Prince George's County v. Morales

Salmon, J. In this appeal, we apply lessons from scope of employment cases involving off-duty police officers, to a judgment stemming from an altercation between Steven Morales, appellee, and Dominique Richardson, an off-duty Prince George’s County police officer who was working an “extra-duty” job as security at a college fraternity party, in violation of a police department policy prohibiting officers assigned to light duty from engaging in such employment. Alleging battery, excessive force, and other torts, Morales filed suit in the Circuit Court for Prince George’s County, against Richardson and Prince George’s County, Maryland (“the County”). 1 The County removed the lawsuit to the United States District Court for the District of Maryland, which dismissed the federal claims and remanded the remaining state law claims. See Morales v. Richardson, 841 F.Supp.2d 908, 914-15 (D. Md.), aff'd, 475 Fed.Appx. 894 (2012). ⁷⁰² After the circuit court denied the County’s motions to dismiss and for summary judgment, Morales’s claims were tried before a jury from May 5-14, 2014. During trial, the court denied the County’s motions for judgment.

The jury found that Richardson used excessive force while acting within the scope of his employment by the County. The County was held liable, on a respondeat superior basis, for Richardson’s use of excessive force in violation of Article 26 of the Maryland Declaration of Rights. The court later denied the County’s motion for judgment notwithstanding the verdict (“JNOV”) or a new trial. Judgment was entered against the County and Richardson jointly, in the full amount of the jury’s award of $121,140.98. 2 In this appeal, the County raises two questions: I. Did the circuit court err when it denied the County’s motion for summary judgment, motions for judgment at trial, and motion for judgment notwithstanding the verdict on the issue of scope of employment?

II

Did the circuit court err when it gave jury instructions that were inapplicable to the facts of the case? We shall hold that the trial court did not err in allowing the jury to decide the scope of employment question or in instructing the jury. There was sufficient evidence that the off-duty officer was acting within the scope of his employment as a police officer in taking police action against Morales, notwithstanding the fact that he violated the County’s policy against officers working extra-duty employment while assigned to light duty. I. FACTUAL AND LEGAL BACKGROUND A. The Altercation The University of Maryland at College Park chapter of the Omega Psi Phi fraternity hired Prince George’s County Police ⁷⁰³ Officer Dominique Richardson to provide security for a Halloween party to be held at an off-campus warehouse in Belts-ville, on October 29-30, 2010.

Richardson recruited several other officers and an acquaintance to help provide security at the event. Although Richardson drove his personal vehicle to the Halloween party, other officers arrived in police cruisers. Richardson wore his gunbelt and service firearm, handcuffs, his police badge on a chain around his neck, a shirt with “PGPD” lettering, a ballistic vest, and other gear issued by the Prince George’s Police Department (“PGPD”). Richardson, who was supervising all the officers and security personnel throughout the event, initially established separate entry lines for fraternity members, those with advance tickets, and those who wanted to buy tickets at the door.

Aware that the warehouse had reached capacity and that “[pjeople were starting to become obnoxious up front[,]” Richardson stationed himself at the front doors of the warehouse, which were at the top of a divided staircase. He stopped more people from entering, but “[p]eople were trying to push into ... the double doors, and they were all trying to force their way up the stairway.” In an effort to move the crowd away from the front entrance, Richardson instructed other police officers to activate their cruiser lights and sirens. Steven Morales and a friend arrived at the party around 12:40 a.m, when there were no longer any lines at the warehouse. There was, however, a large crowd in front of the steps to the entrance doors, which were closed and guarded by security officers.

