Petition for Writ of Certiorari — Serge Antonin, Petitioner v. Baltimore Police Department

No. _______

In The

Supreme Court of the United States

SERGE ANTONIN,

Petitioner,

V.

BALTIMORE POLICE DEPARTMENT,

Respondent.

On Petition for a Writ of Certiorari

to the Court of Appeals of Maryland

APPENDIX

Clarke F. Ahlers

Attorney at Law

10450 Shaker Drive

Suite 111

Columbia, MD 21046

410-740-1444

cahlers@aol.com

Counsel of Record for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

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IN THE COURT OF APPEALS OF MARYLAND

* Petition Docket No. 226

September Term, 2018

(No. 443, Sept. Term, 2017 *Court of Special

Appeals)

SERGE ANTONIN

v.

BALTIMORE POLICE DEPT.

ORDER

Upon consideration of the petition for a writ of

certiorari to the Court of Special Appeals and the

answer filed thereto, in the above entitled case, it is

ORDERED, by the Court of Appeals of Maryland,

that the petition be, and it is hereby, denied as there

has been no showing that review by certiorari is

desirable and in the public interest.

/s/ Mary Ellen Barbera

Chief Judge

DATE: September 28, 2018

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REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 443

September Term, 2017

BALTIMORE POLICE DEPARTMENT

v.

SERGE ANTONIN

Woodward, C,J., Eyler, Deborah S., Reed, JJ.

Opinion by Eyler, Deborah S., J.

Filed: June 1, 2018

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, in violation of the Accardi

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doctrine1, 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 nonBPD officers?

II. Did the BPD violate the Accardi doctrinc,

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: I0 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

1 See United States ex rli. Accardi v. Shaughnessy, 347 U.S. 260

(1954).

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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 e1Tectively detained after being put on

the ground.

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 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:

2 Officer Cupid attained the rank of Sergeant before this case

proceeded to a hearing board. For consistency, we shall refer to

him as Officer Cupid.

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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 II :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 13 and 2) used excessive force in violation of

General Order C-2 Rule 1, Section 6.4 Between July

3 General Order C-2 Rule 1 provides:

Any breach of the peace, neglect of duty, misconduct or any

conduct on the part of any member of the Department, either

within or outside the City of Baltimore, which tends to

undermine the good order, efficiency or discipline of the

Department, or which reflects discredit upon the

Department or any member thereof, or which is prejudicial to

the efficiency and discipline of the Department, even though

these offenses may not be specifically enumerated or laid down,

shall be considered conduct unbecoming a member of the

B[PD], and subject to disciplinary action by the Police

Commissioner.

4 General Order C-2 Rule I, Section 6 provides:

Every member of the Department is prohibited from using

unnecessary force or violence and shall not strike a prisoner or

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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 alter

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 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 hitting Wilson

twice. He said he hit him the first time to make him

submit to being handcuffed. He said he hit him the

any other person, except in self-defense. However, members

must be firm and resolute, and if they are resisted, they may

repel force with force, using only such force as is necessary to

take a prisoner into custody.

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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 ongoing 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. [n 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

5 Neither Officer Cupid nor Officer Galfi made any mention in

their IAD interviews of Wilson spitting or threatening to spit.

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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 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.”

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Antonin was charged administratively and

chose to proceed before a hearing board. Pursuant to

the Law Enforcement 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 S 3-107(c)(I)(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 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

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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

6 Antonin unsuccessfully renewed his motion to have the

hearing board members replaced with non-BPD officers.

7 The hearing board also heard from Sergeant Freddie Bland,

who first reported the stolen vehicle, and Officers Rebecca

Small and Elsie McCray, who pursued Wilson during the chase.

(At the time of the incident and when she was interviewed by

the IAD, Officer Small’s last name was Ward.) None of them

saw the interaction between Antonin and Wilson in which

Antonin hit Wilson.

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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 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 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: [Anton in] 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

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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, [Anton in] was not

interviewed until almost two and a half

years after the incident. Although BPD

argued that IAD wanted to wait to interview

[Anton in] until after the criminal case

concluded, [Antonin] entered the Alford plea

on October 5, 2014, yet IAD did not interview

[Anton in] 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

8 Officer Antonin entered his Alford plea on October 5, 2015,

not 2014. Accordingly, IAD interviewed Officer Antonin five

months after his Alford plea.

9 In its order, the court stated that if the BPO “decides to retry

this matter, it must use a hearing board comprised of officers of

a different law enforcement agency[.]” It did not explain,

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The BPO 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 (2002) (quoting Montgomery Cty. v.

Stevens, 337 Md. 471, 482 (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 (2013) (citing Bayly Crossing, LLC v.

Consumer Prot. Div., Office of Atty. Gen., 417 Md.

128, 136 (2010)). Accordingly, “‘we bypass the

judgment of the circuit court and look directly at the

administrative decision.’” Id. (quoting Salisbury

Univ. v. Joseph M Zimmer, Inc. 199 Md. App. 163,

166 (20 II ».

‘‘‘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

(2002». While we review an administrative agency’s

conclusion of law de novo, Coleman, 369 Md. at 122,

“an administrative agency’s interpretation and

application of the statute which the agency

administers should ordinarily be given considerable

weight by reviewing courts. Bd. 01 Physician Quality

Assur. v. Banks, 354 Md. 59, 69 (1999) (citing

however, how the Accardi doctrine violation could be cured by a

new hearing board.

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Lussier v. Maryland Racing Comm ‘n, 343 Md. 681,

696-97 (1996)).

DISCUSSION

I.

Antonin contends the BPO violated his

procedural due process rights because the hearing

board was composed of BPO members, and BPO

members could not be impartial. He argues that the

two separate statements [that] were made by

Deputy Commissioner Rodriguez ...

demonstrated that it was the [BPO],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 (2002), supports his position (and the circuit

court’s ruling in his favor on this issue).

The BPO 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 BPO 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.

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“[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

(quoting Gigeous v. Eastern Corr. Inst., 363 Md. 481,

509 (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 (“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 (1999) (quoting Jefferson-El v. State,

330 Md. 99, 107 (199)). In determining whether a

decision-maker is impartial, we look for an

appearance of impropriety rather than ‘‘‘delving into

the subjective mindset of the challenged’” decision

maker. Id. at 411 (quoting Surrat v. Prince George’s

Cty., 320 Md. 439, 468 (1990». Thus, the test is

objective: ‘‘‘whether a reasonable member of the

public knowing all the circumstances would be led to

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the conclusion that the [decisionmaker]’s

impartiality might reasonably be questioned.’’’ Id.

(quoting In re Turney, 3 I I Md. 246, 253 (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. 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.

A few months later, the Baltimore City State’s

Attorney’s Office dismissed the criminal charges

against Sewell. This 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. 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.”

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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 (emphasis in Sewell).

Sewell was charged administratively. Before

his hearing board took place, he filed a petition to

show cause in the circuit court, asking the court to

order the BPD to select members for the hearing

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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 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 ... [(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

10 After the court denied Sewell’s petition to show cause, the

hearing board went forward. The hearing board found against

him, and he was terminated by the Commissioner. He filed an

action for judicial review which was stayed pending the

outcome of the appeal from the circuit court’s ruling.

