Baltimore City Police Department v. Andrew

ADKINS, Judge. A subtitle of Article 27, Annotated Code of Maryland sets forth the “Law Enforcement Officers’ Bill of Rights” (LEOBR). Included within that subtitle is Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 728(b)(4). It states: ⁵ “A complaint against a law enforcement officer, alleging brutality in the execution of his duties, may not be investigated unless the complaint be duly sworn to by the aggrieved person, a member of the aggrieved person’s immediate family, or by any person with firsthand knowledge obtained as a result of the presence at and observation of the alleged incident, or by the parent or guardian in the case of a minor child____ An investigation which could lead to disciplinary action under this subtitle for brutality may not be initiated and an action may not be taken unless the complaint is filed within 90 days of the alleged brutality." [Emphasis supplied.] The question presented in this case is whether § 728(b)(4) prevents a police department from proceeding with a disciplinary action against one of its officers when the disciplinary action is based on charges of brutality and the departmental investigation of the allegedly brutal conduct is generated by an aggrieved person’s sworn complaint, filed more than 90 days after the incident in question.

I. The factual context within which this question arises is relatively straightforward. On or about 7 November 1987, Michael Artis (Mr. Artis) drove a bus load of passengers to Memorial Stadium in Baltimore, to attend the Maryland-Clemson football game. When the game was over, Mr. Artis prepared to drive the bus from the stadium. The vehicle’s path, however, was obstructed by a Winnebago camper in the vicinity of which a group of individuals in civilian clothes were enjoying a post-game tailgate party.

Mr. Artis approached the group and asked one of its members to move the camper. According to Mr. Artis, this request produced curses and blows from the individual at the camper. A struggle ensued during the course of which another person, later identified as appellee, Captain Michael Andrew (Captain Andrew) of the Baltimore City Police Department, intervened. Again according to Mr. Artis, Captain Andrew placed Mr. Artis in a headlock, repeatedly ⁶ banged Mr. Artis’s head against the camper, used abusive language, and eventually arrested him or caused his arrest, apparently for assault.

Mr. Artis avers that on 27 January 1988 he was acquitted of the charges against him. About a month after that (clearly more than 90 days after the 7 November incident), he filed a sworn complaint with appellant, Baltimore City Police Department (the Department). The complaint itself, as it appears in the record, is virtually illegible. As interpreted by a witness at a hearing in the Circuit Court for Baltimore City, it substantiates the account given in the preceding paragraph.

In any event, it precipitated an investigation by the Department’s Internal Investigation Division, and the issuance of the following notice to Captain Andrew: It is alleged, on 7 Nov. 87, at Memorial Stadium Parking Lot, you placed complainant Michael Artis in a headlock & threw him against a Winnebago, which he deemed unwarranted action. Also that you called him a “mother fuckin nigger” and “black bastard” which he believed to be discourteous language. Eventually, the Department charged Captain Andrew with violation of a number of departmental regulations. In general, the charges alleged use of improper language, “conduct unbecoming a” police officer “by use of unnecessary physical contact” and otherwise, use of unnecessary force, and giving a false statement.

Captain Andrew responded by seeking a show cause order and an injunction to protect rights he claimed under the LEOBR, and specifically under § 728(b)(4). 1 On 16 November 1988, after a hearing, ⁷ the Circuit Court for Baltimore City (Ward, J.) enjoined the Department “from prosecuting or otherwise taking any disciplinary action against” Captain Andrew with respect to the charges involving allegations of brutality. Judge Ward agreed that Captain Andrew was protected by a statute of limitations created by § 728(b)(4). When the Department appealed to the Court of Special Appeals, we issued a writ of certiorari on our own motion and prior to any proceedings in that court. Before we deal with the statute of limitations question, we shall dispose of the Department’s contention that § 728(b)(4) does not govern this case.

II

A. The Department argues that because Captain Andrew was not charged with “brutality,” § 728(b)(4), is inapplicable. It is true that the statement of charges against Captain Andrew does not use that word. But it does accuse him of using excessive and unnecessary force. The Department itself has defined “brutality” as including “any situation wherein an officer, while acting in his official capacity, resorts to the use of physical force which was unnecessary in its origin and application.” Section III(B), Annex A to the Department’s General Order 48-77 (1 July 1977).