Morales, whose father is a police officer employed by the District of Columbia Metropolitan Police Department, saw security people wearing purple shirts and PGPD police officers wearing badges. Although Morales had purchased an advance ticket to the party, he waited outside in the cold for approximately forty-five minutes, unaware “that the party inside was too full[.]” During that time, he gradually moved toward the entrance as more people arrived and “the crowd start[ed] to really get rocked back and forth.” While he waited, the police cruisers ⁷⁰⁴ next to the entrance intermittently sounded its siren as a crowd control measure. When Morales reached the front of the warehouse, he encountered Officer Richardson, who was wearing a Prince George’s County Police “badge around his neck” and the same type of “BDU” blue pants that Morales’s father wore to work. Richardson was standing on the first step of the stairs leading to the entrance doors.

Richardson, at 6’5" and 310 pounds, had experience as a boxer; Morales, at 5’7" and 140 pounds, had no such experience. Because Morales was being pushed around as the crowd was “surging back and forth,” he held up his ticket and twice asked Richardson for help. The first time, Richardson told him “to get back in line[,]” even though “there wasn’t any line” and Morales “was stuck with everybody” at the bottom of the steps. The next time, according to Morales, “Officer Richardson struck me without me doing anything to him.” At trial, Morales described the altercation as follows: I was trying to show Officer Richardson, that, hey, I have a ticket.

Can you get me in since I am right in front. But at no time, you know, no other words, no negative words were exchanged, just me asking for help. ... He was on one of these steps. I believe it was the first step right here, and I am on the ground.

Officer Richardson, he’s a pretty big guy. So on top of him being a pretty big guy, he was already on one of the steps above me. So, there was no way of me trying to go around him, that the doorstep, the rails, it’s not big at all, so where you can go around with another—I don’t know how to say—a person of his size. So, especially not a police officer which I clearly ... identified him as one, I would never do something. ...

I saw his badge. He had a badge. ... PG County badge. ... It was on a chain.

Then the crowd ... pushed us or pushed, and I went forward. The next thing I felt was a hand go around my neck. ... It was Officer Richardson’s hands. ... ⁷⁰⁵ He pulls me up, and I try to get his hand off of my neck. So, the next thing I see is he takes his right hand and he punches me in the mouth. ...

When he hit me, it was ... a hard hit. ... I remember my feet leaving the ground, and I flew back and hit my head on the concrete. ... Well, my head hit and I kind of opened my eyes and sat up. I saw Officer Richardson come down from the step and come toward—come at me.

He came at me. And after that, I remember us being on the ground. ... I saw him put his arm back up to strike me again, and ... I was like shielding my face because I didn’t want that to happen again, to get hit in the face again.

So, I am kind of just trying to get away from him. And he gets a’hold of me and puts me in a chokehold, puts his right arm over my neck. I can’t breathe at this point. Morales said he was in the chokehold “for maybe like ten seconds” and “couldn’t breathe” because “[h]e cut my air off[.]” Photos taken later that morning showed marks on Morales’s neck where his rosaries had been pressed into his body during the hold.

When Richardson released Morales, PGPD Officer Luis Perez picked him up and put him against a police cruiser that was “right next to” him, causing Morales to believe that he was “getting arrested or detained[.]” As Morales had his “hands on the car,” Richardson told Morales to “get the fuck out of here.” Although Morales was bleeding and injured, Richardson did not ask his name or offer first aid. Richardson gave a different account of how the altercation took place. That account is set forth below. He confirmed, however, that he punched Morales in the face, pinned him on the ground, and used an arm hold and other police-trained restraint techniques against Morales.

According to Richardson, he announced to the crowd of people attempting to enter the party that no one else would be allowed inside because it was too crowded. When he first saw Morales, the latter was in the crowd of people who were pushing each other, and one ⁷⁰⁶ woman had just fallen. Morales asked Richardson to let him in because he had a ticket. When Richardson told Morales he was not coming in, Morales kept saying, “[N]o, I have a ticket.

