Wright, Arthur, Salmon, James P. (Senior Judge, Specially
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"). 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).
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.In this appeal, the County raises two
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?
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.
FACTUAL AND LEGAL BACKGROUND
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
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
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.
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.
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
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.
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.
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.
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."
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. . . .
an assault on a police officer.
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."
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
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.
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.
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.
Duty Status of Dominique Richardson
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
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
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
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.
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."
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.
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,
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).
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.
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
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.
Scope of Employment
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