Before Terry, Steadman, and Schwelb, Associate Judges.
Appeal from the Superior Court of the District of Columbia (Hon. Lee F. Satterfield, Trial Judge)
Opinion for the court by Associate Judge Terry.
Dissenting opinion by Associate Judge Schwelb at p. --.
Terry, Associate Judge: Appellant Moorehead seeks reversal of the trial court's pre-trial dismissal of his claims against the District of Columbia on several grounds. First, he contends that the issue of whether a special police officer licensed by the District is an agent of the District for purposes of respondeat superior is a question for the jury, and that the court therefore should not have dismissed his respondeat superior claim before trial. Second, he asserts that there was a genuine issue of material fact on the issue of whether the police officer who arrested him had probable cause, thereby precluding summary judgment on this claim. Third, he maintains that the court abused its discretion when it refused to grant his motion for an extension of time to designate an expert under Super. Ct. Civ. R. 26 (b)(4). We affirm.
On December 7, 1994, Special Police Officer ("SPO") Rodney Brown was working in a Rite-Aid Pharmacy in the District of Columbia when a customer informed him that another person, appellant Moorehead, was stealing bottles of Tylenol from the shelves. According to Mr. Brown, when Moorehead left the store, the anti-theft alarm sounded, indicating that he had taken merchandise from the store without paying for it. Brown pursued Moorehead out of the store but was unable to catch him. As Moorehead fled, however, he dropped his gym bag; Brown retrieved it and took it back inside the store.
Brown inspected the contents of the bag in an office at the rear of the store, but he did not find any bottles of Tylenol or other items that appeared to be store property. However, by the time Mr. Brown returned to the floor, Moorehead had come back to the store and was asking for his gym bag. Brown approached Moorehead and demanded that he return the stolen items; Moorehead in turn demanded the return of his bag. In the shoving match that ensued, SPO Brown, using his baton, knocked Moorehead to the ground and handcuffed him.*fn1 As a result of the altercation between the two, Moorehead allegedly suffered injuries to his leg and head. Brown was uninjured, but the condition of his uniform indicated that he had been in a struggle.
Moments later, Officer James Koons and other members of the Metropolitan Police arrived at the store in response to a call about an assault with a dangerous weapon. SPO Brown explained to Officer Koons that a customer had seen Moorehead stealing merchandise and that the store's alarm had sounded when Moorehead went out the exit door. Brown also told Officer Koons that Moorehead had resisted when he tried to detain him. Koons thereupon placed Moorehead under arrest for assault, but apparently not for shoplifting (the record is not entirely clear on this point, but the complaint contains no allegation of a shoplifting arrest).*fn2
Several months later, Moorehead filed this personal injury action against the District of Columbia, Officer Koons, and "several unknown Metropolitan Police officers." His claims against the District were twofold. First, he asserted that the District was liable for SPO Brown's "attack" on him, based on theories of respondeat superior and negligent hiring, training, and supervision. Second, he claimed that the District was liable for false imprisonment and for negligent hiring, training, and supervision of Officer Koons and the other officers involved in his arrest, and that the District and the officers were liable for conspiracy to violate his civil rights.*fn3
The District filed a motion for judgment on the pleadings, asserting that a special police officer such as Brown "is neither an employee nor an agent of the District such that a plaintiff injured by a special police officer can allege negligent hiring, training and supervision of that officer, or common law torts based upon a respondeat superior theory." Despite Moorehead's insistence that Brown's relationship to the District was a question of fact that could not be decided summarily, the trial court granted the motion and dismissed the portion of the complaint against the District that was based on the actions of SPO Brown. The court concluded that D.C. Code § 4-114 (1994), which authorizes the Mayor to appoint special police officers, "is a licensing statute which does not create an agency relationship between the person licensed and the District of Columbia, nor does common law."
Some time later the District filed a motion for summary judgment on the remaining claims for false arrest and deprivation of civil rights, arguing essentially that Officer Koons had probable cause to arrest Moorehead. Moorehead again responded that the issue of probable cause was an issue of fact for the jury because Officer Koons had failed to investigate adequately the circumstances of the incident before arresting him. The court found Moorehead's argument unpersuasive, since he had made no showing that further investigation would have negated probable cause. It ruled that "the undisputed facts establish that Officer Koons had probable cause to arrest the plaintiff for assault, or at the very least a reasonable, good faith belief that he was acting lawfully in doing so." It therefore granted the motion for summary judgment. On appeal Moorehead challenges both rulings, as well as the trial court's denial of his motion to extend the time for designating an expert witness under Rule 26 (b)(4).