The charges here, and the conduct underlying them, are consistent with that definition and with the general understanding of what constitutes “brutality” in the context of police misconduct. See Maryland State Police v. Resh, 65 Md. App. 167, 177 , 499 A.2d 1303, 1309 (1985), cert. denied, 305 Md. 244 , 503 A.2d 253 (1986) (characterizing as “brutality” conduct less egregious than that allegedly involved here). We hold that excessive force in making an arrest is brutality within the meaning of § 728(b)(4). ⁸ B. The Department also asserts that the use of the phrase “may not” in the first and last sentences of § 728(b) (“[a] complaint ... may not be investigated” and “[a]n investigation ... may not be initiated and an action may not be taken”) renders the entire paragraph merely directory. Putting aside the notion of a bill of rights that is merely hortatory and, therefore, unenforceable, we note that the General Assembly has explained how it ordinarily intends “may not” to be understood: “In this Code and any rule, regulation, or directive adopted under it, the phrase ‘may not’ or phrases of like import have a mandatory negative effect and establish a prohibition.” Md.Code (1957, 1987 Repl.Vol.), Art. 1, § 26. “May not,” in § 728(b)(4), is the equivalent of “shall not.” C. Another line of argument pressed by the Department is a bit harder to follow, but has no more merit than the two we have disposed of.

The Department’s position seems to be that because there are certain provisions of the Code of Public Local Laws of Baltimore City regarding the handling of complaints against police officers or giving the police commissioner the power to take certain actions, then the LEOBR (or at least § 728(b)(4)) does not apply to prevent departmental discipline in a case like the one before us. One set of these provisions, enacted by Chapter 889 of the Acts of 1975, establishes the Complaint Evaluation Board (CEB) in Baltimore City. Code of Public Local Laws of Baltimore City (1979 & 1989 Cum.Supp.), §§ 16-41 — 16-50. These sections create a mechanism through which one who claims to have suffered or to have observed an act of discourtesy or excessive force by a Baltimore police officer may have that allegation reviewed by a nondepartmental agency.

When a complaint is received by the CEB, it makes findings of facts and recommendations and submits them to the police commissioner. Sec. 16-42(f). Final disciplinary authority rests with the commissioner. Sec. ⁹ 16-44.

There seems to be no time limit for submitting a complaint to the CEB. The Department is of the view that the CEB subtitle of the Public Local Laws affords a procedure that is an alternative to the LEOBR. Under this reading, even if the time restrictions of § 728(b)(4) are not met, a brutality (or excessive force) complaint may be processed under the CEB dispensation. Whether this sort of bypassing of the LEOBR is permissible presents an interesting question. 2 Sections within the CEB title seem inconsistent with the Department’s contention.

For example, § 16-45 makes clear that “[n]othing in the [subtitle] may abrogate any statutory ... right of police personnel against whom a complaint is filed.” But we need not decide the question, because the record fails to show that Mr. Artis’s complaint came to the Department through the CEB. Section 16-42(a) lists the Department’s Internal Investigation Division (IID) as one of the places where a CEB complaint may be lodged. Mr. Artis, in fact, lodged his complaint there; his sworn statement is on a CEB form, and it contains a CEB docket number as well as an IID number. Section 16-42(e) calls for the IID to investigate a complaint within ninety days of its receipt and transmit a report to the CEB.

It appears that the IID investigated Mr. Artis’s complaint. But the record contains no hint of any further CEB action, such as findings and recommendations. Thus, we cannot say that in this case the CEB process was the basis for or, indeed, played any part in generating the Department’s disciplinary actions against Captain Andrew. ¹⁰ As a consequence, the issue of whether the CEB law somehow bypasses the LEOBR simply is not before us. The second set of local provisions upon which the Department relies are those granting the police commissioner certain powers regarding discipline of police personnel.

