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, the trial court “sustained [a] demurrer[,]”
which is “[a] pleading stating that[,] although the facts [that are] alleged in a complaint
may be true, they are insufficient for the plaintiff to state a claim for relief[.] . . . [] In most
jurisdictions, such a pleading is now termed a motion to dismiss[.]” Demurrer, Black’s
Law Dictionary (11th ed. 2019) (italics in original). We refer to the demurrer in Cox as “a
motion to dismiss.”
- 17 -
namely, that county law enforcement officers detained their son by having a police dog
bite him, and that the officers beat their son—were not inconsistent with the officers having
acted within the scope of employment for purposes of the doctrine of respondeat superior.
The plaintiffs sued the officers and the county for false arrest and other causes of action.
See Cox,

296 Md. at 164

. In seeking dismissal, the county contended
that, under the doctrine of respondeat superior, the officers’ actions were outside the scope
of employment. See

id. at 164-65

. The trial court granted the motion to
dismiss, the plaintiffs appealed, and the Court of Special Appeals affirmed. See

id. at 165

322 Md. at 260-61, 250-52

.
This Court reversed and remanded for further proceedings, explaining:
An act may be within the scope of the employment, even though forbidden[,]
done in a forbidden manner, or consciously criminal or tortious. . . . [T]he
simple test for determining vicarious liability under the principle of
respondeat superior is whether they were acts within the scope of []
employment; not whether they were done while prosecuting the [employer]’s
business, but whether they were done by the [employee] in furtherance
thereof, and were such as may fairly be said to be authorized by [the
employer]. . . . A[n employer] is subject to liability for the intended tortious
harm by a[n employee] to the person or things of another by an act [that was]
done in connection with the [employee]’s employment, [even ]though the act
was unauthorized, if the act was not unexpectable in view of the duties of the
[employee].

Id. at 170-71

460 A.2d at 1042

 (cleaned up). We observed that the county argued that,
according to the plaintiffs’ allegations, the officers were acting maliciously and
intentionally, and therefore outside the scope of employment. See

id. at 171

460 A.2d at 1043

. We reiterated, however, that an employer “may be held liable for the intentional
torts of [an employee] where the [employee]’s actions are within the scope and in
- 18 -
furtherance of the [employer]’s business and the harm complained of was foreseeable.”

Id. at 171

460 A.2d at 1043

. We concluded that the plaintiffs’ allegations met these criteria
and were sufficient to survive the motion to dismiss. See

id. at 171

460 A.2d at 1043

.
In Sawyer,

, 587 A.2d at 473-74, 468-69, this Court held
that a trial court erred in granting a motion to dismiss where two plaintiffs, who were
involved in an altercation with an off-duty State trooper, brought an action against the
trooper alleging assault and battery. This Court held that part of the conduct alleged in the
complaint—namely, that the trooper threw rocks at the vehicle that the plaintiffs were in
and beat one of the plaintiffs—did not constitute actions within the “scope of public duties”
under the MTCA. See id. at 251, 257, 260, 587 A.2d at 468, 472, 473. But, this Court
concluded that whether or not other actions taken by the trooper on the same day during a
second encounter—namely, hitting one of the plaintiffs, announcing that he was a law
enforcement officer, and having the plaintiff arrested—were within the scope of
employment should not have been decided on a motion to dismiss. See id. at 251-52, 260-
61, 587 A.2d at 469, 473-74. In the alternative, this Court also held that the trooper would
not be entitled to immunity because the allegations in the complaint sufficiently alleged
malice. See id. at 261-62, 587 A.2d at 474.
One of the plaintiffs was driving on a State highway in a vehicle, in which the other
plaintiff was a passenger. See id. at 250, 587 A.2d at 468. The defendant, an off-duty
officer of the Maryland State Police, was wearing civilian clothes and driving his personal
vehicle on the State highway. See id. at 250, 587 A.2d at 468. The defendant’s vehicle
was in front of the plaintiffs’ vehicle. See id. at 250, 587 A.2d at 468. The defendant made
- 19 -
hand signals and pulled over to the side of the State highway, allowing the vehicle that the
plaintiffs were in to pass. See id. at 250, 587 A.2d at 468. The plaintiffs drove down a
side road to a construction site and returned to the State highway. See id. at 250, 587 A.2d
at 468. At that time, the defendant was leaning against his vehicle, which was parked on
the side of the State highway. See id. at 250, 587 A.2d at 468. The defendant motioned
for the plaintiffs to approach him. See id. at 250, 587 A.2d at 468. The defendant picked
up some rocks and threw one at the plaintiffs’ vehicle, making a large dent in the passenger
side. See id. at 251, 587 A.2d at 468.
The driver of the plaintiff’s vehicle parked and got out, intending to speak with the
defendant about the damage to his vehicle. See id. at 251, 587 A.2d at 468. The defendant
picked up more rocks. See id. at 251, 587 A.2d at 468. The driver picked up an empty
beer bottle, intending to defend himself. See id. at 251, 587 A.2d at 468. The defendant
grabbed the driver by the hair, beat him, and threatened to kill him. See id. at 251, 587
A.2d at 468. The plaintiff who was in the passenger seat exited the vehicle, intending to
help the driver. See id. at 251, 587 A.2d at 468. The defendant let go of the driver, stepped
toward the other plaintiff, and said: “[U]nless you want some too, [] you better get back in
the car.” Id. at 251, 587 A.2d at 468. Both of the plaintiffs got back in their vehicle. See
id. at 251, 587 A.2d at 468. The defendant approached the vehicle that the plaintiffs were
in and offered to exchange information. See id. at 251, 587 A.2d at 468. The plaintiffs
declined to do so and drove away. See id. at 251, 587 A.2d at 468.
Later the same day, the defendant’s vehicle began following the vehicle that the
plaintiffs were in. See id. at 251, 587 A.2d at 468. The vehicle that the plaintiffs were in
- 20 -
stopped at a stop sign. See id. at 251, 587 A.2d at 468. The defendant exited his vehicle,
approached the passenger side of the plaintiffs’ vehicle, and slapped one of the plaintiffs
across the chest. See id. at 251, 587 A.2d at 468-69. The defendant said that he was an
officer of the Maryland State Police, and that he was arresting the plaintiff. See id. at 251,
587 A.2d at 469. The plaintiffs did not believe that the defendant was a law enforcement
officer, and repeatedly asked him for identification, which the defendant refused to provide.
See id. at 251, 587 A.2d at 469. The defendant tried to remove the plaintiff whom he had
slapped from his vehicle, but was unable to do so because his seat belt was fastened. See
id. at 251, 587 A.2d at 469. Eventually, other law enforcement officers arrived and arrested
the plaintiff. See id. at 251-52, 587 A.2d at 469.
During the lawsuit, the defendant filed a motion to dismiss, contending that, under
the MTCA, he was immune because he acted within the scope of his public duties and
without malice. See id. at 252, 587 A.2d at 469. The trial court granted the motion to
dismiss, the plaintiffs appealed, and the Court of Special Appeals affirmed. See id. at 253,
587 A.2d at 469.
This Court reversed and remanded for further proceedings. See id. at 262, 587 A.2d
at 474. This Court noted that an employee’s actions are within the scope of employment
where “they [are] in furtherance of the employer’s business and [are] authorized by the
employer.” Id. at 255, 587 A.2d at 470 (internal quotation marks omitted). As to
furtherance of the employer’s business, the question is “not whether [the employee’s
actions] were done while prosecuting the [employer]’s business, but whether they were
done by the [employee] in furtherance thereof[.]” Id. at 255, 587 A.2d at 470 (citation
- 21 -
omitted). As to authorization by the employer, the question is not whether the employer
“expressly conferred” on the employee the authority to take the actions, “but whether the
act[ions were] incident[al] to the performance of the duties [that were] entrusted to [the
employee] by the [employer], even though in opposition to [the employer’s] express and
positive orders.” Id. at 255, 587 A.2d at 470 (citation omitted). This Court explained:
To be within the scope of [] employment[,] the [employee’s] conduct must
be of the kind [that] the [employee] is employed to perform[,] must occur
during a period [that is] not unreasonably disconnected from the authorized
period of employment[, must occur] in a locality [that is] not unreasonably
distant from the authorized area, and [must be] actuated[,] at least in part[,]
by a purpose to serve the [employer].
Id. at 255, 587 A.2d at 471 (citations omitted).
This Court noted that, to be within the scope of employment, the employee’s actions
must be of the same general nature as that which was authorized, or incidental to the
conduct that was authorized, by the employer—regardless of whether the employer
intended or consciously authorized the employee’s actions. See id. at 256, 587 A.2d at
471. In determining whether the employee’s actions, “although not authorized[ by the
employer], [were] nevertheless so similar to[,] or incidental to[,] the conduct [that was]
authorized [by the employer] as to be within the scope of employment,” a court must
consider the following ten factors:
(a) whether or not the act[ions are] commonly done by such [employee]s; (b)
the time, place[,] and purpose of the act[ions]; (c) the previous relations
between the [employer] and the [employee]; (d) the extent to which the
business of the [employer] is apportioned between different [employee]s; (e)
whether the act[ions are] outside the enterprise of the [employer] or, if within
the enterprise, ha[ve] not been entrusted to any [employee]; (f) whether or
not the [employer] has reason to expect that such [] act[ions] will be done;
(g) the similarity in quality of the act[ions that were] done to the act[ions that
- 22 -
were] authorized[ by the employer]; (h) whether or not the instrumentality
by which the harm is done has been furnished by the [employer] to the
[employee]; (i) the extent of departure from the normal method of
accomplishing an authorized result[;] and (j) whether or not the act[ions are]
seriously criminal.
Id. at 256, 587 A.2d at 471 (cleaned up). Restating the factor as to “whether or not the
[employer] has reason to expect that such [] act[ions] will be done[,]” this Court noted that
a court must consider whether “the employee’s [actions were] expectable or foreseeable”
from the employer’s perspective. Id. at 256, 587 A.2d at 471 (cleaned up).
We stated that an employee’s actions are outside the scope of employment where
they are “personal, [] where they represent a departure from the purpose of furthering the
employer’s business, or where the employee is acting to protect his [or her] own interests,
even if during normal duty hours and at an authorized locality[.]” Id. at 256-57, 587 A.2d
at 471 (citations omitted).      We observed that where an employee’s actions are
“unprovoked, highly unusual, and quite outrageous,” courts tend to hold that that
circumstance, “in itself[,] is sufficient to indicate that the [employee’s] motive was a purely
personal one[,]” and, that the employee’s actions were “outside the scope of employment.”
Id. at 257, 587 A.2d at 471 (cleaned up). Utilizing these principles, we concluded that,
assuming the plaintiffs’ allegations were accurate, the defendant acted outside the scope of
his public duties during the first encounter. See id. at 257, 587 A.2d at 472.
Specifically, this Court determined that, during the first encounter, “the defendant
was acting from personal motives, that such conduct by a [law enforcement] officer would
not be expectable, and that [the defendant] was in no way furthering the State’s interests.”
Id. at 260, 587 A.2d at 473. This Court explained that the following circumstances
- 23 -
indicated that the defendant’s actions during the first encounter were outside the scope of
employment:
The defendant was off duty and driving his personal car. . . . [T]he
defendant[] throwing a rock at the plaintiffs’ car[,] and his attack upon the
plaintiffs[,] . . . had nothing to do with the defendant’s duties as a [law
enforcement] officer. As to that activity, there is no suggestion . . . that [the
defendant] was attempting to question, stop, detain[,] or arrest the plaintiffs
in connection with any traffic or criminal offense[,] or any other matter of
concern to the [Maryland State Police]. [To] the contrary, . . . [the defendant]
was acting for purely personal reasons[,] and not incidental to any State law
enforcement purpose.
Id. at 257-58, 587 A.2d at 472.
In contrast, we concluded that the trial court should not have decided, at the motion
to dismiss stage, the issue of whether the defendant acted within the scope of employment
during the second encounter. See id. at 260-61, 587 A.2d at 473-74. We noted that the
issue as to the second encounter was “less clear” than the issue as to the first encounter.
See id. at 260, 587 A.2d at 473. We observed that, “[o]rdinarily[,] when stopping a
motorist[,] or making[,] or attempting to make[,] an arrest, a [law enforcement] officer is
acting within the scope of [] employment.” Id. at 260, 587 A.2d at 473. We discussed the
holding in Cox,

