Manger v. Fraternal Order of Police

ROBERT A. ZARNOCH, J. (Retired, Specially Assigned). The Law Enforcement Officers’ Bill of Rights (“LEOBR”), enacted in 1974 and presently codified at Maryland Code (2003, 2011 RepLVol.), §§ 3-101 through -113 of the Public Safety Article (“P.S.”), provides procedural protections for law enforcement officers under internal investigation. At issue in this appeal is the requirement that a police department keep a “complete record” of any interrogation of a police officer facing potential disciplinary proceedings.

See P.S. § 3-104(k). ¹⁴⁵ In late 2014, appellant, the Montgomery County Police Department (“MCPD” or the “Department”) altered its interrogation policy to utilize video recording technology to keep a complete record of interrogations of officers. When three officers were notified that they had been scheduled for interrogation, appellee, the Fraternal Order of Police, Lodge 35 (the “FOP”), filed a show cause petition on behalf of the officers in the Circuit Court for Montgomery County to enjoin the Department from keeping a video record of the interrogations. After a hearing, the circuit court found in favor of the FOP, ordered the officers’ interrogations to proceed without video recording, and issued an injunction prohibiting video recording of other officer interrogations. The Department appealed and presents one question for our review: Does the LEOBR’s requirement that a law enforcement agency keep a “complete record” of its interrogation of a law enforcement officer, which “may be written, taped, or transcribed,” limit the law enforcement agency to using audio tape and forbid the law enforcement agency from using video tape to record the interrogation?

Because we find nothing in the LEOBR that bars a police department from using a video recorder to keep a complete record of an interrogation conducted pursuant to the LEOBR, we reverse the judgment of the circuit court. BACKGROUND Three police officers employed by Montgomery County Police Department came under internal investigation in early 2015, after an arrestee filed a complaint against them. Before this investigation began, J. Thomas Manger, Chief of Police for the MCPD, in a memorandum dated November 24, 2014, directed the Internal Affairs Division to begin “video as well as audio recording of interrogations pursuant to LEOBR Sec. 3-104(k)(2).” Prior to this time, interrogations were audio recorded only. Before the interrogation could take place, the FOP filed a show cause petition in the circuit court on behalf ¹⁴⁶ of the three officers under investigation. 1 The contested provision, § 3-104(k), provides that a department shall keep a “complete record” of its interrogation of an officer and that this record “may be written, taped, or transcribed.” 2 At a hearing held on March 17, 2015, the FOP sought to halt the video recording of all officer interrogations, arguing that the term “taped” in § 3-104(k)(2) permitted only audio recording of interrogations, and, thus, keeping a video record of the interrogation violated the LEOBR.

The Department responded that the show cause petition was inappropriate because no right of the officers had been infringed. It also argued that interpreting the word “taped” to encompass video recording furthered the complete record requirement and allowed the Department to keep video records of officer interrogations. On March 26, 2015, the court issued an opinion and an order finding for the FOP and prohibiting videotaped interrogations. Discounting the Department’s arguments, the court found that video recording could jeopardize the officer’s right to a fair hearing, and, accordingly, ruled that a show cause petition was appropriate.

Next, the court determined that both the purpose and the specific terms of the LEOBR established that the provision at issue did not authorize video recording officers’ interrogations. Specifically, it held that “the statute, as written does not encompass video recording,” and enjoined appellants from using video recording devices during LEOBR-governed interrogations. The court also ordered the interrogations of the three officers under investigation to proceed without using video recording as a record-keeping method. 3 ¹⁴⁷ The Department appealed to this Court on April 15, 2015. DISCUSSION The heart of this case involves an interpretation of the LEOBR.

We review a circuit court’s interpretation of statutory provisions de novo. Maryland-Nat’l Capital Park & Planning Comm’n v. Anderson, 395 Md. 172, 181 , 909 A.2d 694 (2006). In statutory construction, three factors predominate: 1) statutory text; 2) statutory purpose; and 3) consequences of different statutory interpretations. Town of Oxford v. Koste, 204 Md.App. 578, 585 , 42 A.3d 637 (2012), aff'd, 431 Md. 14 , 63 A.3d 582 (2013). “Text is the plain language of the relevant provision, typically given its ordinary meaning, viewed in context, considered in light of the whole statute, and generally evaluated for ambiguity.” Id.