With respect to SPO Brown's conduct, Moorehead's claims against the District are based on the doctrine of respondeat superior.*fn4 "In order to succeed under the respondeat superior theory of liability, appellant must show that a master-servant relationship existed between [Brown] and [the District], and that the incident at issue occurred while [Brown] was acting within the scope of his employment." Giles v. Shell Oil Corp., 487 A.2d 610, 611 (D.C. 1985). The trial court held, and we agree, that there is no basis on the essentially undisputed facts of this case for imposing respondeat superior liability on the District.
We hold, first of all, that Moorehead's reliance on Wade v. District of Columbia, 310 A.2d 857 (D.C. 1973) (en banc), is misplaced because this case involves a special police officer rather than a regular police officer. In Wade this court held "that the District of Columbia may be sued under the common law doctrine of respondeat superior for the intentional torts of its employees acting within the scope of their employment." Id. at 863.*fn5 The "employees" involved in Wade were District of Columbia police officers, who allegedly assaulted and falsely arrested the plaintiff. Rejecting the District's defense of immunity, we reversed the trial court's dismissal of the complaint and remanded the case for trial. Moorehead places heavy reliance on Wade and urges us to follow it here. We cannot do so because the issue which lies at the heart of this case - whether the alleged tortfeasor was an agent of the District - was uncontested in Wade. There was no dispute that the police officers in Wade were employees of the District, acting within the scope of their employment. See id. at 859. Special police officers, however, unlike regular police officers, are not as a matter of law agents of the District of Columbia. While there may be cases in which the particular facts show that a special police officer is an agent of the District,*fn6 this is not such a case.
"Whether a master-servant (or principal-agent) relationship exists in a given situation `depends on the particular facts of each case.' " District of Columbia v. Hampton, 666 A.2d 30, 38 (D.C. 1995) (quoting Safeway Stores, Inc. v. Kelly, 448 A.2d 856, 860 (D.C. 1982)).*fn7 This court considers several factors when determining whether there is such a relationship:
(1) the selection and engagement of the servant, (2) the payment of wages, (3) the power to discharge, (4) the power to control the servant's conduct, (5) and whether the work is part of the regular business of the employer. Hampton, 666 A.2d at 38 (quoting LeGrand v. Insurance Co. of North America, 241 A.2d 734, 735 (D.C. 1968)); see also Beegle, supra note 7, 679 A.2d at 485; Giles, 487 A.2d at 611-612; Safeway Stores, 448 A.2d at 860. Of the five, " `the determinative factor' is usually the fourth: `the right to control an employee in the performance of a task and in its result, and not the actual exercise of control or supervision.' " Hampton, 666 A.2d at 38-39 (quoting Safeway Stores, 448 A.2d at 860).
In striving to demonstrate a principal-agent relationship between the District and SPO Brown, Moorehead relies on various similarities between the duties and powers of special police officers and those of regular police officers.*fn8 He reasons that since the District is liable for the intentional torts and negligence of police officers acting within the scope of their employment, see Holder v. District of Columbia, 700 A.2d 738, 741-742 (D.C. 1997); Wade, 310 A.2d at 863, it must also be liable for the tortious conduct of special police officers, such as Brown, who share many of the same responsibilities and duties. But despite the similarities, there are also numerous differences distinguishing special police officers from regular police officers,*fn9 some of which are crucial to the master-servant analysis. See Hampton, 666 A.2d at 38-39.
First, although the District (through the Mayor) appoints special police officers, the corporation or individual for whom the appointee works must apply for the appointment. That employer "selects and engages" the appointee "for duty in connection with the property of, or under the charge of, such corporation or individual . . . ." D.C. Code § 4-114.*fn10 In this case, Rite-Aid applied for Brown's appointment as a special police officer to protect its stores, and his commission was specifically limited to Rite-Aid property. Second, special police officers are "paid wholly by the corporation or person on whose account their appointments are made . . . ." D.C. Code § 4-114. Thus Brown's salary was paid by Rite-Aid, not by the District. Third, although the District has the power to deny, suspend, or revoke a special police officer's appointment, only the corporation or individual has the power to terminate the SPO's employment at any time, presumptively with or without cause. Once a special police officer ceases to work for his or her employer, that SPO loses the appointment and must return the special police officer badge to the District.*fn11
Fourth, and most importantly, nothing in the statute or regulations gives the District control over special police officers. The statute, D.C. Code § 4-114, explicitly states that a special police officer is "under the charge of" the corporation or individual on whose behalf the SPO is appointed. There is no indication, either in this case or in general, that the Chief of Police exercises any control whatever over the day-to-day activities of special police officers, see Hampton, 666 A.2d at 39, or that he otherwise has "the right to control [an SPO] in the performance of a task and in its result . . . ." Id. at 38-39.
