacked reasonable articulable suspicion for the stop or probable cause to believe that James had committed, or was committing, a crime. When the officers pulled James over, neither he nor his girlfriend were breaking any law. Taylor exited one of the Department vehicles, approached James’s vehicle, and pulled him out. Taylor told James that he would let James go if James provided the name of a person who possessed guns or drugs.

James said he did not know any such person, and could not provide any names. Rayam advised James’s girlfriend that James would be imprisoned for possession of a gun. The officers huddled around their vehicles. When they finished, Jenkins produced a gun that did not belong to James and said: “This is your gun right here.” The officers arrested James and took him to the Baltimore City Central -8- Booking & Intake Center.

The stipulation does not indicate that the officers took or received anything of value from James. In the circuit court, the State charged James with handgun-related crimes. James was ordered to be held without bail. James remained imprisoned until March 24, 2017.

On that date, the State entered a nolle prosequi as to the charges against him. As a result of being imprisoned for more than seven months, James lost his job and time with his six- year-old son, and his home went into foreclosure. The Federal Prosecutions The following information concerning the federal prosecutions is derived from parts of the stipulations in Potts and James that are identical. On or about February 27, 2017, the Office of the United States Attorney for the District of Maryland charged the five officers who were involved in Potts and/or James (Hendrix, Jenkins, Rayam, Taylor, and Ward), as well as two other former members of the Department’s Gun Trace Task Force (Momodu Bondeva Kenton Gondo and Daniel Thomas Hersl).

The seven officers were charged in connection with what the stipulations in Potts and James called “a wide-ranging, years-long racketeering conspiracy[.]” On or about August 24, 2017, the Office of the United States Attorney for the District of Maryland charged Thomas Allers, another former member of the Department’s Gun Trace Task Force, in connection with the conspiracy. Hersl and Taylor were found guilty at a joint trial. Allers, Gondo, Hendrix, Jenkins, Rayam, and Ward pled guilty. The stipulations in Potts and James contained excerpts from the plea agreements, which stated that each of these six officers admitted that he and the other officers had the goal of “violating the legitimate purposes of the [Department] in -9- order to enrich themselves through illegal conduct, including extortion[ and] robbery[.]” According to the stipulations in Potts and James, the crimes to which Allers, Gondo, Hendrix, Jenkins, Rayam, and Ward pled guilty, as well as the crimes of which Hersl and Taylor were found guilty, “demonstrate actions[,] omissions[,] and various forms of conduct that grossly depart from any authorized or legitimate police conduct.” “The underlying actions comprising the criminal acts described in the indictments and plea agreements failed to serve any legitimate purpose of the City’s or [the Department]’s business as a municipal government entity or the principal public safety agency of that government[,] or did so only coincidentally.” The stipulations in Potts and James state: “The actions of the [officer]s were performed during[,] and in furtherance of[,] their outrageous criminal conspiracy[,] and in pursuit of their own pecuniary self-interests.” “The [officer]s purposefully and willfully and regularly deviated from the legitimate law enforcement aims of the [Department]’s mission [] to enrich themselves through the illegitimate and illegal conduct.” “The [officer]s accomplished this by concealing their illegitimate and illegal conduct from City officials and from their superiors.” “The [officer]s would sometimes intentionally avoid attending . . . scheduled court proceedings [that were] related to individuals [whom] they had falsely arrested so as not to be questioned regarding their illegal activity of extorting and robbing citizens and fabricating evidence against such falsely arrested persons.” “The [officer]s conspired with each other and coached each other in order to better lie to internal investigators to cover up and conceal their wrongdoing.” The stipulations state that the federal prosecutions of the officers were exclusively - 10 - based on incidents that involved victims of the conspiracy—i.e., individuals other than Potts and James.

Neither Potts nor James was interviewed by federal investigators or prosecutors, or called as a witness at Hersl’s and Taylor’s trial. No event involving Potts or James was included in any stipulation of fact, plea agreement, pre-sentence report, or other document in connection with the federal prosecutions of the officers. The stipulations in Potts and James include descriptions of twenty-eight incidents involving victims of the federal conspiracy. According to the stipulations, the officers who pled guilty admitted under oath that they had participated in the twenty-eight incidents.

