Police investigation law survives first test
When the unit within the Maryland attorney general’s office that investigates police shootings got a call last Saturday afternoon, officials released a collective groan.
There was another tragedy, and it happened in Harford County, where Republican Sheriff Jeff Gahler had long made clear that he disagreed that state law gave the attorney general’s office authority to conduct a probe into police-involved fatalities as the exclusive investigator.
Gahler had written a series of letters to Democratic Attorney General Brian Frosh’s office, including one in November that proclaimed the sheriff ’s office would not “stand down” in the event of a death involving a deputy.
His correspondence foreshadowed what transpired last weekend after his deputies shot and killed John R. Fauver at a Forest Hill shopping center.
Behind a CVS, sheriff ’s office personnel collected the evidence and interviewed witnesses, with the attorney general’s investigators relegated to a secondary role. Gahler later refused to provide copies of video or to turn over evidence from the scene, prompting Frosh to sue the sheriff for “interfering” with the state’s investigation and bucking a cornerstone of the historic police reform laws the General Assembly passed in 2021.
A Harford County judge on Thursday ordered Gahler to turn evidence over to Frosh’s office immediately and found that the attorney general’s office — not local law enforcement — leads investigations of deaths involving police officers in Maryland. The ruling amounted to a powerful affirmation of the legislature’s intent to increase transparency and to restore public trust in law enforcement. But the challenge highlighted the growing pains associated with trying to achieve significant change, observers said.
“This is a strong signal that the courts recognize what the intent of this law was
to accomplish, and that any actions by local law enforcement that impedes the state’s ability to fully investigate these cases will not be acceptable,” said David Jaros, faculty director of the Center for Criminal Justice
Reform at University of Baltimore School of Law.
At issue is the law that created the attorney general’s Independent Investigations Division and empowered it to investigate police deaths. The law was passed in the spring of 2021 and took effect Oct. 1.
Two months before the effective date, Gahler wrote his first letter to Frosh. The sheriff wrote that he did not believe the law would give the attorney general exclusive authority over investigations of police deaths and expressed concerns that the state investigators would supplant local investigations of potential criminal activity — if, for example, several people robbed a bank and officers shot one of the suspected robbers.
Frosh’s office maintained the legislature charged it with investigating officers in these situations, and that the sheriff should not interfere.
By the time the General Assembly began its 2022 session, Democratic Sen. Will Smith of Montgomery County, who chairs the Senate Judiciary Committee, knew the Internal Investigations Division law needed some “fixes.” He sought to expand the unit’s authority to include subpoena power and its purview to include police use of force that results in injuries likely to result in death.
He and Democratic Del. Luke Clippinger of Baltimore, who chairs the House Judiciary Committee, also aimed to clear up what they called “manufactured ambiguity” from Gahler by codifying that the attorney general’s office is the primary investigator and mandating local law enforcement provide that office with evidence it requests.
“The law seems clear to me. But just to underscore, highlight, bold, clarify — ‘No kidding, this is what we really meant’ — these five changes were added into law,” Smith said in an interview.
Though he said he was supportive of the legislation’s concept of transparency, Gahler testified in opposition this session.
“I pray that in my time as sheriff, and for the next hundred years, we never see a police officer taking a life or losing a life in my county,” Gahler told Smith’s committee. “But if that’s the case, then my citizens have twice — and, hopefully, a third time — have placed me in this position, have placed their trust in me as their elected sheriff, as they have the elected state’s attorney, to conduct the investigation.” Gahler is seeking reelection this year.
Maria Haberfeld, professor of law and police science at John Jay College of Criminal Justice in New York, said some law enforcement agencies have interpreted reforms by states after the murder of George Floyd in Minneapolis as a challenge to their authority, and have set out to push back against the changes. Sheriffs, in particular, she said, may feel like they have additional authority vested in them by voters.
“They look at this as not an innovation based on best practices, but as some sort of punishment,” Haberfeld said.
The Harford County shooting happened around 4 p.m. on April 23, about an hour after the sheriff ’s office got a call about a “reportedly suicidal” man potentially wielding a long gun. Sgt. Bradford Sives and Cpl. Christopher Maddox, both 15-year veterans of the sheriff’s office, encountered Fauver behind the pharmacy. They both shot Fauver, 53, who died at a hospital. Officials declined to say if they recovered a weapon.
Fauver’s wife said he “committed suicide by police officer.” She said her “heart is broken” for her late husband, as well as for the deputies who shot him.
She also told a reporter it had been difficult to get information from the authorities about her husband’s death.
An investigator from the attorney general’s office was at the scene in approximately 40 minutes, court records show. Dana Mulhauser, who before being hired to head the attorney general’s new unit was a trial attorney with the U.S. Department of Justice’s Civil Rights Division, called Gahler to talk through the procedure.
However, Gahler refused to allow the state police forensic services team to collect evidence, and declined to provide it with copies of video from body-worn, dashboard and witness cameras, according to court documents. He told state investigators they could watch the footage at the sheriff ’s office. Frosh questioned that arrangement in court Thursday.
