Lovelace v. Anderson

ADKINS, Judge. This is an appeal by James Lovelace, appellant, from adverse judgments entered by the Circuit Court for Baltimore County (Fader, J.) granting motions for summary judgment in favor of Kenneth Anderson, Sterling Hotel, Inc., d/b/a Days Inn West Baltimore (Sterling), and Sage Hospitality Resources, Inc., d/b/a Days Inn West Baltimore (Sage), and granting motions to dismiss in favor of the State of Maryland, the Mayor and City Council of Baltimore (MCCB), Police Commissioner Thomas C. Frazier, and the Baltimore City Police Department (BCPD). Appellant timely noted this appeal. Because the issues presented can be best understood in their factual contexts, we begin with a statement of the essential facts.

FACTS AND LEGAL PROCEEDINGS On December 2,1993, at approximately 8:00 p.m., a shooting occurred at the Days Inn West Baltimore hotel located on Security Boulevard in Baltimore County, Maryland. At that time, Anderson, an off-duty Baltimore City police officer hired by the hotel management company, Sage, was working as a security guard for the hotel. Anderson was dressed in plain clothes and carried a handgun issued by BCPD, his BCPD badge, and a BCPD identification card. Anderson had previously been approved for this secondary employment.

By virtue of deposition testimony and a surveillance videotape ⁶⁷⁶ that captured the events, 1 many of the facts about what occurred on the evening of the shooting are undisputed. In our summary below, all facts were undisputed, unless we specifically state otherwise. While seated in the hotel lobby, Anderson observed two men, later identified as Randy Terry and John Earl Jennings, 2 enter the lobby of the hotel. Upon entering, the two men proceeded to the front desk and attempted to rob the hotel desk clerk, Michael Gordon.

Lovelace, an elderly man who was a guest at the hotel, was standing at the opposite end of the front desk. The two suspects were facing the desk clerk with their backs to the lobby seating area. One of the men pulled a sawed-off shotgun from under his coat and pointed it at Gordon. It is disputed as to whether the suspects announced a hold-up.

Anderson began to rise and draw his departmental service weapon. At this point, because the video is unclear 3 and does not have audio, there is conflicting evidence as to the exact sequence of events culminating in the gun battle. 4 Anderson says that he shouted, “Police!” as he drew his weapon. Next, Anderson says he was fired upon by Terry, causing the loss of fingers from his left hand. Anderson returned the fire.

Terry and Lovelace say that they did not hear Anderson yell, “Police!” They also say that the gun battle began as a result of Anderson firing upon Terry first. ⁶⁷⁷ It is undisputed that Jennings, who was injured at the time, and Lovelace, who was uninjured at the time, both fell to the ground. Terry testified, without dispute, that he fired at Anderson with a .357 Magnum handgun six times, and when Jennings fell down, Terry retrieved his shotgun and fired that at Anderson twice. According to Terry, the gun battle lasted approximately five to six minutes. Terry then staggered out of the front door.

Anderson shot Jennings in the head, killing him. At some point during the battle, prior to the shot that killed Jennings, a bullet from Anderson’s gun ricocheted and injured Lovelace. The bullet traveled through his big toe and into his ankle on the other leg. Lovelace stated in his deposition that when he fell to the ground, his foot was approximately twelve inches from Jennings’s head.

Anderson discharged twelve rounds in less than three seconds and stated he was shooting with “tunnel vision” and lost sight of Lovelace. The only things he could see were the shotgun and the two suspects. Terry testified at a deposition that he walked into the same hotel lobby a month prior to this shooting and robbed a hotel clerk. He said that no weapons were drawn that time because the clerk simply handed over the money.

He testified that his intention in entering the second time was to rob the clerk just as he had done on the previous occasion. To complicate matters, ownership of the hotel changed hands on the day in question. By court order dated December 1, 1993, the Circuit Court for Baltimore County granted a Petition for Substituted Purchaser and ordered that Sterling be substituted as purchaser of the hotel. The Substituted Trustee’s Deed was executed on December 2, 1993.