I have a ticket; I’m coming in.” As Richardson was escorting the woman who had fallen, he felt “a push against” him. According to Richardson, Morales pushed him in an attempt to get past him into the warehouse. Using a “redirection” technique learned in his riot training, Richardson put his “hand up on [Morales’s] chest “to keep him at bay” and told him he was “not coming in” and “there is nothing else to talk about.” Morales replied, “F that, I have a ticket.” When Morales again made an advance, Richardson “put [his] hand up again.” Morales then slapped Richardson’s hand off and said, “get the fuck off of me.” Richardson put his hand “back up on his chest again for the third time.” After Morales “took another swipe at” the officer, Richardson “felt as though it was necessary to defend” himself. According to Richardson, he viewed Morales as a threat [b]ecause any time that you give somebody three commands to leave, and they are not going to do so, from my training and experience, verbal judo, as they call it, has been thrown out the door.

You’re not going to get this person out of here without some type of physical exertion. That’s when I went to the escort technique, and that’s when it went to the actual altercation. ... That’s an assault on a police officer. Although he “was heading for [Morales’s] chest,” Richardson “ended up accidentally hitting him in the mouth,” because Morales “kind of ducked down a little bit[.]” After Richardson hit Morales, they both fell to the ground.

Although Morales initially got on top of Richardson, the officer was eventually able to gain control of Morales. Officer Perez then “helped Mr. Morales up and placed him on the cruiser.” Cursing because “the whole situation was stupid, could have all been prevented,” Richardson told “Morales to get the ... out of here.” Although Morales was hurt and bleeding, Richardson did not ⁷⁰⁷ offer medical attention because they “still had the crowd ... to deal with.” Morales testified that because a friend was “taking care of somebody that was sick[,]” he drove himself home to Charles County, where he woke his parents to tell them what happened. Appellant’s father, Luciano Morales, called the Charles County Sheriffs Department. Someone in the Sheriffs office advised Luciano Morales and his son to go back to Beltsville to make a report.

Luciano Morales told his son not to clean himself up “[b]ecause they had to see what happened to” him. Accompanied by his wife, his daughter, and Steven, and dressed in uniform for his upcoming shift, Luciano Morales drove to the warehouse, where his son identified Richardson as his assailant. At Morales’ request, several other officers and a supervisor were called to the scene and photos were taken. At 4 a.m., on October 30, 2010, Richardson prepared a use of force report regarding the altercation.

After reporting the assault, Steven Morales received medical care for his injuries, first at a hospital emergency room and later from a dentist, an oral surgeon, and a prosthodon-tist. His mouth had been cut inside and out. One of his front teeth was split in half and could not be saved. In the ensuing months, Morales “would dream about Officer Richardson” and “always see his face.” His schoolwork suffered because the assault “was something that was just always on [his] mind.” Eventually, he received therapy that helped these conditions.

Based on Richardson’s allegations, as set forth in his application for criminal charges, assault and other charges were filed against Morales on March 5, 2011. Those charges were nol prossed on May 27, 2011. As a result of the Morales incident, an internal affairs investigation and then a criminal prosecution were initiated against Richardson. Richardson was acquitted on second-degree assault charges stemming from the altercation.

Richardson resigned from the PGPD in December 2012. ⁷⁰⁸ B. Duty Status of Dominique Richardson Although Morales was not aware of Officer Richardson’s off-duty status on the night of the party, it was undisputed that on that night Richardson was off-duty and otherwise restricted to light duty assignments as a result of recent knee surgery. Under the County’s written policy, which is set forth in our discussion below, officers are not permitted to work “extra-duty” employment while on “no duty” or “light duty” assignment. Moreover, officers are required to request permission to work any extra-duty job. After his knee surgery in June 2010, Richardson reported to the County police department’s Risk Management Division because he was on no duty status.

Sergeant Christine O’Ha-gan testified that Richardson was transferred to her squad at the District I Hyattsville Station during the summer of 2010, but Richardson never reported to work because of his no duty status. On October 5, 2010, Richardson told Sgt. O’Hagan that his “doctor extended his no duty status for approximately another month until he went back to the doctor.” On October 18, 2010, the Medical Advisory Board, having reviewed Richardson’s case, ordered him back to light duty status, effective October 20. As a result of the change in his duty status, Richardson was required to report to work at the District I Hyattsville Station, under the supervision of Sergeant Miranda Reed.