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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 (quoting Coleman, 369 Md. at 143-44)

(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 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.

We considered the Mathews factors, and

decided that they weighed in favor of requiring nonBPD 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, selecting non-BPD officers

would “bolster public confidence in the board’s

decision,” id.; the cost of having non-BPD officers

hear Sewell’s case was minimal; and the BPD did

“not have a particularly strong interest in trying”

Sewell. Id. at 136.

As noted, ‘‘‘[d]ue process ... is not a rigid

concept .... [It] is flexible and calls only for such

procedural protections as the particular situation

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demands.’” Id. at 134 (quoting Coleman, 369 Md. at

143). In the instant case, Deputy Commissioner

Rodriguez’s two statements to the press were

measured. He made the first statement in response

to the television broadcast of the videotape clearly

showing a BPD police officer (later identified as

Antonin) slapping a suspect who is on the ground.

Deputy Commissioner Rodriguez said, “We do not

like what we [saw],” obviously referring to the

slapping, and explained the immediate investigative

process the BPD planned to undertake. He did not

say or imply that the officer was guilty of a crime,

insist that the officer be terminated, question the

officer’s integrity, or suggest that it was imperative

that the officer be disciplined. He gave an eventempered reaction to footage of an officer striking a

detained suspect on the head. Deputy Commissioner

Rodriguez’s second statement, made in response to

the filing of criminal charges against Antonin,

communicated what should be obvious, that the BPD

does not approve of officers breaking the law to

enforce the law, i.e., that officers are not immune

from the law. This also was not a statement

implying guilt.

The BPD media statements in this case were

completely unlike those in Sewell. In the media

statements in Sewell, the Commissioner and the

Mayor condemned Sewell for engaging in misconduct

and made clear that they did not want him in the

BPD. Commissioner Norris accused him of “a

horrible breach of the public trust” by “outrageous”

conduct, id. at 127 n.4, and Mayor O’Malley,

observing that Sewell would be going before a

hearing board, announced flat-out that “[h]e’s not

going to serve in my Police Department. ‘“ id. at 138.

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All members of the BPD, and therefore any member

who might be selected for Sewell’s hearing board,

would have known that their boss (the

Commissioner) and their boss’s boss (the Mayor)

wanted Sewell out of the BPD and that, if a hearing

board did not make findings that would enable

Sewell’s termination, there would be a price to pay.

In the case at bar, by contrast, Deputy

Commissioner Rodriguez’s statements could not

reasonably be taken to mean that a disciplinary

finding in favor of Antonin would be met with

disapproval by the BPD command leadership. Both

statements were benign, non-accusatory

observations. Neither statement passed judgment on

Antonin and neither statement implied that it would

not behoove officers on a hearing board to find in

favor of Antonin.

Moreover, Deputy Commissioner Rodriguez

and much of the BPD command leadership had

departed from the BPD before Antonin’s hearing

board was held. As the BPD points out, even if

Deputy Commissioner Rodriguez’s statements could

be read to demand a negative hearing board outcome

against Antonin (which they cannot), with that

turnover, a hearing board composed of BPD

members “had no incentive to render a particular

decision to satisfy the expectations of a departed

administration and had no cause to believe that

their current leadership preferred one outcome over

another.”

As noted, Antonin asserts that his case

generated “significant media coverage.” In Sewell,

we observed that there was extensive publicity about

the criminal charges against the officer, including 33

articles in the Baltimore Sun, and the “intense

A22

publicity about the statements made by the

Commissioner and by the Mayor who appointed him”

likely would have influenced members of the hearing

board. Id. at 135. There was no such risk here. As

stated earlier, the comments made by Deputy

Commissioner Rodriguez were benign. Furthermore,

there is no indication in the record that this case

garnered the widespread media attention seen in

Sewell. The circumstances here did not create actual

or apparent partiality from a hearing board

composed of BPD members.

After weighing the risk of actual or apparent

partiality due to Deputy Commissioner Rodriguez’s

statements against the countervailing strong

presumption of impartiality, we hold that the BPD

did not abuse its discretion by denying Antonin’s

request to have his case heard by non-BPD

members.

II.

The BPD’s procedural policy regarding “Use of

Force” is set forth in written General Order K-15.

The stated purpose of the policy is “to thoroughly

investigate and document all uses of force by

members of the agency.” The policy directs that

“[u]se of deadly and less than deadly force, including

strikes with fists or hands, shall conform with the

methods, tactics and guidelines adopted by the

[BPD]” and “[a]ny use of force must be reasonable

and no more than necessary to effect a lawful

purpose.” General Order K-15, lists examples of

“REPORTABLE FORCE,” including “[a]ny striking

of a suspect and/or arrestee with hands or feet.”

A23

General Order K-15 details the actions that

are required after a reportable use of force has

occurred. The member, i.e., the officer, must

“[i]mmediately notify)’ your supervisor” and

“[s]ubmit a written Use of Force Report whenever

you use reportable force.”11 The Use of Force Report

“must be submitted before the end of your tour of

duty.”

The “First Line Permanent Rank Supervisor”

is required to take action in two situations. First,

“[w]hen notified of a reportable use of force by a

member under your supervision[,]” the supervisor

must respond to the scene, attend to any injured

people, and initiate a Use of Force investigation,

including speaking with witnesses and collecting

evidence. This did not apply here because Antonin

did not notify Sergeant Warren, the first line

permanent rank supervisor, of a reportable use of

force (or any use of force).

Second, and pertinent here, when a member

has not reported a use of force, but an allegation of

excessive force by a member has “arise[n],” the first

line permanent rank supervisor must “[t]ake

appropriate investigative measures:’ This includes

“[r]equest[ing] that the involved member submit an

administrative report with facts relevant to the Use

of Force incident” and “[o]rdering all witnessing

members to submit administrative reports of the

incident” unless they invoke their right to remain

silent. In addition, the first line permanent rank

supervisor must complete a Use of Force Summary

Report; provide it to the commanding officer; and

ensure proper reporting. The policy does not provide

11 The policy refers to a separate policy that is to be followed if

the reported force involves the discharge of a weapon.

A24

deadlines. In addition, it states that the BPO may

“pursue an administrative investigation” even if the

person alleging excessive force fails to timely do

so.

Upon review of the “Use of Force Summary

Report,” the commanding officer must “[d]etermine if

the involved member’s actions were consistent with

departmental policies and procedures and whether

the actions were within the legal scope of the

member’s authority.” The commanding officer then

must create a “Use of Force package,” which includes

the Use of Force Summary Report, the member’s Use

of Force Report, any witness reports, and any prior

Use of Force Reports involving the member. The Use

of Force package is forwarded to the Chief of the

IAD, who initiates a more thorough investigation

into the matter.

The circuit court found that General Order K15 was not followed after the incident in this case.

Specifically, Sergeant Warren did not prepare a Use

of Force Summary Report or conduct a Use of Force

investigation. As noted, the court concluded that the

BPD’s failure to follow its own procedure invalidated

the final agency decision under the Accardi doctrine.

The Accardi doctrine “requires, with some

exceptions, an administrative agency to generally

follow its own procedures or regulations,” Pollock v.