Sage managed the hotel property up until some point on December 2. The closing of the transaction took place just hours prior to the shooting, which occurred at approximately 8:10 p.m. Sage claims that its management agreement was to be terminated upon consummation of the sale and transfer of the property, but allowed certain items to be resolved after closing. Anderson punched in two time cards on December 2, and was ⁶⁷⁸ paid partially by Sage and partially by Sterling for his service on that day.

As a result of the above incident, Lovelace filed a complaint against Anderson alleging that his December 2 conduct was negligent or grossly negligent. Lovelace also sued Sage and Sterling. Lovelace subsequently filed an amended complaint and a second amended complaint adding MCCB, BCPD, Frazier, and the State as defendants. Following transfer of the case to Baltimore County, the court granted MCCB’s motion to dismiss on September 3, 1996.

On October 15, 1996, the court granted the State’s motion to dismiss. On January 7, 1997, the court granted BCPD’s motion to dismiss. On February 20, 1997, the court granted Frazier’s motion to dismiss. The remaining defendants were Anderson, Sage, and Sterling.

The trial court entered its judgment on June 12, 1998, and determined that Anderson was entitled to immunity as a police officer at the time that he drew his weapon and intervened on behalf of the victims of the armed robbery. The court also determined that there was no genuine dispute as to any material facts. As a result, summary judgment was granted in favor of Anderson. Additionally, the court granted summary judgment in favor of Sterling and Sage.

The court stated that “[n]o facts have been presented in opposition ... to show action by Anderson that was intentional, with malice or gross negligence.” With regard to Sage, the court found no evidence to support the existence of an agent, servant and/or employee relationship between Sage and Anderson. With regard to Sterling, the court extended Anderson’s immunity to it and granted its motion for summary judgment in part by finding that Sterling was immune from suit. The court, however, denied in part Sterling’s motion requesting that the court determine that there was no employment relationship between Sterling and Anderson at the time of the shootings. Judgment as to all parties was entered on June 12, 1998, and Lovelace timely noted this appeal.

Additional facts will be added below as necessary to supplement our discussion. ⁶⁷⁹ ISSUES Appellant asks us to determine whether the trial court incorrectly shifted the burden to him when Anderson failed to show an absence of material facts in dispute and failed to identify the statute on which his immunity was based. Appellant also asks us to determine whether the trial court erred in: 1) deciding the scope of Anderson’s employment as a matter of law; 2) determining the issue of immunity prior to trial; 3) failing to find a waiver of immunity; and 4) extending the immunity granted to Anderson to his hotel employer. Cross-appellant Sterling requests that we modify the trial court’s order to remove the reference to Anderson “working as a security guard” at the time of the shooting. Appellees argue that the trial court was correct in disposing of appellant’s claims.

We agree. With regard to Sterling’s cross-appeal, we decline to modify the circuit court order because Sterling did not assert the existence or possibility of any adverse prejudice as a result of the order. DISCUSSION I. Standard of Review First, we set forth our standard of review for summary judgment. Maryland Rule 2-501(e) provides that a court may grant a motion for summary judgment “in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” In considering a motion for summary judgment, the trial court does not determine any disputed facts, but instead rules on the motion as a matter of law.

See Southland Corp. v. Griffith, 332 Md. 704, 712 , 633 A.2d 84 (1993); White v. Friel, 210 Md. 274, 285 , 123 A.2d 303 (1956). The court views the facts, including all inferences, in the light most favorable to the party against whom the court grants the judgment. See Beard v. American Agency Life ⁶⁸⁰ Ins. Co., 314 Md. 235, 246 , 550 A.2d 677 (1988).

