Baltimore Police Dept. v. Antonin

Panel: Woodward, C.J., Eyler, Deborah S., Reed, JJ. Eyler, Deborah S., J. ^{813 351} A hearing board for the Baltimore Police Department ("BPD") found Officer Serge Antonin guilty of general misconduct and use of excessive force. The BPD Police Commissioner terminated Antonin's employment. On judicial review, the Circuit Court for Baltimore City reversed the final agency decision and ordered that Antonin be reinstated.

It found that the BPD had erred by denying Antonin's request to be tried before a hearing board composed of non-BPD officers. It also found that the BPD did not adhere to its own administrative policy regarding use of force, ³⁵² in violation of the Accardi doctrine, 1 and that Antonin suffered prejudice as a result. The BPD noted a timely appeal and presents two questions for review, which we have rephrased: I. Did the BPD improperly deny Antonin's request for a hearing board composed of non-BPD officers?

II

Did the BPD violate the Accardi doctrine, causing prejudice to Antonin? We answer each question in the negative. Accordingly, we shall reverse the judgment of the circuit court and reinstate the final agency decision terminating Antonin from employment. FACTS AND PROCEEDINGS At about 6:10 p.m. on July 29, 2013, BPD officers in marked vehicles responded to reports of a stolen car being driven south on Belair Road in northeast Baltimore City.

The driver of the car later was identified as fourteen-year-old David Wilson. When Wilson saw that he was being chased by the police, he sped up, veered off the road, and crashed into two parked cars in a corner lot. A news helicopter for WBAL-TV videotaped the police chase and its aftermath. Multiple police units arrived at the scene of the crash and officers surrounded the stolen car.

The front end of the car was damaged, and Wilson had moved to the passenger's seat. Officers Theodore Galfi and Gersham Cupid approached the passenger-side door and pulled Wilson out of the vehicle. 2 They placed him on the ground in a prone position and began to handcuff him. Wilson resisted initially, but neither officer felt threatened and both thought that Wilson was effectively detained after being put on the ground. ³⁵³ Antonin was toward the end of the line of police vehicles in the chase, driving a prisoner transport wagon from the Northeast District. He arrived on the scene as Officers Galfi and Cupid were detaining Wilson.

By then he knew the chase had ended in the Eastern District, so the suspect would be transported by a wagon from that district and not by him. When Antonin arrived, about six officers were clustered around Officers Galfi and ⁸¹⁴ Cupid, who were standing over Wilson. Antonin got out of his wagon, quickly made his way through the group of officers to approach Wilson, and hit Wilson on the head with an open hand. Wilson was not handcuffed at that point.

Antonin stepped away from Wilson after he was handcuffed. Seconds later, Antonin approached Wilson a second time, grabbed him, and hit him several more times on the head with an open hand. That evening, WBAL-TV aired footage of the chase and Wilson's arrest, which showed Antonin hitting Wilson on the head. Shortly after WBAL-TV released the footage, then-Deputy Commissioner Jeronimo Rodriguez gave the following statement to the news station: We did not like what we saw.

We are not waiting for anyone to initiate a personnel complaint. At the Commissioner's request we have initiated a personnel complaint and we are looking at this incident thoroughly from the beginning, during this incident, and immediately after. At around 11:30 p.m., Sergeant Christopher Warren, acting under the order of then-Colonel Darryl DeSousa, Chief of Patrol, suspended Antonin from duty with pay pending further investigation into the incident. At 1:30 a.m. on July 30, 2013, Sergeant Warren briefed a detective with the BPD Internal Affairs Division ("IAD") about the incident.

IAD began its investigation that day into Antonin's use of force to determine whether he had 1) engaged in general misconduct in violation of General Order C-2 Rule 1 3 and 2) used excessive force in violation of General ³⁵⁴ Order C-2 Rule 1, Section 6. 4 Between July 30 and November 5, 2013, IAD detectives interviewed fourteen officers who were on the scene when Wilson was arrested. Of the fourteen, only Officers Galfi and Cupid actually saw Antonin hit Wilson. Both stated that Antonin hit Wilson after Wilson had been handcuffed. IAD detectives also obtained the WBAL-TV footage of the incident.