Patuxent Inst. Ed. of Review, 374 Md. 463, 467 n.1

(2003). Its genesis was United States ex reI. Accardi

v. Shaughnessy, 347 U.S. 260 (1954), in which the

Supreme Court “vacated a deportation order of the

Board of Immigration Appeals because the procedure

leading to the order did not conform to the relevant

regulations.” Montilla v. Immigration and

Naturalization Service, 926 F.2d 162, 167 (2d Cir.

A25

1991). The Accardi doctrine is not uniform across

jurisdictions, state or federal. For example, some

courts require the aggrieved person to show that he

has been prejudiced by the agency’s departure from

its procedure, whereas other courts reject the

prejudice requirement. See Leslie v. Atty. Gen. of the

United States, 611 F.3d 171, 177 (3d Cir. 2010)

(providing examples).

In Pollock, Maryland adopted its own

variation of the Accardi doctrine. The Court of

Appeals examined how the doctrine was applied by

courts inside and outside of Maryland, before

settling on the following framework:

[A]n agency of the government generally

must observe rules, regulations or

procedures which it has established and

under certain circumstances when it fails to

do so, its actions will be vacated and the

matter remanded. This adoption is

consistent with Maryland’s body of

administrative law, which generally holds

that an agency should not violate its own

rules and regulations.

In so holding we nonetheless note that not

every violation of internal procedural policy

adopted by an agency will invoke the Accardi

doctrine. Whether the Accardi doctrine

applies in a given case is a question of law

that ... requires the courts to scrutinize the

agency rule or regulation at issue to

determine if it implicates Accardi because it

affects individual rights and obligations or

whether it confers important procedural

A26

benefits or, conversely, whether Accardi is

not implicated because the rule or regulation

falls within the ambit of the exception which

does not require strict agency compliance

with internal procedural rules adopted for

the orderly transaction of agency business,

i.e., not triggering the Accardi doctrine.

***

Where the Accardi doctrine is applicable, we

are in accord with the line of cases arising

from the Supreme Court and other

jurisdictions which have held that prejudice

to the complainant is necessary before the

courts vacate agency action. In the instances

where an agency violates a rule or regulation

subject to the Accardi doctrine, i.e., even a

rule or regulation that affects individual

rights or obligations or affords important

procedural benefits upon individuals, the

complainant nevertheless must still show

that prejudice to him or her (or it) resulted

from the violation in order for the agency

decision to be struck down.

Id. at 503-04 (quotations omitted).

Thus, a Maryland agency’s decision will be

vacated under the Accardi doctrine when three

conditions are satisfied. First, the agency must have

violated its own regulations or procedures. Second,

those regulations or procedures must affect

individual rights and obligations or confer important

procedural benefits, and not have been adopted

merely for the orderly transaction of agency

A27

business.12 Finally, the party alleging a violation

must show that the violation resulted in prejudice to

him or her.

In this case, Antonin asserts that the BPO

failed to comply with General Order K-15 because,

even though an allegation of use of excessive force

had arisen, the first line permanent rank supervisor

(Sergeant Warrant) did not undertake an

investigation, including interviews of witnesses, and

did not prepare a Use of Force Summary Report.

Antonin acknowledges that he did not submit a Use

of Force Report himself, as General Order K-15

required, but argues that that was unnecessary

because Officer Cupid, who was an Officer-inCharge, witnessed him strike Wilson, and Sergeant

Warren was present, although he did not see

Antonin strike Wilson. Antonin maintains that he

was prejudiced because the witness interviews that

would have been undertaken pursuant to General

Order K-15 would have happened soon after the

incident, not roughly three months later, when many

of the IAD interviews took place, and therefore

would have more accurately preserved the evidence.

He asserts that the Use of Force Summary Report

could have shown, based on promptly collected

evidence, that he did not use excessive force. He also

12 A violation of a regulation or procedure adopted for the

orderly transaction of agency business may be grounds to

vacate a decision of an agency under the Maryland

Administrative Procedure Act (“APA”), Md. Code (1984, 2014

Repl. Vol.), sections 10-101 to 10-305 of the State Government

Article, if the party alleging a violation can “show prejudice to a

substantial right due to the violation of the” internal

administrative regulation or procedure. Pollock, 374 Md. at

504. That vacation would be pursuant to the APA, however-not

Accardi.

A28

complains that he “was not interviewed until two

and a half years after the incident.”

The BPD asserts that it did not violate

General Order K-15 because it was Antonin’s

responsibility to initiate the Use of Force process;

that General Order K- I5 does not trigger the

Accardi doctrine because it is a procedure adopted

merely for the orderly transaction of business; and

that Antonin failed to show that he was prejudiced

by any failure of the BPD to follow General Order K15. We need not decide whether the BPD failed to

comply with General Order K-15 or whether that

policy embodies a procedure that bestows an

important procedural benefit, triggering the Accardi

doctrine. Even if we assume those issues in

Antonin’s favor, we conclude that the record

evidence before the hearing board was legally

insufficient to prove that Antonin suffered prejudice

due to the BPD’s failure to follow General Order K15.

Dep’l of Pub. Safety and Corr. Servs. v.

Howard, 339 Md. 357 (1995), is helpful in assessing

the evidence for proof of prejudice. There, two

correctional officers assaulted an inmate. The

Department of Corrections investigated the assault

and completed that investigation less than a month

later. Ten-and-a-half months after the investigator

issued his findings, the Department filed charges for

removal against the correctional officers. Eventually,

they were terminated from employment. On judicial

review, the circuit court reversed, ruling in part that

the “investigation had grossly exceeded the 90-day

period provided for in the regulations.”13 Id. at 365.

13 The court mistakenly understood that filing charges was part

of the investigation process.

A29

The Court of Appeals granted certiorari before

the appeal was heard by this Court. The officers

argued that the circuit court’s reversal should be

upheld because the delay in charging them was

arbitrary and capricious and had prejudiced them.

The Court disagreed and reversed. In holding that

the Department did not act arbitrarily or

capriciously by waiting ten-and-a-half months after

the investigation ended before charging the

correctional officers, the Court observed,

[T]he record does not reflect any prejudice to

the officers that was caused by the delay. . . .

They have not pointed to any witnesses

whose memory has faded or who has become

unavailable. They argue, without citing

specific examples, that they have been

prejudiced because witnesses’ memories have

faded and evidence has become stale. Ten

and a half months, however, is not an

extraordinary length of time to preserve

evidence.

Id. at 370.

In the case at bar, Antonin likewise has

provided no concrete examples of how the lack of a

Use of Force Summary Report and investigation

prejudiced him. He merely posits that an

investigation conducted by Sergeant Warren “could

have” produced a different result. There is nothing to

suggest that it would have, however.

Officers Cupid and Galfi were interviewed

(separately) by IAD on November 1, 2013, 95 days

after the incident. Neither one had trouble

remembering the pertinent facts-that they had

A30

detained Wilson, that Antonin struck him multiple

times, and that Antonin struck him after he was in

handcuffs. Indeed, they gave detailed accounts of the

chase and the events that transpired after Wilson

crashed the stolen car. Their interviews were

transcribed and were moved into evidence at the

hearing board, before which they both testified.