We are confined ordinarily to the basis relied on by the trial court in our review. See Warner v. German, 100 Md.App. 512, 517 , 642 A.2d 239 (1994). We are also reviewing the granting of motions to dismiss. “In analyzing a motion to dismiss, the trial court must decide whether the complaint states a claim, assuming the truth of all well-pleaded facts in the complaint and taking all inferences from those facts in the light most favorable to the plaintiff.” Boyd v. Hickman, 114 Md.App. 108, 117 , 689 A.2d 106 , cert. denied, 346 Md. 26 , 694 A.2d 949 (1997). Because a motion to dismiss lies where there is no justiciable controversy, see Broadwater v. State, 303 Md. 461, 467 , 494 A.2d 934 (1985), “[dismissal is proper only if the facts and allegations ... would ... fail to afford plaintiff relief if proven.” Faya v. Almaraz, 329 Md. 435, 443 , 620 A.2d 327 (1993).

II

Scope of Employment This case presents us with a question similar to that posed by former Chief Judge Gilbert in Sawyer v. Humphries, 82 Md.App. 72, 73 , 570 A.2d 341 (1990), rev’d on other grounds, 322 Md. 247 , 587 A.2d 467 (1991): “When is a police officer a police officer?” The answer to this question “is a more difficult question than whether ordinary employees are acting within the scope of their jobs, because officers usually are expected to perform police work 24 hours every day.” Joyce Blalock, Civil Liability of Law Enforcement Officers 63 (1974). In Sawyer, this Court was called upon to address whether an off-duty Maryland State Trooper was acting in the scope of his employment when he became involved in an altercation with another motorist, Robert Sawyer. Sawyer and the trooper passed one another on the roadway numerous times. The trooper was not pursuing Sawyer for any police matter, and had observed no infractions of the law by Sawyer.

At one point, as Sawyer’s vehicle passed the trooper, the trooper ⁶⁸¹ hurled a rock at Sawyer’s vehicle damaging the passenger side. Both parties stopped on the shoulder of the roadway, exited their vehicles, and engaged in a confrontation. At some point during the altercation, the motorist was able to enter his car at which point his passenger took control of the vehicle and fled the scene. The trooper, dressed in civilian clothing and driving his personal vehicle, returned to his vehicle and chased the motorist until they stopped at an intersection.

The trooper arrested the driver and passenger and detained them until an on-duty trooper arrived. The civilians filed suit against the trooper, which was dismissed by the trial court. See id. at 75, 570 A.2d 341 . On appeal to this Court, we examined the trooper’s employment by explaining: ‘[T]he policeman in America is considered to be on duty twenty-four hours a day, seven days a week.

As a consequence, he is always on “good behavior.” He cannot entirely give himself to his own interests and his own life. His friends always feel the shadow of the policeman’s official position darkening their relationship. The officer’s personal life is hedged with restrictions as to associations and activities. These limitations are designed to restrict him from corruption, compromising situations, or the appearance of either.

He is at the call of neighbors, more than other persons, much as the physician is. ’ Id. at 78 , 570 A.2d 341 (quoting Justice Sydney H. Asch, Police Authority and the Rights of the Individual 35 (1968)) (emphasis added) (footnote omitted). We determined that a Maryland State Police employee, who is sworn as a peace officer, is “on duty twenty-four hours a day, seven days a week, fifty-two weeks a year.” Id. at 83-84 , 570 A.2d 341 . Accordingly, we held that the trooper was acting in the scope of his employment. See id.

The Court of Appeals reversed. The Court scrutinized the scope of employment generally and enunciated that “[t]he general test ... for determining if an employee’s tortious acts were within the scope of his employment is whether ⁶⁸² they were in furtherance of the employer’s business and were ‘authorized’ by the employer.” Sawyer v. Humphries, 322 Md. 247, 255 , 587 A.2d 467 (1991). The Court also explained: ‘To be within the scope of the employment the conduct must be of the kind the servant is employed to perform and must occur during a period not unreasonably disconnected from the authorized period of employment in a locality not unreasonably distant from the authorized areas, and actuated at least in part by a purpose to serve the master.’ Id. (quoting East Coast Freight Lines v. Mayor of Baltimore, 190 Md. 256, 285 , 58 A.2d 290 (1948) (emphasis added)).