Because Antonin faced the possibility of criminal charges, IAD detectives delayed interviewing him. On July 28, 2014, Antonin was charged with second-degree assault and two counts of misconduct in office, based on the incident involving Wilson. In an article about the charges, the Baltimore Sun quoted Deputy Commissioner Rodriguez as saying, "We will not tolerate the actions of any officer that breaks the law in order to enforce the law." In April 2015, while Antonin's criminal case was pending, Deputy Commissioner Rodriguez retired. On October 5, 2015, Antonin entered an Alford plea to one charge of misconduct in office, and the State dismissed the remaining two charges against him.

He was given probation before judgment, with one year ⁸¹⁵ of unsupervised probation. He completed all terms of his probation satisfactorily. Following the disposition of Antonin's criminal case, the IAD resumed its investigation. On March 10, 2016, IAD Detective Jeffrey Thomas interviewed Antonin.

Antonin acknowledged ³⁵⁵ hitting Wilson twice. He said he hit him the first time to make him submit to being handcuffed. He said he hit him the second time because he had to "take him to my wagon" and he overheard Officer Cupid say something to the effect of "don't spit" or "stop spitting." Later in the same interview, he explained that he hit Wilson the second time because "I thought he was going to spit on me[.]" 5 Antonin admitted to being upset about Wilson's reckless driving and to yelling at Wilson, "you could have killed somebody ...." On March 26, 2016, the IAD issued to the BPD Charging Committee its written report of investigation and finding on the allegations against Antonin. The report summarized the witness interviews and the evidence the IAD had reviewed, including the WBAL-TV videotape of the incident, and found: In his recorded statement, Officer Antonin admitted to striking Mr. Wilson twice with an open hand, during the events that occurred on July 29, 2013.

Officer Antonin claimed that the first slap was meant to neutralize the on-going threat of Mr. Wilson's evasion of arrest and escape, and the second slap was the [sic] deter any attempt by Mr. Wilson to spit on Officer Antonin. Officer Antonin insisted that his actions were taken all in reasonable attempts to control Mr. Wilson. In spite of his claims, video footage of this incident shows that Officer Antonin was clearly not in control of his actions, considering the manner in which he hurriedly runs toward Mr. Wilson, slaps him twice in rapid succession, and then briskly walks away in the footage. This behavior is more so characteristic of an emotional frenzy as opposed to a controlled response to a rebellious combatant.

Furthermore, witness statements as well as Officer Antonin's own admission relayed that he was upset during this incident, further discrediting the notion that he was in full control of his actions during this incident. Additionally, regardless of whether or not Mr. Wilson was handcuffed at the time of Officer Antonin's arrival, there ³⁵⁶ was sufficient police presence at the time to adequately control his movements and any use of force would have been excessive. This is evidenced by the fact that Sergeant Christopher Warren, upon observing Sergeant Jason Bennett displaying his taser, quickly admonished Officer Bennett, knowing that this situation was controlled enough that the use of a taser would have been inappropriate. For the same reason that Officer Bennett's use of a taser would have been unwarranted, any use of force performed by Officer Antonin, likewise, was unwarranted, especially considering the fact that Officer Antonin used force after Officer Bennett had holstered his taser.

The IAD found "that the allegations of Misconduct/General and Excessive Force pertaining to Officer Serge Antonin are rendered Sustained ." Antonin was charged administratively and chose to proceed before a hearing board. Pursuant to the Law Enforcement ⁸¹⁶ Officers' Bill of Rights ("LEOBR"), Md. Code (2003, 2011 Repl. Vol.), sections 3-101 to 3-113 of the Public Safety Article ("PS"), hearing boards in law enforcement officer disciplinary matters are to consist of at least three members who "are appointed by the chief and chosen from law enforcement officers within th[e] law enforcement agency [that initiated the investigation], or from law enforcement officers of another law enforcement agency with the approval of the chief of the other agency[.]" PS § 3-107(c)(1)(i). One week before Antonin's hearing board was to begin, his lawyer requested in writing that the hearing board be composed of non-BPD officers.