According to the stipulations, the parties included the twenty-eight incidents to “demonstrate the [officer]s’ illegal, illegitimate[,] and egregious criminal conduct[,] and craft a vivid picture of the nature[,] character[,] and duration of the conspiratorial agreement into which all [of] the [officer]s knowingly and willfully entered[.]” Each of the twenty-eight incidents occurred when the officers were members of the Department’s Gun Trace Task Force. In each incident, some of the officers seized cash, drugs, and/or other personal property that had belonged to a person with whom they interacted. The officers kept some or all of the cash and drugs for themselves, rather than submitting all of the cash and drugs at the Department’s headquarters as evidence. The officers either failed to author a police report, authored a police report that did not mention the seizure, or authored a police report that understated the amount of cash that the officers had seized.

We summarize three of the incidents to illustrate the nature and extent of officers’ crimes. On September 7, 2016, Gondo, Hersl, Rayam, Taylor, and Ward stopped a person - 11 - with the initials S.S.4 as he was trying to leave a storage facility’s parking lot. Taylor falsely told S.S. that the officers had a search warrant for S.S.’s storage unit. Hersl, Jenkins, and Rayam went into S.S.’s storage unit, seized a sock that contained $4,800, and removed $2,000.

Rayam gave the sock to S.S. and told him to leave. The stipulations in Potts and James characterized the officers’ actions involving S.S. as “robbery and extortion[.]” The officers failed to author a police report regarding the officers’ encounter with S.S., and failed to submit any portion of the $2,000 to the Department’s headquarters as evidence. In other words, the officers kept the $2,000 for themselves. On July 8, 2016, Gondo, Hersl, Jenkins, and Rayam went to the residence of a person whose initials were R.H. and asked him where he kept his cash.

R.H. responded that he kept his cash in a bedroom. The officers seized $20,000 from R.H.’s residence. Jenkins told R.H. that, if he provided the name of a drug dealer whom the officers could rob, the officers would “take care” of R.H., and possibly provide him with drugs to sell. The stipulations in Potts and James do not indicate how, if at all, R.H. responded.

Rayam authored a police report regarding the officers’ encounter with R.H., and failed to disclose that the officers had seized $20,000 at his residence. In other words, the officers stole the $20,000 from R.H.’s residence. On March 22, 2016, Hendrix, Jenkins, Taylor, and Ward initiated a traffic stop of a vehicle that a person with the initials O.S. had been driving. During the traffic stop, the officers seized $21,500, drugs, and a key to O.S.’s residence.

The officers learned O.S.’s 4 The victims of the conspiracy are referred to by their initials. - 12 - home address by looking at his driver’s license. Hendrix authored a police report that falsely stated that the officers had seized $15,000 from O.S. during the traffic stop. As Hendrix’s supervisor, Jenkins approved the police report. The officers submitted only $15,000 at the Department’s headquarters as evidence, and kept the remaining $6,500 for themselves.

At some point after the traffic stop, the officers entered O.S.’s residence and stole $200,000 and at least two kilograms of cocaine. Jenkins gave the drugs to a third party to sell with the understanding that Jenkins would get the sale’s proceeds. The officers did not author any police reports regarding their seizure of cash and cocaine at O.S.’s residence. DISCUSSION The Parties’ Contentions The City and the Department contend that the officers engaged in outrageous, personally motivated, and willfully criminal acts that were outside the scope of their employment.

The City and the Department argue that the officers’ actions against Potts and James were neither in furtherance of the business of, nor authorized by, the Department. The City and the Department maintain that the officers’ actions involving Potts and James were in furtherance of the criminal conspiracy prosecuted in federal court. The City and the Department contend that it would thwart the LGTCA’s purpose—of providing assistance to those harmed by local government employees who are acting in good faith—to allow officers to commit crimes, be convicted, and force the City to pay for the crimes. James’s estate responds that, even if the officers’ actions were intentional, - 13 - outrageous, and criminal, those actions were within the scope of employment.

According to James’s estate, the plain language of the LGTCA does not preclude such conduct from falling within the scope of employment as the statute indicates that a local government shall be liable for tortious acts or omissions committed by an employee within the scope of employment. Potts argues that the officers’ actions were authorized by, and designed to further the interests of, the Department. Potts asserts that the record does not show that the officers arrested him for personal reasons—e.g., to obtain money or cover up their other crimes—or that there is evidence that the officers personally benefitted from their actions. Potts maintains that, even if the officers were motivated by personal reasons, they had additional motivations as well—namely, advancing the Department’s interest in showing the public that it was fighting gun violence.