The Court also quoted with approval from the Restatement of Agency, as follows: ‘[C]ertain conduct of the servant may be within the scope of his employment, although not intended or consciously authorized by the master, but “(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized. (2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered: — (a) whether or not the act is one commonly done by such servants; (b) the time, place and purpose of the act; (c) the previous relations between the master and servant; (d) the extent to which the business of the master is apportioned between different servants; (e) whether the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant; (f) whether or not the master has reason to expect that such an act will be done; (g) the similarity in quality of the act done to the act authorized; (h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant; (i) the extent of departure from the normal method of accomplishing an authorized result, and (j) whether or not the act is seriously criminal.” ’ Id. at 256 , 587 A.2d 467 (quoting Restatement of Agency § 229 (1933)). ⁶⁸³ Applying the above factors, the Court held that as a matter of law, the off-duty trooper was acting outside the scope of his employment when he became engaged in the altercation with the motorist beside the roadway. See id. at 257, 587 A.2d 467 . The Court, however, did agree with our holding that the trooper was on duty twenty-four hours a day “in the sense that he may be on call and may under certain circumstances have an obligation to act in a law enforcement capacity even when on his own time.” Id. at 258, 587 A.2d 467 (emphasis added) (footnote omitted).

The Court explained that “[e]ven though a police officer may be said to be ‘on duty’ all of the time, cases regularly hold that a police officer acts outside the scope of his employment where he acts for his own personal reasons and not in furtherance of his employer’s law enforcement function.” Id. at 259, 587 A.2d 467 (citations omitted). With regard to the stop made by the trooper at the intersection, however, the Court of Appeals remanded the case so that further evidence may be gathered. The Court explained that the evidence at trial may show that, as a matter of law, the defendant ... was throughout acting in the scope of his employment and without malice. If it does, [the defendant] will be entitled to the immunity granted by the Maryland Tort Claims Act.

On the other hand, the evidence may show that, as a matter of law, [the defendant] was either not acting in the scope of employment or was acting maliciously; in either event, he will not be entitled to immunity under the Tort Claims Act. Finally, the evidence may be such that a jury issue as to immunity, with regard to some or all counts, may be presented. Id. at 262, 587 A.2d 467 ; see also Artis v. Cyphers, 100 Md.App. 633, 653 , 642 A.2d 298 , aff'd, 336 Md. 561 , 649 A.2d 838 (1994) (holding that the issue of whether a defendant is a public official is a matter of law for the court to the extent the issue does not hinge on factual disputes). In essence, we glean from Sawyer that the determination of a police officer’s capacity at the time of an event is a question to be answered ⁶⁸⁴ on a case-by-case basis and should be submitted to a fact finder unless the capacity is clearly evident.

Both Sterling and Sage rely on Leach v. Penn-Mar Merchants Ass’n, Inc., 18 Md.App. 603 , 308 A.2d 446 (1973). In Leach , an off-duty police officer working as a security guard at a shopping center assisted with a motor vehicle accident in the parking lot of the shopping center. The officer was summoned from the sidewalk of the shopping center by observers of the accident. The officer “responded by leaving the sidewalk, crossing the fire lane, and approaching the damaged vehicles.” Id. at 605 , 308 A.2d 446 .

An on-duty officer was called to the scene and the off-duty officer retrieved a police report form and “subpoena” from the police vehicle and proceeded to write a report. During his preparation of the report, the off-duty officer placed one of the vehicle owners under arrest for obstructing justice. The arrested motorist sued the shopping center owner. In determining that the shopping center was not liable, we held that the officer was not an agent of the center at the time of the incident.

See id. at 608 , 308 A.2d 446 . We explained that the officer stepped from his role as a security guard into his role as a police officer by virtue of the duties undertaken by him. The officer issued a citation and a summons, duties that are not authorized to be undertaken by a citizen security guard. The actions were no longer in furtherance of the shopping center, the shopping center no longer had jurisdiction over him, and it was not responsible for his actions performed solely as a police officer.