During Officer Cupid’s testimony, the WBAL-TV

videotape was played to assist him in determining

whether Wilson already was handcuffed when

Antonin slapped him. He testified that Wilson was

not handcuffed when Antonin slapped him the first

time but was handcuffed when Antonin slapped him

the “second, third, and fourth times.”

Officers Ward and McCray likewise recalled

the chase and arrest in detail when they were

interviewed by an IAD detective on October 29,2013,

and November 4, 2013, respectively. They, too,

testified before the hearing board, explaining that

they were the first unit to arrive at the scene of the

crash and that they positioned themselves on the

driver’s side of the stolen car. From that position,

they could not see Antonin’s interactions with

Wilson.

From the investigation carried out by IAD and

the testimony of witnesses at trial, there is no reason

to believe that if witness interviews were conducted

immediately after the incident, the witnesses’

memories would have differed from what they were

when they were interviewed by IAD detectives

approximately three months after the incident.

Like the Howard Court, we conclude that in this

case three months was “not an extraordinary length

of time to preserve evidence,” including recollections

by witnesses. 339 Md. at 370. Furthermore, Sergeant

A31

Warren, as the first line permanent rank supervisor,

did not have a deadline for completing a Use of Force

investigation. Had Antonin reported his use of force

to Sergeant Warren immediately, Sergeant Warren

could have interviewed witnesses at the scene and

called a mobile crime laboratory technician to collect

evidence and take photographs. Antonin did not do

so, however, and Sergeant Warren first learned

about the use of force hours later, after WBAL- TV

ran its story. By then, Sergeant Warren could not

immediately investigate, and General Order K-15

does not provide a timeframe for the completion of

Use of Force investigations that are triggered by

allegations of someone other than the officer. Thus,

there is no reason to think that a Use of Force

investigation under General Order K-15 would have

been conducted more quickly than the IAD

investigation.

In addition, the Board relied in part on the

WBAL-TV footage to conclude that Antonin was

guilty of using excessive force. As the BPD correctly

notes, this footage “was impervious to effects of bias,

the passage of time, or any other nefarious influence

Antonin may blame for his termination.” The

videotape clearly shows Antonin rapidly approach

the group of officers surrounding Wilson, slap Wilson

on the head, retreat, and return and slap Wilson

several more times on the head. The only fact about

which Officer Cupid’s memory was not clear, and

may have been clear had he been interviewed

immediately, was whether Wilson was handcuffed

the first time Antonin slapped him. By viewing the

videotape, Officer Cupid was able to clarify that the

handcuffs had not been applied when Antonin first

slapped Wilson but were in place when Antonin

A32

returned and slapped him several more times.

Moreover, that fact was not material, because (as the

hearing board found) Wilson was effectively detained

by the officers surrounding him before the handcuffs

were applied.

Finally, Antonin’s claim that he was

prejudiced because he “would clearly have the most

knowledge of the force used in this case, [and] was

not interviewed until two and a half years after the

incident” lacks merit. Antonin was facing the

possibility of being criminally charged and, in fact,

eventually was charged. As a matter of policy, IAD

detectives did not interview Antonin in order to

avoid putting him in the position of making a selfincriminating statement. Moreover, when Detective

Thomas interviewed Antonin after the resolution of

his criminal case, the only part of the incident that

Antonin could not recall was whether Wilson had

said anything to him. Other than that, Antonin was

able to give a thorough account of the incident.

For all these reasons, Antonin was not

prejudiced by the BPD’s failure to carry out a Use of

Force investigation pursuant to General Order K-15.

JUDGMENT OF THE CIRCUIT COURT FOR

BALTIMORE CITY REVERSED. CASE TO BE

REMANDED TO THAT COURT TO ENTER

ORDER AFFIRMING THE FINAL AGENCY

DECISION. COSTS TO BE PAID BY THE

APPELLEE.

A33

IN THE CIRCUIT COURT FOR BALTIMORE CITY

Case No.: 24-C-16-006333

IN THE MATTER OF THE PETITION OF

SERGE ANTONIN

MEMORANDUM AND ORDER

Pending before this Court is Petitioner Serge

Antonin's Notice of Petition for Judicial Review,

appealing the decision of the Law Enforcement

Officer Bill of Rights ("LEOBR") hearing board,

regarding his termination from Respondent

Baltimore Police Department ("BPD"), for use of

excessive force on July 29, 2013. This Court heard

oral argument on April 18, 2017 at 9:00 a.m.

I. Factual and Procedural Background

On July 29, 2013, Petitioner responded to a

pursuit of a stolen car. Petitioner and several other

officers pursued this car, until the stolen car crashed

and they pulled the suspect out of the car. Once he

exited the car, the suspect, 15-year-old David

Wilson, initially resisted being handcuffed. To

handcuff the suspect, Petitioner hit the suspect with

an open hand. Then, officers handcuffed Mr. Wilson.

Shortly thereafter, Petitioner struck Mr. Wilson

again. Petitioner alleges that Mr. Wilson was

threatening to spit at the police officers, which is

why Petitioner struck Mr. Wilson.

On that same day, a helicopter camera from

WBAL filmed the pursuit and Petitioner's conduct at

A34

the scene. WBAL thcn played the footage on the

news. Shortly after the footage aired, then Deputy

Commissioner Jeronimo Rodriguez stated on WBAL;

"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." The case was then

turned over to the Internal Affairs Division (IAD).

IAD began its investigation of this incident on

July 30, 2013, when it interviewed four officers on

the scene regarding the incident and Petitioner's use

of force. Then, IAD attempted to interview the

suspect, Mr. Wilson, who was also the victim of the

force. However, Mr. Wilson could not be interviewed,

as his guardian could not be reached. Almost 90 days

later, between October 28, 2013 and November 5,

2013, ten other officers who were on the scene were

interviewed.

One year after the incident, on July 28, 2014,

the Office of the State's Attorney for Baltimore City

filed a Criminal Information in the Circuit Court for

Baltimore City, charging Petitioner with one count of

assault and two counts of misconduct in office. After,

Petitioner was charged, Deputy Commissioner

Rodriguez was quoted in the Baltimore Sun saying

that the Department would not, "tolerate the actions

of any officer that breaks the law, in order to enforce

the law." On October 5, 2014, after coming to a

negotiated plea agreement, Petitioner entered an

Alford plea to one count of misconduct. The

Honorable Alfred Nance convicted the Defendant of

the misdemeanor, immediately struck the guilty

A35

verdict and entered a Probation Before Judgment

disposition.

On March 10, 2016, IAD interviewed

Petitioner regarding his alleged use of excessive

force. After this, on April 22, 2016, the LEOBR

hearing board charged Petitioner with violations of

General Order C-I, Rule I, for unnecessary use of

excessive force. On October 19, 2016, prior to the

hearing, counsel for the Petitioner made a pre-trial

motion to appoint non-members of the BPD to the

hearing board. The hearing board was composed of

Acting Major Robert Jackson from the Southwestern

District, Acting Major George Clinedinst from the

Southeastern District, and Officer Bobbie Gilliam

from the Southwestern District. This motion was

denied over the phone and denied on the record at

the hearing. At the hearing, Petitioner made two

other pre-trial motions (I) to exclude evidence of the

related criminal matter, and (2) that the Petitioner

should not be charged with excessive force because

the BPD did not follow its own procedures when

investigating the incident, namely General Order KIS - Use of Force '("K-IS"). After hearing argument

on these pre-trial motions, the LEOBR hearing

board denied both.