296 Md. at 170-171

460 A.2d at 1042-43

, in which this Court determined
“that the scope of employment issue was for the jury[,] and should not have been resolved
by” granting a motion to dismiss. Sawyer,

322 Md. at 261

, 587 A.2d at 473. Ultimately,
in Sawyer, id. at 261, 587 A.2d at 473-74, we concluded that the trial court should not have
decided on a motion to dismiss whether or not the defendant’s alleged actions during the
second encounter (the encounter in which the arrest was made) were within the scope of
employment.
- 24 -
Four days after issuing its opinion in Sawyer, this Court issued its opinion in Ennis,
322 Md. at 295-96, 289-90, 587 A.2d at 490-91, 487-88, in which this Court held that a
trial court erred in granting a motion to dismiss a complaint in which the plaintiff alleged
that the defendant, a member of a county council, defamed her. This Court held that the
defendant did not act in the scope of her duties as a council member when she accused the
plaintiff, the president of a civic group, of attempting to bribe her; thus, it was not necessary
for the county to be notified of the defamation action under the LGTCA. See id. at 288,
294, 296, 587 A.2d at 486-87, 490, 491. In the complaint, the plaintiff alleged the
defendant falsely told a newspaper reporter that the plaintiff had offered to pay the
defendant’s campaign’s debts if the defendant voted against a proposed development plan.
See id. at 288-89, 587 A.2d at 487. Three newspapers reported the plaintiff’s alleged offer
of a bribe. See id. at 288, 587 A.2d at 486-87.
The plaintiff sued the defendant for libel and slander. See id. at 289, 587 A.2d at
487. The defendant moved to dismiss, contending that dismissal was necessary because
the plaintiff had failed to notify the county of the case, as required by the LGTCA. See id.
at 289-90, 587 A.2d at 487-88. The defendant argued that the LGTCA applied to the case
because she acted within the scope of employment when she spoke to the reporter. See id.
at 289-90, 587 A.2d at 487. The trial court granted the motion to dismiss, and the plaintiff
appealed. See id. at 290-91, 587 A.2d at 488. While the case was pending in the Court of
Special Appeals, we issued a writ of certiorari on our own initiative. See id. at 291, 587
A.2d at 488.
This Court held that the LGTCA did not apply to the case because, assuming the
- 25 -
plaintiff’s allegations were accurate, the defendant acted outside the scope of employment
when she spoke to the reporter “for [her] own purposes.” Id. at 296, 587 A.2d at 491. This
Court determined that the defendant’s statement to the reporter was not “in furtherance of
the county’s business and incidental to it,” and “instead[] was in furtherance of [her]
interests”—more specifically, “a political act [that was] undertaken for her own benefit.”
Id. at 294, 587 A.2d at 490. This Court explained:
It is difficult to understand how [the defendant] could have been fulfilling
her duties as a local legislator, or in any way furthering [the c]ounty’s
business, by publicly accusing [the plaintiff] of offering her money to pay
[her] campaign[’s] debts . . . to influence her vote on a controversial
[proposed] development [plan], when the [allegedly] defamatory [statement]
took place [more than two month]s after the alleged bribe[,] and long after
the [county] council’s vote. It is more reasonable to infer . . . that [the
defendant]’s public statements were made to discredit [the plaintiff] and
other political opponents . . . to protect [the defendant]’s career as an elected
official.
***
Although it may be argued that the public derived some benefit from
learning that one of its elected officials was allegedly offered a bribe, there
is nothing [that is] peculiar to [the defendant]’s job as a county council
member [that] created that benefit. Her reporting the alleged bribe to the
press, and any benefit to [the c]ounty[’s] citizens [that] may have resulted
therefrom, were not incidental to [the defendant]’s employment as a local
elected legislative official.
Id. at 294-95, 587 A.2d at 490 (citations omitted).
In Wolfe,

374 Md. at 22, 34

821 A.2d at 53, 60

, this Court held that, in raping the
plaintiff, a county law enforcement officer acted outside the scope of employment for
purposes of the LGTCA. In a Maryland trial court, the plaintiff sued the officer, certain
law enforcement officials, and the county, raising federal claims and Maryland ones. See

id. at 23

. The defendants removed the case to a federal trial court. See

- 26 -
at 23,

.7 The federal trial court conducted a jury trial on the claims against
the officer. See Wolfe,

374 Md. at 23

.
At trial, there was evidence that the officer initiated a traffic stop of the plaintiff on
suspicion that she had been driving while intoxicated. See

. The
officer told the plaintiff to sit in his police vehicle’s passenger seat. See

. The officer drove to a parking lot, raped the plaintiff, and drove her home. See

. The plaintiff reported the rape. See

. The
jury returned a verdict in the plaintiff’s favor against the officer. See

id. at 23

. In a Maryland trial court, the plaintiff sued the county, contending that it was liable for
the verdict under the county’s self-insurance program and the collective bargaining
agreement between the county and its police department. See

id. at 22, 24

821 A.2d at

53-
54. The Maryland trial court dismissed, or granted summary judgment in the county’s
favor as to, all of the claims. See

id. at 24

821 A.2d at 54

. The plaintiff appealed, and the
Court of Special Appeals affirmed. See

id. at 25-26

821 A.2d at 55

.
This Court affirmed as well, observing that the “[c]ounty’s obligation to pay certain
tort judgments against its employees, including county [law enforcement] officers, [was]
based on the [LGTCA] and the” county’s self-insurance program.