Potts and James’s estate contend that having the City compensate them would serve the LGTCA’s purposes of ensuring that victims have a remedy and encouraging local governments to prevent abuses of power. Standard of Review An appellate court reviews without deference a trial court’s grant of a motion for summary judgment, “review[s] the record in the light most favorable to the nonmoving party[,] . . . and construe[s] any reasonable inferences that may be drawn from the facts against the moving party.” Kennedy Krieger Inst., Inc. v. Partlow, 460 Md. 607, 632-33 , 191 A.3d 425, 440 (2018) (citation omitted). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and [] the [moving] party is entitled to judgment as a matter of law.” Md. R. 2-501(a). - 14 - The LGTCA and the Term “Scope of Employment” CJ § 5-302(b), which is part of the LGTCA, governs judgments against local governments’ employees, stating in pertinent part: (1) Except as provided in paragraph (2) of this subsection, a person may not execute against an employee on a judgment rendered for tortious acts or omissions committed by the employee within the scope of employment with a local government. (2)(i) An employee shall be fully liable for all damages awarded in an action in which it is found that the employee acted with actual malice.

(ii) In such circumstances the judgment may be executed against the employee and the local government may seek indemnification for any sums it is required to pay under [CJ] § 5-303(b)(1)[]. CJ § 5-303(b)(1) governs local governments’ liability for their employees’ torts, stating: “Except as provided in subsection (c) of this section,[5] a local government shall be liable for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government.” Although the LGTCA does not define “scope of employment,” Maryland case law explains the term. Some Maryland cases that address the term “scope of employment” involve the LGTCA. See, e.g., Ennis v. Crenca, 322 Md. 285, 291 , 587 A.2d 485, 488 (1991); Wolfe v. Anne Arundel Cty., 374 Md. 20, 27 , 821 A.2d 52, 56 (2003).

Other Maryland cases that address the term “scope of employment” involve the doctrine of 5 CJ § 5-303(c) governs judgments against local governments or their employees that include punitive damages. CJ § 5-303(c) is not relevant here because the instant cases do not involve punitive damages. - 15 - respondeat superior, under which an employer is liable for an employee’s actions that are “within the scope of [] employment.” Cox v. Prince George’s Cty., 296 Md. 162, 164-65 , 460 A.2d 1038, 1039 (1983) (citation omitted); see, e.g., Prince George’s Cty. v. Morales, 230 Md. App. 699, 702 , 149 A.3d 741, 742 (2016). Sawyer, 322 Md. at 254, 587 A.2d at 470, which involved the Maryland Tort Claims Act (“the MTCA”), Md. Code Ann., State Gov’t (2014) (“SG”) §§ 12-101 to 12-110, is a particularly significant Maryland case that addresses the term “scope of employment.” Under the MTCA, generally, State personnel are immune for actions that are “within the scope of the public duties of the State personnel[,] and [are] made without malice or gross negligence[.]” SG § 12-105; CJ § 5-522(b). In Sawyer, 322 Md. at 254, 587 A.2d at 470, this Court explained: “Although this Court has never discussed in detail whether the phrase ‘scope of the public duties’ in the [MTCA] is coextensive with the common[-]law concept of ‘scope of employment’ under the doctrine of respondeat superior, we have treated them as the same.” (Citations omitted).

In other words, the term “scope of the public duties” within the MTCA is “synonymous with ‘scope of employment’ for purposes of respondeat superior[.]” Id. at 254, 587 A.2d at 470. Although Sawyer involved the MTCA, in multiple subsequent cases that involved the LGTCA, this Court relied on Sawyer when discussing or applying the term “scope of employment.” In Ennis, 322 Md. at 293-94 , 587 A.2d at 489-90 , which involved the LGTCA, this Court referred to Sawyer multiple times when explaining the term “scope of employment.” In Wolfe, 374 Md. at 34 , 821 A.2d at 60 , which also involved the LGTCA, we held that it was “clear from our cases that [an officer] was not acting within the scope - 16 - of [] employment[,]” and we relied on Ennis, 322 Md. at 293-96 , 587 A.2d at 489-91 , and Sawyer, 322 Md. at 254-60 , 587 A.2d at 470-73 . In Morales, 230 Md. App. at 717 , 149 A.3d at 751 , which involved the doctrine of respondeat superior, the Court of Special Appeals relied on Sawyer when discussing the term “scope of employment.” The Court of Special Appeals observed that, because the term “scope of the public duties” within the MTCA is “‘synonymous with “scope of employment” for purposes of respondeat superior liability,’” cases applying the MTCA have precedential value in cases like” Morales—i.e., cases involving the doctrine of respondeat superior—“insofar as they involve scope of employment.” Morales, 230 Md. App. at 717 n.3, 149 A.3d at 751 n.3 (quoting Sawyer, 322 Md. at 254 , 587 A.2d at 470 ). In sum, where government employees’ actions have been at issue, this Court and the Court of Special Appeals have treated as synonymous the term “scope of employment” within the LGTCA, the term “scope of the public duties” within the MTCA, and the term “scope of employment” for purposes of the doctrine of respondeat superior.

