Police Misconduct

Published on: August 25, 2016

Was It A Robbery?

Whether you love or hate the Olympics, most people would agree they were beginning to run their course. The past three weeks were filled with inspirational stories and domination by a pair of Maryland athletes, but Rio also produced its share of bizarre incidents and conspiracies. The latter seemed to steal many of the headlines, which is not surprising considering our appetite for scandals. No single event, including record setting performances on the track or in the pool, generated more news headlines than the American swimmers’ run in with an armed gas station security guard. At first it was reported that the swimmers were targeted by police impersonators and robbed at gunpoint, which was odd considering the alleged victims still had possession of their cell phones and jewelry. Then it was reported that the entire story was made up, and the swimmers were never robbed. While we still don’t have every detail, there are enough facts out there to generate a legal discussion about what crimes where actually committed that night. To keep the discussion relevant we will act as if the incident happened in Maryland, as the Blog does not claim to be an expert in the criminal laws of other states, much less other countries.

It seems fairly clear that the swimmers engaged in some sort of criminal activity before they were confronted by employees of the gas station. Whether their actions would have actually resulted in arrest or prosecution is debatable, but based on the evidence the swimmers could have been guilty of at least three criminal violations. Urination in public is illegal in Maryland, but unlike other states that have UIP laws, there is not a specific state criminal statute that addresses this conduct. Some local governments such as Prince George’s County have ordinances that cover this act, and in PG County it happens to be a civil citation. In order for an officer to arrest a person under state law for relieving themselves in public, he or she would have to charge the suspect with indecent exposure under section 11-107. This is a misdemeanor that carries a maximum three-year sentence, and is obviously a criminal charge that would look horrible on anyone’s rap sheet. A police officer could also arrest someone for using a public transportation vehicle as his or her own personal bathroom, which is a misdemeanor that carries a 90-day jail sentence under section 7-705 of the transportation code. It is unclear whether the swimmers actually damaged any property, but if they did then destruction of property and or disorderly conduct charges could follow.

While we do not know exactly what happened in or around the bathroom, it is absolutely clear that the swimmers became robbery victims at some point in the night. Robbery is a simple crime to define; it’s an unlawful taking of someone’s property with force. Many people can think of it as a theft plus an assault. If you throw a weapon into the equation you are left with an armed robbery, and if that weapon happens to be a working operable firearm then there could be an additional charge for using a firearm during the commission of a crime of violence. The gentleman that pulled a gun on the swimmers and demanded money without a doubt committed an armed robbery. If there were others standing next to the gun toting security guard then they too committed an armed robbery. There are very few valid legal defenses to a crime such as this, and none would apply here. The “security guard” was not acting in self-defense or the defense of others, and he certainly was not under duress. If this incident had happened in Maryland the man with the gun and any accomplices would have been arrested and charged with upwards of three felonies. Our government would have issued an apology to the admittedly foolish swimmers rather than extort them out of $11,000.

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Published on: January 15, 2016

Appeals Court To Decide Major 5th Amendment Issue

By Benjamin Herbst

The Special Court of Appeals has agreed to hear arguments on a major 5^th Amendment issue stemming from the Baltimore City trial of the main defendant in the Freddie Gray case. In doing so, Maryland’s second highest court also ordered that the circuit court postpone the trial just hours before jury selection was set to commence. Oral arguments are set for the first week in March, allowing the Attorney General and the defense attorneys time to respond to each other’s legal briefs. The issue up for debate is whether the first defendant, whose case is still pending after a mistrial was declared, will be compelled to testify against one or more of the co-defendants. Under normal circumstances a defendant with pending charges would never be required to testify in any matter related to those pending charges. But the government is attempting to argue that their case is far from ordinary, and that the first defendant should be forced to take the stand against his former fellow officer.

The right to be protected from self-incrimination is one of the foundations of our criminal justice system, and “pleading the 5^th” is one of the few legal concepts that comes to life as often in real cases as it does in Hollywood courtroom dramas. But in the case of the first officer, whose case resulted in a mistrial, the government is arguing there would be no self-incrimination implications should he be forced to testify against the other defendants. The government offered use immunity to the first officer, which means that they promised in writing to refrain from using any of the testimony against him at later time. Therefore the Attorney General will argue that there is no possibility that the officer’s testimony could get him into more trouble. This argument was compelling enough at least for the Baltimore City Circuit Court judge to buy, but don’t expect the appeals courts to be convinced as easily.