Id. at 34

821 A.2d at 60

. Under both the LGTCA and the county’s self-insurance program, the county was liable
only where an employee’s tortious actions were “within the scope of employment[.]”

7
The federal trial court severed the claims against the officer from the claims against
the law enforcement officials and the county, and granted summary judgment in favor of
the officials and the county. See Wolfe,

374 Md. at 23

821 A.2d at 53-54

.
- 27 -
at 27-28,

821 A.2d at 56

 (citations omitted). We concluded that it was “clear from our
cases that” the officer “was not acting within the scope of [] employment.”

Id. at 34

821 A.2d at

60 (citing Ennis,

322 Md. at 293-296

, 587 A.2d at 489-91; Sawyer,

322 Md. at 254-260

, 587 A.2d at 470-73).
In Brown v. Mayor,

167 Md. App. 306

, 310, 324,

892 A.2d 1173

, 1175-76, 1184,
cert. denied,

393 Md. 243

900 A.2d 749

 (2006), the Court of Special Appeals held that, in
murdering the plaintiffs’ relative, an officer of the Department acted outside the scope of
employment under the LGTCA. The plaintiffs had sued the officer, the City, the State, and
the Department’s Commissioner for wrongful death. See

id. at 313

892 A.2d at 1177

. The
City, the State, and the Department’s Commissioner filed a motion to dismiss the claims
against them, which the trial court granted. See

id. at 313-14

892 A.2d at 1177

. The
plaintiffs filed motions for partial summary judgment, contending that the officer acted
within the scope of employment, and that the plaintiffs were entitled to judgment as a
matter of law as to liability. See

id. at 314

892 A.2d at 1177-78

. The trial court granted
the motions, and conducted a jury trial on the amount of damages. See

id. at 314

892 A.2d at 1178

.
At trial, there was evidence that the officer learned that his wife was having an affair
with one of the plaintiffs’ relatives. See

id. at 311

. One night, the
officer’s wife was at the plaintiffs’ relative’s residence, and the officer was at his residence,
getting ready to work a night shift. See

id. at 311

. The officer put on
his Department uniform and drove his personal vehicle to the area of the plaintiffs’
relative’s residence. See

id. at 311-12

. At that time, the officer’s wife
- 28 -
and the plaintiffs’ relative were outside of the residence. See

.
The officer approached his wife and the plaintiffs’ relative, then asked the plaintiffs’
relative: “Didn’t I tell you to stay away from my wife?”

Id. at 312

.
According to the officer, the plaintiffs’ relative reached into the officer’s wife’s vehicle,
and the officer thought that the plaintiffs’ relative was reaching for something. See

892 A.2d at 1177

. The officer pulled out his service weapon and shot the plaintiffs’
relative seventeen times, killing him. See

. In a criminal case,
the officer pled guilty to first-degree murder. See

.
After the jury trial on damages in the civil case, the plaintiffs sued the City and the
Department, contending that they were liable for the judgment against the officer. See

id. at 315

892 A.2d at 1178-79

. The trial court granted summary judgment in the City’s and
the Department’s favor, finding that the LGTCA did not apply. See

id. at 316-17

892 A.2d at 1179

. The plaintiffs appealed. See

id. at 317

892 A.2d at 1179

.
The Court of Special Appeals affirmed, concluding that the LGTCA did not apply
because the officer acted outside the scope of employment. See

id. at 326-27

892 A.2d at 1185

. The Court of Special Appeals explained:
As in [Sawyer,

322 Md. 247

587 A.2d 467

, and Wolfe,

374 Md. 20

821 A.2d 52

], [the officer] was not acting pursuant to his duties as a
[Department] officer[,] or in any way related to that position[,] when he
murdered [the plaintiffs’ relative]. Instead, his actions were completely
personal. The facts make plain that [the officer] was upset about his wife’s
affair with [the plaintiffs’ relative]. With planning, he approached [the
plaintiffs’ relative] with the intention of causing him harm. [The officer] was
not on duty, but was readied for work. He did not act in self-defense[—]he
stated . . . that he just did not know what came over him[—]but shot [the
plaintiffs’ relative] with malice[] seventeen times. Even if he subjectively
thought he was acting in self-defense, he did not act reasonably in shooting
- 29 -
[the plaintiffs’ relative] to death, simply because [the plaintiffs’ relative]
reached inside the car that was owned by [the officer] and his wife. [The
officer’s] tortious act was precisely the type of “highly unusual” and “quite
outrageous” one that falls outside the scope of employment[] as a matter of
law. That [the officer] was wearing his [] uniform at the time of the
shooting[,] and shot [the plaintiffs’ relative] with his service weapon[,] did
not transform an otherwise personal act into one that was furthering [the
Department]’s business.
Brown,

167 Md. App. at 324-25

892 A.2d at 1184

.
Four years after the Court of Special Appeals’s holding in Brown, in Houghton v.
Forrest,

412 Md. 578

, 582-83, 592,

989 A.2d 223

, 226, 231 (2010), this Court held that, in
causing the respondent to be arrested, the petitioner, an officer of the Department, acted
within the scope of employment for purposes of the LGTCA. The respondent sued the
petitioner and the arresting officer for multiple causes of action, including false arrest and
false imprisonment. See

. The trial court conducted a jury trial.
See

.
In that case, while watching a security camera’s feed, the petitioner saw a drug
dealer sell drugs to a man and a woman. See

. The petitioner
instructed two other officers to arrest the drug dealer and the two buyers. See

. The two other officers arrested the drug dealer and the male buyer, but
did not see anyone matching the woman’s description. See

.
While continuing to watch the security camera’s feed, the petitioner saw the woman who
had purchased the drugs hug another woman, who had a black jacket, dark jeans, and a red
umbrella. See

. The petitioner believed that the purpose of the
hug was to hide the transfer of drugs. See

. The petitioner lost
- 30 -
sight of the woman who purchased the drugs and the woman whom she had hugged because
he moved the security camera so that he could resume watching the other two officers arrest
the drug dealer and the male buyer. See

.
The petitioner used the security camera to search the area for the two women. See

. The petitioner did not see the buyer, but saw the respondent
standing at a nearby bus stop. See

. The petitioner believed that
the respondent was the woman whom the buyer had hugged. See

. Although the respondent had on different colored pants and jacket, she had a red
umbrella, as did the woman the buyer had hugged. See

.
The petitioner instructed one of the other officers to arrest the respondent. See

. The other officer approached the respondent and asked her
whether she had anything illegal on her person. See

. The
respondent replied in the negative, and consented to a search, which did not reveal anything
illegal. See

. Nonetheless, the petitioner instructed the other
officer to arrest the respondent. See

. The other officer
suggested that the petitioner review the video footage to make certain that the respondent
was the woman who had hugged the buyer. See

. The petitioner
did not do so and insisted that the other officer arrest the respondent. See

id. at 583-84

. The other officer did so. See

. The respondent
was never summoned to court, and the charges against her were eventually dismissed.