See id. at 611 , 308 A.2d 446 . While Leach is helpful to show that an off-duty police officer working as a security guard may change roles and become a police officer when called upon to do so, we do not find it dispositive on the issue of whether Anderson acted as a police officer when he shot at Terry and Jennings and inadvertently injured Lovelace. We distinguish Leach from the instant case because in Leach , the officer acted purely for the benefit of protecting the public peace by asserting powers that a security guard does not have. In the present case, Anderson did not leave the establishment and undertake actions unrelated ⁶⁸⁵ to Ms role as a security guard.

He was Mred to secure the premises of the hotel from crime, and preventing an armed robbery falls within his role as a security guard. The Court of Appeals addressed the capacity of an off-duty police officer in Lodowski v. State, 302 Md. 691 , 490 A.2d 1228 (1985), vacated on other grounds, 475 U.S. 1078 , 106 S.Ct. 1452 , 89 L.Ed.2d 711 (1986). There, the Court analyzed, in a criminal law context, whether a defendant was properly sentenced to death for the murder of an off-duty police officer working as a security guard. The propriety of the death sentence hinged upon whether the officer was killed while in the performance of his duties as a law enforcement officer.

The Court held that the officer was not acting as a police officer because the illegal conduct leading up to his death was not recognized by the officer. Id. at 729-33, 490 A.2d 1228 . The Court concluded:' The test with respect to whether [the victim] was in the performance of his duties as a police officer when he was murdered is not whether [the defendants] knew that [the victim] was a police officer, but whether [the victim] knew that an act had occurred or was occurring which obliged him to take proper police action. Id. at 733 , 490 A.2d 1228 .

The Court in Lodowski concluded that the issue was unclear and that there was insufficient evidence to show that the victim was murdered while in the performance of Ms duties. See id. The officer was shot in the back of his head through the rear window of his police cruiser and there was no evidence that any criminal matter requiring police action ever came to his attention before this fatal shot. See id. at 732, 490 A.2d 1228 .

The Court held that [s]inee the evidence was not sufficient to establish beyond a reasonable doubt that the crimes had come to his attention before he was killed, it follows that [the victim] had not reverted from his status as a private security guard to the status of a law enforcement officer so as to take any action in the performance of his duties. ⁶⁸⁶ Id. (Emphasis added). The Court remanded the case to the trier of fact to make the determination of whether the officer knew of criminal activity requiring police action at the time of his death. See id. at 734 , 490 A.2d 1228 .

We find several out of state cases persuasive in determining the role of an off-duty police officer working as a private security guard. In Whitely v. Food Giant, Inc., 721 So.2d 207 (Ala.Civ.App.1998), the Court of Civil Appeals of Alabama held that an off-duty police officer employed by Food Giant as a security guard was acting in his sole capacity as a police officer when he intervened in an altercation between two customers. See id. at 209 . In the midst of a verbal altercation, one customer proceeded in the other’s direction with a balled fist.

The officer intervened and the court held that “when an off-duty police officer witnesses an offense for which the perpetrator is arrested, the officer’s status changes, and he is then acting in his capacity as a police officer and not his capacity as a security guard.” Id. The court measured this change “at the time he witness[ed] the offense.” Id. In Bauldock v. Davco Food, Inc., 622 A.2d 28 (D.C.1993), the District of Columbia Court of Appeals analyzed the capacity of an off-duty police officer working as a security guard in a fast food restaurant. See id. at 32-34 .

There, the court determined that the ejection and subsequent arrest of a disorderly patron properly fell within the police powers granted to the officer by virtue of his employment with the police department. See id. at 34 . The court held as a matter of law that even though the officer’s actions may have benefitted the restaurant, they were taken pursuant to his role as a police officer, not as an agent or employee of the private employer. See id.

A guard was also acting in his capacity as a police officer in Tapp v. State, 406 N.E.2d 296 (Ind.Ct.App.1980) where the Court of Appeals of Indiana analyzed the role of an off-duty police officer working as a security guard in plain clothes at a Sears department store. See id. at 297 . While working at the store, the guard observed a person conceal an item and ⁶⁸⁷ attempt to leave the store without purchasing the item. See id.