He argued that Deputy Commissioner Rodriguez's statements after the WBAL-TV footage aired and after Antonin was charged criminally showed that it was "highly improbable that officers selected by the [BPD] to sit in judgment of the officer [Antonin] are neutral and unbiased and not influenced by the administration." The request was denied by BPD Police Commissioner Kevin Davis.. Antonin's hearing began on October 26, 2016, and lasted two days. The members of the hearing board were BPD Major Robert Jackson, BPD Major George Clinedinst, and BPD ³⁵⁷ Officer Bobbie Gilliam. As a preliminary matter, counsel for Antonin argued that the hearing board did not have jurisdiction over his case because the BPD had not followed its own procedure for investigating his use of force.

He explained that "nobody did a use of force investigation or report [pursuant to BPD General Order K-15] as required under Accardi .... In other words, S[ergeant] Warren was supposed to do certain things, reports were supposed to be generated immediately. It wasn't done." Counsel for the BPD responded that the BPD may "independently investigate any actions of its members" and that its "independent investigation can go forward without a formal use of force or excessive force charge being filed by the Department and/or its members." The hearing board rejected Antonin's argument, and the hearing proceeded. 6 The Board watched the WBAL-TV footage of the incident and heard testimony from seven witnesses, including Antonin, Detective Thomas, and Officers Galfi and Cupid. 7 It took Antonin's Alford plea into consideration. The Board found Antonin guilty of general misconduct and use of excessive force, explaining that "Antonin unnecessarily used force and struck ...

Wilson several times with an open hand after he was effectively detained by other police officers." It recommended termination. On November 8, 2016, Commissioner Davis adopted the recommendation and terminated Antonin. In the Circuit Court for Baltimore City, Antonin filed a timely action for judicial review. He argued, among other points, that the BPD violated his due process rights by denying his request to have his case heard by non-BPD officers and by failing to adhere to its own administrative procedure on use of force, to his prejudice.

The court agreed ³⁵⁸ with Antonin on those two grounds. In deciding that Antonin was entitled to a hearing board composed of non-BPD members, the court opined, "based on the statements of Deputy Commissioner ⁸¹⁷ Rodriguez and the media attention surrounding [Antonin's] conduct, the ... hearing board, composed of BPD officers, was not neutral." It found that Deputy Commissioner Rodriguez's statement on the day of the incident "demonstrates that the BPD had already condemned [Antonin's] conduct, prior to any investigation or criminal charges." It further found that Deputy Commissioner Rodriguez's two statements together "demonstrate the position of the BPD: [Antonin] was guilty of excessive force before a conviction or a hearing." The court also found that "the BPD did not comply with its internal policies," specifically, that one of Antonin's supervisors should have issued a use of force report about the incident, pursuant to General Order K-15, and that Antonin was prejudiced by the absence of a use of force report. Although a report by the first rank supervisor may have indicated that [Antonin] did violate the Use of Force policy, it could also have indicated that he did not. Such a report could have significantly altered the findings of the ... board. ...

A report from a supervisor who had investigated this almost immediately after the incident would have been invaluable for both sides as evidence to present at the hearing. [T]he majority of witnesses were not interviewed until some 90 days after the conduct occurred. Had BPD complied, these witnesses to the incident would have been interviewed shortly after the [Antonin]'s conduct occurred. Of the fourteen officers interviewed by IAD, ten were interviewed between October 28, 2013 and November 5, 2013. These interviews occurred after statements by [Deputy] Commissioner Rodriguez had been made, the footage had aired on WBAL, and the interviews were conducted by IAD, not the first rank supervisor....

In addition, [Antonin] was not interviewed until almost two and a half years ³⁵⁹ after the incident. Although BPD argued that IAD wanted to wait to interview [Antonin] until after the criminal case concluded, [Antonin] entered the Alford plea on October 5, 2014, yet IAD did not interview [Antonin] until a year and a half later on March 10, 2016. [ 8 ] The court ruled that the final agency action could not stand under Accardi . 9 The BPD noted this timely appeal. STANDARD OF REVIEW The standard of review in a LEOBR case " 'is that generally applicable to administrative appeals.' " Coleman v. Anne Arundel Cty. Police Dep't. , 369 Md. 108 , 121, 797 A.2d 770 (2002) (quoting Montgomery Cty. v. Stevens , 337 Md. 471 , 482, 654 A.2d 877 (1995) ).

