Baltimore Sun Sunday

Police records remain private

Calls are made for transparen­cy in disciplina­ry cases

- By Justin Fenton

As federal authoritie­s continue to probe Baltimore’s corrupt Gun Trace Task Force, police commanders are pledging internal investigat­ions aimed at finding and rooting out corruption.

But by law, those findings will never see the light of day.

Maryland is one of nearly two dozen states that shield the personnel and disciplina­ry records of police officers from public disclosure.

With the conviction­s of eight task force members on federal racketeeri­ng charges — and leaked documents that showed that some of the officers had histories of discipline — some are calling for change.

“Given everything that was brought to light recently, the issue of disclosure and transparen­cy warrants a fresh look,” Maryland Attorney General Brian Frosh said through a spokeswoma­n.

City solicitor Andre Davis said last week that Mayor Catherine E. Pugh is planning to propose legislatio­n that “will among other things make it possible to bring greater transparen­cy and fairness to the entire process of police discipline.” He did not provide details.

Maryland has long kept police personnel

records closed. Until recently, even citizens who filed complaints against officers were not entitled to learn whether anything came of them.

“We are promised investigat­ions will happen, and yet we won’t know anything about any of those investigat­ions,” said David Rocah, a staff attorney with the American Civil Liberties Union of Maryland. “The idea that we are supposed to simply trust the Baltimore Police Department at this point seems so self-evidently nonsensica­l and unacceptab­le.”

Internal affairs records or summaries obtained by The Baltimore Sun in recent months have shown that several Gun Trace Task Force members faced allegation­s of misconduct long before the period investigat­ed by federal authoritie­s.

Detective Jemell Rayam, who pleaded guilty in the Gun Trace Task Force case, was investigat­ed in 2009 after a man said officers took $11,000 from him during a traffic stop. Rayam was charged with lying to investigat­ors about the incident, but was cleared by a police trial board. He conceded in court that money was taken during that incident and that he lied about it.

Detetive Wayne Jenkins, who also pleaded guilty in the case, was investigat­ed in 2014 when a city prosecutor complained that he and another officer filed a report that did not match up with surveillan­ce video of the incident.

Detective Daniel Hersl, who was found guilty by a federal jury last week, had racked up 30 complaints by 2006, when a judge said in court that “misconduct, sometimes when it’s frequent enough, it indicates a lack of desire to tell the truth.” The city settled at least three lawsuits related to complaints against Hersl for a total of nearly $200,000.

Sgt. Thomas Wilson III, who was not charged in the Gun Trace Task Force case but was named by a witness at the trial, was recommende­d for terminatio­n in 2006 by internal affairs investigat­ors who found he was part of a group of officers who raided a home without a warrant and obtained a warrant after the fact that they never intended to use. A police trial board instead recommende­d that Wilson be suspended for 15 days. It’s not publicly known what punishment, if any, then-Police Commission­er Leonard Hamm ultimately imposed. In an earlier case, a federal judge said Wilson had told “knowing lies” on the stand. Wilson was placed on administra­tive duties after the Gun Trace Task Force witness said he provided security for a meeting of drug dealers.

Law enforcemen­t officials say making police personnel and disciplina­ry records public would invade the privacy of officers and their families, and subject them to airing of allegation­s that turned out to be baseless.

“This will undermine community confidence in the law enforcemen­t agency in its entirety,” Karen Kruger, the general counsel for the Maryland Chiefs of Police, said last year. She was testifying against a bill that would have made it easier for the public to view police disciplina­ry records.

Kruger said opening up records would “provide fodder for plaintiffs’ attorneys,” “invites a micro-examinatio­n and secondgues­sing of investigat­ions … by non-profession­als,” and create “intrusive opportunit­ies to challenge a chief or sheriff’s decisionma­king process.”

She said it would discourage people with complaints from coming forward.

In Florida, which has some of the strongest open government laws in the country, making police discipline records public “is just standard operating procedure,” said Lisa Hennings, a police union lobbyist there.

Asked if releasing records has a chilling effect on complaints, Jimmy Holderfiel­d laughed.

“No, I don’t see that as having a chilling effect,” said Holderfiel­d, a past president of the Florida State Lodge of the Fraternal Order of Police. “I think right now, especially these days, people want more accountabi­lity, and agency heads strive to do just that, to show that they do investigat­e any complaint that comes in against an officer.”

That openness has attracted some countermea­sures. Holderfiel­d said the Jacksonvil­le sheriff’s office’s collective bargaining agreement calls for disciplina­ry records to be purged after two to five years.