(Citations omitted). Legislative purpose, gleaned either from the text or from external sources, informs our reading of the statute. Kaczorowski v. Mayor & City Council of Baltimore, 309 Md. 505, 512-15 , 525 A.2d 628 (1987). Finally, “[a]n examination of interpretive consequences, either as a comparison of the results of each proffered construction, or as a principle of avoidance of an absurd or unreasonable reading, grounds the court’s interpretation in reality.” Koste, 204 Md.App. at 586 , 42 A.3d 637 (Citations omitted).

Our analysis begins with an overview of the statute in question. The Law Enforcement Officers’ Bill of Rights was enacted in 1974 to provide procedural safeguards to police officers facing potential disciplinary proceedings. Section 3- ¹⁴⁸ 104 describes the procedures that must be followed in an investigation or interrogation by a law enforcement agency of a law enforcement officer for a reason that may lead to disciplinary action, demotion, or dismissal. For example, the section specifies who may interrogate the officer, provides restrictions on the time, place, and conduct of the interrogation, and generally gives greater protections to officers than are given to ordinary criminal suspects. 4 The subsection at issue here, § 3-104(k), specifies that: (1) A complete record shall be kept of the entire interrogation, including all recess periods, of the law enforcement officer.

(2) The record may be written, taped, or transcribed. (3) On completion of the investigation, and on request of the law enforcement officer under investigation or the law enforcement officer’s counsel or representative, a copy of the ¹⁴⁹ record of the interrogation shall be made available at least 10 days before a hearing. In this case, in accordance with the requirement in subsection (k)(l) that a “complete record shall be kept of the entire interrogation, including all recess periods, of the law enforcement officer,” the Department implemented procedures to visually record all interrogations. The FOP contends that video recording violates subsection (k)(2) because the term “tape[]” does not encompass videotape or other visual recording.

The FOP urges us to interpret subsection (k)(2) as providing the exclusive means to record the interrogation, i.e., in written form, audio tape, or transcription. We see no reason to do so. The plain text of the statute requires a “complete record” to “be kept of the entire interrogation[.]” Subsection (k)(2) lists several means of obtaining a complete record, declaring that the “record may be written, taped, or transcribed.” (Emphasis added). Nothing in the text of the statute indicates that the enumerated methods of creating a record are the exclusive methods that a police department may employ.

On the contrary, the use of the term “may” indicates that the methods described are nonexclusive. This contrasts with the legislature’s use of the word “shall” in subsection (k)(l) to mandate that a complete record be kept. Subsection (k)(2) is permissive in nature, while subsection (k)(l) is mandatory. The FOP urges us to employ the canon of statutory construction, noscüur a sociis, which suggests “that words grouped in a list should be given related meaning,” Massachusetts v. Morash, 490 U.S. 107, 114-115 , 109 S.Ct. 1668 , 104 L.Ed.2d 98 (1989), to interpret the words “written, taped, or transcribed” to refer to methods of preserving spoken word and not other aspects of the interrogation.

We first note that subsection (k)(l) requires that the record include more than just the unadorned words uttered during the interrogation, as demonstrated by the statute’s requirement that the record preserve the recess periods during the interrogation. Further, we would be remiss if we did not ¹⁵⁰ observe that the methods of recording suggested by the statute are able to record other information beyond the words spoken in interrogation. For example, many students of depositions and court transcripts know that attorneys occasionally request that the “record reflect” an action taken by a witness or a deponent, such as making a pointing gesture toward a defendant or nodding in agreement. A written or transcribed interrogation implemented pursuant to the LEOBR may contain these items as well.

An audiotape recording would contain even more information. The recording would preserve the atmosphere of questioning and the tenor of the officer’s response. It would also record the seconds or minutes that pass between the asking of the question and the response. And, it would record ineffable qualities such as confidence or anger, qualities certainly missing from a written or transcribed record.

Thus, even employing the canon of statutory interpretation noscitur a sociis, the three words in subsection (k)(2) do not demand the narrow interpretation of only the spoken word. The disparate information that may be collected by each method belies the FOP’s interpretation of the subsection. In sum, we do not observe a commonality among these three methods — writing, taping, and transcribing — that requires us to interpret the statute as requiring the preservation of the spoken word and nothing more. Taking another tack, the FOP requests that we define the term, “taped,” to include only audio recordings because audiotape was the most commonly used tape technology at the time. 5 The FOP argues that the General As ¹⁵¹ sembly would have inserted “videotape” or “DVD” during the recodification of the LEOBR sections of Article 27 into the Public Safety Article in 2003. 6 “It is true that in endeavoring