The defense introduced two main rebuttals to the government’s immunity argument. The attorneys argued that if the officer’s testimony is even slightly different the second and third time around he could face perjury charges, and they called attention to the numerous times that prosecutors called the first officer a liar during the December trial in support of this argument. The defense lawyers also suggested that even if the officer is eventually acquitted in the city circuit court he could still face federal charges. Per Department of Justice orders, federal prosecutors have been monitoring this case and were seen in court throughout the trial. The feds have made no such offer of immunity, and theoretically could use every bit of compelled state court testimony in a federal prosecution. While this seems like the stronger argument of the two, the shear historical strength of the 5^th Amendment is perhaps the government’s greatest challenge to compelling the officer’s testimony. Ordering a defendant with a pending criminal case to testify against a co-defendant would be a direct shot at the 5^th Amendment, and the implications would run contrary to decades of case law upholding the right to remain silent. The circuit court judge has a valid desire to move theses cases along, but the appeals courts will look at the bigger picture, and a ruling that undermines the constitutional protections afforded by the 5^th Amendment is unlikely.

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Published on: December 4, 2015

Prince George’s County Cop Found Guilty of Assault

By Benjamin Herbst

A jury recently found a former police officer guilty of multiple violent crimes after a two-day trial in the Circuit Court for Prince George’s County. The shamed officer was indicted for an incident that occurred in May of 2014, when the officer questioned a man for sitting in a parked car. The man was parked in front of his Bowie home along with his cousin, and exited the vehicle after exchanging words with the officer. As the man was walking toward his front door the former patrol officer pulled out his firearm and ordered the man back in the car. The officer then pointed his gun at the victim’s back as he directed him to the vehicle. After the cop pushed the victim they turned to face each other, and at this time the cop had his gun pointed directly at victim’s head and then with the barrel mere inches from his face. The victim was then arrested for disorderly conduct, a case that was dismissed by prosecutors six months later.

The verdict came down earlier this week, and shortly thereafter the county police department release video of the incident, which was filmed on a cellphone. After viewing the video it was immediately apparent why the twelve jurors found the officer guilty of all the serious crimes for which he was charged. The charges included first degree assault, second degree assault, use of a handgun in a crime of violence, and misconduct in office. First degree assault is a felony that carries a maximum 25 year sentence, while second degree assault is a misdemeanor with a 10 year maximum. Misconduct in office is a common law crime with no specific maximum penalty. While each of these three crimes certainly carries severe punishments, it is the misdemeanor use of a handgun during a crime of violence charge that will carry the most weight. A conviction for this offense carries a mandatory minimum 5-year prison sentence that may not be suspended. In addition a defendant sentenced under this statute is not eligible for parole. Sentencing is set for early January, and will likely include a term of probation after expiration of the mandatory prison time.

During a press conference this week the police commissioner for Prince George’s County condemned the officer’s actions, and implored the public to refrain from passing judgment on the other 2,000 plus officers in the department. He stated that this was a criminal act of a single man and will not be tolerated in any way. While the officer is technically still with the department, his firing is a mere formality at this point. He has been suspended without pay since the indictment came down, and the only thing preventing his termination is the administrative process that government employees are afforded before being fired. This is certainly a busy week in Maryland for police misconduct cases, as Baltimore City police officer is currently in trial for his role in the death of Freddie Gray. The Blog will continue to follow both of these cases and may post a follow up article in the near future.

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Published on: November 28, 2015

Harford Sheriff Conducts Questionable Heroin Checkpoint

By Benjamin Herbst

Maryland law enforcement’s war on heroin has reached new levels, as one county recently conducted highly questionable road checkpoints targeting the dangerous drug. The checkpoints were set up this past week on various thoroughfares in Harford County including Route 1, Route 24 and Route 40, which police classify as high volume drug trafficking routes. The trafficking designation is more a result of these roads being the major thoroughfares in and out of town and for the high volume of motorists they carry, but police seem to enjoy their labels and designations in order to stir up support for their operations. The checkpoints this past week produced ten arrests, with four of those being drug related. The arrests yielded marijuana, prescription pills, drug paraphernalia, a switchblade knife, and $7,000 in cash. The questions being asked in the wake of these unorthodox checkpoints are many, and include whether the efforts of law enforcement were worth it and whether their tactics were even legal.