As such, we will discuss relevant Maryland case law addressing issues as to the scope of employment under the LGTCA, the MTCA, and the doctrine of respondeat superior. In Cox, 296 Md. at 164, 171, 169 , 460 A.2d at 1039, 1043, 1042 , this Court held that a trial court erred in dismissing a complaint,6 where the plaintiffs’ allegations— 6 In Cox, 296 Md. at 165 , 460 A.2d at 1039 , the trial court “sustained [a] demurrer[,]” which is “[a] pleading stating that[,] although the facts [that are] alleged in a complaint may be true, they are insufficient for the plaintiff to state a claim for relief[.] . . . [] In most jurisdictions, such a pleading is now termed a motion to dismiss[.]” Demurrer, Black’s Law Dictionary (11th ed. 2019) (italics in original). We refer to the demurrer in Cox as “a motion to dismiss.” - 17 - namely, that county law enforcement officers detained their son by having a police dog bite him, and that the officers beat their son—were not inconsistent with the officers having acted within the scope of employment for purposes of the doctrine of respondeat superior. The plaintiffs sued the officers and the county for false arrest and other causes of action.

See Cox, 296 Md. at 164 , 460 A.2d at 1039 . In seeking dismissal, the county contended that, under the doctrine of respondeat superior, the officers’ actions were outside the scope of employment. See id. at 164-65 , 460 A.2d at 1039 . The trial court granted the motion to dismiss, the plaintiffs appealed, and the Court of Special Appeals affirmed.

See id. at 165 , 460 A.2d at 1039 . This Court reversed and remanded for further proceedings, explaining: An act may be within the scope of the employment, even though forbidden[,] done in a forbidden manner, or consciously criminal or tortious. . . . [T]he simple test for determining vicarious liability under the principle of respondeat superior is whether they were acts within the scope of [] employment; not whether they were done while prosecuting the [employer]’s business, but whether they were done by the [employee] in furtherance thereof, and were such as may fairly be said to be authorized by [the employer]. . . . A[n employer] is subject to liability for the intended tortious harm by a[n employee] to the person or things of another by an act [that was] done in connection with the [employee]’s employment, [even ]though the act was unauthorized, if the act was not unexpectable in view of the duties of the [employee]. Id. at 170-71 , 460 A.2d at 1042 (cleaned up).

We observed that the county argued that, according to the plaintiffs’ allegations, the officers were acting maliciously and intentionally, and therefore outside the scope of employment. See id. at 171 , 460 A.2d at 1043 . We reiterated, however, that an employer “may be held liable for the intentional torts of [an employee] where the [employee]’s actions are within the scope and in - 18 - furtherance of the [employer]’s business and the harm complained of was foreseeable.” Id. at 171 , 460 A.2d at 1043 . We concluded that the plaintiffs’ allegations met these criteria and were sufficient to survive the motion to dismiss.

See id. at 171 , 460 A.2d at 1043 . In Sawyer, 322 Md. at 260-61, 250-52, 587 A.2d at 473-74, 468-69, this Court held that a trial court erred in granting a motion to dismiss where two plaintiffs, who were involved in an altercation with an off-duty State trooper, brought an action against the trooper alleging assault and battery. This Court held that part of the conduct alleged in the complaint—namely, that the trooper threw rocks at the vehicle that the plaintiffs were in and beat one of the plaintiffs—did not constitute actions within the “scope of public duties” under the MTCA. See id. at 251, 257, 260, 587 A.2d at 468, 472, 473.

But, this Court concluded that whether or not other actions taken by the trooper on the same day during a second encounter—namely, hitting one of the plaintiffs, announcing that he was a law enforcement officer, and having the plaintiff arrested—were within the scope of employment should not have been decided on a motion to dismiss. See id. at 251-52, 260- 61, 587 A.2d at 469, 473-74. In the alternative, this Court also held that the trooper would not be entitled to immunity because the allegations in the complaint sufficiently alleged malice. See id. at 261-62, 587 A.2d at 474.