Moorehead argues that the District's control over Brown's activities as a special police officer is evidenced by the numerous regulations specifically governing SPOs. For example, regulations prescribe the type of uniform an SPO may wear, including the size of the patches to be worn on the sleeves and the types of buttons to be affixed to the uniform shirts. See 6A DCMR § 1109 (1996). The regulations also articulate a special police officer's duties: "The duties of the special police officers . . . shall consist largely of periodically checking doors, windows, etc., in the nature of a `watchman.' " 6A DCMR § 1101.6. We assume, for the sake of argument, that the regulation of the manner in which SPOs carry out their duties is comprehensive.
Nevertheless, this court has held that broad regulation of an activity authorized by the District does not, by itself, demonstrate control over persons involved in that activity. In Hampton the plaintiff sued the District under a theory of respondeat superior for the wrongful death of her two-year-old daughter, which occurred while the child was in a foster home under the care and control of a foster mother. The rules and regulations governing foster homes and care for foster children were numerous and comprehensive and "show[ed] that the District [had] the authority to dictate many aspects of a foster child's life in a foster home." 666 A.2d at 40. Nevertheless, we held that such extensive regulation
does not establish that the foster parent is under the actual control of the District to a degree sufficient to make him or her the District's agent. . . . If the District did not have the right to control the daily activities of caring for the foster child, then even this plethora of regulations cannot be said to have created a principal-agent relationship between the District and [the foster mother]. Id. (emphasis in original).
The regulations covering SPOs are far less exhaustive than those relating to foster homes. They certainly do not establish that the District had control over SPO Brown in the circumstances presented here.
Besides relying on the regulations, Moorehead contends that the Metropolitan Police Special Officers Manual, which the Chief of Police issues to all special police officers, demonstrates the District's control over SPOs. The Manual instructs SPOs on such matters as the proper method of applying choke holds and instances in which to apply them, the language to be used when giving Miranda warnings, the manner of frisking suspects, and the proper use of firearms and other weapons. It explains that a special police officer's failure to obey orders or directives issued by the Chief of Police is grounds for the immediate denial, suspension, or revocation of an appointment as a special police officer. The Manual, however, was never presented to the trial court in any manner (e.g., as an exhibit accompanying Moorehead's response to the District's motion for judgment on the pleadings), and thus it never became part of the record; consequently, we may not consider it in support of Moorehead's argument. "Appellate review is limited to matters appearing in the record before us . . . ." D.C. Transit System, Inc. v. Milton, 250 A.2d 549, 550 (D.C. 1969).*fn12 In any event, the Manual would not have any effect on this case because, as we have explained in the past, such documents have no legal force or effect. Wanzer v. District of Columbia, 580 A.2d 127, 133 (D.C. 1990) ("Agency protocols and procedures, like agency manuals, do not have the force or effect of a statute or an administrative regulation"); accord, e.g., Phillips v. District of Columbia, 714 A.2d 768, 774 (D.C. 1998); Clark v. District of Columbia, 708 A.2d 632, 636 (D.C. 1997).
Next, Moorehead maintains that because Brown is not an agent of Rite-Aid, he must be an agent of the District. He cites numerous cases from the District of Columbia and elsewhere which hold that a private employer is not liable for the actions of a special police officer or security guard when the allegedly tortious act was done in the exercise of his duty as a public officer.*fn13 Moorehead's logic is flawed. It does not automatically follow from the fact that a special police officer is not considered an agent of one person or entity (Rite-Aid) that he must be the agent of someone else (the District) who may have some authority over his actions. Moreover, the cases on which Moorehead relies involve a different issue: whether the allegedly tortious actions were within the special police officer's scope of employment as an SPO, rather than part of his duties as a public officer. That has nothing to do with the issue presented here, which is whether SPO Brown was a public officer in the first place, i.e., whether a master-servant relationship existed between Brown and the District. That question is answered by such cases as Hampton and Safeway Stores.
Finally, Moorehead contends that special police officers are state agents as a matter of law, citing Woodward & Lothrop v. Hillary, 598 A.2d 1142 (D.C. 1991), and that therefore they must be regarded as agents for respondeat superior purposes. In Hillary this court concluded that a special police officer could be held liable under 42 U.S.C. § 1983 (1988) for civil rights violations. Id. at 1146.*fn14 We held that the SPO's liability under that statute depended on whether he was acting "under color of state law." Relying on previous cases which held that searches and seizures by special police officers were subject to the restrictions of the Fourth Amendment,*fn15 we concluded that the SPO exercised "a `power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' " Id. (quoting West v. Atkins, 487 U.S. 42, 49 (1988)). However, the mere fact that a special police officer is acting "under color of state law" when he arrests a suspect does not mean that he is acting under the control of a state or local government so as to make him an agent of that government. The two concepts must not be confused. One involves the exercise of power reserved for state actors (arrest for probable cause); the other involves holding one person or entity responsible for the actions of another because of the relationship between the two (vicarious liability). That relationship, demonstrated by control in a respondeat superior case, is the decisive factor in vicarious liability analysis.