“He wants to oversee and supervise our investigation,” Frosh told Circuit Judge Yolanda Curtin. “We don’t think it’s appropriate for us to go to his office to investigate his deputies.”
The attorney general and state lawmakers said Harford County is an outlier. Other local law enforcement have expressed a greater willingness to cooperate according to the law and following protocols Mulhauser’s unit established with input from local departments. Those policies address evidence collection, notifying her team of deaths and the release of information to the public.
“So many of the local law enforcement folks that we have spoken to have understood that having an independent investigation, in addition to benefiting the public, also benefits them, in that there can be confidence on their behalf in cases where they were found to do nothing wrong, that people don’t just say, ‘Well, you know, cops always looking out for cops,’ ” Mulhauser said.
In sum, there have been 15 deaths since the law mandating Mulhauser’s unit took effect: eight shootings, five pursuits and two of people in officers’ custody. There were two deaths each in Baltimore City and the counties of Anne Arundel, Baltimore, Charles and Montgomery.
The most recent was Monday, when investigators from Mulhauser’s office were summoned to Somerset County on the Eastern Shore. The Somerset County Sheriff ’s Office said three officers, including two deputies and a Maryland State Police trooper, fired in two separate exchanges of gunfire with 24-year-old William R. Brink.
Mulhauser said the investigative process went smoothly in Somerset, in part because the unit already relies on state police personnel to perform several aspects of their investigations, providing evidence collection, forensics analysis and investigative staffing. With troopers stationed throughout the state, their involvement helps to ameliorate the challenges posed by dispatching investigators from Central Maryland, she said. She also noted the attorney general’s office has been deliberate about geographic diversity in hiring for her unit, which is composed of four lawyers, five investigators and two support staff members.
Wicomico County Sheriff Mike Lewis said it can be challenging to preserve a crime scene until state investigators arrive. He said it took between two to three hours for the investigators to arrive when a police chase Oct. 21, 2021, ended with Jamaal Mitchell, 35, dead in a mangled vehicle near Salisbury.
“I’m determined that we’re going to work through the nuances of this new unit,” Lewis said. “The citizens across the state deserve nothing less than transparency and that’s what we aim to do.”
Lewis, who is the president of the Maryland Sheriff ’s Association, testified on behalf of sheriffs and police chiefs this spring against the latest changes in the law. Like Gahler, he argued relinquishing control of a crime scene and evidence to state investigators could interfere with local law enforcement’s investigation into potential criminal activity. His office arrested a man on gun and drug charges following the fatal chase in Wicomico.
However, the reliance on state police also means that when a trooper is involved in a civilian death, state police are almost certain to still have a role in the investigation of that trooper. Gahler is among those who criticize the involvement of state police in the investigations of troopers, saying it contradicts the law’s intent.
Potential bias was key among the concerns Kristee and Michael Boyle raised after their son, 16-year-old Peyton Ham, was killed last April by a trooper in their neighbor’s driveway. Ham died before the legislation that mandated state investigations into police deaths became law.
The St. Mary’s County prosecutor who led the investigation has two brothers who are on the state police force. One heads the enforcement division that sent officers to the scene and formerly commanded the barrack where the trooper who shot Ham was based. The other commands a neighboring barrack. A third brother was a trooper for 23 years before becoming a judge.
Mulhauser’s unit adopted protocols for when such cases arise, including bringing in troopers from different areas and conducting conflict-of-interest checks.
The Boyles are concerned there’s not enough separation, but are still hopeful about the investigations Mulhauser leads.
“It’s got to be better than where we were before, because we know for a fact it didn’t work for us,” said Michael Boyle, Ham’s stepfather. “Hopefully, with Dana now involved, it’s going to work for those people moving forward. If it’s a good shooting, it’s a good shooting. If it’s a bad shooting, my gosh, I’m hoping she’s going to say, ‘This is a bad shooting.’ ”
Mulhauser’s unit doesn’t have the power to prosecute police. That authority rests with local state’s attorneys; a provision in Smith’s bill this year that would’ve changed that fell through. Frosh advocated unsuccessfully for his office having the power to prosecute police death; local state’s attorneys strongly opposed the idea.
State’s attorneys in Baltimore and Wicomico counties declined to file charges against officers in the three deaths for which Mulhauser’s office has completed investigations and presented reports.
In court Thursday, Frosh vigorously defended his office’s duty to investigate police deaths, and observers cited his litigating the case himself as proof of the importance of protecting the reforms passed by the legislature.
Carl Snowden, convener of the Caucus of African American Leaders, which has a branch in Harford County, said he was glad the attorney general prevailed. Snowden said Gahler’s choice to withhold evidence would’ve led to questions in the community about his motivations and would have eroded trust.
“What the public and the community wants is reassurance,” Snowden said. “They want to be able to trust that independent eyes are reviewing the circumstances in these controversial shootings and that there was no cover-up.”