At the hearing on October 26,2016 and

October 27, 2016, BPD presented evidence of the

WBAL video footage, in addition to the testimony of

five officers and the IAD detective. The testimony of

two officers, Officer Galfi and Sergeant Cupid,

matched the events captured on the tape, specifically

that Mr. Wilson was detained when Petitioner

struck him. Additionally, at oral argument before

this Court, counsel for the Petitioner indicated, and

the transcript confirms; that evidence of Petitioner's

A36

Alford plea was used by Respondent in Respondent's

opening argument, lines of questioning, and in

closing. Following the hearing, on November 8, 20

16, Police Commission Kevin Davis approved the

recommendation to terminate Petitioner. Petitioner

filed the Notice of Petition for Judicial Review with

this Court on November 29, 2016.

II. Standard of Review

In reviewing an agency's factual findings, the

question for the reviewing court is, "whether

reasoning minds could reach the same conclusion

from the facts relied upon by the Board." Dep't of

Labor v. Hider, 349 Md. 71, 78 (1998). Further, the

court awards deference to the expertise of the

administrative agency, so the reviewing court,

"refrain[s) from making our own independent

findings of fact or substituting our judgment for that

of the agency when the record contains substantial

evidence supporting the agency's determination."

Marsheck v. Bd. of Trustees oj Fire & Police

Employees' Retirement System of City of Baltimore,

358 Md. 393,402 (2000).

A reviewing court however, "may always

determine whether the administrative agency made

an error of law. Therefore, ordinarily the court

reviewing a final decision of an administrative

agency shall determine (I) the legality of the decision

and (2) whether there was substantial evidence from

the record as a whole to support the decision."

Pollock v. Patuxent Inst. Bd. of Review, 374 Md.

463,476 (2003) (citing Jordan Towing, Inc. v.

Hebbville Auto Repair, Inc., 369 Md. 439, 449-52

(2002)).

A37

III. Law

a. Intcrnal Policy

Administrative agencies are required to follow

their own rules and regulations. u.s. ex rel. Accardi

v. Shaughnessy, 347 U.S. 260,266 (1954). The

Accardi doctrine dictates that rules and regulations

of administrative agencies may not be disregarded or

suspended in a particular case. Id. at 266. Maryland

courts apply the Accardi doctrine if the policy at

issue affects individual rights and obligations or

confers important procedural benefits upon

individuals. Pollock, 374 Md. at 485. However, if the

agency policy is adopted for the "orderly transaction

of agency business,': then the Accardi doctrine

exception will apply. Id.

In Pollock, the Court of Appeals analyzed the

Accardi exception, where "A failure to comply with a

published statement of 'policy,' or 'internal

documents' to guide employees, or agency

'guidelines,' has been held not to invalidate agency

action, absent a showing of prejudice." Id at 483

(quoting Bd. of School Comm'rs of Baltimore City v.

James, 96 Md. App. 401, 421-22 (1993)). In that case,

the Court determined that the violation of chain of

custody procedures by the Maryland Division of

Corrections for urinalysis testing when it failed to

note the correct inmate number on a urine sample

did not trigger the Accardi doctrine, but the Accardi

exception. Id. at 501. The Court indicated that the

violated policies were merely internal directives

"that applied generally within the institution, and

not just specifically to parole revocation or renewal

hearings thus departing in a minimal way from an

A38

internal directive relating, not to fundamental rights

but to evidentiary matters." Id. The Court held that

there was no prejudice by failure to follow these

procedures because the results of the urinalysis test

were not affected by this error and petitioner could

not demonstrate prejudice. Id. at 504.

b. Neutral Hearing Board

Generally, quasi-judicial administrative

decision makers such as the Board have a strong

presumption of impartiality. Regan v. State Bd. of

Chiropractic Examiners, 355 Md. 397, 410-11 (1999).

A LEOBR hearing board, pursuant to the Law

Enforcement Officer Bill of Rights, consists of three

voting members who, "(i) arc appointed by the chief

and chosen from law enforcement officers within

that law enforcement agency, or from law

enforcement officers of another law enforcement

agency with the approval of the chief of the other

agency; and (ii) have had no part in the investigation

or interrogation of the law enforcement officer." Md.

Code Ann., Public Safety § 3-107(c)(1).

In Sewell v. Norris, the Court of Special

Appeals explained when appointing law enforcement

officers from another agency, per Md. Code Ann.,

Public Safety § 3-107(c)(1), is appropriate. 148 Md.

App. 122, 127-28 (2002). In that case, a police officer

requested that his hearing board include nonmembers of the BPD, because his case had been

highly publicized (thirty-three articles appeared in

the Baltimore Sun) and prior to his hearing, the

Police Commissioner held a news conference

referring to the officer's conduct as "a horrible

breach of the public trust." Additionally, Mayor

A39

Martin O'Malley stated the officer was "not going to

serve in my Police Department." Id. at 128. Based on

the widespread media coverage and statements from

Baltimore City officials, The Court of Special

Appeals agreed with the officer, that his right to due

process was violated in that he did not have an

impartial hearing board. Id. at 134-35. The Court

concluded, "From those public statements made and

the facts of this case, it is highly probable that any

Baltimore City Police Officer would find against

appellant if chosen to serve on his hearing board.

The appearance of justice was simply not satisfied by

the selection of a hearing board comprised of BCPD

officers." Id. at 138.

c. Admission of Alford Plea

In LEOBR hearings, "Evidence with probative

value that is commonly accepted by reasonable and

prudent individuals in the conduct of their affairs is

admissible and shall be given probative effect." Md.

Code Ann., Public Safety § 3-107(f)(1). Guilty

findings are permissible in administrative hearings

as evidence, but may not be given conclusive effect.

Maryland Aviation Administration v. Powell, 336

Md. 210, 217 (1994).

Maryland courts have also analyzed whether

certain types of judgments and pleas are admissible

in administrative hearings. For example, the Court

of Appeals determined that an Alford plea has the

same effect as a guilty plea. Jamison v. Maryland,

450 Md. 387, 397 (2016). Additionally, in Maryland

Aviation Administration v. Powell, the Court of

Appeals determined that a criminal disposition of

probation before judgment could be used against the

A40

Maryland Aviation Administration employee in the

administrative hearing regarding his misconduct. Id.

at 220-22.

IV. Reasoning

a. Internal Policy

In the instant case, the BPD did not comply

with its internal policies, which prejudiced the

Petitioner. In following the Accardi doctrine, first it

is necessary to identify the policy at issue, then

whether the policy was followed, and, if the policy

was not followed, whether the failure to follow the

policy resulted in prejudice. See Pollock, 374 Md. at

503.

Here, the policy at issue is General Order K15 - Use of Force. K-15 details the procedure to be

followed once force has been used, and the timing of

the commanding officer's actions:

REQUIRED ACTION

Member

• Immediately notify your supervisor

whenever you use reportable force.