But Richardson told Sgt. Reed that his doctor “wanted to do something more with his knee” and that he planned to use sick leave until his next doctor’s appointment. Sgt. Reed testified that Richardson was not authorized to work secondary employment while on either light duty or no duty status, pursuant to PGPD General Orders.

Moreover, Richardson admitted that he did not seek authorization to work the fraternity party or notify supervisors that he was doing so. He explained that although he planned only to recruit other officers to work the event, he was unable to find enough to perform the assignment. He was paid solely by the fraternity for his services that night. ⁷⁰⁹ After learning of the incident with Morales and that Richardson had worked extra-duty employment, Captain Timothy Muldoon contacted Sgt. O’Hagan and instructed her to order Richardson to report for full duty assignment.

Sgt. O’Hagan called Richardson in the morning on October 30th and left him a message ordering him to report to work that evening. Richardson returned her call to “advise ... that the doctor said that he could come back to work.” When Richardson reported to the District I Hyattsville Station on the evening of October 30, 2010, he submitted an Attending Physician Form that indicated he had been authorized to return to full duty, effective that day. After reviewing that document, Lieutenant Timothy Hatfield, Captain Mul-doon, and Sergeant O’Hagan believed the form had been altered.

Hatfield told Richardson to get a new form from his doctor. Richardson testified that he called his doctor’s office on October 30, and a nurse told him that he was cleared for full duty. He admitted that he altered the Attending Physician Notification Form, by removing the check the physician had placed in the “no duty” box and instead checked the “full duty” box. Richardson returned to his physician’s office on November 1 to pick up a revised form placing him on full duty status effective October 30, 2010.

C. Legal Proceedings In its memorandum order dismissing the federal claims and remanding the remaining state law claims, the United States District Court for the District of Maryland ruled that Morales failed to state a federal constitutional claim against the County because he did not allege facts showing “that Richardson’s actions ... were taken ‘under color of state law.’ ” 841 F.Supp.2d at 913 . In dictum, the court also noted that the allegations of Morales’s original complaint failed to state facts sufficient to establish that Richardson was acting within the scope of his PGPD employment. The Fourth Circuit, in an unpublished per curiam opinion, affirmed the dismissal of ⁷¹⁰ Morales’s federal claims. See Morales v. Richardson, 475 Fed.Appx. 894 (4th Cir. 2012).

After remand from federal court, Morales filed an amended complaint revising his allegations relevant to the scope of employment issue and asserting in Count I a constitutional tort claim against Richardson and the County, based on the use of excessive force. The County moved to dismiss that claim, or in the alternative for summary judgment, arguing that as a matter of law Richardson was not acting within the scope of his employment with the County. The circuit court denied that motion. After the parties completed discovery, the County filed a second motion for summary judgment, which was granted before Morales filed opposition.

When Morales filed his opposition and moved for reconsideration, another judge reconsidered the ruling and denied summary judgment. Trial was held on May 5, 6, 7, 8,12,13, and 14, 2012. At the close of Morales’s case, the County moved for judgment on the remaining claims against it, on the ground that there was insufficient evidence that Richardson was acting within the scope of his employment for the County. The trial court denied the motion.

When the County renewed its motion for judgment at the close of evidence, the court again denied the motion. The jury found that Richardson battered Morales and used excessive force while acting within the scope of his employment by the County. The County, having been held liable as Richardson’s employer, moved for a JNOV, reasserting its objections to certain jury instructions and its argument that Richardson could not have been acting within the scope of his PGPD employment because (1) he was prohibited from working extra-duty employment while assigned to light duty, and (2) he was hired and paid to work the event solely by the fraternity. The trial court denied that motion.

