THE LOCAL GOVERNMENT TORT CLAIMS ACT DOES NOT IMPOSE LIABILITY ON GOVERNMENT EMPLOYERS WHOSE EMPLOYEES COMMIT TORTS OUTSIDE THE SCOPE OF THEIR EMPLOYMENT.

The Court of Appeals of Maryland held that the Baltimore City Police Department (“BCPD”) would not be liable for the actions of their police officers if those actions were not in furtherance of, or authorized by, the police department. Esteppe v. Balt. City Police Dep’t, 476 Md. 3, 14, 258 A.3d 210, 216 (2021). Specifically, the court unequivocally affirmed the holding of the Court of Special Appeals of Maryland and held that BCPD was not responsible for a judgment against a former officer who perjured himself to obtain a fraudulent search warrant. Id at 13-14, 258 A.3d at 216.

In 2012, former BCPD detective Adam Lewellen (“Lewellen”) committed perjury to obtain a search warrant for David Esteppe’s (“Esteppe”) home. Additionally, Lewellen initiated a fraudulent prosecution of Esteppe. An investigation into Lewellen’s conduct by BCPD led to criminal charges against Lewellen and the dropping of charges against Esteppe. In 2014, Lewellen resigned from the police department and pled guilty to perjury and misconduct in office.

That same year, Esteppe brought a civil suit against Lewellen for various torts, including negligence, violations of the Maryland Declaration of Rights, and civil conspiracy. During trial, Esteppe argued Lewellen’s actions had no legitimate law enforcement purpose, but that his conduct was personally motivated. The Circuit Court for Baltimore City found in favor of Esteppe and awarded him $167,007.67 in damages. The circuit court made no mention concerning the Local Government Tort Claims Act (“LGTCA”), a Maryland statute whereby local governments may be responsible for torts committed by their employees. Accordingly, the circuit court made no findings as to whether Lewellen acted within the scope of his employment.

After the proceedings concluded, Esteppe sought enforcement of the judgment in the circuit court against the City and BCPD, both of whom were not parties to the action at the time of the judgment. Relying on the LGTCA, Esteppe argued Baltimore City (“The City”) should pay the damages awarded as a result of Lewellen’s tortious conduct. The City argued it was not scope of his employment. Finding the City responsible for covering the judgment’s cost against Lewellen, the circuit court ruled in favor of Esteppe.

BCPD appealed the circuit court’s ruling, following which the Court of Special Appeals reversed the circuit court, holding that the City was not liable for damages under the LGTCA. Esteppe and BCPD filed petitions for writ of certiorari, which the Court of Appeals of Maryland granted. Subsequently, the Court of Appeals of Maryland affirmed the Court of Special Appeals and remanded the case to the circuit court.

On appeal, the Court of Appeals of Maryland considered whether, for the purposes of the LGTCA, Lewellen acted within the scope of his employment, thereby making BCPD and the City responsible for the judgment against Lewellen. Esteppe, 476 Md. at 11, 258 A.3d at 214 (citing Md. Code Ann., Cts. & Jud. Proc. § 5-301 (2021). The Court of Appeals of Maryland unequivocally adopted the analysis and holding of the Court of Special Appeals, finding no benefit in restating the well-researched opinion. Id. at 14, 258 A.3d at 216.

The main issue addressed by the Court of Special Appeals was whether the circuit court was correct in holding BCPD liable for Esteppe’s judgement against Lewellen. Esteppe, 476 Md. at 11, 258 A.3d at 214. Resolving this issue turned on whether Lewellen acted within the scope of his employment. Id. The Court of Special Appeals adopted a two-prong test articulated in precedential opinions establishing when a local government eir employment. Esteppe, 476 Md. at 11, 258 A.3d at 214-15 (citing Sawyer v. Humphries, 322 Md. 247, 255, 587 A.2d 467, 470 (1991); , 468 Md. 265, 271, 227 A.3d 186, 190 (2020)).

