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Metro Police Department not vicariously liable for assault by off-duty plain clothes officers

District of Columbia v. Bamidele
___A.3d___, (2014)

by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://cases.justia.com/district-of-columbia/court-of-appeals/2014-and12-cv.pdf?ts=1415883695

In the early morning of February 3, 2007, three off-duty District of Columbia Metropolitan Police Department officers went to the Szechuan Gallery for food and drink, having previously been drinking at another establishment. The officers were not in uniform, but two of the officers were carrying their service weapons. While the officers were at the Szechuan Gallery, a confrontation broke out between the officers and some patrons. According to the officers, the female officer in their group was sexually assaulted as she returned from the bathroom. The officers began to investigate her statement with the intent of potentially making an arrest. The patrons began to throw food at the officers causing the confrontation to escalate into a physical altercation when one officer threw a plate into the restaurant wall, narrowly missing Mr. Bamidele’s head, who was seated at a nearby table with his wife. The Bamideles were not with the other patrons or otherwise involved in the altercation. Concerned for their safety, the Bamideles began to leave the restaurant, but Mr. Bamidele confronted the officer who had thrown the plate prior to leaving. The officer apologized, but another of the officers stood up from the table and punched Mr. Bamidele in the face. Thereafter, the three officers proceeded to assault Mr. Bamidele, including throwing him to the floor and stomping him. After Mrs. Bamidele was thrown to the floor, she flagged down another officer in the street who was then able stop the assault. At the time the responding officer arrived, the officers were holding Mr. Bamidele against a wall. One officer was charged with assault, which was later dropped.

The Bamideles filed suit against the District of Columbia, as the employer of the officers, the Szechuan Gallery, and later added the individual officers. After a trial, the jury awarded the Bamideles compensatory damages in the amount of $203,000 and $110,000 in punitive damages against the officers. The jury further found that the officers were acting in the scope and course of their employment, thus making the District of Columbia liable for their actions. The District of Columbia filed post trial motions challenging the damages and the vicarious liability finding. The trial court denied the motions, and the District of Columbia and individual officers appealed.

The District of Columbia Court of Appeals reviewed the denial of the post trial motions. Initially, it found that there was sufficient evidence to justify the compensatory damage award. The Court also noted that there was sufficient evidence that the intentional assault was “accompanied by conduct and a state of mind evincing malice or its equivalent.” Citing District of Columbia v. Jackson, 810 A.2d 388, 396 (D.C. 2002). The court noted that the facts, demonstrating that the officers were armed while intoxicated in a crowded restaurant, and then engaging in an uncontrolled brawl, were sufficient to evince willful disregard, the equivalent of malice. These facts were sufficient to support the assessment of punitive damages against the officers. The judgments against the officers were undisturbed.

The Court of Appeals, however, reversed the finding that the officers were acting in the scope of employment at the time of the incident. The Court noted that:

To be within the scope of employment, the tortious activity must be actuated, at least in part, by a purpose to further the master’s business, and this intent or purpose ... excludes from the scope of employment all actions committed solely for [the servant’s] own purposes. However, if the employee acts in part to serve his employer’s interest, the employer will be held liable for the intentional torts of his employee even if prompted partially by personal motives, such as revenge. The tortious conduct must also be foreseeable to the employer, meaning that it is a direct outgrowth of the employee’s instructions or job assignments.

DC v. Bamidele, ___ A.3d at 7 (internal quotations and citations omitted). The Court then held that while the officers may have been in the scope of employment when addressing the alleged sexual assault of the female officer by the other patrons, there was no evidence that they had the same law enforcement focused intent vis-à-vis the Bamideles. As such, the assault against the Bamideles was outside of the scope of their employment and the District of Columbia was not liable for the officers’ actions. Further, the Court noted that the Complaint did not seek punitive damages against the District of Columbia, and there was no evidence that the District of Columbia authorized, participated or subsequently ratified the officers’ actions. Without this evidence the District of Columbia was not obligated to pay the officers’ punitive damage awards.

Judge Reid filed an opinion concurring in part and dissenting as to the District of Columbia’s liability for the compensatory damages. In Judge Reid’s view, the factual record presented sufficient, though conflicting, evidence that the assault of the Bamideles was in furtherance of the Police Department’s interests. There was testimony that Mr. Bamidele approached the officers aggressively and could have been a danger to other patrons. Factual determinations supporting vicarious liability were within the jury’s province, and Judge Reid did not believe that the Court of Appeals was correct in ruling on the issue as a matter of law.


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