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Off Duty Police Officer Accorded Immunity For Hotel Lobby ShootoutNo. 1249, September term, 1998 (Md. App.. June 3, 1999) In this case, the Court grappled with the question, when is a police officer a police officer? Here, suit was brought against an off-duty police officer who had faced two armed robbers in a hotel lobby shootout. The plaintiff was a bystander injured by a ricochet. . The Court held that while it was undisputed that the officer was off-duty, that does not affect his status as a police officer, because Baltimore City police officers are considered to be on duty or ready for duty to all times. Further, written police policy stated that secondary employment does not excuse a police officer from the officer’s duty to stop and take action while off-duty. The police officer, although off-duty and outside his jurisdiction, was still authorized and required to uphold the laws of the State of Maryland. When confronted with two armed robbers at the hotel, clearly a felony in progress endangering himself and others, the officer reverted to his police officer status. It followed that the police officer was entitled to official immunity. The goal of official immunity is to halt most civil liability actions, except those in which the official is clearly in violation of the law, well in advance of the submission of facts to the fact finder. In Maryland, the immunity for an officer is established by the following two factors which must exist simultaneously: (1) the individual actor, whose alleged negligent conduct is at issue, is a public official rather than a mere government employees or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties. Once the two factors are established, a qualified immunity attaches so that in the absence of malice, the individual involved is free from liability. The Court held that the law enforcement officer is entitled to qualified public official immunity. Law enforcement officers acting outside of their jurisdictions are also entitled to a qualified immunity under Md. Courts and Judicial Proceedings Code § 5 – 605 (a) (1). In this case, as the officer’s conduct occurred outside his jurisdiction, the test for immunity was whether his actions were grossly negligent. In determining whether a defendant’s actions constitute gross negligence, the analysis is whether the accused’s conduct, under the circumstances, amounted to a disregard of the consequences which might ensue and indifference to the rights of others, and so was a wanton and reckless disregard for human life. Because a police officer authorized, and frequently obligated, to threaten deadly force on a regular basis, pointing a weapon at a civilian is not negligence per se. Rather, the standard of conduct demanded of a police officer on duty is the standard of a reasonable police officer similarly situated. The reasonableness of the force used must be judged in the light of the circumstances "as they appear to the officer of the time he acted...." The court should consider only those facts and circumstances known to the officer at the time of his or her action. Generally, where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force, if necessary, and where, if feasible, some warning was given. In this case, the Court of Special Appeals reviewed the security videotape of the shooting, and concluded that there was no material dispute of fact as to whether a warning was given or was feasible. The police officer was out-numbered by the suspects and knew that at least one was armed with a shotgun. The court quoted the Fourth Circuit to the effect that no citizen can fairly expect to draw a gun in the presence of police without risking tragic consequences. The Court found that there were sufficient facts supporting probable cause here, and that probable cause could be decided as a matter of law. The Court also affirmed the trial court’s award of summary judgment to the property management companies who employed the off duty policeman as a guard. The court concluded that all of the allegedly negligent acts occurred after the off-duty police officer reverted to his status as a police officer, and, therefore, he was not an agent of the employers, and neither employer was liable under the doctrine of respondeat superior. |
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