DISCUSSION I. Scope of Employment The County contends that the trial court erred in denying its various motions for judgment, made in the course of ⁷¹¹ multiple requests before, during, and after trial. In the County’s view, Officer Richardson’s “light duty” status is disposi-tive, because his extra-duty employment by the fraternity was expressly prohibited, so that during the altercation with Morales, as a matter of law, he could not have been acting within the scope of his employment by the County, For the same reasons, the County maintains that the trial court abused its discretion in denying its motion for a new trial. Appellate Review of Motions for Judgment To the extent the County seeks relief from the denial of its motions for summary judgment, those rulings were mooted by subsequent proceedings, which included motions for judgment during trial, a motion for judgment notwithstanding the verdict (JNOV), and a motion for a new trial. See Adams v. Manown, 328 Md. 463 , 472 n.4, 615 A.2d 611 (1992).

Accordingly, the issue is whether the County is entitled to judgment (or a new trial) as a matter of law on the record as it stands at the conclusion of the trial. Id. Maryland Rule 2-519, which governs motions for judgment, provides that, “[a] party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence. The moving party shall state with particularity all reasons why the motion should be granted.” Appellate courts reviewing the denial of a motion for judgment during a jury trial perform the same task as the trial court, affirming the denial of the motion “if there is ‘any evidence, no matter how slight, that is legally sufficient to generate a jury question.’ ” C & M Builders v. Strub, 420 Md. 268, 291 , 22 A.3d 867 (2011) (citations omitted).

In this civil case, the evidence is legally sufficient to support the scope of employment finding if, from the evidence adduced at trial, viewed most favorable to Morales, any reasonable fact finder could find by a preponderance of the evidence that in using excessive force against Morales, Richardson was acting within the scope of his employment by the County. See Hoffman v. Stamper, 385 Md. 1, 16 , 867 A.2d 276 (2005). “In a jury trial, a ⁷¹² party may move for judgment notwithstanding the verdict only if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion.” Md. Rule 2-532. Denial of a motion for JNOV is reviewed under the same standard as denial of a motion for judgment. See Univ. of Md. Med.

Sys. Corp. v. Gholston, 203 Md.App. 321, 329 , 37 A.3d 1074 (2012). Thus, we may reverse the denial of the County’s motion for a JNOV only “ ‘[i]f the evidence ... does not rise above speculation, hypothesis, and conjecture[.]’ ” French v. Hines, 182 Md.App. 201, 236 , 957 A.2d 1000 (2008) (citations and internal quotation marks omitted). A motion for a new trial may be made in conjunction with a motion for a JNOV.

See Md. Rules 5-232, 5-233. Scope of Employment Principles and Precedent Under the doctrine of respondeat superior, local governments may be required to pay a civil judgment resulting from constitutional torts committed by its police officers within the scope of their employment and without malice. See Md. Code, § 5—303(b) of the Courts and Judicial Proceedings Article (“CJP”) (local government must pay, up to specified limits, “any judgment against its employee for damages resulting from tortious acts ... committed by the employee within the scope of employment with the local government”); Lovelace v. Anderson, 366 Md. 690, 705-06 , 785 A.2d 726 (2001); DiPino v. Davis, 354 Md. 18, 51-52 , 729 A.2d 354 (1999). Although the right to take police action includes a qualified privilege to use force, “ ([i]f an officer uses excessive force, or force greater than is reasonably necessary under the circumstances, the .... officer’s nonprivileged use of force constitutes battery.” ’ French v. Hines, 182 Md.App. at 265-66 , 957 A.2d 1000 (citation omitted).

Our discussion of scope of employment principles in Clark v. Prince George’s County, 211 Md.App. 548 , 65 A.3d 785 (2013), provides an instructive synthesis of the scope of employment principles pertinent to this appeal. In that case, we affirmed a judgment in favor of the County on state law claims alleging ⁷¹³ torts stemming from a shooting by an off-duty police officer. Id. at 578 , 65 A.3d 785 . The two victims, Messrs.