One of the plaintiffs was driving on a State highway in a vehicle, in which the other plaintiff was a passenger. See id. at 250, 587 A.2d at 468. The defendant, an off-duty officer of the Maryland State Police, was wearing civilian clothes and driving his personal vehicle on the State highway. See id. at 250, 587 A.2d at 468.

The defendant’s vehicle was in front of the plaintiffs’ vehicle. See id. at 250, 587 A.2d at 468. The defendant made - 19 - hand signals and pulled over to the side of the State highway, allowing the vehicle that the plaintiffs were in to pass. See id. at 250, 587 A.2d at 468.

The plaintiffs drove down a side road to a construction site and returned to the State highway. See id. at 250, 587 A.2d at 468. At that time, the defendant was leaning against his vehicle, which was parked on the side of the State highway. See id. at 250, 587 A.2d at 468.

The defendant motioned for the plaintiffs to approach him. See id. at 250, 587 A.2d at 468. The defendant picked up some rocks and threw one at the plaintiffs’ vehicle, making a large dent in the passenger side. See id. at 251, 587 A.2d at 468.

The driver of the plaintiff’s vehicle parked and got out, intending to speak with the defendant about the damage to his vehicle. See id. at 251, 587 A.2d at 468. The defendant picked up more rocks. See id. at 251, 587 A.2d at 468.

The driver picked up an empty beer bottle, intending to defend himself. See id. at 251, 587 A.2d at 468. The defendant grabbed the driver by the hair, beat him, and threatened to kill him. See id. at 251, 587 A.2d at 468.

The plaintiff who was in the passenger seat exited the vehicle, intending to help the driver. See id. at 251, 587 A.2d at 468. The defendant let go of the driver, stepped toward the other plaintiff, and said: “[U]nless you want some too, [] you better get back in the car.” Id. at 251, 587 A.2d at 468. Both of the plaintiffs got back in their vehicle.

See id. at 251, 587 A.2d at 468. The defendant approached the vehicle that the plaintiffs were in and offered to exchange information. See id. at 251, 587 A.2d at 468. The plaintiffs declined to do so and drove away.

See id. at 251, 587 A.2d at 468. Later the same day, the defendant’s vehicle began following the vehicle that the plaintiffs were in. See id. at 251, 587 A.2d at 468. The vehicle that the plaintiffs were in - 20 - stopped at a stop sign.

See id. at 251, 587 A.2d at 468. The defendant exited his vehicle, approached the passenger side of the plaintiffs’ vehicle, and slapped one of the plaintiffs across the chest. See id. at 251, 587 A.2d at 468-69. The defendant said that he was an officer of the Maryland State Police, and that he was arresting the plaintiff.

See id. at 251, 587 A.2d at 469. The plaintiffs did not believe that the defendant was a law enforcement officer, and repeatedly asked him for identification, which the defendant refused to provide. See id. at 251, 587 A.2d at 469. The defendant tried to remove the plaintiff whom he had slapped from his vehicle, but was unable to do so because his seat belt was fastened.

See id. at 251, 587 A.2d at 469. Eventually, other law enforcement officers arrived and arrested the plaintiff. See id. at 251-52, 587 A.2d at 469. During the lawsuit, the defendant filed a motion to dismiss, contending that, under the MTCA, he was immune because he acted within the scope of his public duties and without malice.

See id. at 252, 587 A.2d at 469. The trial court granted the motion to dismiss, the plaintiffs appealed, and the Court of Special Appeals affirmed. See id. at 253, 587 A.2d at 469. This Court reversed and remanded for further proceedings.

See id. at 262, 587 A.2d at 474. This Court noted that an employee’s actions are within the scope of employment where “they [are] in furtherance of the employer’s business and [are] authorized by the employer.” Id. at 255, 587 A.2d at 470 (internal quotation marks omitted). As to furtherance of the employer’s business, the question is “not whether [the employee’s actions] were done while prosecuting the [employer]’s business, but whether they were done by the [employee] in furtherance thereof[.]” Id. at 255, 587 A.2d at 470 (citation - 21 - omitted). As to authorization by the employer, the question is not whether the employer “expressly conferred” on the employee the authority to take the actions, “but whether the act[ions were] incident[al] to the performance of the duties [that were] entrusted to [the employee] by the [employer], even though in opposition to [the employer’s] express and positive orders.” Id. at 255, 587 A.2d at 470 (citation omitted).