We are tasked with determining whether the administrative agency, as opposed to the circuit court, erred. Baltimore Police Dep't. v. Ellsworth , 211 Md. App. 198 , 207, 63 A.3d 1192 (2013) (citing Bayly Crossing, LLC v. Consumer Prot. Div., Office of Atty. Gen. , 417 Md. 128 , 136, 9 A.3d 4 (2010) ).

Accordingly, " 'we bypass the judgment of the circuit court and look directly at the administrative decision.' " Id. (quoting ⁸¹⁸ Salisbury Univ. v. Joseph M. Zimmer, Inc. 199 Md. App. 163 , 166, 20 A.3d 838 (2011) ). " 'In reviewing an administrative agency decision, we are limited to determining if there is substantial evidence in the record as a whole to support the agency's finding and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law." Id. (quoting Mehrling v. Nationwide Ins.

Co. , 371 Md. 40 , 57, 806 A.2d 662 (2002) ). While we review an administrative agency's conclusion ³⁶⁰ of law de novo , Coleman , 369 Md. at 122 , 797 A.2d 770 , "an administrative agency's interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Bd. of Physician Quality Assur. v. Banks , 354 Md. 59 , 69, 729 A.2d 376 (1999) (citing Lussier v. Maryland Racing Comm'n , 343 Md. 681 , 696-97, 684 A.2d 804 (1996) ). DISCUSSION I. Antonin contends the BPD violated his procedural due process rights because the hearing board was composed of BPD members, and BPD members could not be impartial.

He argues that the two separate statements [that] were made by Deputy Commissioner Rodriguez ... demonstrated that it was the [BPD]'s belief that A[ntonin] was guilty of excessive force before there was any hearing conducted nor any determination of A[ntonin]'s guilt as a matter of law. There was also significant media coverage generated after the release of the video. He maintains that Sewell v. Norris , 148 Md. App. 122 , 811 A.2d 349 (2002), supports his position (and the circuit court's ruling in his favor on this issue). The BPD contends this case differs significantly from Sewell and the circuit court's ruling was in error.

Specifically, the two statements by Deputy Commissioner Rodriquez were not such as would lead BPD hearing board members to believe that only one outcome-against Antonin-would be acceptable to the command leadership and, in any event, there had been a complete turnover in the command leadership by the time of the hearing board. "[P]rocedural due process in an administrative proceeding 'requires that administrative agencies performing adjudicatory or quasi-judicial functions observe the basic principles of fairness as to parties appearing before them.' " Coleman , 369 Md. at 142 , 797 A.2d 770 (quoting ³⁶¹ Gigeous v. Eastern Corr. Inst. , 363 Md. 481 , 509, 769 A.2d 912 (2001) ). As such, parties appearing before an administrative hearing board are entitled to a board that consists of impartial members.

Sewell , 148 Md. App. at 136 , 811 A.2d 349 ("A necessary component of a fair trial is an impartial judge.") (citation omitted). The Court of Appeals has explained, however, that [T]here is a strong presumption in Maryland ... and elsewhere ... that [decision makers in judicial and quasi-judicial proceedings] are impartial participants in the legal process, whose duty to preside when qualified is as strong as their duty to refrain from presiding when not qualified.... The recusal decision, therefore, is discretionary ... and the exercise of that discretion will not be overturned except for abuse. Regan v. State Bd.

Of Chiropractic Examiners , 355 Md. 397 , 410-11, 735 A.2d 991 (1999) (quoting Jefferson-El v. State , 330 Md. 99 , 107, 622 A.2d 737 (1993) ). In determining whether a decision-maker is impartial, we look for an appearance of impropriety rather than " 'delving into the ⁸¹⁹ subjective mindset of the challenged' " decision maker. Id. at 411, 735 A.2d 991 (quoting Surratt v. Prince George's Cty. , 320 Md. 439 , 468, 578 A.2d 745 (1990) ). Thus, the test is objective: " 'whether a reasonable member of the public knowing all the circumstances would be led to the conclusion that the [decisionmaker]'s impartiality might reasonably be questioned.' " Id.