Clark and White, made a furniture delivery to the residence of Prince George’s County police officer Washington, who was off-duty from his assignment to the Department of Homeland Security, was not wearing a uniform or badge, and did not identify himself as a police officer. Id. at 555, 578-79 , 65 A.3d 785 . After an altercation inside the home, Washington shot both victims with his service revolver, killing Clark and grievously wounding White. Id. at 553-56 , 65 A.3d 785 .

In Clark , as in this case, “the County only could be found vicariously liable for the common law torts of [the officer] if his actions were taken within the scope of his employment[,]” and the issue was whether “the evidence at trial generated a dispute of material fact as to whether [the officer] was acting within the scope of his employment when he shot Clark and White,” so that “scope of employment was a jury question.” Id. at 561-62 , 65 A.3d 785 . Seeking to keep the County in the case, given its ability to pay a judgment, the victims argued that “reasonable jurors could have found that Washington was acting within the scope of his employment because he was engaged in the kind of conduct he was employed to perform— protection—right after work, in a place not unreasonably distant from his authorized area of employment, and that his conduct was actuated at least in part to serve the County.” Id. at 562 , 65 A.3d 785 . The County sought judgment as a matter of law, pointing out that the officer “had taken off from work on the day of the shooting and his motive in shooting Clark and White was not driven by service to the County, whether he was protecting his home or himself.” Id. Moreover, the County maintained that it “was not served by and did not derive any benefit from Washington’s actions in shooting Clark and White, even if he did so in the course of a physical fight instigated by the two men.” Id.

The trial court granted judgment for the County, ruling as a matter of law that the shootings were not within the scope of the officer’s employment. Id. at 554 , 65 A.3d 785 . ⁷¹⁴ This Court affirmed. Id. at 590 , 65 A.3d 785 . We summarized the pertinent law governing scope of employment, as follows: There are many considerations relevant to whether an employee’s actions were within the scope of employment. “The general test set forth in numerous Maryland cases for determining if an employee’s tortious acts were within the scope of his employment is whether 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 simple test is whether they were acts within the scope of [the employee’s] employment; not whether they were done while prosecuting the master’s business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By “authorized” is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders. Id. (quoting Hopkins C. Co. v. Read Drug & C. Co., 124 Md. 210, 214 , 92 A. 478 (1914), in turn quoting Wood on Master and Servant § 279 (1877)). “[T]here are few, if any absolutes.

Nevertheless, various considerations may be pertinent.” Id Four such considerations are that 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 area, and actuated at least in part by a purpose to serve the master. Id. (quoting E. Coast Lines v. M. & C.C. of Balto., 190 Md. 256, 285 , 58 A.2d 290 (1948), in turn quoting Mechem on Agency, Section 36; Hujfcut on Agency, Section 5; American Law Institute, RESTATEMENT OF AGENCY, Section 228, comment (b)). In addition, the following considerations should be taken into account: ⁷¹⁵ [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 the 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 aet is seriously criminal.” Sawyer at 256, 587 A.2d 467 (quoting Great A. & P. Tea Co. v. Noppenberger, 171 Md. 378, 390-391 , 189 A. 434 (1937), in turn quoting RESTATEMENT OF AGENCY § 229 (1933)) (citations omitted). The Sawyer Court emphasized the importance of foreseeability to the issue of scope of employment. Id. at 256, 587 A.2d 467 (citing Cox v. Prince George’s County, 296 Md. 162, 171 , 460 A.2d 1038 (1983)). When an employee’s “actions are personal, or where they represent a departure from the purpose of furthering the employer’s business, or where the employee is acting to protect his own interests, even if during normal duty hours and at an authorized locality, the employee’s actions are outside the scope of his employment.” Id. at 256-57 , 587 A.2d 467 (citing LePore v. ⁷¹⁶ Gulf Oil Corp., 237 Md. 591, 596-98 , 207 A.2d 451 (1965); Carroll v. Hillendale Golf Club, 156 Md. 542, 545-46 , 144 A. 693 (1929); Steinman v. Laundry Co., 109 Md. 62, 67 , 71 A. 517 (1908); Central Railway Co. v. Peacock, 69 Md. 257, 265 , 14 A. 709 (1888)).