This Court explained: To be within the scope of [] employment[,] the [employee’s] conduct must be of the kind [that] the [employee] is employed to perform[,] must occur during a period [that is] not unreasonably disconnected from the authorized period of employment[, must occur] in a locality [that is] not unreasonably distant from the authorized area, and [must be] actuated[,] at least in part[,] by a purpose to serve the [employer]. Id. at 255, 587 A.2d at 471 (citations omitted). This Court noted that, to be within the scope of employment, the employee’s actions must be of the same general nature as that which was authorized, or incidental to the conduct that was authorized, by the employer—regardless of whether the employer intended or consciously authorized the employee’s actions. See id. at 256, 587 A.2d at 471.

In determining whether the employee’s actions, “although not authorized[ by the employer], [were] nevertheless so similar to[,] or incidental to[,] the conduct [that was] authorized [by the employer] as to be within the scope of employment,” a court must consider the following ten factors: (a) whether or not the act[ions are] commonly done by such [employee]s; (b) the time, place[,] and purpose of the act[ions]; (c) the previous relations between the [employer] and the [employee]; (d) the extent to which the business of the [employer] is apportioned between different [employee]s; (e) whether the act[ions are] outside the enterprise of the [employer] or, if within the enterprise, ha[ve] not been entrusted to any [employee]; (f) whether or not the [employer] has reason to expect that such [] act[ions] will be done; (g) the similarity in quality of the act[ions that were] done to the act[ions that - 22 - were] authorized[ by the employer]; (h) whether or not the instrumentality by which the harm is done has been furnished by the [employer] to the [employee]; (i) the extent of departure from the normal method of accomplishing an authorized result[;] and (j) whether or not the act[ions are] seriously criminal. Id. at 256, 587 A.2d at 471 (cleaned up). Restating the factor as to “whether or not the [employer] has reason to expect that such [] act[ions] will be done[,]” this Court noted that a court must consider whether “the employee’s [actions were] expectable or foreseeable” from the employer’s perspective. Id. at 256, 587 A.2d at 471 (cleaned up).

We stated that an employee’s actions are outside the scope of employment where they are “personal, [] where they represent a departure from the purpose of furthering the employer’s business, or where the employee is acting to protect his [or her] own interests, even if during normal duty hours and at an authorized locality[.]” Id. at 256-57, 587 A.2d at 471 (citations omitted). We observed that where an employee’s actions are “unprovoked, highly unusual, and quite outrageous,” courts tend to hold that that circumstance, “in itself[,] is sufficient to indicate that the [employee’s] motive was a purely personal one[,]” and, that the employee’s actions were “outside the scope of employment.” Id. at 257, 587 A.2d at 471 (cleaned up). Utilizing these principles, we concluded that, assuming the plaintiffs’ allegations were accurate, the defendant acted outside the scope of his public duties during the first encounter. See id. at 257, 587 A.2d at 472.

Specifically, this Court determined that, during the first encounter, “the defendant was acting from personal motives, that such conduct by a [law enforcement] officer would not be expectable, and that [the defendant] was in no way furthering the State’s interests.” Id. at 260, 587 A.2d at 473. This Court explained that the following circumstances - 23 - indicated that the defendant’s actions during the first encounter were outside the scope of employment: The defendant was off duty and driving his personal car. . . . [T]he defendant[] throwing a rock at the plaintiffs’ car[,] and his attack upon the plaintiffs[,] . . . had nothing to do with the defendant’s duties as a [law enforcement] officer. As to that activity, there is no suggestion . . . that [the defendant] was attempting to question, stop, detain[,] or arrest the plaintiffs in connection with any traffic or criminal offense[,] or any other matter of concern to the [Maryland State Police]. [To] the contrary, . . . [the defendant] was acting for purely personal reasons[,] and not incidental to any State law enforcement purpose. Id. at 257-58, 587 A.2d at 472.

In contrast, we concluded that the trial court should not have decided, at the motion to dismiss stage, the issue of whether the defendant acted within the scope of employment during the second encounter. See id. at 260-61, 587 A.2d at 473-74. We noted that the issue as to the second encounter was “less clear” than the issue as to the first encounter. See id. at 260, 587 A.2d at 473.