He approached the suspect and a scuffle ensued; the guard was bitten three times by the suspect, and the suspect was eventually arrested. See id. The court determined that the guard was acting solely as an officer of the law at the time of incident. See id. at 302 .

In reaching its conclusion, the court expounded: ‘A duly commissioned police officer holds a public office upon a continuing basis. The officer here remained an officer of the law, and his obligation to preserve the peace was not nullified by the fact he was working for [a private employer] in this case. Notwithstanding, the officer, even though acting as a private security policeman, had the right and duty to arrest and detain a person who was violating a law of this state.... ’ Id. at 301 (quoting State v. Glover, 52 Ohio App.2d 35 , 367 N.E.2d 1202, 1204 (Ohio Ct.App.1979)). The court further explained that “an officer’s duties are not constrained by specific time or place limitations.

It is the nature of the acts performed by the officer which determine whether the officer was in the execution of his official duties.” Id. In the present case, it is undisputed that Anderson was employed by the BCPD at the time of the shooting, although he was off duty at the time. This does not, however, affect his status as a police officer. In fact, the rules and regulations of BCPD state otherwise: Members of the department are sworn in as peace officers of Baltimore City and, as such, are considered to be on-duty or ready for duty at all times.

Failure to stop and perform the necessary police duty while off-duty or on leave shall be considered neglect of duty. Necessary police duty, while off-duty may include, but is not necessarily limited to, immediately notifying the responsible law enforcement agency or causing such notification, or taking direct police action. Off-duty members, both inside and outside of the City limits, are to give first consideration to causing the appropriate action to be effect ⁶⁸⁸ ed by the on-duty members of the responsible law enforcement agency. Members should become directly involved only after due consideration of the gravity of the situation, their present physical and mental ability to act in an on-duty capacity and of their possible liability, along with that of the department and the City of Baltimore.

Members are reminded that they have no powers of arrest outside the City of Baltimore or properties owned by the City of Baltimore, other than those of citizens. Whenever members assume their official role and take direct police action, they are governed by all policies, rules and regulations applicable to on-duty members. Rule 1, Section 23 of Annex A (Rules and Regulations) to Baltimore City Police Department General Order 2-88 (June 24, 1988) (emphasis added). In addition, pursuant to written police policy, “secondary employment does not excuse [a police officer] from [the officer’s] duty to stop and take action while off-duty----” Rule 13, Baltimore City Police Department General Order 6-90 (April 30,1990).

The General Assembly enacted legislation which is instructive on the public policy behind granting immunity to an officer. Section 5-309.2 of the Courts and Judicial Proceedings Article protects a law enforcement officer from civil liability when acting outside of the officer’s jurisdiction. See Md.Code (1974, 1989 Repl.Vol.), § 5-309.2 of the Courts & Judicial Proceedings Article. 5 The statute provides: (a) When not civilly liable. — A law-enforcement officer acting outside the officer’s jurisdiction but in the State, is not civilly liable, except to the extent that he would be if acting in his own jurisdiction, for any act or omission in preventing or attempting to prevent a crime, or in effectuating an arrest, in order to protect life or property if: (1) The action is not grossly negligent; and ⁶⁸⁹ (2) The action is taken at the scene of the crime or attempted crime. (b) Defense by employer. — A law-enforcement officer sued for acting under subsection (a) of this section shall be defended in any civil action by the law-enforcement officer’s employer as if the incident had occurred in the officer’s jurisdiction.

Id. The enactment of this provision evidences the General Assembly’s intent that prevention of crime and protection of the sovereign by an off-duty police officer is paramount to any injuries that may result from the officer’s action, unless grossly negligent. Anderson, although off duty and outside of his jurisdiction, was still authorized and required to uphold the laws of the State of Maryland. When confronted with two armed robbers at the hotel, clearly a felony in progress endangering himself and others, Anderson reverted to his police officer status.

