By Jessica Anderson
Baltimore Sun
ANNAPOLIS, Md. — Soon, when someone dies at the hands of police in Maryland, a new team of independent investigators will show up at the scene and sort out what happened.
And when misconduct complaints are made against officers, they will be public.
The changes are part of the sweeping police reform laws passed by the Maryland General Assembly earlier this year that begin to go into effect Friday.
Advocates for criminal justice reform have long raised concerns about conflicts with police investigating themselves, and of whether local state’s attorneys are too close to the cops they would prosecute.
They’ve also been frustrated by the inability to learn about the past histories of police officers accused of misconduct, unable to find out whether an officer has a problematic past.
Caylin Young, the policy director for the American Civil Liberties Union of Maryland, said the law brings about significant changes for transparency.
Access to records will have “a direct and immediate impact,” he said.
He said the ACLU is planning to “vigorously” test implementation of the new law and will be filing its own strategic requests.
The debate over policing practices and discipline increased following the 2020 murder of George Floyd, who died after being detained on a minor infraction by police officers in Minneapolis, including one who knelt on his neck for several minutes. Advocates also questioned the work of former Maryland Chief Medical examiner Dr. David R. Fowler after he testified for the defense of the officer who was convicted of killing Floyd, saying Fowler had routinely sided with police during in-custody death investigations.
The state attorney general has ordered a review of nearly two decades of his work.
The new laws mean that, for the first time, an independent unit will investigate incidents with police that involve the death of a civilian, under one of the new policing laws.
Dana Mulhauser heads the Independent Investigations Division of the Office of the Attorney General that will investigate all fatalities involving police officers. Their findings will be turned over to local prosecutors who determine whether police officers are charged criminally.
Mulhauser said she hopes witnesses will be more willing to talk with her team, knowing that they don’t work hand-in-hand with officers whose colleagues may be responsible for wrongdoing.
”You want to be able to give witnesses the comfort and the reassurance that they are dealing with an independent body,” she said. “They aren’t talking to someone who works down the hall from the person who is responsible for this incident.”
When a death happens, such as a police shooting, the local police will be expected to call a hotline to notify Mulhauser’s team, which includes nine employees in her office and 18 investigators from the Maryland State Police. The troopers and lawyers will go to the scene and take charge of the investigation.
In Baltimore, the police department and the U.S. Justice Department are finalizing a Memorandum of Understanding with the AG’s Office for such investigations, said Brian Nadeau, the deputy commissioner of the Baltimore Police Department’s Public Integrity Bureau. The department remains under a federal consent decree, which requires its Special Investigations Response Team to investigate all serious uses of force, including fatal shootings.
“We want to do it collaboratively,” Nadeau said.
The attorney general’s team could end up investigating dozens of incidents each year. In 2019, for example, there were 30 events with 31 civilian deaths that involved police officers, according to a state report. Of those, 18 were classified as homicide by law enforcement, seven as accidents, five as suicide, and one as an overdose.
Another flashpoint that led to calls for greater transparency was the death of Anton Black, a 19-year-old who died in 2018 following an encounter with police in the small Eastern Shore town of Greensboro. His death prompted lawmakers to pass Anton’s Law, which gives the public access to police disciplinary files.
Until now, those records largely have been shielded from public view because they were classified as personnel files that were exempt from being disclosed.
An autopsy found that Black suffered a sudden cardiac death and that a struggle with police likely contributed. One of the officers involved in chasing and pinning down Black had not disclosed a history of complaints from his prior job as a police officer in Delaware. Black’s family and the Greensboro community learned of the officer’s history only after the young man’s death.
A lead sponsor the Anton’s Law, Sen. Jill P. Carter, said Marylanders have to look no further than Baltimore’s corrupt Gun Trace Task Force to see why access to disciplinary records is crucial. The squad of officers spent years harassing motorists, robbing drug dealers and faking evidence before being discovered and convicted in federal court.
“They had a plethora of complaints that had been ignored by the agency until everything came out,” said Carter, a Baltimore Democrat. “Had those officers been flagged earlier, perhaps we would not have gotten to the point we got to.”
The officers’ misdeeds landed several of them in federal prison, spawned multiple lawsuits and inspired two books and an HBO miniseries that’s filming now.