• Submit a written Use of Force Report

whenever you use reportable

force, other than firearms discharging.

• Your Use of Force Report must be

submitted before the end of your tour

of duty.

A41

First Line Permanent Rank Supervisor

• When notified of a reportable use of force

by a member under your supervision:

• Immediately respond to the scene and

attend to the well-being of any injured

member and/or civilian. Ensure injuries to

members and civilians are documented. For

injuries to prisoners, adhere to reporting

requirements in accordance with General

Order K-14, "Persons in Police Custody."

• Conduct a Use of Force investigation. (See

Guidelines for Administrative Reports Annex A.) Promptly identify citizens who

may have witnessed the use of force and

obtain statements from these witnesses.

• Ensure that a Mobile Crime Laboratory

Technician takes photographs of injuries

and/or lack of injuries sustained by any

party.

• Contact the Internal Affairs Division (410396-2300), Monday through Friday, 08002400 hours, for a list of the involved

member's prior uses of force history ...

Commanding Officer

• Review the first line permanent rank

supervisor's Use of Force Summary Report,

submitted via channels. Determine if the

involved member's actions were consistent

with departmental policies and procedures

and whether the actions were within the

legal scope of the member's authority. (See

Guidelines for Administrative ReportsAnnex A.)

A42

• Do not include in your report a

recommendation for, or against, disciplinary

action.

• Retain the original Use of Force package

and forward a copy of the Use of Force

package to the Chief, Internal Affairs

Division, and to the Director, Educations and

Training Section, within 48 hours. If the

Internal Affairs Division or Education and

Training Section are closed, the Use of Force

package should be submitted on the next

business day by 1600 hours.

In the present case, no Use of Force report

was ever submitted. BPD asserts that the

investigation and report were not conducted because

it is the duty of the officer who used force to report

the use of force to his supervisor, and Petitioner

never reported this conduct to his supervisor. This

argument is unavailing. When asked by this Court

who Petitioner would have reported his use of force

to, counsel replied that it would have been Sergeant

Warren and Sergeant Cupid (on the date of the

incident, then-Officer Cupid). Not only did the video

footage air on WBAL the night of the incident, but

Sergeant Warren and Sergeant Cupid, Petitioner's

direct supervisors, were present at the incident.

Either of these supervisors could have initiated

the report.

BPD cites Pollock, asserting that the K-15

policy is one that the department uses for the orderly

transaction of business, and this policy does not

implicate a substantive right of Petitioner.

Therefore, BPD contends that K-15 falls within the

Accardi exception. BPD argues that Petitioner

A43

cannot demonstrate prejudice from BPD's failure to

follow this policy as required under the Accardi

exception, because IAD conducted a timely

investigation, continuing from July 31, 2014 to

March 10,2016, and the incident was captured on

video by WBAL. These arguments are unpersuasive.

Unlike in Pollock, where the mislabeling of the urine

had no impact on the results of the urinalysis test

and therefore no effect on the hearing board's ruling,

here the failure in conducting the use of force

investigation pursuant to K-15 could have affected

the results of the LEOBR hearing. Although a report

by the first rank supervisor may have indicated that

Petitioner 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

LEOBR hearing board.

Further, the K-15 policy references "Annex A Guidelines for Administrative Reports." This annex

is particularly instructive as to how the failure to

prepare this report prejudiced Petitioner: Annex A

states, "The first line permanent rank supervisor

shall be the one to report the member's actions and

render an opinion as to whether the Use of Force

incident was consistent with departmental policy

and training." As Petitioner asserted at oral

argument, when BPD failed to follow this policy,

Petitioner was prejudiced, because this report could

have been presented by Petitioner at his LEOBR

hearing. As Petitioner notes in his brief, Petitioner

"had the right to anticipate a prompt and thorough

investigation, to record the facts of the use of force

for better or worse." A report from a supervisor who

had investigated this almost immediately after the

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incident would have been invaluable for both sides

as evidence to present at the hearing.

Additionally, the majority of witnesses were

not interviewed until some 90 days after the conduct

occurred. Had BPD complied with K-15, these

witnesses to the incident would have been

interviewed shortly after the Petitioner'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 Commissioner Rodriguez had

been made, the footage had aired on WBAL, and the

interviews were conducted by IAD, not the first rank

supervisor. Of the five officers who testified at the

LEOBR hearing, only one, Sergeant Freddie Bland,

was interviewed within 48 hours of the incident, on

July 30, 2013. The rest were all interviewed about 3

months later. In addition, the Petitioner was not

interviewed until almost two and a half years after

the incident. Although BPD argued that IAD wanted

to wait to interview Petitioner until after the

criminal case concluded, Petitioner entered the

Alford plea on October 5, 2014, yet IAD did not

interview Petitioner until a year and a half later on

March 10, 2016.

Had the Use of Force investigation by the

Petitioner's first rank supervisor been conducted,

witness accounts of the incident would have been

preserved almost immediately. Further, the

testimony of these witnesses would have been less

likely to be subject to influence by the reports from

both WBAL and the Baltimore Sun that came out

after the incident. Petitioner had the right to have

the facts recorded under this report per BPD's own

policy.

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This Court finds that under Accardi and its

exception, BPD's failure to conduct a Use of Force

investigation pursuant to its own General Order K15, resulted in prejudice to the Petitioner.

b. Neutral Hearing Board

Petitioner's LEOBR hearing board was

composed of Acting Major Robert Jackson, Acting

Major George Clinedinst, and Officer Bobbie Gilliam,

in compliance with the requirements of Md. Code

Ann., Public Safety § 3-I07(c). However, based on the

statements of Deputy Commissioner Rodriguez and

the media attention surrounding Petitioner's

conduct, the LEOBR hearing board, composed of

BPD officers, was not neutral.

First, Deputy Commissioner Rodriguez made

a statement to WBAL immediately following the

release of the footage of the incident. He stated, "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." This statement,

similar to that of the Commissioner in Sewell,

demonstrates that the BPD had already condemned

Petitioner's conduct, prior to any investigation or

criminal charges.

Additionally, after Petitioner was charged,

Deputy Commissioner Rodriguez stated that the

BPD would not "tolerate the actions of any officer

that breaks the law, in order to enforce the law."

These statements were made before the Petitioner

had entered his Alford plea and before IAD had

A46

finished conducting its investigation of Petitioner's

conduct. Taken together, both of these statements

demonstrate the position of the BPD: Petitioner was

guilty of excessive force before a conviction or a

hearing.

Further, this case is also analogous to Sewell

in the media coverage it garnered. Although the

Baltimore Sun did not write thirty-three articles,

this incident made the local and national news,

including reports by WBAL, the Baltimore Sun, and

Yahoo.com. The publicity of this case, coupled with

the statements by the Deputy Commissioner,

demonstrates that BPD, leadership and employees

included, had already judged Petitioner's conduct.

Such statements and wide publicity would have

logically reached BPD employees including, Acting

Major Robert Jackson. Acting Major George

Clinedinst, and Officer Bobbie Gilliam, Petitioner's

hearing board. This would have made it likely that

any BPD officer would find against Petitioner.

In both their brief and at oral argument, BPD

distinguished Sewell, arguing that in Sewell, the

statements by then-Mayor O'Malley were far more

egregious than that of Deputy Commissioner

Rodriguez. See Sewell, 148 Md. App. at 128.