While the intervention by Anderson in this felony may have secondarily advanced the interests of the hotel owner and management company, the primary service by Anderson related to his law enforcement function of protecting the public from the armed felons. As the armed robbery unfolded, Anderson was undeniably faced with circumstances that are within the scope of employment as a police officer. The existence of his secondary employment did not abrogate the execution of his duties as a law enforcement officer. Accordingly, we conclude that the trial court was correct in determining as a matter of law that Anderson was acting in his role as a police officer when he intervened in the felony.

III

Immunity A cause of action against a police officer grounded in negligence often results in the officer asserting a defense of qualified immunity. See, e.g., Parker v. State, 337 Md. 271, 285 , 653 A.2d 436 (1995). The purpose of granting an official immunity is to limit the deleterious effects that the risks of ⁶⁹⁰ civil liability would otherwise have on the operations of government. See Anderson v. Creighton, 483 U.S. 635, 638 , 107 S.Ct. 3034, 3038 , 97 L.Ed.2d 523 (1987).

The Fourth Circuit Court of Appeals has stated: Discretionary decisions by government actors inevitably impact the lives of private individuals, sometimes with harmful effects. Moreover, such decisions are inescapably imperfect. Especially in the context of police work, decisions must be made in an atmosphere of great uncertainty. Holding police officers liable in hindsight for every injurious consequence of their actions would paralyze the functions of law enforcement.

Pinder v. Johnson, 54 F.3d 1169, 1173 (4th Cir.1995). Conferring a qualified immunity upon a law enforcement officer allows the officer “the freedom to exercise fair judgment, protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092, 1096 , 89 L.Ed.2d 271 (1986)). “Moreover, permitting unwarranted lawsuits against officers would entail substantial social costs including inhibition and fear of potential liability among peace officers and would further consume much of the officer’s time preventing him or her from performing his or her duties.” Williams v. Prince George’s County, 112 Md.App. 526, 543 , 685 A.2d 884 (1996). Thus, the goal of official immunity is to halt most civil liability actions, except those in which the official is clearly in violation of the law, well in advance of the submission of facts to a fact finder.

See Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806, 2815 , 86 L.Ed.2d 411 (1985) (emphasis added). As explained in Civil Liability of Law Enforcement Officers, supra, at 167: Civil liability of officers poses a dilemma to policemen, to complainants and to the community. The latter requires officers who are undaunted and who will respond promptly to incidents. Fear of judgments for misconduct could induce excessive caution and impede aggressive enforcement---- [T]he future of an officer, and that of his family, should not be in jeopardy when he performs public services. ⁶⁹¹ As a result, officers who act reasonably without the benefit of hindsight, albeit mistakenly, are granted immunity.

See id. In Maryland, the immunity for an officer was delineated by Judge Digges for the Court of Appeals in James v. Prince George’s County, 288 Md. 315 , 418 A.2d 1173 (1980), superceded by rule on other grounds, Prince George’s County v. Fitzhugh, 308 Md. 384 , 519 A.2d 1285 (1987), as follows: Before a governmental representative in this State is relieved of liability for his negligent acts, it must be determined that the following independent factors simultaneously exist: (1) the individual actor, whose alleged negligent conduct is at issue, is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties. Id. at 323-24, 418 A.2d 1173 (emphasis in original) (footnote omitted). Once the two factors are established, “a qualified immunity attaches; namely, in the absence of malice, the individual involved is free from liability.” Clea v. Mayor of Baltimore, 312 Md. 662, 673 , 541 A.2d 1303 (1988).

The James Court enunciated four guidelines to determine whether a public employee is entitled to a qualified public official immunity. This Court reiterated those guidelines, and stated that we must examine whether the position was created by law and involves continuing and not occasional duties; whether the holder performs an important public duty; whether the position calls for the exercise of some portion of the sovereign power of the State; and whether the position has a defined term for which a commission is issued and a bond and an oath are required. Artis, 100 Md.App. at 638 , 642 A.2d 298 (citing James, 288 Md. at 324 , 418 A.2d 1173 ). The James Court also set forth the standard for determining whether the action of an official is discretionary, as opposed to ministerial.

The Court explained: “[A]n act falls within the