The Harford County Sheriff’s Office ran point on the checkpoint with the help of numerous other agencies such as the Bel Air, Aberdeen, and State Police departments. The transportation authority police, who always jumps at a chance to get involved in highway related drug trafficking busts also helped out. Cleary there were abundant law enforcement efforts devoted to the checkpoints, which means thousands of tax payer dollars and manpower resources that were unavailable for other tasks. In addition a couple thousand motorists were subjected to police intrusion as they moved innocently about. It’s safe to say that these checkpoints were not even close to being worth four drug arrests, some cash and a switchblade. DUI checkpoints are notoriously ineffective at achieving their goal and this makeshift heroin checkpoint seems even worse. The amount of police manpower it takes to run a checkpoint never adds up to actual arrest numbers, and the prevention factor is all hypothetical. The dozens of officers working these checkpoints would undoubtedly have made more arrests if they were simply working standard road patrol shifts. Not to mention avoiding the in your face police state law enforcement tactics that should only be used in extreme circumstances.

The question of the drug checkpoint’s legality is slightly more complicated, and despite gaining the State’s Attorney’s approval the checkpoints may have been unconstitutional. This means that the 10 arrests might not produce any convictions for prosecutors. Drug focused checkpoints have been declared unconstitutional in the past, and DUI checkpoints have numerous requirements that need to be met in order to be deemed legal. Cops in this particular operation tried to distinguish their actions from DUI checkpoints and argued that no motorists were actually randomly stopped. But judges, and especially federal judges, frown upon police activity that tries to outsmart the constitution and the case precedent that interprets it. The makeshift checkpoints may not have mirrored the intrusions of standard DUI checkpoints, but this doesn’t mean that police can avoid checkpoint requirements for legality. One Harford sheriff said the operation was nothing like a DUI checkpoint, which is a naïve and juvenile statement considering the first thought in everyone’s mind was to compare this week’s operations to DUI checkpoints. The Blog may post a follow up article if we see more of these controversial drug checkpoints pop up around the state.

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Published on: November 4, 2015

FBI Agent Found Guilty Of Assault

By Benjamin Herbst

A jury recently found a veteran FBI agent guilty of assault after a three-day trial in the Montgomery County Circuit Court last week. The charges stemmed from an incident involving the custody exchange of a child, where the father was allegedly two hours late. A bystander captured the entire incident on a cellphone camera, which ultimately led to the agent being indicted for felony first degree assault, use of a firearm in a crime of violence, and misdemeanor second degree assault. Video shows that the agent, a friend of the mother of the child, was angry with the father for being late and repeatedly called him disrespectful. The agent, who was off duty and dressed in plain clothes, kept pressing the father and followed him outside of a Chevy Chase apartment building to continue to voice his displeasure. During the argument a 15 year-old boy intervened and questioned why the agent was getting involved, as he was not part of the family. At that point the agent suddenly struck the boy with and open hand to the chest that sent him tumbling down to the sidewalk on his back. As the boy picked himself up the off duty agent then attempted to place him under arrest. A brief struggled ensued, but ended quickly when the agent pulled out a handgun and threatened to shoot the boy if he didn’t comply.

After receiving a copy of the video the State’s Attorney decided to present the case to a grand jury, which ended up finding probable cause to charge the agent with the three aforementioned offenses. The jury sitting in the trial court did not feel the evidence warranted convictions for the two felony offenses and acquitted the defendant on the most serious counts. But the jury agreed with the state of Maryland that the evidence supported a finding of guilt for second degree assault, as the agent had no legal authority and no defense for striking the boy. The agent’s lawyer argued unsuccessfully that the agent felt imminently threatened by the 15 year-old boy, and therefore struck him in self-defense. But the jury saw through this argument, which was hardly supported by the video.