However, the Deputy Commissioner's statements,

like the Mayor's statements, were severe enough to

indicate that the BPD already believed Petitioner to

have used excessive force without any investigation.

Further, although not thirty-three newspaper

articles were written about the incident, there was

sufficient media coverage so that the hearing board

members from the BPD would have been exposed to

the comments and media narrative regarding this

incident.

A47

At oral argument, BPD argued that at the

time of the LEOBR hearing, there was both a new

Deputy Commissioner and new Commissioner;

therefore, the LEOBR hearing board could not have

been influenced by Deputy Commissioner

Rodriguez's statements. However, the BPD's stance

on Petitioner's conduct was clear, regardless of who

the Deputy Commissioner and Commissioner were

at the time of hearing.

This Court finds that the statements by BPD's

leadership, as well a~ the media coverage, would not

have allowed for a LEGBR hearing board made of

BPD officers to be neutral.

c. Admission of Alford Plea

Petitioner's Alford plea and subsequent

Probation Before Judgment were properly admitted

as probative evidence before the LEGBR hearing

board.

Under Md. Code. Ann., Public Safety § 3107(f)( I), evidence with probative value is

permissible. Petitioner's plea and Probation Before

Judgment disposition is probative of his conduct on

July 29, 2013. The LEOBR hearing board did not

appear to give this conclusive effect, but used this as

one piece of evidence in reaching its ultimate

decision.

This Court finds that similarly to Powell,

evidence of the criminal proceedings may be used in

the LEOBR hearing, and BPD appropriately

introduced this as evidence for the board to consider.

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V. Conclusion

Accordingly, it is this 19 day of April 2017,

hereby:

ORDERED that the decision .of the LEOBR

hearing board is reversed, and it is further

ORDERED that Petitioner Serge Antonin is

reinstated to the Baltimore Police Department, and

it is further

ORDERED that if Respondent Baltimore

Police Department decides to retry this matter, it

must use a hearing board comprised of officers of a

different law enforcement agency, pursuant to Md.

Code Ann., Public Safety § 3-107(c)(1)(i).

TRUE COPY

/S/ MARILKYN BENTLEY, CLERK

4/19/17

A49

IN THE MATTER OF SERGE ANTONIN

BALTIMORE CITY POLICE

IID NO: 2013-0431

ADMINISTRATIVE HEARING AND ORDER

INTRODUCTION

On October 26th, 2016 @ 9:00 am, an

administrative hearing was convened to hear the

charges against Officer Serge Antonin. The

attorneys for the parties were:

DEPARTMENTAL PROSECUTOR

Linda Shields, Esquire

Associate Legal Counsel

Baltimore City’ Law Department

Office of Legal Affairs

100 N. Holiday Street

Suite 101

Baltimore, Maryland 21202

410-396-2495

DEFENSE ATTORNEY

Clarke Ahlers, Esquire

Attorney at law

10450 Shaker Drive

Columbia, Maryland 21045

410-740-1444

MEMBERS OF THE BOARD

Major Robert Jackson

Major George Clinedinst

Officer Bobbie Gilliam

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ADMINISTRATIVE CHARGES

It is alleged that on July 29, 2013, Officer

Serge Antonin subjected Mr. David Wilson to

excessive force by striking him several times with an

open hand at the conclusion of a vehicle pursuit.

PRE-TRIAL MOTIONS

Defense entered a Not Guilty Plea to all charges

asked for an acquittal, motion was

denied by members of the board.

EVIDENCE PRESENTED

(Witnesses that testified and a short summary of

their testimony and all exhibits received.)

Defense Motions: Exhibit #1- Letter Request from

defense Counsel to The Baltimore City Police

Department requesting NON-MEMBERS of The

Baltimore City Police Department to hear the case

against his client pursuant to Maryland Code, Public

safety, 3-107(c)(1).

Request Denied by the board and the department.

Defense entered into discovery that he did not have

access to any interviews of Mr. David Wilson and no

sworn complaint was filed by Mr. David Wilson.

Request was heard and denied.

The department called the following witnesses:

A51

At 11:17am Sgt. Fred Bland of the Regional Auto

Theft Task force; testified to observing a stolen

vehicle on Belair Road in Baltimore City. Sgt. Bland

called for more units as well as “Fox Trot” to assist

in stopping the aforementioned vehicle as it traveled

south on Belair Road. The stolen vehicle

subsequently crashes on the southwest corner of

Belair and Sinclair Lane. The driver later identified

as David Wilson was extracted by police from the

vehicle and placed into handcuffs.

Departments Exhibit #:1- Police Reports under

Central Complaint # 13G13972 documented on

7/29/13 @ 6:10pm.

Sgt. Bland testified to signing reports authored by

Officer Ronald Wilson of the BPD.

Departments Exhibit #2 -Internal Affairs Statement

of Sgt. Freddie Bland given on July 30th, 2013 at

10:35 am.

Sgt. Bland testified that he did not observe Mr.

Wilson being handcuffed; nor did he observe Officer

Antonin strike Mr. Wilson.

Departments Exhibit #3 - WBAL helicopter video

footage

Exhibit #3 was shown at 11:45am

Cross Examination by Defense: Defense pointed out

the error in initial reporting of the suspect fleeing on

foot; however this error was corrected in a follow up

(supplement) indicating that he did not attempt to

A52

flee on foot, it was patrol officers removing him from

the vehicle. Defense counsel also stated that there

were no signs of injury to Mr. Wilson even with the

air bags deployed and that officers on scene had

weapons drawn.

SGT. FREDDIE BLANDS TESTIMONY ENDS AT

11:45AM

TESTIMONY OF OFFICER REBECCA SMALL AT

11:45AM

Officer Small testified that she and her partner

Officer Elsie McCray responded to assist (RATT) in a

stolen auto following southbound on Belair Road.

Officer Small followed the vehicle until it crashed at

Belair and Sinclair lane. She exited her marked

patrol and secured the driver’s side of the stolen

vehicle as other officers removed the driver from the

passenger’s side door. She did not see which officers

handcuffed the suspect; nor did she see Officer

Antonin strike the suspect.

Departments Exhibit #4- Internal Affairs Statement

of Officer Rebecca Small.

Cross Examination by Defense: Defense council

asked Officer Small if the scene was safe: she stated

she believed it was.

OFFICER SMALL’S TESTIMONY ENDED AT

12:00PM

TESTIMONY OF OFFICER ELSIE McCRAY; AT

12:05PM

A53

Officer McCray testified that she and her partner

Officer Rebecca Small responded to assist (RATT)

with a stolen auto on Belair Road. She stated she

observed the vehicle crash at Belair and Sinclair, she

also stated that she had no interaction with the

suspect, did not see who handcuffed but heard

someone state “he’s cuffed”.

Departments Exhibit #5 -Internal Affairs Statement

of Officer McCray

OFFICER McCRAYS TESTIMONY ENDED AT

12:23PM

TESTIMONY OF OFFICER THEODORE GALFI AT

APPROX. 12:25

Officer Galfi testified that he and his partner Officer

Gersham Cupid responded to assist (RATT) in a

stolen case on Belair Road. He stated that they were

the second police vehicle and observed the suspect

vehicle crash at Belair and Sinclair. He and Officer

Cupid exited their vehicle following the crash and

approached the passenger side and removed the

suspect from the vehicle. The suspect was

subsequently handcuffed.