We conclude that a special police officer, rather than being an agent of the District, has essentially the same status as an architect, a beautician, an engineer, or a physician, each of whom is licensed by the District to perform a particular activity. See United States v. Lima, supra note 15, 424 A.2d at 118-119 (distinguishing unlicensed security guards from special police officers). The District licenses special police officers to protect private property. But "[t]he District of Columbia's mere licensing of security guards [as SPOs] . . . does not so implicate the District in the actions of those [SPOs] so as to make all their actions governmental." United States v. McDougald, 350 A.2d 375, 378 (D.C. 1976) (citations omitted); accord, Hillary, 598 A.2d at 1146 n.6 ("Governmental licensing or extensive regulation of private activity alone does not warrant ascribing acts of the regulated entity to the state" (citation omitted)). In this case, as the trial court held, Brown's status as an SPO is not determinative of a principal-agent or master-servant relationship. We hold that the trial court properly granted judgment in favor of the District on Moorehead's respondeat superior claim.
Moorehead also challenges the trial court's grant of summary judgment against him on his claim that he was falsely arrested by Officer Koons. "In actions for false arrest and false imprisonment, the central issue is `whether the arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting officer is privileged and the action fails.' " Scott v. District of Columbia, 493 A.2d 319, 321 (D.C. 1985) (citation omitted); accord, District of Columbia v. Murphy, 631 A.2d 34, 36, reaff'd on rehearing, 635 A.2d 929 (D.C. 1993). "To prevail, the arresting officer need not prove probable cause in the constitutional sense, but rather must prove that he had a reasonable good faith belief that the suspect committed the offense." Safeway Stores, 448 A.2d at 862; accord, Murphy, 631 A.2d at 36.*fn16 To determine whether the arresting officer had probable cause or a good faith belief, the court evaluates the evidence from the perspective of the officer, not the plaintiff. See Murphy, 631 A.2d at 36-37; Safeway Stores, 448 A.2d at 862. Although "the issue of probable cause is a mixed question of fact and law that the trial court should ordinarily leave to the jury," Murphy, 631 A.2d at 37, that is not required in every case; "where the facts are undisputed or clearly established, a question of law arises for the court." Safeway Stores, 448 A.2d at 862.
In this case, the undisputed facts established that Officer Koons entered the pharmacy to find Moorehead bloody and in handcuffs, smelling of alcohol, and SPO Brown uninjured but with his shirt untucked and his clothes rumpled. Brown told Officer Koons that Moorehead had stolen merchandise from the store. He explained that when he attempted to detain Moorehead, Moorehead assaulted him while resisting. Brown further reported that when Moorehead resisted, he used his baton to subdue him. Relying on these facts, Officer Koons arrested Moorehead for assault. Although Officer Koons testified at his deposition that he thought Brown's use of force might have been excessive, that suspicion did not nullify his good faith belief that Moorehead had assaulted Brown.*fn17 Whether Koons had probable cause to arrest Brown is not relevant to whether he had probable cause to arrest Moorehead.
On the record before us, we hold that Officer Koons had probable cause, or at the very least a reasonable good faith belief, that Moorehead had committed an assault. See, e.g., United States v. Simpson, 330 A.2d 756, 758 (D.C. 1975) (officer had probable cause to arrest defendant when assault victim reported the assault and identified defendant as his assailant). We reject Moorehead's argument that there was a genuine issue of material fact with respect to probable cause because Officer Koons failed to conduct a more thorough investigation before making the arrest. Moorehead fails to cite a single case, and we have not found one, which requires an officer to conduct an investigation in order to dispel a good faith belief that a suspect has committed a crime. Moreover, Officer Koons' alleged failure to interview Moorehead at the store is of no consequence because Moorehead was present when Koons was talking with Brown and had plenty of opportunity at that time to present his side of the story. Finally, as the trial court concluded, Moorehead failed to demonstrate how further investigation would have negated Koons' probable cause or good faith belief for the arrest.
Moorehead's reliance on District of Columbia v. Murphy is misplaced. In Murphy police officers arrested the plaintiff for unlawful entry on the basis of statements made by the plaintiff's girl friend. However, one of the basic elements of unlawful entry, that the girl friend had asked the defendant to leave and he refused, was not part of the evidence presented at trial. Although there was evidence which suggested that such a request might have been made and that the plaintiff had refused to leave, there was also evidence to the contrary, thus precluding a directed verdict or judgment n.o.v. Murphy, 631 A.2d at 38-39. In the case at bar, the court concluded that Officer Koons had probable cause to believe that Moorehead had committed an assault on Brown, based on the ...