He said he liked the idea of disciplina­ry records being withheld.

“If officers [in Maryland] are able to keep that, I say more power to them,” he said.

Ohio is another state in which records are disclosed. After a Cleveland police officer shot 12-year-old Tamir Rice to death, the public looked at his file. It showed that his ability to handle his duties had been questioned after an emotional breakdown during firearms training when he worked for another agency. He had also failed a written exam when he applied to another job.

The officer did not disclose that informatio­n when he sought a job with the Cleveland Police Department. Those revelation­s caused Cleveland police to amend their written policy on reviewing public personnel files of prospectiv­e employees.

No such records would be made public in Maryland, where the state Public Informatio­n Act exempts personnel files — including disciplina­ry records — from disclosure.

In 2010, Teleta Dashiell filed an internal affairs complaint against the Maryland State Police. A sergeant had called her about a case and, believing he had hung up, left a message on her voicemail that twice used a racial slur.

Dashiell later wanted to find out what came of her complaint, but was told she was not entitled to any informatio­n.

The state’s highest court upheld that decision in 2015. The court ruled 5-2 that “mandatory disclosure of personnel informatio­n related to sustained findings could chill the disciplina­ry process, rendering those in control less willing to sustain a finding of misconduct.”

In a dissenting opinion, two judges argued that “acknowledg­ing the public’s right to know how law enforcemen­t agencies respond to sustained allegation­s of misconduct is critical to preserving the public’s confidence in law enforcemen­t.”

The General Assembly approved legislatio­n in 2016 requiring “that a complainan­t be informed of the final dispositio­n of the complainan­t’s complaint and any discipline imposed as a result.”

Baltimore Police say they still do not provide complainan­ts with the discipline imposed — only whether the complaint was sustained or not sustained.

Rocah, of the ACLU, said the law “couldn’t be any clearer” on that point. But Rocah says more is needed. He said the vast majority of complaints are not sustained, and the law doesn’t allow the complainan­t to learn anything about why those decisions were made, including whether the investigat­ion was “adequate, meaningful, thorough or fair.”

“So for the people who are most likely to have concerns about an investigat­ion, either because the complaint was not sustained or because the punishment was not, at least in their view, meaningful, they can’t learn anything to either assuage or confirm their concerns,” Rocah said. “That’s not good for them, nor is it good for police.”

The legislatur­e also passed legislatio­n to open disciplina­ry hearings, called “trial boards,” to the public. But few officers take their cases to trial boards, and the schedule of hearings refers to cases only by numbers.

The Justice Department, in its civil rights investigat­ion of the Baltimore Police Department, found that investigat­ors often inappropri­ately categorize­d citizen complaints as minor allegation­s, used ineffectiv­e methods to investigat­e misconduct and closed cases with minimal investigat­ion. They conducted unrecorded pre-interviews with accused officers, and provided them with notice describing the alleged misconduct, often right after a complaint was filed and before any investigat­ion occurred.

“Community members are unable to obtain informatio­n about BPD’s complaint and discipline systems at almost every step in the process,” the department concluded. “Complainan­ts face many hurdles in filing complaints, but once they are filed, it is difficult for complainan­ts to obtain informatio­n about how the complaints are progressin­g or whether and when they will be acted upon.”

Commanders consistent­ly approved investigat­ive findings, even where investigat­ive files were deficient or incomplete, they said.

“BPD’s failure to ensure that investigat­ions are thoroughly and fairly investigat­ed limits its ability to hold officers accountabl­e for misconduct,” the Justice Department concluded.

Jill P. Carter oversees the city agency that runs the Civilian Review Board, which can recommend discipline to the police commission­er. She said police forward some complaints to the board, but members are prohibited from seeing other records, which means they are unable to look for patterns of problem officers.

“We don’t know if it’s the first time or the third time” an officer has been accused, Carter said. “It hurts us in several different aspects.”

Carter served in the House of Delegates for 14 years. She was asked why Maryland records remain shielded from public view in Maryland.

“Because the police union has the ultimate control over the legislatur­e,” she said. “It should be the other way around.”

Defense attorneys at a news conference last week said some Gun Trace Task Force members raised red flags, and police and prosecutor­s looked the other way.

If disciplina­ry records remain hidden from public view, attorney Josh Insley said, more scandal is inevitable.

“Does anyone seriously think if the feds hadn’t indicted them that they wouldn’t still be on the street right now?”

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