As the verdict was announced the agent, a 20 year veteran of the FBI and current high ranking counterterrorism officer, became faint and had to be transported from the courtroom by ambulance. The case was reset until this week to deal with post-verdict matters such as setting a sentencing date and deciding whether the defendant will be allowed to keep his firearms. In Maryland a person convicted of a crime of violence such as assault is not permitted to possess a firearm. Although the defendant has been found guilty, he has not been convicted. The judge could impose a probation before judgment, which would not be considered a conviction at the January sentencing date. The Blog will track this case and may post a follow up article after the sentencing hearing, which is bound to be a tense affair. If the agent is adjudicated guilty it’s hard to see how he could remain an active duty federal law enforcement officer. But the FBI will make its own decision on that matter, and will not likely offer any explanation either way. Discipline from his employer as well as from the court seems like a given though, due to the agent’s embarrassing and violent outburst. As a law enforcement officer he was supposed to keep the peace, but instead the agent provoked a situation and ended up assaulting a private citizen, who happened to be a 15 year-old boy no less.

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Published on: October 28, 2015

Baltimore Police Begin Body Camera Pilot Program

By Benjamin Herbst

Almost a year ago we posted an article about the Baltimore Police mulling the use of wearable cameras for patrol officers in order to promote transparency and reduce police misconduct. Many predominately urban police departments around the country had at that time already installed body camera programs, including the Laurel police department in Prince George’s County. Less than six months after that article the Baltimore Police Department was the headline of every news outlet in the country after the death of Freddie Gray and the riots that followed. This negative media attention only served as further motivation for the shamed department to end the perception that their officers have little regard for the citizens they serve. Whether the riots actually convinced city politicians to act is a moot point, as the powers that be put ball in motion earlier this week. On Monday the city launched a two-month test program that will equip more than 150 city police officers with digital body cameras. The cameras come from three different manufacturers that are all competing with each other to win the contract to supply the whole force, and with over 3,000 officers this is bound to be a highly lucrative deal.

The pilot program was announced at a news conference from police headquarters, but the department declined to go into detail just how it will be managed. Rather, police officials simply laid out a basic overview and explained that final regulations are still in draft status. This tight-lipped approach did not sit well with media members and local politicians who have been critical of the department. Some have questioned the motive behind withholding the details of a program that was specifically designed to promote transparency. What the department did divulge is that the select group of 150 officers is from the east, west, and central districts. These officers will be instructed to activate their cameras upon making contact with civilians, and they themselves will be the ones responsible for uploading the footage to offsite cloud based servers managed by the camera vendors. Civilians may ask the officers to turn of their cameras, although it is unclear when the cops will actually adhere to theses requests. It is also unclear what types of safeguards are in place if an officer fails to upload video footage, or if a camera is damaged or destroyed.

Although the department’s reluctance to share the details of the pilot program certainly seems odd and even a bit hypocritical, it does not seem like a major cause for concern at this point. There are many unknowns right now, and at this point the city has not chosen a camera supplier. Each of these camera systems will have numerous distinctions, so the value of spending time fine-tuning regulations is minimal at this point. The city is better served putting the program in motion and gathering data to make their final decision. Those responsible for drafting the final policy regulations will learn a lot over the next two months, and the Blog will be following closely when it comes time to choose a specific camera system. We may post an article at that time, and an update this spring when body camera legislation is bound to hit the floor of the state legislature in Annapolis.

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Published on: September 1, 2015

Baltimore Police A Leader In Secret Cell Tracking Technology

By Benjamin Herbst

A secret cell phone tracking system used by law enforcement for over a decade is slowly being exposed, but defendants and their attorneys are still being left in the dark in thousands of criminal cases each year. The technology commonly referred to as stingray consists of an array of sophisticated electronics, which fit inside a box about as big as a suitcase. The cost is steep, with each unit running over $400,000, and the right to use it comes with the catch of signing a non-disclosure agreement with the FBI and receiving training with the Secret Service on cellular theory. The general premise of the device is to simulate a cell phone tower to lock into a specific phone, which can ultimately lead the operator and his or her team to within a few yards of the target. The exact range of the device is unclear, but law enforcement apparently must first secure a general location from the cell phone company before deploying the stingray. Baltimore City’s so called Advanced Tactical Team has used this system over 4,000 times since 2007, resulting in thousands of arrests and hundreds of convictions. But the success of this surveillance technology comes at a high price.

