City gun list may clash with Md. law
Experts say offender registry could be at odds with expungement statute
After Dana Hayes Jr. had a gun possession charge expunged last year, he assumed that all records of his arrest and subsequent probation would be removed from the public eye before he applied for an accounting job at the Baltimore Police Department.
In Maryland, record expungement is akin to obliteration, and for all intents and purposes, expunged records no longer exist. State law prohibits disclosure of those records or information from them without a court order.
But as of late Tuesday afternoon, Hayes still was listed on the police department’s gun offender registry — a public database listing Baltimore residents convicted of a gun offense.
Baltimore Mayor Brandon Scott said the registry would be cleaned up to prevent similar issues in the future.
“This incident is unfortunate in many ways,” Scott said in an interview Friday.
Police Department spokeswoman Lindsey Eldridge said “a person must fulfill the requirement of the courts” to be removed from the registry. Created in 2007, Baltimore city code requires the police commissioner to maintain the list, which contains roughly 2,800 names.
City code does not specifically address whether people with expunged records should be removed — though it does say to remove those who receive gubernatorial pardons and whose convictions are reversed on appeal or otherwise set aside — but advocates say keeping them on the list runs counter to the spirit of expungement.
“It’s not like you can reveal a person was required to report under the gun offender registry without in turn revealing that person’s record,” said Natasha Dartigue, the acting district public defender for Baltimore City.
Police Commissioner Michael Harrison announced last week that he fired Hayes from a civilian accounting position with the Baltimore Police Department, saying a background check failed to reveal the old gun charge that landed Hayes on the registry.
Harrison also said Hayes was a “person of interest” in a homicide, which Hayes subsequently disclosed to The Baltimore Sun was the 2020 killing of his stepfather, Ricky Jones. Police are still searching for the killer and Hayes denies any involvement in the homicide.
Public officials who knowingly disclose information about an expunged record without a judge’s permission could be charged with a misdemeanor and removed from office if convicted, according to state statute.
“It would certainly appear like the Baltimore Police Department has been at best negligent and at worst possibly dishonest,” said state Sen. Jill P. Carter, a Baltimore Democrat who wrote legislation expanding expungement protections in 2015.
“It’s messy and it doesn’t do much to instill public confidence in the Baltimore Police Department.”
In an internal police department memo, Harrison said Hayes was fired because he failed to disclose information about his background. Hayes’ termination letter said a subsequent review of his background uncovered “derogatory information” that precluded him from working at the department.
But Hayes said he disclosed his arrest, probation and expungement on his application. No one asked him about it during his interviews, he said.
“I thought because I was upfront with them, it was water under the bridge,” Hayes told The Sun on Monday.
Eldridge said expunged charges don’t bar someone from employment with the police department, but the applicant is expected to divulge them.
“Law enforcement can see expungements in the course of the hiring process,” she said.
Under Maryland law, a person who has charges expunged does not have to disclose information about those charges and cannot have it held against them for employment purposes. Public officials who knowingly disclose information about an expunged record without a judge’s permission could be charged with a misdemeanor and removed from office if convicted, according to state statute.
Carter said it appears police broke the law when Harrison disclosed the gun charge, but she questioned whether he knew Hayes had his record expunged before speaking publicly.
Police department officials did not return a request for comment as of Tuesday about potential violations of state law.
A spokesperson for the Office of the Maryland State Prosecutor said the agency is aware of the incident but would neither confirm nor deny the existence of an investigation.
When the Baltimore City Council voted to create the gun offender registry in 2007, police leaders said the database would help them keep close tabs on repeat offenders, including questioning them if criminal activity increases in a particular neighborhood. Officials also said about half of Baltimore homicide suspects had prior gun convictions.
“This is the first step in holding gun offenders accountable in a different way,” then-City Council President Stephanie C. Rawlings-Blake said at the time. “If you commit a crime with a gun in Baltimore … we will find you, we will punish you, and we will use you as an example.”
The program requires people to register within 48 hours of their conviction and then complete in-person check-ins with police every six months. The database — which the public can access online — includes the name, gender, race and address of each defendant.
Anyone who violates the registration and check-in requirements faces a maximum fine of $1,000 and up to one year in prison.
The registry has come under fire in the past. In 2011, a Circuit Court judge called the program “unconstitutionally vague and overly broad” because in addition to identifying information like name and address, the city ordinance requires people to provide “any other information required by the rules and regulations adopted by the Police Commissioner.”
Judge Alfred Nance said that requirement appeared to give police “limitless discretion,” but an appellate judge disagreed and upheld the constitutionality of the program, which continued operating.
The defendant in that case was convicted of armed robbery and handgun offenses in 2008, then later charged with failing to register as a gun offender. His attorneys argued the registration process could be used to quiz defendants about recent crimes or demand cooperation in other investigations, among other issues.
Since then, others have questioned how the registry is being used and what it accomplishes — especially considering 97% of the people listed are Black.
The department remains under a federal consent decree established in 2017 after a U.S. Department of Justice investigation found a pattern of unconstitutional policing — particularly in poor, predominantly Black neighborhoods. Among other things, the settlement calls for enhanced civilian oversight and transparency.
“I’m not sure how useful it is,” said Mark Pennak, a former Justice Department attorney and president of Maryland Shall Issue, a gun rights advocacy group. “It gives the police a whole lot of power and enforcement discretion. How they use that is very much up to the police.
“And the Baltimore Police Department has not exactly gotten a lot of good press lately. Enforcement discretion has been abused in the past … so would I trust they’re using this legitimately? Probably not.”