Sawyer v. Humphries

GILBERT, Chief Judge. The Preface “When constabulary duty’s to be done, The policeman’s lot is not a happy one.’ 1 The Issue Having relied upon Sir William S. Gilbert to set the frame of reference of this appeal, we now consider the question: “When is a police officer a police officer?” ⁷⁴ The Agreed Facts Robert Andrew Sawyer and Dean Hundley sued Edwin M. Humphries in the Circuit Court for Carroll County. The thrust of the complaint was that the plaintiffs were assaulted and battered by Humphries on June 10, 1988. At the time of the incident, Humphries was a Maryland State Trooper, off duty, attired in civilian clothing, and operating his personal vehicle.

From the facts we infer that Sawyer and his passenger Hundley were driving behind Humphries on Route 31 near Westminster, Carroll County, Maryland. Humphries drove his vehicle onto the shoulder of the roadway, thus allowing Sawyer to pass. Humphries then re-entered Route 31, proceeding along his original route. In the interim Sawyer turned off of Route 31 onto Stone Chapel Road, made a U-turn, and headed back toward Route 31.

Humphries, in passing Stone Chapel Road, observed Sawyer at that intersection waiting to turn back onto Route 31. Humphries once again drove his vehicle onto the shoulder of the roadway, alit from the driver’s side, and positioned himself near the back bumper of his automobile. Sawyer’s and Humphries’s versions of the subsequent events are diametrically opposed to each other. Irrespective of which version is correct, it is undisputed that, as Sawyer’s vehicle passed Humphries, the latter hurled a rock at Sawyer’s car, striking and damaging the passengers’ side of it.

Sawyer then made a U-turn and stopped opposite Humphries. Sawyer then got out of his automobile, and both he and Humphries started toward each other. Sawyer contends that Humphries was armed with rocks. In self-defense, Sawyer says, he picked up a beer bottle from the roadway.

Humphries, however, asserts that, as he approached Sawyer, the latter picked up a beer bottle and came toward him. An altercation between the two ensued, resulting in the beer bottle’s being forcibly taken from Sawyer. Mean ⁷⁵ while, during the struggle between Sawyer and Humphries, Hundley began to leave Sawyer’s vehicle, apparently to aid Sawyer. Noticing Hundley’s movements, Humphries ordered Hundley to stay in the car.

Hundley obeyed. It is not clear what next ensued. Nevertheless, Sawyer managed to return to his motor car and leave the scene with Hundley driving. Humphries re-entered his vehicle and proceeded to chase Sawyer’s automobile.

When Hundley stopped at a stop sign located at New Windsor Road, 2 Humphries stopped his car behind, got out, and approached the vehicle in which Hundley and Sawyer were seated. Humphries identified himself as a Maryland State Trooper. He placed Sawyer under arrest and detained him until an on-duty uniformed State Trooper arrived. One day prior to the claim’s being barred by the statute of limitations, 3 Sawyer and Hundley filed their complaint in the circuit court.

Humphries, relying on Md. Rule 2-322, moved to dismiss the action. His motion was grounded on “lack of jurisdiction over the subject matter.” Md. Rule 2-322(b)(l). Humphries asserted that he was, at the time of the incident, a Maryland State Trooper, acting within the scope of his employment. Therefore, he contended, if any claim were to be filed against him, it should have been brought in accordance with the Maryland Tort Claims Act, Md. State Gov’t Code Ann. (State Gov’t Article) §§ 12-101, et seq.

Sawyer and Hundley averred that Humphries was acting as a citizen and not within the scope of his employment as a Maryland State Trooper. The motions judge, Luke K. Burns, agreed with Humphries, the case was dismissed, and this appeal ensued. ⁷⁶ A Truncated History of the Maryland State Police The Maryland State Police were created pursuant to 1935 Md.Laws, ch. 303. 4 Its members are commonly known as troopers, and they have statewide law enforcement jurisdiction except in incorporated municipalities. Yet, even within those particular municipalities, the State Police possess certain limited jurisdiction. See, e.g., Md.Ann.Code art. 88B, §§ 3, 4, 9, 10, and 13.

The State Police exercise full police authority on land, water, and in the air within the territorial confines of Maryland. See Maryland State Police Patrol Manual, 2d ed., Chapter 21, § 1-2, July 1989; see also Md.Ann.Code art. 88B, § 3. The State Police are charged specifically with the duty of preserving the public peace, detecting and preventing crime, and enforcing the laws and ordinances of this State and its local subdivisions. Troopers “apprehend and arrest criminals and those who violated or are lawfully accused of violating such laws and ordinances,” and they preserve order in public places.

Maryland Manual, 1989-90, p. 374. When a county of this State elects not to establish and maintain a county police force, that county may agree with the State Police that the latter shall function as the county police force. Those “resident trooper” agreements provide that the State Police, as represented by the resident trooper, shall “enforce the public local laws of the county or municipality and perform related police services, in addition to ... [their] other and regular duties____ For this purpose the Department shall provide such employees, buildings, and facilities as may be required by the agreement or, if not so required, as may be reasonable and proper in the discretion of the Department to perform the objects of the agreement.” ⁷⁷ Md.Ann.Code art. 88B, § 63. Carroll County has no county police force.