Id. at 584

.
At trial, the respondent testified that she overheard the arresting officer say that he
- 31 -
may have arrested the wrong person, and that he had been instructed to arrest her anyway.
See

. The jury found that the arresting officer was immune from
liability, that the petitioner was not immune because he had acted with actual malice, and
that the petitioner was liable on almost all counts. See

. The
petitioner appealed, and the Court of Special Appeals held that, although the evidence was
insufficient to support a finding of malice, the Department was liable for the judgment
against the petitioner. See

.
This Court affirmed in part and reversed in part.8 See Houghton,

412 Md. at 593

. This Court agreed with the Court of Special Appeals that the Department
was liable for the judgment against the petitioner. See

id. at 593

. This
Court observed that, under CJ § 5-303(b)(1), generally, “‘a local government shall be liable
for any judgment against its employee for damages resulting from tortious acts’ within the
[] scope of employment.”       Id. at 592,

.        Addressing the case’s
circumstances, this Court determined that the petitioner acted within the scope of
employment because his decision to cause the respondent to be arrested “was incident[al]
8
This Court concluded that, contrary to the decision of the Court of Special Appeals,
it was unnecessary to determine whether the evidence was sufficient to support the jury’s
finding that the petitioner had acted with actual malice. See Houghton,

412 Md. at 593

. This Court cited CJ § 5-302(b)(2), which provides that, where a local
government’s employee is found to have acted with actual malice, the local government
may seek indemnification from its employee. See id. at 592,

. This Court
explained that “the legal relationship between [the petitioner] and the” Department—which
was not a party to the case—was “not at issue[.]”

Id. at 592

. This Court
noted that, if the Department sought indemnification from the petitioner in a subsequent
case, “an assessment of [his actual] malice[,] or lack thereof[, could] be addressed during
those proceedings.”

Id. at 592

.
- 32 -
to his general authority as a [law enforcement] officer.”

Id. at 592

.
In Clark v. Prince George’s Cty.,

211 Md. App. 548

, 577, 570-71,

65 A.3d 785

, 802,
798, cert. denied,

434 Md. 312

75 A.3d 318

 (2013), the Court of Special Appeals held
that, in shooting delivery people at his residence, a law enforcement officer acted outside
the scope of employment for purposes of the doctrine of respondeat superior. One of the
delivery people died at the scene, while the other suffered permanent physical injuries. See
id. at 553,

.       The injured delivery person, as well as the personal
representatives of the deceased delivery person’s estate, sued the county and the officer.
See

id. at 553

.
The officer, who worked in an administrative position at a county police department,
took time off work so that he could be at home for a furniture delivery. See

id. at 554-55

65 A.3d at 789

. Two delivery people arrived, and the officer escorted them upstairs to the
master bedroom while his wife and daughter remained in the kitchen. See

id. at 555

65 A.3d at 789

. According to the officer, once he was in the master bedroom, only one of the
delivery people was with him, and he heard a noise coming from his daughter’s bedroom.
See

id. at 563

65 A.3d at 793

. The officer asked where the other delivery person was, and
the one in the master bedroom responded: “[D]on’t worry about it, Shorty, I got him.”

Id. at 563

65 A.3d at 793-94

.
Shortly afterward, the officer saw the other delivery person stick his head out of the
officer’s daughter’s bedroom, and the officer told the delivery people to leave. See

id. at 563-64

65 A.3d at 793-94

. According to the officer, the delivery people did not leave, and
he told them to leave several more times. See

id. at 564

65 A.3d at 794

. According to the
- 33 -
officer, both of the delivery people punched him and tried to beat him. See

id. at 565

. Using his service weapon, the officer shot both of the delivery people. See

id. at 565-66

. The officer telephoned 911, identified himself as a law
enforcement officer, provided his identification number, put on his badge, and eventually
completed a “Use of Force Report[.]”

Id. at 566

. At trial, upon being
asked why he fired his service weapon, the officer testified: “I did that to save my life, to
protect myself from being beat up in my own home, or possibly severely injured or killed,
and [there were] two strange men in my home with my wife and daughter. I did what any
homeowner would do.”

Id. at 566

.
The trial court granted judgment in the county’s favor on the ground that the officer
acted outside the scope of employment. See

id. at 554

. The injured
delivery person and the personal representatives of the deceased delivery person’s estate
appealed. See

id. at 553

230 Md. App. at 702-03, 704-05

. The Court of Special Appeals affirmed, agreeing
with the trial court that the officer acted outside the scope of employment. See

id. at 590, 578-79

65 A.3d at 810, 803

.
In Morales,

149 A.3d at 742-43, 744

, the Court of
Special Appeals held that there was sufficient evidence for a jury to decide whether a
county law enforcement officer acted within the scope of employment for purposes of the
doctrine of respondeat superior where a college fraternity hired the officer to provide
security at a Halloween party and the officer allegedly punched a partygoer and put him in
a chokehold. In a Maryland trial court, the plaintiff (the partygoer) sued the officer and the
county, raising federal claims and State ones. See Morales,

230 Md. App. at 701

, 149 A.3d
- 34 -
at 742. The county removed the case to a federal trial court, which dismissed the federal
claims and remanded to the Maryland trial court for disposition of the State claims. See

id. at 701

. The Maryland trial court conducted a jury trial. See

.
There was evidence that at the time of the Halloween party, the officer was restricted
to light duty because of a recent knee surgery and was not authorized to work outside the
county police department. See

id. at 708

149 A.3d at 746

. The officer did not seek
authorization to, or notify his supervisors that he would, provide security at the party. See

id. at 708

149 A.3d at 746

. The officer recruited several other officers to help provide
security at the party. See

. The officer drove his personal vehicle
to the party, while other officers drove police vehicles to the party. See

. Although the officer was off duty, he wore his duty belt, service weapon,
handcuffs, badge, bulletproof vest, uniform shirt with the county police department’s
initials on it, and other police gear. See

id. at 708, 703

149 A.3d at 746, 743

. At the party,
the officer supervised all of the other officers and security personnel. See

. The party’s venue, a warehouse, reached capacity, and a crowd formed in
front of the entrance. See

. At the officer’s direction, in an
attempt to disperse the crowd, the other officers intermittently activated the police vehicles’
sirens. See

.
The plaintiff, who had bought a ticket to the party, arrived and spent forty-five
minutes waiting in the crowd. See

id. 703

. Once the plaintiff reached the
area of the warehouse’s entrance, he held up his ticket and asked the officer for help. See
- 35 -

id. 704

. The officer told the plaintiff to get back in line, but there was not
one. See

id. 704

. According to the plaintiff, he again asked the officer
for help, and, this time, the officer held his neck and punched him in the mouth. See

id. at 704-05

149 A.3d at 743-44

. The plaintiff testified that he fell to the ground, and that the
officer put him in a chokehold. See

id. at 705

149 A.3d at 744

. Although the officer’s
version of events differed from the plaintiff’s—mainly, the officer alleged that the plaintiff
physically attempted to get past him to enter the party after having been told that no one
else would be allowed in—the officer acknowledged that he punched the plaintiff in the
face, pinned him to the ground, and held the plaintiff with his arm. See

id. at 705-06

149 A.3d at 744-45

. The officer did not arrest the plaintiff, but prepared “a use of force report”
concerning the altercation.

Id. at 707

149 A.3d at 745

.
The jury found the officer and the county liable. See

.
The county moved for judgment notwithstanding the verdict, contending that it was not
liable because the officer acted outside the scope of employment. See

. The trial court denied the motion for judgment notwithstanding the verdict. See

. The county appealed. See

.
The Court of Special Appeals affirmed. See

id. at 734

149 A.3d at 761

. The Court
of Special Appeals concluded that “there was sufficient evidence to generate a jury
question as to whether [the officer] took police action against [the plaintiff], and therefore
was acting within the scope of [] employment.”