Clark, 211 Md.App. at 571-73 , 65 A.3d 785 (secondary citations omitted). The Court of Appeals has recognized that “the issue of whether a servant is acting within the scope of his employment is ordinarily a question for the jury[.]” Cox v. Prince George’s County, 296 Md. 162, 170 , 460 A.2d 1038 (1983) (citations omitted). The issue of whether a police officer used excessive force, in violation of Article 26 of the Maryland Declaration of Rights, within the scope of his or her public employment has been addressed in multiple contexts. Although an officer’s on-duty status is highly relevant, it is not dispositive of the scope of employment question.

Compare, e.g., Wolfe v. Anne Arundel County, 374 Md. 20, 36-37 , 821 A.2d 52 (2003) (as matter of law, on-duty police officer was not acting within scope of employment when he raped motorist following a traffic stop), with Cox v. Prince George’s County, 296 Md. at 164-65, 170-71 , 460 A.2d 1038 (scope of employment could not be decided on a motion to dismiss when the complaint alleged assault and excessive force by on-duty officers in the course of using a police dog to make an arrest); French v. Hines, 182 Md.App. at 264-66 , 957 A.2d 1000 (allegations that on-duty officer used excessive force in making a traffic stop and arrest precluded dismissal). In resolving this appeal, we look for guidance to cases involving allegations of excessive force by off-duty police officers, focusing on when tortious actions are outside the scope of employment as a matter of law and when such actions may fall within the scope of employment so as to preclude dismissal or the grant of a motion for judgment. At one end of that spectrum is allegedly tortious conduct that is easily distinguished from this case based on its patently personal and outrageous nature. See, e.g., Brown v. Baltimore City, 167 Md.App. 306, 326 , 892 A.2d 1173 (2006) (off-duty police officer ⁷¹⁷ was not acting within scope of employment when he allegedly shot victim 17 times in belief that he was having an affair with officer’s wife).

On the other end of the spectrum is conduct that unquestionably qualifies as police action undertaken by an off-duty officer under patently emergent circumstances. See, e.g., Town of Port Deposit v. Petetit, 113 Md.App. 401, 420 , 688 A.2d 54 (1997) (off-duty officer in personal vehicle was engaged in “governmental activity” under his “law enforcement authority” when he fired at a suspected hit and run driver during high speed pursuit). Other cases illustrate a middle ground, where scope of employment may require a compound analysis based on a recognition that police officers who are off-duty may be called upon to take police action. For example, in Sawyer v. Humphries, 322 Md. 247, 257 , 587 A.2d 467 (1991), an off-duty Maryland State Trooper, 3 attired in civilian clothes and driving his personal vehicle, had two altercations with the same motorists.

In the first, the trooper allegedly did not identify himself as a police officer before throwing rocks at their stopped vehicle, verbally threatening them, and then physically assaulting them. Id. at 250-51, 257-58 , 587 A.2d 467 . The Sawyer Court held that such tortious conduct was outside the scope of employment as a matter of law, because the trooper “was acting from personal motives,” engaging in conduct that “would not be expectable” for a police officer, and “in no way furthering the State’s interests.” Id. at 260, 587 A.2d 467 . In the second altercation a short time later, the trooper allegedly made a traffic stop of the same motorists, identified himself as a police officer, slapped one of them, stated that he was arresting him, and attempted to remove him from his vehicle. ⁷¹⁸ Id. at 251, 587 A.2d 467 .

The Court ruled that “whether or not the [officer’s] alleged actions” during that stop “were within the scope of his employment should not have been decided on a motion to dismiss,” because “the evidence at trial may show that, as a matter of law, the [trooper] was throughout acting in the scope of his employment