Therefore, under the authority of Md.Ann. Code art. 88B, § 63, above quoted, the county entered into a resident trooper agreement with the State Police. 5 The Law All Maryland State Troopers are required to take an Oath of Office, which declares: “I do solemnly swear that I will bear true faith and allegiance to the United States of America and to the State of Maryland; that I will serve honestly and faithfully to uphold and defend the Constitution of the United States and the Constitution of Maryland; that I will enforce the laws of the State of Maryland; and that I will obey the orders of the Governor and of the officers appointed over me according to the rules and regulations of the Maryland State Police.” The oath is silent as to when a trooper is “on duty” or “off duty.” It does, however, without qualification, command that the trooper “will enforce the laws of the State____” We observe that the trooper’s oath does not, as the appellants seem to imply, limit enforcement of State laws or local ordinances to prescribed or delineated hours, times, or places. The trooper, upon being sworn as a law enforcement officer, becomes part of a cohesive group of men and women whose lives virtually revolve around each other. Troopers are required to conduct themselves “at all times, both on and off duty, in a manner which reflects most favorably on the” State Police, Maryland State Police Administrative Manual, 2d ed., July 1989, Chapter 5, § 1(3-1), maintaining “a level of moral conduct in ... [their] ⁷⁸ personal affairs which is in keeping with the highest standards of the law enforcement profession.” Id. at § 1(8-0). Justice Sydney H. Asch 6 wrote in Police Authority and the Rights of the Individual, p. 35 (1968): “The nature of a policeman’s life, out of uniform, does not substantially strengthen his ties with the rest of the community.

While on duty, the policeman must condition himself not to inject his private personality into the performance of his job. But the 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. [7] 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.” (Emphasis supplied.) Despite Justice Asch’s unequivocal declaration that police officers in America are “considered to be on duty twenty- ⁷⁹ four hours a day, seven days a week,” there is a paucity of written authority to support him. Nevertheless, it seems that most people assume the truth of the saw, and the accuracy vel non of Asch’s statement is meaningless in light of its general acceptance as true. Irrespective of how one views Justice Asch’s assertion, the State Police Patrol Manual, § 2-l(a) provides: “Employees of the Agency sworn as police officers of the State of Maryland are considered to be available for duty at all times.” Moreover, off-duty troopers must carry their badge or State Police Identification Card and, at their option, may carry an issued or approved firearm.

See Maryland State Police Manual, supra, Chapter 22, § 11(2-1); Maryland State Police Administrative Manual, supra, Chapter 5, § 1(26-0). The failure of a trooper to take appropriate action, either on duty or off duty, when matters arise over which the State Police have jurisdiction “is considered neglect of duty.” Id. at Chapter 5, § 1(28-3). The State Police Manuals are authorized statements of policy. Md.Ann.Code art. 88B, § 15(a) confers upon the Superintendent of the State Police “the power to make any rules necessary to promote the effective and efficient performance of the duties of the Department and to insure the good government of the Department and its employees.” (Emphasis supplied.) We interpret the Manuals to be composed of a series of rules governing a State Trooper’s conduct.

Those rules are promulgated by the Superintendent under the delegation of authority contained in § 15(a). Sir William Blackstone in his well-known Commentaries on the Laws of England has written that constables, the ancestors of today’s police officer, might in “walled towns” appoint “watchmen” to keep watch “to apprehend all rogues, vagabonds, and night-walkers and make them give an account of themselves.” The watchmen, during their watch, had “the authority of the principal [constable].” Implicit in that statement, we think, is the rational inference ⁸⁰ that the constable, of necessity, was always on duty. 1 W. Blackstone, Commentaries ³⁵⁷. We have not been directed by counsel to any cases dealing with the issue at hand. Notwithstanding that lack of guidance, we have, however, found authority in other States.

The Supreme Court of New York, Appellate Division, addressed the matter in Hanmer v. Wells Fargo and Co. Express, 174 A.D. 724 , 160 N.Y.S. 651 (1916). There, the court, holding that police officers are not entitled to rewards because they are, in effect, always on duty, said: “Public officers such as policemen, constables, etc., are under a special duty at all times, because of the nature of their employment, to use their best efforts to apprehend criminals____” Hanmer, 160 N.Y.S. at 654 (emphasis supplied). See also Kick v. Merry, 23 Mo. 72 , 66 Am.Dec. 658 (1856); Lees v. Colgan, 120 Cal. 262 , 52 P. 502 , 40 L.R.A. 355 (1898). Similarly, in People v. Derby, 177 C.A.2d 626, 2 Cal.Rptr. 401 (1960), the California courts were called upon to determine the scope of the California Highway Patrol in effectuating an arrest of a person for a breach of the peace.

The court held that members of the Highway Patrol are not required to ignore criminal activity after their particular hours of duty had been completed. Looking for authority for their holding, the court turned to the Motor Vehicle Code of California, which stated, in pertinent part: “For the purpose of determining the scope of employment of any member of the California Highway Patrol under the workers’ compensation laws, any such member shall be deemed to be on duty and acting within the scope of the person’s employment when actually exercising any of the powers or performing any of the duties imposed or authorized by law at any time during the 24 hours of the day.” ⁸¹ Cal.Veh.Code § 2253 (West 1989). 8 The California Supreme Court discussed the question in Cervantez v. J.C. Penney Co., Inc., 24 Cal.3d 579 , 156 Cal.Rptr. 198 , 595 P.2d 975 (1979). There, the court said that, if a peace officer takes on secondary employment, the employment prevents him from acting in what would otherwise be his official capacity. The court made crystalline that only the private employment would convert a police officer into a private citizen: “[I]t is thus the fact of private employment which operates to prevent a peace officer from acting in what would otherwise be his official capacity.

We do not suggest that a peace