Id. at 727

149 A.3d at 757

. Applying the
scope of duty factors identified in Sawyer, the Court of Special Appeals explained:
On this record, there was evidence that [the officer]’s conduct was
- 36 -
“the kind” he was “employed to perform” for the [county police department],
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 [c]ounty. [] Sawyer,

322 Md. at 255

, 587 A.2d [at 471]. That was
sufficient for the jury to find by a preponderance of the evidence that, even
if [the officer]’s crowd control duties were within the scope of [] employment
by the fraternity, his actions during his altercation with [the plaintiff] were
within the scope of [] employment[ by the county police department].
Morales,

230 Md. App. at 729-30

149 A.3d at 758-59

 (some alterations in original). The
Court of Special Appeals declined to hold that the officer’s use of force was outside of the
scope of his employment as a matter of law on the ground that, at the time of the incident,
he was on light-duty status. See

id. at 727

149 A.3d at 757

.
Having discussed Maryland case law on scope of employment, we observe that both
Potts and James’s estate rely on Titan Indem. Co. v. Newton,

39 F. Supp. 2d 1336

 (N.D.
Ala. 1999), a case involving circumstances comparable to those of their cases—i.e.,
fabrication of evidence and false imprisonment. The federal case involved Alabama case
law concerning the scope of employment, which is substantially similar to Maryland case
law on that subject. Compare

id. at 1342

, with Sawyer,

322 Md. at 255, 257

, 587 A.2d at
470, 471. In Titan Indem.,

39 F. Supp. 2d at 1338

, in the United States District Court for
the Northern District of Alabama, a city’s insurer initiated a declaratory judgment action
seeking a ruling that it was not required to pay a $2,300,000 judgment against the city and
a police officer resulting from a separate civil action alleging that the police officer
fabricated evidence against two people which led to their conviction and imprisonment on
federal drug charges. In ruling on motions for summary judgment, the District Court
concluded that the officer acted within the scope of employment when fabricating evidence
- 37 -
against the two people. See

id. at 1349, 1343

.
In a prior case, the two people had sued the city and several of its police
department’s officials for, among other causes of action, fabrication of evidence, failure to
train and supervise, malicious prosecution, and false imprisonment. See

id. at 1338

. In the
complaint, the two people alleged that the officer, who was the head of a police
department’s narcotics unit, fabricated evidence against them, which led to them being
convicted of federal drug charges. See

 The case proceeded to a jury trial, at which
another officer testified that the officer who was head of the narcotics unit admitted that he
had fabricated evidence to secure convictions. See

id. at 1342

. Specifically, the officer
testified that the head of the narcotics unit asked him: “Do you know how we won the
[criminal] case . . .?”

 The officer answered: “No.”

 The head of the narcotics unit
responded in pertinent part: “[I]t wasn’t nothing but sage and eggs, I took the marijuana
and rubbed it in.”

 The jury returned verdicts against the city as to a claim for failure
to train and supervise, and against the head of the narcotics unit as to claims for fabrication
of evidence, malicious prosecution, and false imprisonment. See

id. at 1338

. At the time
of the verdicts, a contract between the city and an insurance company was in effect, which
required the insurance company to pay judgments that resulted from actions by the city’s
law enforcement officers that were within the scope of their duties. See

id. at 1339

.
The insurance company sought a declaratory judgment that the contract did not
obligate it to pay the judgment in the prior case because, among other matters, the officer
was not acting within the scope of employment in fabricating evidence. See

 at 1338-
39. The two people counterclaimed for breach of contract, bad faith, and negligence. See
- 38 -

id. at 1338

. The insurance company and each of the people filed separate motions for
summary judgment. See

id. at 1349

.
The District Court granted the two individuals’ motions for summary judgment and
denied the insurance company’s motion for summary judgment. See

id. at 1349

. The
District Court observed:
Under Alabama law, an employee’s acts are within the scope of his
[or her] employment if the acts are so closely connected with what the
[employee] is employed to do[,] and so fairly and reasonably incidental to it,
that they may be regarded as methods, even though quite improper ones, of
carrying out the objectives of the employment. Of course, where an
employee’s behavior is the result of, or impelled by, wholly personal
motives, it cannot be said that the employee’s actions are within the . . . scope
of [] employment[.]

Id. at 1342

 (cleaned up). The District Court noted that there are few bright lines where the
analysis of scope of employment issues is concerned, but it is clear that an officer acts
outside the scope of employment when sexually assaulting an arrestee, whereas an officer
acts within the scope of employment when using excessive force on an arrestee. See

39 F. Supp. 2d at 1342-43

In granting the two individuals’ motions for summary judgment, the District Court
explained:
[T]he actions of [the head of the narcotics unit] in fabricating evidence
against [the two individuals] is far closer to a[n] officer’s use of excessive
force than it is to the sexual assault of an arrestee. There is no principled
difference between fabricating evidence and using excessive force to
summarily punish a suspect or to extract a confession. In addition, there is
not one jot, speck[,] or iota of evidence before the court from which it could
be found or inferred that [the head of the narcotics unit] was pursuing a
private motive when he fabricated the evidence against [the two individuals].
Indeed, the uncontradicted evidence before the court is that [the head of the
narcotics unit] fabricated the evidence as part of his duties to arrest[,] and
assist in the prosecution of[,] drug dealers. As previously noted, [he] was in
charge of narcotics enforcement for the . . . [p]olice [d]epartment at the time
- 39 -
of his unlawful action. . . . [A]n officer who plants evidence acts [with]in the
scope of [] employment[.]

Id. at 1343

.
Analysis
Here, we hold that, in Potts and James, the officers acted within the scope of
employment, and, under CJ § 5-303(b)(1), the City is responsible for compensating Potts
and James’s estate for the officers’ actions by paying the settlements that Potts, James’s
estate, and the officers reached. We determine that the stipulations in Potts and James
demonstrate that the officers’ conduct in each case satisfies the test for conduct within the
scope of employment that this Court set forth in Sawyer, 322 Md. at 255-57, 587 A.2d at
470-71. We conclude that the circumstances of Potts and James are analogous to cases in
which Maryland appellate courts have determined that government employees acted within
the scope of employment, and are distinguishable from cases in which Maryland appellate
courts have determined that government employees acted outside the scope of
employment.
Our conclusion that the officers acted within the scope of employment does not
mean that we in any way condone the officers’ misconduct, or that it is at all acceptable for
law enforcement officers to act as these officers did. The officers’ misconduct was
egregious, and no citizen should ever be subjected to such an abuse of power by law
enforcement officers. The issue that is before us, though, is not whether the officers’
conduct was wrongful; it clearly was. Instead, the issue is whether the City and the
Department are responsible for the officers’ actions because their actions were within the
- 40 -
scope of employment. We determine that the officers’ actions were within the scope of
employment, and that the City and the Department must compensate Potts and James’s
estate.
In determining whether an employee acted within the scope of employment, a court
must engage in a case-specific analysis—i.e., resolve the issue on a fact-intensive, case-
by-case basis. Indeed, within Maryland case law regarding scope of employment, “there
are few, if any, absolutes.” Sawyer, 322 Md. at 255, 587 A.2d at 471. Like the United
States District Court for the Northern District of Alabama, though, we agree that it is
evident that where an officer sexually assaults a suspect in custody, the officer does not act
within the scope of employment, and where an officer uses excessive force, the officer may
be acting within the scope of employment. See Titan Indem.,

.
Between these opposite ends of the spectrum, in Maryland, the constant is that the test
enunciated by this Court in Sawyer is accepted as the framework for analyzing whether an
officer acted within the scope of employment.
The stipulations in Potts and James do not mention Sawyer, much less indicate
whether Potts’s and James’s circumstances satisfy the Sawyer test. It is up to us to resolve
the question of whether Potts’s and James’s facts, as they are set forth in the stipulations,
satisfy the Sawyer test. We answer that question in the affirmative.
Assessing the first prong of the Sawyer test, we conclude that the officers’ actions
were in furtherance of the Department’s business because they were at least partially
motivated by a purpose to serve the Department, and because there is no indication that the
officers were “acting to protect [their] own interests[.]” Sawyer, 322 Md. at 255-57, 587
- 41 -
A.2d at 470-71 (citations omitted). Undeniably, police activities include stopping,
searching, questioning, and arresting individuals, authoring police reports, and testifying
against criminal defendants.
“[O]rdinarily[,] when . . . making[,] or attempting to make[,] an arrest, a [law
enforcement] officer is acting within the scope of [] employment.” Id. at 260, 587 A.2d at
473. In Sawyer, id. at 260-61, 587 A.2d at 473-74, this Court concluded that a trial court
should not have decided, at the motion to dismiss stage, the issue of whether an officer
acted within the scope of employment where the officer hit a person and had the person
arrested. In Houghton,

412 Md. at 592

, this Court concluded that the
officer’s arrest of the wrong person “was incident to his general authority as a police
officer” and therefore within the scope of employment. In Cox,

296 Md. at 171, 164

460 A.2d at 1043, 1039

, a case involving the doctrine of respondent superior, this Court
concluded that the officers’ actions in allegedly falsely arresting a person were “within the
scope and in furtherance of the [employer]’s business and the harm complained of was
foreseeable.” Given this Court’s holdings in Sawyer, Houghton, and Cox, even though the
officers engaged in what can only be described as egregious conduct, the circumstance that
the misconduct occurred while the officers in the instant cases were making arrests favors
concluding that the officers acted within the scope of employment.
Sawyer and Houghton demonstrate that, generally, an officer’s arrest of a person
may be within the scope of employment, even if the arrest is not supported by probable
cause. In both Sawyer and Houghton, this Court described facts that established that there
was no evidence that the people arrested had committed any crimes and/or were the
- 42 -
subjects of arrest warrants. In Sawyer,

