PRINCE GEORGE’S COUNTY, MARYLAND v. STEVEN MORALES
Court of Special Appeals, Salmon, Nov. 30, 2016,
Employer Liability- An off-duty police officer working security in a semi-uniformed capacity was still “within the scope of his employment” even where he was hired and paid solely by a fraternity and working while on light-duty was against departmental policy
A PG county officer 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.” Richardson recruited several other officers and an acquaintance to help provide security. “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”).”
During the course of the evening, Richardson encountered Morales who was there to attend the party. Richardson stated that his “verbal judo, as they call it,” failed and that he had to go hands-on with Morales to restrain him from entering the full party. Morales stated that “Officer Richardson struck me without me doing anything to him.” Morales was struck in the face and sued. A jury found that the officer used excessive force and a judgment of $121,140.98 was entered against both him and his employer (PG County).
Respondeat Superior (let the superior answer)- An employer may be required to pay a civil judgment for torts committed by their employees within the scope of their employment
Use of Force- An officer has a qualified privilege to use force in carrying out her duties. However, “if an officer uses force greater than is reasonably necessary under the circumstances,” the officer is no liable for their actions.
To be “within the scope of employment,” considerations include: whether the conduct is of the kind the employee is employed to perform, occurs during a period not unreasonably disconnected from the authorized period of employment, it is not unreasonably distant from the authorized area of work, and it was done at least in part by a purpose to serve the employer.
Evidence was presented at trial that the PG officer acted to keep the peace using his badge, gun, gunbelt, marked units, crowd-control, and arrest techniques (“the kind” of work he was”employed to perform” for the PGPD), that it “occur[red] during a period not unreasonably disconnected from the authorized period of employment,” “in a locality” where he was authorized to take police action, and that it was “actuated at least in part by a purpose to serve” the County’s interest in keeping the peace through uniformed police presence.
Compare:
In cases involving allegations of excessive force by off-duty police officers, figuring out when improper actions are outside the scope of employment involves looking at a spectrum. At one end of that spectrum is conduct that is patently personal and outrageous in nature. See, e.g., Brown v. Baltimore City, 167 Md. App. 306, 326(2006) (off-duty police officer 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 in an emergent circumstance. See, e.g., Town of Port Deposit v. Petetit,113 Md. App. 401, 420 (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 a high speed pursuit).
Also take a look at:
Sawyer v. Humphries, 322 Md. 247, 257 (1991), where an off-duty Maryland State Trooper, dressed 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. The Court held that this 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.”
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. In that case, the Court held that this could have been considered within the scope of employment and that further evidence was necessary.
Under PG County Code Sec 18-163: Sworn police officers are held to be always on duty, although periodically relieved from the routine performance thereof. They are subject at all times to orders from the proper authorities and to call by citizens. The fact that they may be off duty shall not be held as relieving them from the responsibility of taking proper police action in any matter coming to their attention requiring such action.
Under PG policy and code, including those “relieved from the routine performance” of their duties by reason of being restricted to light duty, may take police action within the County when circumstances warrant.