Turning again to the Code of Public Local Laws of Baltimore City, we find that subsections 16-7(7) and (8) give the commissioner broad authority to “reduce in rank, ... reassign, reclassify, retire and discharge all members of the Department” and to “regulate attendance, conduct, training, discipline and procedure for all members of the Department and to make all other rules, regulations and orders as may be necessary for the good government of the Department and of its members.” See also § 16-11 (section spells out in detail police disciplinary procedures, which are to be carried out “in accordance with rules, regulations, or orders to be prescribed by the Commissioner for the government and discipline of members of the Department”). From this the Department reasons that the “much broader public policy considerations of maintaining the integrity of the department and of promoting public confidence in the conduct of police officers dictates that any acts of misconduct may be independently investigated and properly pursued by the department or commissioner regardless of the LEOBR.” Alternatively, the Department asserts that we ha,ve held that there is no conflict between “the statutory scheme governing the Police Department under the Public Local Law [and the requirements] set out in the LEOBR.” To support the latter argument, it cites Police Comm’r v. Dowling, 281 Md. 412 , 379 A.2d 1007 (1977). In Dowling , we did point out that the LEOBR does not preempt the Code of Public Local Laws of Baltimore City, since both enactments were accomplished by the General Assembly. Preemption, strictly speaking, deals with action of a higher legislative authority vis-á-vis that of a lower legislative authority.

Id. at 417-418 , 379 A.2d at 1010 . And we said, in a rather general way, that the procedures spelled out in § 16-11 of the Code of Public Local Laws prescribe hearing ¹¹ procedures “similar to those provided in the” LEOBR. Id. at 416, 379 A.2d at 1009 . But we did not hold that there is no conflict between the LEOBR and any provision of Title 16 of the Code of Public Local Laws or the regulations promulgated thereunder.

Dowling involved the question whether the police commissioner had authority to review the actions of a departmental trial board. At the time of the proceeding against Dowling, the LEOBR had no specific provision in this regard; § 16-ll(d) expressly gave (and still gives) the commissioner power to review board findings and conclusions and to “affirm, reverse, or otherwise modify the action taken by the Disciplinary Board.” We held that the two statutes could be harmonized by a construction whereby the board recommendations required by Article 27, § 731 would “be transmitted to the Commissioner for his ultimate decision, just as a master makes findings and recommendations to a chancellor.” 281 Md. at 423 , 379 A.2d at 1013 . The situation in Dowling allowed room for that construction, because the LEOBR contained no explicit prohibition against review by the commissioner. 3 Those circumstances are not present here. If Title 16 of the Public Local Laws or the regulations promulgated thereunder authorize the Department to process a brutality complaint even though a sworn complaint is filed more than 90 days after the alleged incident, and if § 728(b)(4) of the LEOBR prohibits such a procedure, the two are in conflict.

We must, therefore, consider the Department’s contention that the Code of Public Local Laws supersedes the LEOBR. ¹² We reject this argument. We read a statute in a way that will carry out the goal or objective the legislature was seeking to accomplish. Kaczorowski v. City of Baltimore, 309 Md. 505, 516, 525 , A.2d 628, 633 (1987). In enacting the LEOBR, the legislature sought to guarantee specified procedural safeguards to certain law enforcement officers subject to investigations that might lead to disciplinary actions.

Montgomery Co. Dep’t of Police v. Lumpkin, 51 Md.App. 557, 566 , 444 A.2d 469, 473 (1982). Any law enforcement officer covered by the LEOBR is entitled to the protections it offers with respect to a departmental inquiry that could lead to disciplinary sanctions. DiGrazia v. County Exec. for Mont. Co., 288 Md. 437, 452 , 418 A.2d 1191, 1200 (1980).

If a police commissioner or chief vested with regulation-making authority could use those regulations to strip away those protections, the LEOBR would be little more than a set of hortatory guidelines to be disregarded at the whim of local officials. We do not believe that this was the legislative plan. To begin with, pertinent provisions of the Code of Public Local Laws for Baltimore City show no intent to override general laws. For example, § 16-7(7), giving the commissioner authority to promote, demote, reassign, retire, and discharge Baltimore police officers, expressly says that these things may be done only in “the manner prescribed by law.” By the same token, as we have already noted, § 16-45 (part of the CEB subtitle) makes plain that nothing therein “may abrogate any ... statutory ... right of police personnel against whom a complaint is filed.” This language in no way suggests a legislative purpose to grant the police commissioner a free-wheeling power to disregard a statute specifically dealing with police discipline.

Section 16-45’s reference to statutory rights seems especially significant, since the General Assembly that enacted it (by Ch. 889, Acts of 1975) had adopted the LEOBR but one year previously. More to the point, however, is the language of the LEOBR itself. The initial enactment of this law was by ¹³ Chapter 722 of the Acts of 1974. Section 2 of that act displays a legislative purpose to make the LEOBR the governing statute within its field of operations: “[A]ll laws or parts of laws, public general or public local, inconsistent with this Act, are repealed to the extent of the inconsistency.”