322 Md. at 251-52, 261

, 587 A.2d at 469, 474, as
to an incident involving an alleged assault and battery in which a motorist was arrested
(during the second encounter), this Court determined that whether the officer’s alleged
actions were within the scope of his employment should not have been decided on a motion
to dismiss. In Houghton,

412 Md. at 583-84

989 A.2d at 226-27

, the evidence not only
failed to indicate that the person arrested had committed any crimes and/or was the subject
of an arrest warrant, but also showed that the person was arrested because she was mistaken
for someone else.
Here, as in Sawyer and Houghton, the circumstance that the officers lacked probable
cause or an arrest warrant does not change the circumstance that they were engaging in a
police activity. Indeed, the stipulations indicate that, despite being illegal, the officers’
arrests of Potts and James appeared, to the criminal justice system, to be valid for months.
In other words, as the City’s and the Department’s counsel acknowledged at oral argument,
“the appearances were that [the officer]s were making good arrests.”
Like a lack of probable cause for an arrest, excessive force does not necessarily
render an officer’s arrest of an individual outside the scope of employment. In Cox,

296 Md. at 171, 164

460 A.2d at 1043, 1039

, this Court concluded that the allegation that
officers had a police dog bite a person, “‘in clear and substantial excess of the force needed
to restrain and detain’ him,” failed to indicate that the officers acted outside the scope of
employment. In Morales,

230 Md. App. at 702-03

149 A.3d at 742-43

, the Court of
Special Appeals held that there was sufficient evidence for a jury to decide whether an
officer acted within the scope of employment while using excessive force against a person.
- 43 -
In Titan Indem.,

39 F. Supp. 2d at 1342

, relying on cases from multiple States, the United
States District Court for the Northern District of Alabama concluded that an officer who
uses excessive force on a person in the course of an arrest may act within the scope of his
or her duties. By way of analogy, here, the circumstance that the officers beat Potts does
not establish that their actions were outside the scope of employment.
Similarly, the circumstance that the officers attempted to plant handguns on Potts
and James does not render automatically their actions outside the scope of employment.
Titan Indem. is instructive. In Titan Indem.,

id. at 1343

, the United States District Court
for the Northern District of Alabama held that the head of a narcotics unit acted within the
scope of employment when fabricating evidence, i.e., planting drugs on two people. The
District Court noted that there was no evidence that the head of the narcotics unit planted
the drugs to serve his own interests. See

 The District Court explained that, to the
contrary, the evidence showed that the head of the narcotics unit planted the drugs “as part
of his duties to arrest[,] and assist in the prosecution of[,] drug dealers.”

 Just as the
head of the narcotics unit in Titan Indem. had responsibility for drug-related arrests, the
officers in Potts and James, who were members of the Department’s Gun Trace Task Force,
were responsible for gun-related arrests. Similar to the circumstances of Titan Indem., the
stipulations, in Potts and James, include no evidence that in these two instances, which are
not a part of the federal prosecutions, the officers attempted to plant the handguns to serve
their own interests, or that the officers’ motives were anything other than to arrest. In the
absence of such evidence, we cannot say that the officers acted outside the scope of
employment.
- 44 -
Just as Potts and James are analogous to Sawyer, Cox, Houghton, Morales, and
Titan Indem., they are distinguishable from cases in which Maryland appellate courts have
determined that government employees acted outside the scope of employment by serving
their own interests. In Ennis, 322 Md. at 294, 587 A.2d at 490, a member of a county
council defamed someone for political purposes. In Brown,

167 Md. App. at 310, 324

892 A.2d at 1175, 1184

, an officer murdered someone with whom his wife was having an affair.
In Wolfe,

374 Md. at 22, 34

821 A.2d at 53, 60

, an officer raped the subject of a traffic
stop. In Clark,

211 Md. App. at 577

65 A.3d at 802

, an officer shot delivery people at his
residence. And, in Sawyer,

322 Md. at 257-58, 260

, 587 A.2d at 472, 473, during an
encounter that occurred before the encounter in which a person was arrested, the officer
threw a rock at a vehicle that two people were in, beat one of them, and threatened the
other. What Ennis, Brown, Wolfe, Clark, and the first encounter in Sawyer have in
common is that the government employees were serving their own interests, not those of
the governments that employed them.
In contrast to the facts of Ennis, Brown, Wolfe, Clark, and the first encounter in
Sawyer, the stipulations in Potts and James contain no indication that the officers were
serving their own interests in arresting Potts and James. To be sure, the officers in Potts
and James were charged in a federal conspiracy concerning their misconduct in other cases
but, here, there is no evidence that they, like the county council member in Ennis,

322 Md. at 294

, 587 A.2d at 490, were motivated by political or personal considerations, or had an
overarching goal that superseded making the arrests. There is no evidence that the officers
in Potts and James, like the officer in Brown,

167 Md. App. at 324

892 A.2d at 1184

, were
- 45 -
motivated by a desire for revenge. There is no evidence that the officers in Potts and James,
like the officer in Wolfe,

374 Md. at 22

, committed a sexual offense. There
is no evidence that the officers in Potts and James, like the officer in Clark,

211 Md. App. at 577

65 A.3d at 802

, were attempting to protect themselves or their families. Unlike the
trooper during the first encounter in Sawyer,

322 Md. at 257-58

, 587 A.2d at 472, the
officers in Potts and James made arrests. And, critically, the stipulations do not indicate
that any of the officers took any cash, drugs, guns, or anything else of value from Potts or
James.
That circumstance alone materially distinguishes the officers’ misconduct in Potts
and James from the conspiracy for which the officers were prosecuted in federal court. The
stipulations in Potts and James include descriptions of twenty-eight incidents involving
victims of the conspiracy—individuals other than Potts and James. In each incident, some
of the officers seized cash, drugs, and/or other personal property that had belonged to a
person with whom they interacted. In each incident, the officers kept some or all of the
cash and drugs for themselves, rather than submitting all of the cash and drugs at the
Department’s headquarters as evidence. By contrast, here, the officers received nothing of
value from Potts or James.
Indeed, the plain language of the stipulations states that the federal prosecution of
the officers was exclusively based on incidents that involved people other than Potts and
James. No event involving Potts or James was included in any stipulation of fact, plea
agreement, pre-sentence report, or other document in connection with the federal
prosecutions of the officers. Consistent with the plain language of the stipulations, and
- 46 -
contrary to the position of the City and the Department, the officers’ actions involving Potts
and James were not part of, or in furtherance of, the conspiracy of which the officers were
charged and convicted in federal court.9
Our conclusion is unchanged by the circumstance that Taylor, one of the officers,
told James that he would let James go if James provided the name of a person who
possessed guns or drugs. To be sure, this is similar to how, in one of the incidents that the
stipulations describe, Jenkins (another one of the officers) told R.H. (a victim of the federal
conspiracy) that, if he provided the name of a drug dealer whom the officers could rob, the
officers would “take care” of R.H., and possibly provide him with drugs to sell. Taylor’s
statement to James, though, does not establish that the officers’ actions with regard to
James were in furtherance of the federal conspiracy and/or the officers’ own interests, as
opposed to being in furtherance of the Department’s business. The stipulation does not
indicate that the officers sought information from James to identify a drug dealer whom
they might rob. Rather, the stipulation indicates that James did not provide names of any
drug dealers, and the stipulation does not indicate that any of the officers took anything of
value from James. As members of this Court pointed out during oral argument, and as the
City’s and the Department’s counsel agreed, asking others about individuals who possess
guns or drugs is an example of the police activity of intelligence-gathering to further law
9
We are aware that, in the stipulation in James, the facts that are specific to that case
appear under the following heading: “Specific Agreed Facts as to the [Officer]s’ Actions
In Respect to [] James on August 18, 2016, During and in Furtherance of the Racketeering
Conspiracy[.]” (Some capitalization omitted). To the extent that the heading indicates that
the officers’ actions against James were in furtherance of the conspiracy, the content of the
stipulations demonstrates otherwise.
- 47 -
enforcement goals.
We are unpersuaded by the City’s and the Department’s reliance on the following
language in Sawyer,