He never felt threatened by the suspect; as the

suspect was still on the ground and cuffed he

observed Officer Serge Antonin strike the suspect

with his hand while the suspect was on the ground

and handcuffed.

He also stated that he did not hear and verbal

exchange between the suspect and Officer Antonin;

A54

however in departments exhibit # 6, he stated that

he thinks there were couple words exchanged, but

didn’t recall exactly what was said.

Departments Exhibit #6 - Internal Affairs Statement

of Officer Galfi

Cross examination by Defense at 12:43PM

Departments Exhibit # 3 (WBAL Video) shown to

Officer Galfi.

(16) Seconds into video crash observed

(33) Seconds into the video Officer Galfi testified

that he felt no threat

(35) Seconds into the video Officer Galfi testified

that the suspect was handcuffed

BOARD REQUEST AT RECESS AT 1:10PM

CASE RECONVENED AT 13:43PM (Officer Galfi’s

testimony)

Officer Galfi testified that he did not search; nor did

he cuff the suspect

TESTIMONY OF OFFICER GALFI CONCLUDED

AT 1:56PM

TESTIMONY OF SERGEANT CUPID AT 1:57PM

Sergeant Cupid testified that he and his partner

Officer Galfi responded as back up for (RATT) in a

A55

stolen auto incident. He observed that stolen vehicle

crash at Belair and Sinclair, he and Officer Galfi

went directly to the passenger side door and

removed the suspect from the vehicle and

subsequently handcuffed the suspect.

He testified to more units responding including

Officer Antonin, he observed Officer Antonin in an

“altercation” with the suspect. He heard Officer

Antonin say something to the suspect then observed

Officer Antonin strike the suspect. Sergeant Cupid

testified that the suspect was handcuffed at the time

of Officer Antonin’s arrival and that he felt the

suspect was detained. He also testified that he did

not see the suspect spit and any time.

Cross examination by Defense at 2:15PM

Sergeant did not report any force used.

Sergeant was shown Departments Exhibit #3

(WBAL Video)

Once Sergeant Cupid was shown the video he stated

that he was 50% sure the suspect was cuffed prior to

Officer Antonin striking the suspect for the first time

Defense Exhibit#2 GENERAL ORDER K-15 (USE

OF FORCE)

Departments Exhibit #7 - Internal Affairs Statement

by Sergeant Cupid

Re-cross by Department:

A56

Sergeant Cupid stated the suspect was not 100%

handcuffed but was under control. He also stated

that the only force he used was when he physically

removed the suspect from vehicle. He finally stated

that the suspect was not fully cuffed after the first

strike by Officer Antonin, but the suspect was during

the second-fourth strike.

TESTIMONY OF SERGEANT CUPID

CONCLUDES AT 2:43PM

TESTIMONY OF DETECTIVE JEFFREY THOMAS

AT 2:55PM

Detective Jeffrey Thomas testified that he was

assigned this case in 2014; the case was initially

assigned to Detective Lisa Cornish in 2013.

Departments Exhibit #8-Blue Team Entry by Sgt.

Chris Warren

Departments Exhibit #9 -Subpoena for WBAL Video

footage

Departments Exhibit #10- Administrative report

authored by Det. Thomas regarding interview of Mr.

David Wilson

Departments Exhibit #11- Notification of Accused to

Officer Serge Antonin

Departments Exhibit #12 ... Internal Affairs

Statement of Officer Serge Antonin

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Departments Exhibit #13 - Internal Affairs Case

Findings Report

Departments Exhibit #14- Maryland Judiciary Case

Search for Officer Antonin Court case on 10/5/15

(Alford Plea) entered

Departments Exhibit #15 Audio recording of (Alford

Plea) on 10/5/15

CASE RECESSED FOR THE DAY AT 3:53PM ON

(10/26/16)

CASE RECONVENED AT 12:28PM ON (10/27/16)

CONTINUATION OF DETECTIVE JEFFREY

THOMAS TESTIMONY

Detective Thomas testified that an “Alford” Plea was

entered in the Maryland Court by Officer Antonin on

10/5/15. He also testified that five hours following

the incident on 7/20/13 an investigation was

initiated by Colonel DeSousa following the airing of

the WBAL video footage, as no officers or supervisors

took action in documenting the incident. He also

stated that the testimony of Mr. Wilson, was not

necessary to the totality of this case.

Department Exhibit# 3 (WBAL Video Footage)

Detective Thomas testified to at least (8} other police

on scene of the incident and appears that the

suspects was handcuffed 35 seconds into the footage

and Officer Antonin approaches approximately 57

seconds into the incident.

A58

Detective Thomas testified that at 1 minute into the

video is the first strike by Officer Antonin, at 1:05;

Officer Antonin stands up over the suspect, at 1:09

Officer Antonin bends back down closer to the

suspect and at 1:18 he strikes the suspect again. At

1:26 Officer Antonin walks away from the suspect.

Re-cross by Defense:

Detective Thomas testified suspect being “effectively

detained” and/or completely handcuffed.

TESTIMONY OF DETECTIVE THOMAS ENDED

AND DEPARTMENTS RESTS ITS CASE AT

1:43PM

BOARD REQUESTS RECESS AT 1:43PM

CASE RECONVENED AT l:55PM

TESTIMONY OF OFFICER SERGE ANTONIN AT

1:55PM

Officer Antonin testified that he is a 15 year veteran

of the Baltimore police Department. He is assigned

to the Northeast District, a member of the Field

Training Officer program and has trained

approximately 40 police officers. He also stated he

has received several departmental commendations.

His purpose on the scene was to do the prisoner

transport. He admitted to striking the suspect

because he ‘‘believed” the suspect was going to spit

on him and he “believes” that he did the right thing.

A59

TESTIMONY OF OFFICER SERGE ANTONIN

CONCLUDED AT 2:20PM

ALL TESTIMONY CONCLUDED

FINDINGS OF FACT

Based on the testimony and evidence

presented at the hearing, the hoard makes the

following findings of fact, based on the

preponderance of evidence.

On July 29, 2013; Officer Serge Antonin

subjected Mr. David Wilson to excessive force by

striking him several times with an open hand at the

conclusion of a vehicle pursuit. On this date, Officer

Serge Antonin did strike Mr. David Wilson with an

open hand after he was effectively detained by other

officers. On July 29, 2013; Officer Serge Antonin

unnecessarily used force And struck Mr. David

Wilson several times with an open hand after he was

effectively detained by other police officers.

CONCLUSION OF LAW

Charge 1 - General Order C-2, Rule 1 Conduct

GUILTY

Charge 2 - General Order C-2, Rule 1, Section 6

GUILTY

RECOMMENDATION OF PUNISHMENT

Following the Board’s findings of fact and

conclusions of law, and consideration of evidence

A60

presented as to punishment the Hearing Board

recommends the following punishment to

Police Commissioner Kevin Davis: Termination.

/s/

Chairman