“Policing is a public function and the public has been unable to gain access to information about law enforcement officers,” Carter said. “It has allowed officers to operate in secrecy.”
Defense attorney Ivan Bates, who represented people arrested by GTTF officers, said attorneys currently face an uphill battle to get information about officers’ past complaints, and must get a judge’s permission to see officers’ disciplinary files. As a result, he said his firm and others, as well as the public defender’s office, have maintained their own records on officers.
Being able to request a personnel file and see the complaints will make it easier to find potential patterns of misconduct, and make sure clients are treated fairly, Bates said.
Deborah Katz Levi, head of the Baltimore City Public Defender Special Litigation Section, said the public and defense attorneys have long been seeking information about officers’ personnel records, but now, the changes to the law should “pave the way for more access.” This should change the way the police, prosecutors and courts across the state treat those records, as it now grants express access “and should begin to remove the veil of secrecy long surrounding them,” she said.
Police departments are gearing up to handle the new requests, though they aren’t sure yet how many they’ll get.
“We’re a professional agency, we’re going to comply,” said Col. Steven Hlavach, chief of the professional standards bureau at the Baltimore County Police Department.
Hlavach cautioned that not all discipline records are going to be immediately available.
“Open investigations, open criminal cases obviously won’t be released until they’re completed,” Hlavach said. “If a citizen is involved in a case and wants to know why the case isn’t disclosed to the public, we obviously won’t be releasing records until the completion of these cases.”
But many officers are concerned.
Mike Davey, a lawyer who represents officers accused of misconduct, said the changes could lead to officers being unfairly targeted by the public.
“Many [complaints] are made out of frustration or attempt to get out of criminal charges,” Davey said. While the public will be able to see if cases are not-sustained, meaning no policy violation was found, he said the public will not pay attention to that.
“Generally, our fear is people are not going to care whether it was sustained or not,” Davey said. “The wrong message is going to get out there. All this stuff is going to show up on social media.”
Dave Rose, president of the Baltimore County FOP Lodge #4, said he believes complaints against officers “can be twisted in numerous ways by the media, and attorneys. I’m sure the explanation won’t go that deep,” he added, saying the nuance of the investigation, including whether officers were cleared, will not matter.
Among the other changes under the new law is that officers will no longer have any complaints expunged, even those that are unfounded.
“Most police officers are trying to get anything expunged they can,” before the law goes into effect, Davey said.
Nadeau, the Baltimore deputy commissioner, said his department received hundreds of requests from officers seeking to have cases expunged before the new law takes effect.
Once the new law takes effect, Nadeau said, Baltimore Police anticipate a large number of requests for officer records.
“It is going to be very voluminous,” he said, adding that the department will rely on an existing contract with a law firm to help fulfill requests. Before information is released, the department must redact confidential information. He said they anticipate hiring additional paralegals to keep the department in compliance with the law.
Nadeau said Maryland’s new law will be one of the broader laws regarding access because anyone can request the records. Other states, he said, limit access to those who have standing, or some connectivity to the case, like the victim.
Harford County Sheriff Jeff Gahler has concerns about “unintended repercussions” of Anton’s Law, his spokeswoman Cristie Hopkins said in a statement.
In particular, Harford sheriffs are concerned that false and unfounded complaints and reports will be circulated, and that personal information about deputies or witnesses could be revealed, Hopkins said.
“There is much work to be done next legislative session to amend this law into a useful tool in creating and maintaining community trust with law enforcement,” Hopkins said.
Other policing reform measures that go into effect Friday include limits on when police can use no-knock warrants in their investigations, and further restrictions on the use of surplus military equipment by police.
Gov. Larry Hogan, a Republican, vetoed Anton’s Law in April. Lawmakers in the Democratic-led General Assembly promptly overturned the veto. Hogan allowed the bill creating the independent investigations of deaths to become law without his signature.
Hogan said at the time that those bills and others known collectively as the Maryland Police Accountability Act had the potential to “further erode police morale, community relationships and public confidence.” He warned the laws could cause “great damage to recruitment and retention.”
Other police reforms passed won’t go into effect until later, including: repealing the Law Enforcement Officers’ Bill of Rights and replacing it with a new disciplinary process, setting standards for when officers are allowed to use physical force on a subject, and requiring most officers to wear and use body cameras.
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