While stingray system does not have the capability to intercept cell phone content such as text messages or pictures, it does capture information from almost every cellphone in its range. This typically includes phones of dozens of innocent bystanders who as a collateral consequence are electronically tracked by police. The unintended location tracking of innocent phone users by law enforcement is disconcerting, but it’s hardly a cause for outrage. The real concern is that use of the stingray system has created a climate of blatant disregard for the Constitution, and the Maryland electronic surveillance laws to boot.

In Baltimore the thousands of stingray aided arrests were most likely effectuated in violation of state electronic surveillance laws. City police officers rarely considered applying for search warrants to use stingray, and most of the time would not even notify prosecutors when they used the hi tech system to locate the suspects they arrested. Police would deliberately fabricate their reports as if using the stingray system never happened, stripping defendants and their attorneys of the opportunity to challenge the legality of the surveillance. In cases where prosecutors and defendants asked too many questions, such as when cops magically appeared in the exact right place to solve a crime with no explanation on how they got there, the police officers would button up and site their non-disclosure agreement with the feds. Most of these cases where the police work was seemingly too good to be true ended up being dismissed, and in total about one third of the over four thousand stingray arrests in Baltimore suffered this same fate. These numbers included serious felony arrests such as kidnapping, robbery and murder, which according to the FBI are solved each day using the stingray. But the technology is often used in less serious cases such as theft, drug distribution and destruction of property, where it is much tougher to justify ignoring privacy laws. Regardless of the eventual outcome of the stingray cases, damage is done as soon as an illegal arrest is carried out. You cannot simply unarrest a defendant whose rights have been violated.

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Published on: August 4, 2015

Governor Closes Infamous Baltimore Jail

By Benjamin Herbst

No jail or prison facility in the country should have a reputation. They should rarely appear in the news or be the topic of discussion. Rather, they should be like the best referees in football or the top umpires in baseball, who are seen but seldom heard from or remembered. The Baltimore City Detention Center it just the opposite, and has a terrible reputation as a dangerous and dirty facility that dates back almost 100 years. The facility survived calls for its closure in the 1930’s due to being outdated and unfit for living. There were riots at the jail in the 70’s, overcrowding which led to an unprecedented state takeover in the 90’s, and massive corruption over the last decade that led to 40 federal convictions of guards and inmates for drug distribution and racketeering from within the facility. And throughout these troubled times there were hundreds of complaints and lawsuits from inmates and the ACLU describing uninhabitable conditions. Yet the facility continued to remain open for business, and accepted defendants awaiting trial or sentenced to less than 18 months right up until last week when Governor Hogan decided to put an end to the disgrace that was the BCDC.

In a surprising and dramatic move, Hogan recently announced to reporters from a podium along Eager Street that he was closing the city jail immediately. The governor explained he would no longer allow the shamed facility to be a “black eye” upon the state, and scorned his predecessor for doing nothing to fix the longstanding problem. Some one thousand inmates will be moved to other jail facilities, which the governor described has having more than enough space. Defendants awaiting trial will likely stay at facilities within the city limits, while those already sentenced could be moved to nearby counties. Corrections officers and staff will be reassigned to other posts. Hogan definitively stated that the jail will not be rebuilt or refurbished, but will be torn down with no specific plan for the future of the site. The closure will save Maryland taxpayers roughly 10 to 15 million dollars per year, and effectively axe a half billion-dollar proposal from 2013 to rebuild a new jail at the same downtown location. More importantly it will put an end to an embarrassing run of corruption and maltreatment that became the standard at the jail. As of today most of the inmates still remain at the BCDC, but as many as 50 have bee transferred out and all should be moved within the next couple of weeks.