We observed that, “[o]rdinarily[,] when stopping a motorist[,] or making[,] or attempting to make[,] an arrest, a [law enforcement] officer is acting within the scope of [] employment.” Id. at 260, 587 A.2d at 473. We discussed the holding in Cox, 296 Md. at 170-171 , 460 A.2d at 1042-43 , in which this Court determined “that the scope of employment issue was for the jury[,] and should not have been resolved by” granting a motion to dismiss. Sawyer, 322 Md. at 261 , 587 A.2d at 473 . Ultimately, in Sawyer, id. at 261 , 587 A.2d at 473-74, we concluded that the trial court should not have decided on a motion to dismiss whether or not the defendant’s alleged actions during the second encounter (the encounter in which the arrest was made) were within the scope of employment. - 24 - Four days after issuing its opinion in Sawyer, this Court issued its opinion in Ennis, 322 Md. at 295-96, 289-90 , 587 A.2d at 490-91, 487-88 , in which this Court held that a trial court erred in granting a motion to dismiss a complaint in which the plaintiff alleged that the defendant, a member of a county council, defamed her.

This Court held that the defendant did not act in the scope of her duties as a council member when she accused the plaintiff, the president of a civic group, of attempting to bribe her; thus, it was not necessary for the county to be notified of the defamation action under the LGTCA. See id. at 288, 294, 296 , 587 A.2d at 486-87, 490, 491. In the complaint, the plaintiff alleged the defendant falsely told a newspaper reporter that the plaintiff had offered to pay the defendant’s campaign’s debts if the defendant voted against a proposed development plan. See id. at 288-89, 587 A.2d at 487.

Three newspapers reported the plaintiff’s alleged offer of a bribe. See id. at 288, 587 A.2d at 486-87. The plaintiff sued the defendant for libel and slander. See id. at 289, 587 A.2d at 487.

The defendant moved to dismiss, contending that dismissal was necessary because the plaintiff had failed to notify the county of the case, as required by the LGTCA. See id. at 289-90, 587 A.2d at 487-88. The defendant argued that the LGTCA applied to the case because she acted within the scope of employment when she spoke to the reporter. See id. at 289-90, 587 A.2d at 487.

The trial court granted the motion to dismiss, and the plaintiff appealed. See id. at 290-91, 587 A.2d at 488. While the case was pending in the Court of Special Appeals, we issued a writ of certiorari on our own initiative. See id. at 291, 587 A.2d at 488.

This Court held that the LGTCA did not apply to the case because, assuming the - 25 - plaintiff’s allegations were accurate, the defendant acted outside the scope of employment when she spoke to the reporter “for [her] own purposes.” Id. at 296, 587 A.2d at 491. This Court determined that the defendant’s statement to the reporter was not “in furtherance of the county’s business and incidental to it,” and “instead[] was in furtherance of [her] interests”—more specifically, “a political act [that was] undertaken for her own benefit.” Id. at 294, 587 A.2d at 490. This Court explained: It is difficult to understand how [the defendant] could have been fulfilling her duties as a local legislator, or in any way furthering [the c]ounty’s business, by publicly accusing [the plaintiff] of offering her money to pay [her] campaign[’s] debts . . . to influence her vote on a controversial [proposed] development [plan], when the [allegedly] defamatory [statement] took place [more than two month]s after the alleged bribe[,] and long after the [county] council’s vote. It is more reasonable to infer . . . that [the defendant]’s public statements were made to discredit [the plaintiff] and other political opponents . . . to protect [the defendant]’s career as an elected official. *** Although it may be argued that the public derived some benefit from learning that one of its elected officials was allegedly offered a bribe, there is nothing [that is] peculiar to [the defendant]’s job as a county council member [that] created that benefit.

Her reporting the alleged bribe to the press, and any benefit to [the c]ounty[’s] citizens [that] may have resulted therefrom, were not incidental to [the defendant]’s employment as a local elected legislative official. Id. at 294-95, 587 A.2d at 490 (citations omitted). In Wolfe, 374 Md. at 22, 34 , 821 A.2d at 53, 60 , this Court held that, in raping the plaintiff, a county law enforcement officer acted outside the scope of employment for purposes of the LGTCA. In a Maryland trial court, the plaintiff sued the officer, certain law enforcement officials, and the county, raising federal claims and Maryland ones.

See id. at 23 , 821 A.2d at 53 . The defendants removed the case to a federal trial court. See id. - 26 - at 23, 821 A.2d at 53 .7 The federal trial court conducted a jury trial on the claims against the officer. See Wolfe, 374 Md. at 23 , 821 A.2d at 53 .

At trial, there was evidence that the officer initiated a traffic stop of the plaintiff on suspicion that she had been driving while intoxicated. See id. at 22 , 821 A.2d at 53 . The officer told the plaintiff to sit in his police vehicle’s passenger seat. See id. at 22 , 821 A.2d at 53 .