322 Md. at 257

, 587 A.2d at 471: “[W]here the conduct of the
[employee] is unprovoked, highly unusual, and quite outrageous, courts tend to hold that
this in itself is sufficient to indicate that the motive was a purely personal one[,] and [that]
the conduct [is] outside the scope of employment.” (Cleaned up). This language does not
establish a hard-and-fast rule. Instead, the language is an observation about the type of
conduct that Courts have been inclined to determine to be outside of the scope of
employment.10 Yet, in their reply brief in Potts, the City and the Department go so far as
to suggest that there is a “bright[-]line” rule “that intentional, seriously criminal willful
conduct — which is unprovoked, highly unusual, and outrageous — is never within the
scope of employment.” Such a bright-line rule would be inconsistent with the teaching
that, to determine whether an employee acted within the scope of employment, a court must
engage in a case-specific analysis—i.e., resolve the issue on a fact-intensive, case-by-case
basis. See Sawyer,

322 Md. at 255

, 587 A.2d at 471. Indeed, in Sawyer, id. at 257, 587
A.2d at 471, this Court did not purport to set forth any kind of bright-line rule for
determining that conduct is outside the scope of employment.
Having concluded that Potts’s and James’s circumstances satisfy the first prong of
10
For example, the conduct of the officers in Potts and James was a far cry from the
conduct in a case like Brown,

167 Md. App. at 324

892 A.2d at 1184

, where the Court of
Special Appeals explained that an officer’s murder of a person with whom the officer’s
wife was having an affair “was precisely the type of ‘highly unusual’ and ‘quite
outrageous’ [act] that falls outside the scope of employment[] as a matter of law.”
- 48 -
the Sawyer test, we turn to the second prong, which concerns whether the employer
authorized the employee’s actions. See Sawyer,

322 Md. at 255

, 587 A.2d at 470.
Certainly, the Department did not expressly authorize the officers’ misconduct involving
Potts and James. Conduct may nonetheless be considered authorized where it was
“incident[al] to the performance of the duties” that the employer entrusted to the
employees. Id. at 255, 587 A.2d at 470 (cleaned up). In Sawyer, id. at 256, 587 A.2d at
471, this Court set forth ten factors for determining whether an employee’s actions were
incidental those that the employer authorized. Weighing the factors leads to the conclusion
that the officers’ misconduct was incidental to actions authorized by the Department.
An assessment of the factors concerning “whether or not the act[ions are] commonly
done by such [employee]s” and “the time, place[,] and purpose of the act[ions]” weighs in
favor of a determination that the officers’ action were within the scope of employment. Id.
at 256, 587 A.2d at 471 (citation omitted). In the stipulations, there is evidence that the
officers’ conduct was of the type that they were hired to routinely perform—namely,
making stops and arrests—and the conduct occurred during a period of time in which the
officers were working as on-duty police officers in the jurisdiction in which they were
authorized to serve. The officers’ actions appear to consist of police activities during which
the officers engaged in misconduct for the purpose of giving the appearance of making
lawful arrests on behalf of the Department. It is hard to conceive that the actions were
taken for the officers’ own benefit when the officers received nothing of value from Potts
and James, had no disagreement or ongoing dispute with Potts and James motivating the
misconduct, and the misconduct was not included in the federal racketeering conspiracy.
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It is more feasible that the officers took the actions complained of to create the façade of
having engaged in the common police activity of making lawful arrests as authorized by
the Department. Although appearing to have made a lawful arrest when, indeed, the arrest
was the product of misconduct may have had the effect of raising the officers’ stature
within the Department or giving the appearance that the officers were more productive than
they really were, the record does not contain information to support a conclusion that the
officers acted for their own personal aggrandizement.
Clearly, the factors concerning whether the actions are commonly done by the
officers and the time, place, and purpose of the actions tilt in favor of establishing that the
officers’ misconduct was authorized. See Sawyer,

322 Md. at 256

, 587 A.2d at 471
(citation omitted). The officers’ misconduct occurred while they were on-duty officers of
the Department. The misconduct occurred in Baltimore City, which is the Department’s
jurisdiction. And, the purpose of the officers’ misconduct appeared to be to further the
Department’s routine business of making arrests.
The factor as to “the previous relations between the [employer] and the [employee]”
is a factor that is in equipoise. Id. at 256, 587 A.2d at 471 (citation omitted). This factor
does not weigh in favor of, or against, determining that the officers’ misconduct is to be
considered authorized, as the stipulations do not include any information on the previous
relations between the Department and the officers. This factor is of no consequence in the
analysis.
The factor as to the “extent to which the business of the [employer] is apportioned
between different [employee]s” weighs in favor of determining that the officers’
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misconduct is to be considered authorized. Id. at 256, 587 A.2d at 471 (citation omitted).
The officers in Potts and James were members of the Department’s Gun Trace Task Force,
and, within the Department, had a special responsibility for gun-related arrests. According
to the Department and the City, in a memorandum of law in support of a motion for
summary judgment in Potts, the Gun Trace Task Force “was a notorious specialized unit
of plainclothes officers whose ostensible functions and purposes were to identify, arrest,
and build legitimate, prosecutable cases against violent offenders in Baltimore City,
particularly those who used firearms.” Indeed, in two of the officers’ plea agreements
(Rayam and Jenkins), the officers acknowledged that the Gun Trace Task Force was a
specialized unit within the Operational Investigation Division of the Department whose
primary mission was “the tracking and tracing of recovered firearms in order to identify
and suppress the possession, purchasing, and trafficking of illegal firearms within
Baltimore City, and to assist with the investigation and prosecution of firearms-related
offenses.” At the time of the incidents involving Potts, Jenkins was a sergeant of the Gun
Trace Task Force, and, at the time of the incident involving James, had become the officer-
in-charge of the Gun Trace Task Force. The record demonstrates that responsibility for the
investigation and prosecution of firearm offenses in Baltimore City had been entrusted to
the Gun Trace Task Force and to the officers in this case and, as such, the factor concerning
the extent to which business is apportioned between different employees weighs in favor
of concluding that the officers’ conduct was authorized.
The factor concerning “whether the act[ions are] outside the enterprise of the
[employer] or, if within the enterprise, ha[ve] not been entrusted to any [employee]” is
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neutral. Sawyer, 322 Md. at 256, 587 A.2d at 471 (citation omitted). Plainly, unlawful
actions, such as fabricating evidence and committing perjury, are outside the Department’s
enterprise. Yet, the officers’ conduct here resulted in arrests that were deemed lawful and
accepted as part of the Department’s business. Overall, some of the officers’ actions
consisted of misconduct, other actions were ones that the officers are plainly entrusted to
perform, and the end result of the officers’ actions was that their conduct appeared for a
time to have constituted lawful police activity.
The factor as to “whether or not the [employer] has reason to expect that such []
act[ions] will be done” weighs in favor of determining that the officers’ misconduct is to
be considered authorized. Sawyer, 322 Md. at 256, 587 A.2d at 471 (citation omitted).
Regardless of whether the Department had actual notice or actual knowledge of the
officers’ misconduct, their actions were expectable or foreseeable from the Department’s
administration’s perspective. See id. at 256, 587 A.2d at 471. As we have explained, the
officers’ misconduct involving Potts and James was not part of the federal racketeering
conspiracy with which the officers were charged and convicted. The nature and extent of
the conspiracy is pertinent, however, to the issue of whether the Department should have
known about the officers’ misconduct involving Potts and James. The stipulations indicate
that the conspiracy was egregious and widespread, and was perpetuated by a number of
officers over a considerable period of time. According to the stipulations, eight former
members of the Department’s Gun Trace Task Force—including all five of the officers
who were involved in Potts and/or James—participated in the conspiracy. The stipulations
include descriptions of twenty-eight separate incidents, not involving Potts and James, that
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were part of the conspiracy. In each incident in the conspiracy, some of the officers
unlawfully seized cash, drugs, and/or other personal property from victims of the
conspiracy. The earliest incident occurred on March 11, 2014. The latest incident occurred
on October 5, 2016. That is a time span of more than two and a half years. And, tellingly,
in their opening briefs, the City and the Department readily acknowledge: “Examples of []
members [of the Department’s Gun Trace Task Force] planting evidence are abundant.”
Given the egregiousness of the conspiracy, the length of time of the conspiracy, the number
of former members of the Department’s Gun Trace Task Force who participated in the
conspiracy, and the Department’s acknowledgment that examples of members of the Gun
Trace Task Force planting evidence were plentiful, it is reasonable to conclude that the
Department should have known of the misconduct by former members of the Gun Trace
Task Force, whether the conduct involved the victims of the conspiracy or citizens such as
Potts and James.11
11
In an attempt to distance themselves from responsibility for the officers’
misconduct, in their opening briefs, the City and the Department contend that “[p]lanting
evidence on innocent individuals (including [Potts and James]) and faking legitimate
arrests (including the arrest of [Potts and James]) provided cover for the [officer]s to
‘conceal[] their illegitimate and illegal conduct from City officials and from their
superiors.’” (Last alteration in original). In making this argument, the City and the
Department quote part of one sentence within the stipulations. For context, the two
relevant sentences of the stipulations state: “The [officer]s purposefully and willfully and
regularly deviated from the legitimate law enforcement aims of the [Department]’s mission
[] to enrich themselves through the illegitimate and illegal conduct. The [officer]s
accomplished this by concealing their illegitimate and illegal conduct from City officials
and from their superiors.” The above-quoted sentences are not under the headings within
the stipulations that are specific to Potts and James. Instead, the above-quoted sentences
are from the first parts of the stipulations, which pertain to the federal prosecutions of the
officers. In sum, to the extent that the City and the Department assert that the stipulations
- 53 -
The factor concerning the “similarity in quality of the act[ions that were] done to
the act[ions that were] authorized[ by the employer]” weighs in favor of determining that
the officers’ misconduct is to be considered authorized. Sawyer,