The closure is welcome news for friends and family of the inmates, and for their defense attorneys who were constantly reminded of the horrendous living conditions. While the inmates clearly suffered the most, even visiting the jail was a frustrating and uncomfortable process. Governor Hogan knew this, and rather than meet, discuss, and stall with lawmakers he took immediate action and did what needed to be done. Some lawmakers expressed displeasure with Hogan’s failure to consider a ten-year plan to revamp the facility that was recommended by a legislative commission. Not surprisingly it was the democratic lawmakers who voiced the public displeasure. These detractors politicized something that has absolutely nothing to do with politics, and their issue was likely the fact a leader from a different party overruled them. The city detention center was an absolute disgrace on all levels, and shuttering its doors for good was action that should have been taken years ago.

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Published on: July 17, 2015

Baltimore City Settles Costly False Arrest Case

By Benjamin Herbst

Not that they deserve one, but the Baltimore Police Department cannot catch a break. After months of negative publicity surrounding the death of Freddie Gray, dozens of new accusations of police brutality, spiking crime rates, and allegations of lack of leadership that led to the firing of their top cop, the department is back in the news. This time the news is for an incident that happened five years ago, but these days any tidbit of information about cops in Maryland’s largest city will make headlines. Back 2010 a federal department of defense employee was arrested for violating the city’s loitering law, when he allegedly refused to enter a Baltimore Street business or keep walking. Although prosecutors eventually dropped the charges, and the criminal case has since been expunged, the man spent 12 hours in jail and missed work the next day. He hired an attorney after the incident, and a lawsuit against the city was ultimately filed. After both parties failed to reach a settlement agreement the case proceeded to jury trial in the circuit court for claims of battery, false imprisonment, and false arrest.

At trial the man testified that he was not violating the loitering law, and to the contrary he was arrested for simply talking back to the police officer. The man also testified that although the criminal charge has been expunged, record of his arrest still exists in his FBI criminal background database. This has apparently prevented him from moving up the ladder and earing higher wages while working at the Pentagon. While Maryland has a user friendly expungement process, the FBI, who keeps records of all arrests and criminal charges, is under no obligation to follow a state order to expunge a record. This is a common problem, and a tough pill to swallow for any person who is wrongfully arrested or prosecuted. At the close of the case the jury awarded damages in the amount of $272,790 in favor of the plaintiff. The city appealed, but then agreed to settle for an even $200,000.

The verdict and eventual settlement may seem high considering that the man was not injured, and the criminal case was expunged before it went to court. But the arresting officer who was the target of the civil suit was the opposite of a defendant warranting sympathy. In 2011 the officer was convicted for his role in a city towing scandal where officers were illegally paid by a body shop to refer customers, and falsified accident reports to increase damage claims. The officer served 8 months in federal prison and was fired from the police department. He was also the subject of two other large civil settlements against the Baltimore police; in one case he was accused of breaking a woman’s wrist after pulling her from a car, and in the other case he was accused of beating a handcuffed man. After the city recently settled his third civil case, the cop went on record as stating the settlement was “unbelievable” because the plaintiff had no injuries. These comments prove the shamed ex-cop still doesn’t get it, as you simply cannot put a price on wrongfully arresting, jailing, and prosecuting an innocent person. The officer apparenlty wants his job back, which actually is unbelievable. All the city needs right now is to reinstate an ex-cop convicted of fraud and corruption in federal court, and three times accused of beating, injuring, and wrongfully arresting the citizens he was sworn to protect. Unbelievable indeed, although delusional might be more accurate.

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Published on: May 8, 2015

Charging Process Of The Baltimore Police Officers

By Benjamin Herbst

As a criminal defense blog, we have posted numerous articles on the unfortunate incidents of police brutality and misconduct in the state of Maryland. While it seems the number of these incidents has been increasing over the past few years, it is more likely that technology is simply exposing them at a higher rate. Police misconduct is an epidemic in our country that we can no longer ignore, but regardless of our condemnation of misconduct, as defense attorneys we fight to assure that all defendants are afforded a fair trial and a competent defense. In the Gray case the officers happen to be defendants, and justice will only be achieved if they too are given a fair trial. The Baltimore City State’s Attorney made the bold decision to charge the officers shortly after the medical examiner’s report came back with the medical conclusion of a homicide. While some of the city prosecutor’s public comments were inappropriate, her decisiveness benefited the city, the family of the victim, and for the most part did not unduly prejudice the defendants.
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