The officer drove to a parking lot, raped the plaintiff, and drove her home. See id. at 22 , 821 A.2d at 53 . The plaintiff reported the rape. See id. at 22 , 821 A.2d at 53 .

The jury returned a verdict in the plaintiff’s favor against the officer. See id. at 23 , 821 A.2d at 53 . In a Maryland trial court, the plaintiff sued the county, contending that it was liable for the verdict under the county’s self-insurance program and the collective bargaining agreement between the county and its police department. See id. at 22, 24 , 821 A.2d at 53 - 54.

The Maryland trial court dismissed, or granted summary judgment in the county’s favor as to, all of the claims. See id. at 24 , 821 A.2d at 54 . The plaintiff appealed, and the Court of Special Appeals affirmed. See id. at 25-26 , 821 A.2d at 55 .

This Court affirmed as well, observing that the “[c]ounty’s obligation to pay certain tort judgments against its employees, including county [law enforcement] officers, [was] based on the [LGTCA] and the” county’s self-insurance program. Id. at 34 , 821 A.2d at 60 . Under both the LGTCA and the county’s self-insurance program, the county was liable only where an employee’s tortious actions were “within the scope of employment[.]” Id. 7 The federal trial court severed the claims against the officer from the claims against the law enforcement officials and the county, and granted summary judgment in favor of the officials and the county. See Wolfe, 374 Md. at 23 , 821 A.2d at 53-54 . - 27 - at 27-28, 821 A.2d at 56 (citations omitted).

We concluded that it was “clear from our cases that” the officer “was not acting within the scope of [] employment.” Id. at 34 , 821 A.2d at 60 (citing Ennis, 322 Md. at 293-296 , 587 A.2d at 489-91 ; Sawyer, 322 Md. at 254-260 , 587 A.2d at 470-73 ). In Brown v. Mayor, 167 Md. App. 306, 310, 324 , 892 A.2d 1173, 1175-76, 1184 , cert. denied, 393 Md. 243 , 900 A.2d 749 (2006), the Court of Special Appeals held that, in murdering the plaintiffs’ relative, an officer of the Department acted outside the scope of employment under the LGTCA. The plaintiffs had sued the officer, the City, the State, and the Department’s Commissioner for wrongful death. See id. at 313, 892 A.2d at 1177 .

The City, the State, and the Department’s Commissioner filed a motion to dismiss the claims against them, which the trial court granted. See id. at 313-14 , 892 A.2d at 1177 . The plaintiffs filed motions for partial summary judgment, contending that the officer acted within the scope of employment, and that the plaintiffs were entitled to judgment as a matter of law as to liability. See id. at 314 , 892 A.2d at 1177-78 .

The trial court granted the motions, and conducted a jury trial on the amount of damages. See id. at 314 , 892 A.2d at 1178 . At trial, there was evidence that the officer learned that his wife was having an affair with one of the plaintiffs’ relatives. See id. at 311 , 892 A.2d at 1176 .

One night, the officer’s wife was at the plaintiffs’ relative’s residence, and the officer was at his residence, getting ready to work a night shift. See id. at 311 , 892 A.2d at 1176 . The officer put on his Department uniform and drove his personal vehicle to the area of the plaintiffs’ relative’s residence. See id. at 311-12 , 892 A.2d at 1176 .

At that time, the officer’s wife - 28 - and the plaintiffs’ relative were outside of the residence. See id. at 312 , 892 A.2d at 1176 . The officer approached his wife and the plaintiffs’ relative, then asked the plaintiffs’ relative: “Didn’t I tell you to stay away from my wife?” Id. at 312 , 892 A.2d at 1176 . According to the officer, the plaintiffs’ relative reached into the officer’s wife’s vehicle, and the officer thought that the plaintiffs’ relative was reaching for something.

See id. at 312 , 892 A.2d at 1177 . The officer pulled out his service weapon and shot the plaintiffs’ relative seventeen times, killing him. See id. at 312 , 892 A.2d at 1176 . In a criminal case, the officer pled guilty to first-degree murder.

See id. at 312 , 892 A.2d at 1176 . After the jury trial on damages in the civil case, the plaintiffs sued the City and the Department, contending that they were liable for the judgment against the officer. See id. at 315 , 892 A.2d at 1178-79 . The trial court granted summary judgment in the City’s and the Department’s favor, finding that the LGTCA did not apply.

See id. at 316-17 , 892 A.2d at 1179 . The plaintiffs appealed. See id. at 317 , 892 A.2d at 1179 . The Court of Special