(quoting In re Turney , 311 Md. 246 , 253, 533 A.2d 916 (1987) ). In Sewell , the BPD Internal Affairs Integrity Unit conducted a "random undercover sting operation" designed to expose "dirty" officers. 148 Md. App. at 126 , 811 A.2d 349 . From what was observed, BPD Officer Sewell was thought to have planted drugs on a suspect. He was indicted for perjury and misconduct in office.

His "criminal charges received extensive publicity, including thirty-three newspaper articles that appeared in the Baltimore Sun " in a five-week period. Id. at 127 , 811 A.2d 349 . A few months later, the Baltimore City State's Attorney's Office dismissed the criminal charges against Sewell. This ³⁶² produced heated negative reactions from then-BPD Commissioner Edward Norris and then-Mayor Martin O'Malley.

The Baltimore Sun reprinted a statement by Commissioner Norris, made on the day of Sewell's arrest, that described Sewell's conduct as "a horrible breach of the public trust[.]" Id. at 128 , 811 A.2d 349 . It further quoted Commissioner Norris as saying: "We are extremely disappointed in the State's Attorney's decision not to move forward with [Sewell's] case, but defer to their judgment in doing so," [and that the decision to drop the criminal case] "will certainly not deter the efforts of the ... Department in its commitment to root out corrupt police officers and to restore the integrity of the agency." Id. The Baltimore Sun recounted Mayor O'Malley's unvarnished commentary as follows: "I think the failing in these cases to not go forward, and I'll be goddamned if we're going to stop doing integrity cases and doing stings just because we have a prosecutor who's afraid to go forward and try them," said [the Mayor], who has been critical of [the State's Attorney] in the past.

"Maybe we'll find a prosecutor with a little bit of guts to go forward," he said. "I talked to her before she dropped this case ... begged her, pleaded with her and tried to persuade her to go forward with this case. She said, 'No, too many red herrings.' I think the poor woman must have been attacked by red herrings when she was a child. She sees red herrings everywhere." [The Mayor] said he and the Police Department are considering finding a way to prosecute integrity cases without [the State's Attorney], if possible.

He also noted that Sewell has to appear before a departmental trial board. "He's not going to serve in my Police Department ," [the Mayor] said. Id. at 127 n. 5, 811 A.2d 349 (emphasis in Sewell ). Sewell was charged administratively.

Before his hearing board took place, he filed a petition to show cause in the ³⁶³ circuit court, asking the court to order the BPD to select members for the hearing board from a law enforcement agency other than the BPD. The court denied that request on the ground that it did not have authority to grant it. Sewell noted an appeal to this Court, challenging the denial of his request. 10 We ⁸²⁰ reversed. Reasoning that procedural due process mandates fair tribunals, we held that the circuit court had authority to direct that the BPD select non-BPD members for Sewell's hearing board and, under the facts of the case, it erred by not doing so.

As to the latter, we explained: [D]ue process ... is not a rigid concept .... [It] is flexible and calls only for such procedural protections as the particular situation demands.... [I]n determining what process is due, the Court will balance the private and government interests affected.... In that regard, we apply the following balancing test developed by the Supreme Court in Mathews [ v. Eldridge ], 424 U.S. [319,] 335, 96 S.Ct. 893 , 47 L.Ed.2d 18 ... [ (1976) ], to assist us in our endeavor: Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 134-35, 811 A.2d 349 (quoting Coleman , 369 Md. at 143 -44 , 797 A.2d 770 ) (some quotations omitted). We observed that the LEOBR allows a hearing board to be composed of officers from another agency, with approval of the police chief of that ³⁶⁴ agency, and that "[i]t is obvious that the deliberate selection of a hearing board that is biased against an officer would constitute a violation of the procedural safeguards required by the due process clause." Id. at 135 , 811 A.2d 349 .

We considered the Mathews factors, and decided that they weighed in favor of requiring non-BPD officers on Sewell's hearing board. We concluded that because of the intense public comments against Sewell by the Commissioner and Mayor, BPD officers selected to serve on Sewell's hearing board would fear adverse employment action if they were to find in Sewell's favor. Therefore, Sewell's "right to due process was violated by the selection of a hearing board comprised of B[ ]PD officers." Id. Moreover,