322 Md. at 256

, 587 A.2d
at 471 (citation omitted). Most of the officers’ misconduct consisted of taking authorized
actions in unauthorized ways, and the officers’ misconduct was interwoven with authorized
conduct. For example, although stopping a person is authorized, doing so without
reasonable articulable suspicion is not. Although arresting a person is authorized, doing
so without probable cause or an arrest warrant is not. And, although testifying against a
criminal defendant is authorized, testifying falsely is not. The circumstance that the
officers’ misconduct was inextricably intertwined with authorized actions militates in favor
of determining that the officers’ misconduct was incidental to the performance of duties
entrusted to them by the Department.
The factor as to “whether or not the instrumentality by which the harm is done has
been furnished by the [employer] to the [employee]” weighs in favor of determining that
the officers’ actions were within the scope of employment. Sawyer, 322 Md. at 256, 587
A.2d at 471 (citation omitted). It was because the officers in Potts and James were officers,
and had the equipment and authority that comes with being officers, that they were able to
engage in police misconduct. The stipulations specifically refer to the officers using a
police baton and handcuffs during the incident with Potts, and using two Department
vehicles during the incident with James. At oral argument, counsel for the City and the
indicate that there was no way for them to know of the officers’ misconduct in Potts and
James, we are not convinced.
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Department acknowledged that the officers were wearing uniforms, badges, and guns. As
the Court of Special Appeals recognized in Morales,

230 Md. App. at 728

149 A.3d at 758

, the presence of uniforms, badges, and police vehicles helps show that “conduct
constitute[s] police action[.]”
The factors concerning “the extent of departure from the normal method of
accomplishing an authorized result” and “whether or not the act[ions are] seriously
criminal” weigh against determining that the officers’ misconduct was within the scope of
employment. Sawyer,

322 Md. at 256

, 587 A.2d at 471 (citation omitted). Actions such
as fabricating evidence and committing perjury are marked departures from the normal
methods of engaging in common police activities. And, the officers in Potts and James
committed crimes, including false imprisonment and perjury. These factors, while not
dispositive, militate against the actions being considered authorized.
At bottom, the majority of the factors that this Court set forth in Sawyer, 322 Md.
at 256, 587 A.2d at 471, for determining whether an employee’s actions were incidental to
those that the employer authorized weigh in favor of determining that the officers’
misconduct is to be considered authorized. Most notably, the officers were part of a
specialized unit charged with interdicting illegal firearm activities in Baltimore City, and
there was no indication that they were acting for their own personal benefit in stopping and
arresting Potts and James and in engaging in the associated misconduct. Two factors do
not cut either way. And, only two factors weigh against such a determination. We
acknowledge that the officers’ actions constituted a departure from the normal method of
carrying out their duties and were indeed criminal. But, the LGTCA states that a local
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government shall be liable for a judgment against an employee resulting from the
employee’s tortious acts within the scope of employment. See CJ § 5-303(b)(1). The
illegality or tortious nature of the employee’s actions alone does not establish that the
conduct was outside the scope of employment. On balance, consideration of the ten factors
warrants the conclusion that the officers’ misconduct was incidental to actions that the
Department authorized, such as making arrests. As such, Potts’s and James’s
circumstances satisfy both prongs of the Sawyer test—the officers’ actions were in
furtherance of the Department’s business, and the officers’ actions were either authorized
or incidental to actions that the Department authorized.
Our determination furthers the LGTCA’s purposes, which are “to provide a remedy
for persons [who are] injured by local government employees, who often have limited
resources from which an injured person might collect on a judgment[,]” Beall v. Holloway-
Johnson,

446 Md. 48

, 76,

130 A.3d 406

, 422 (2016) (cleaned up), and to “ensur[e] that the
financial burden of compensation is carried by the local government [that is] ultimately
responsible for [its employees]’ acts[,]” Litz v. Md. Dep’t of Env’t,

446 Md. 254

, 279,

131 A.3d 923

, 938 (2016) (cleaned up). In both Potts and James, the plaintiff and the officers
agreed to a settlement in the amount of $32,000. Because we hold that the officers acted
within the scope of employment, the City and the Department are liable for the settlements
under CJ § 5-303(b)(1). Although the stipulations do not expressly refer to the officers’
current financial status, the stipulations note that the officers were charged in federal court
in 2017, and that all of them either pled guilty or were found guilty at trial. Given these
circumstances, as well as the large number of victims of the conspiracy in which the
- 56 -
officers participated, it is reasonable to conclude that, as James’s estate counsel indicated
at oral argument, the officers would not be able to pay the settlements that they reached
with Potts and James’s estate. By holding that the officers acted within the scope of
employment, we ensure not only that Potts and James’s estate have a remedy, but also that
the ultimate responsibility for the officers’ misconduct rests with the governmental entities
that employed and supervised them—namely, the City and the Department.
Our conclusions in Potts and James should not be read to suggest that all former
members of the Department’s Gun Trace Task Force acted within the scope of employment
in all instances. We are not issuing a blanket ruling for all cases involving alleged
misconduct by former members of the Department’s Gun Trace Task Force. In future cases
involving questions of scope of employment as to former members of the Department’s
Gun Trace Task Force, courts must engage in a case-specific analysis and take into account
all relevant considerations—including, if necessary, the ten factors that this Court set forth
in Sawyer, 322 Md. at 255-56, 587 A.2d at 471, for determining whether an employee’s
actions were incidental to those that the employer authorized. To the extent that the City,
the Department, Potts, and/or James may have wanted the instant cases to serve as test
cases in which we categorically concluded that all alleged misconduct by former members
of the Department’s Gun Trace Task Force was within, or outside, the scope of
employment, we cannot issue such a bright-line rule. Our opinion will undoubtedly
provide guidance to courts, counsel, and parties, but we cannot provide an answer for all
future cases involving alleged misconduct by former members of the Department’s Gun
Trace Task Force. Courts must analyze future cases in their own right as questions
- 57 -
concerning scope of employment arise.
For the above reasons, the officers’ actions were within the scope of employment,
and, under CJ § 5-303(b)(1), the City and the Department are liable for the settlements that
Potts, James’s estate, and the officers reached.12 In Potts, the answer to the certified
question of law is “yes.” In James, the circuit court was correct in granting summary
judgment in James’s estate’s favor.
IN MISC. NO. 6, CERTIFIED QUESTION OF
LAW ANSWERED. COSTS TO BE DIVIDED
EQUALLY BETWEEN THE PARTIES.
IN CASE NO. 51, JUDGMENT OF THE CIRCUIT
COURT FOR BALTIMORE CITY AFFIRMED.
PETITIONER TO PAY COSTS.
12
At oral argument, the City’s and the Department’s counsel acknowledged there is
no need for us to determine whether the officers in Potts and James acted with malice. As
this Court explained in Houghton,

412 Md. at 591-92