Under the two-prong test, a plaintiff must first prove that the employee’s actions were in furtherance of the employer’s business. Esteppe, 476 Md. at 11, 258 A.3d at 215 (citing Sawyer, 322 Md. at 255; Potts, 468 Md. at 271). A plaintiff must then prove that the employer authorized the employee’s actions. Esteppe, 476 Md. At 11, 258 A.3d at 215 (citing Sawyer, 322 Md. At 255; Potts, 468 Md. At 271). An employee’s actions will be outside the scope of employment when the actions are either personally motivated, protecting an employee’s own interest, or when an employee’s actions deviate from a purpose in furtherance of the employer’s business. Id. at 11, 258 A.3d at 214-15 (citing Sawyer, 322 Md. 256-57; Potts, 468 Md. at 290).

The Court of Appeals of Maryland affirmed the Court of Special Appeals’ finding that Esteppe did not satisfy the two-prong test. Esteppe, 476 Md. at 12, 258 A.3d at 215 (citing Sawyer, 322 Md. at 255; Potts, 468 Md. at 271). The court reasoned that the undisputed evidence of the record and not in support of the interests of his employer, BCPD. Id. Thus, under the two-prong test, the first prong was not satisfied. Id. The court found interest Lewellen’s actions were not even partially in furtherance of BCPD’s interest. Id. (citing Balt. City Police Dep’t v. Esteppe, 247 Md. App. 476, 527-28, 236 A.3d 808, 838 (2020); Sawyer, 322 Md. at 255; Potts, 468 Md. at 271). Esteppe’s failure to satisfy the first prong of the two-prong test meant he was not entitled to summary judgment on the scope of the employment issue. Id.

The Court of Appeals of Maryland held that the Court of Special Appeals’ independent review of the record was an “unassailable” application of the law regarding the scope of employment issue for LGTCA liability purposes. Esteppe, 476 Md. at 14, 258 A.3d at 216; citing Cts. & Jud. Proc. § 5-301). Adopting the analysis and conclusion as its own, the Court of removed doubt as to the standing of its decision as Maryland law. Id. (citing Sturdivant v. Md. Dep’t of Health & Mental Hygiene, 436 Md. 584, 590, 84 A.3d 83, 87 (2014)).

The Court of Appeals of Maryland’s decision in Esteppe laid out a bright- line rule for when a local government — in this instance, a police department — can be held liable for an employee’s misconduct. So long as an employee’s actions are not in furtherance of the employer’s interests and the employer did not authorize the action, local governments may disassociate themselves from their employees’ misconduct. Lower courts now have a practical standard to resolve scope of employment issues for local governments. The decision could, however, leave Maryland citizens with little to no means of collecting compensation when they fall victim to police misconduct. From the police department’s perspective, a rule requiring a nexus between misconduct and a police officer’s official duties to further the police department’s interests is an appropriate rule that avoids determining liability in a way that is too broad. From the perspective of a victim of police misconduct, however, police officers may freely abuse their authority if that abuse is so far removed from their official duty that it cannot be said to be in furtherance of the police department’s interest.

In the context of police departments, the two-prong test ignores the fact that regardless of whether the misconduct was in furtherance of the police department’s interest, the official authority of a police officer is, more often than not, also abused during their misconduct. A rule that also accounts for a police officer’s use of their authority may better bridge the gap between local governments’ interests and Maryland citizens who fall victim to police misconduct.

Jeneen Burrell is a third-year student at the University of Baltimore School of law, where she serves as the Diversity Equity & Inclusion Editor of Law Forum. Jeneen graduated with honors from Florida International University in 2019 and received a Bachelor’s Degree in Criminal Justice. While at UB, Jeneen interned for the Honorable Paul W. Grimm and the Honorable Laura S. Ripken. Also, she is a Law Scholar for Professor Koller’s Civil Procedure I class. Upon graduation in May 2023, Jeneen will serve as a Judicial Law Clerk for the Honorable Daniel A. Friedman on the Maryland Court of Special Appeals. She hopes to pursue a career in Labor & Employment and Trusts & Estates.