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Prince George's County v. Morales

Court of Special Appeals of Maryland

November 30, 2016


          Wright, Arthur, Salmon, James P. (Senior Judge, Specially Assigned), JJ.


          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).

         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.


         A. The Altercation

         The University of Maryland at College Park chapter of the Omega Psi Phi fraternity hired Prince George's County Police Officer Dominique Richardson to provide security for a Halloween party to be held at an off-campus warehouse in Beltsville, 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 "[p]eople 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 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. . . .
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 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 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 Sheriff's Department. Someone in the Sheriff's 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 prosthodontist. 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.

         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'Hagan 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.

         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 Muldoon, 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 Fed.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 Morales's federal claims. See Morales v. Richardson, 475 F.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.


         I. Scope of Employment

         The County contends that the trial court erred in denying its various motions for judgment, made in the course of multiple requests before, during, and after trial. In the County's view, Officer Richardson's "light duty" status is dispositive, 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. ...

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