Baltimore Police Department v. Antonin, No. 443, September Term, 2017

LAW ENFORCEMENT OFFICERS BILL OF RIGHTS - - DUE PROCESS - -
RIGHT TO HEARING BOARD BEFORE OFFICERS OF ANOTHER
DEPARTMENT - - ACCARDI DOCTRINE - - PREJUDICE REQUIRED.

       Vehicle being chased by police in Baltimore City veered off the road and crashed.
Multiple Baltimore Police Department (“BPD”) officers surrounded the vehicle and two
removed the sole occupant from the vehicle and placed him on the ground. Thereafter,
Officer Antonin, who had been driving a transport vehicle and was not in the group of
officers surrounding the stolen car, walked quickly through the group to the arrestee,
slapped him on the head, walked away, and then returned and slapped him on the head
several more times. The police chase and events immediately following were videotaped
by WBAL-TV and portions, including the slapping incident, were aired that evening. A
BPD Deputy Commissioner commented about the incident that night, stating, “We did
not like what we saw” and that a personnel action was being commenced immediately.
A Use of Force Report was not prepared, as required by a BPD procedural rule, but the
Internal Affairs Division (“IAD”) of the BPD was notified early the next morning and
began its investigation. Within slightly more than three months after the incident, the
IAD had interviewed all the officers involved in the arrest, including two who had
witnessed Antonin slap the arrestee. Antonin was charged criminally, at which time the
Deputy Commissioner commented that the BPD “will not tolerate the actions of any
officer that breaks the law in order to enforce the law.” Eventually Antonin entered an
Alford plea to one charge and the others were dismissed. The IAD interviewed him after
the criminal charges were resolved.

       Administrative charges were brought against Antonin. Shortly before his hearing
board was scheduled to begin, he filed a written request that the hearing board be
composed of officers from another jurisdiction, asserting that BDP officers would not be
fair and impartial. The request was denied. During the hearing, he argued that the BPD
violated the Accardi doctrine by not following its own rule, to his detriment, and that he
was entitled to findings in his favor on that basis. The hearing board rejected that
argument as well and found against Antonin. It recommended termination. The Police
Commissioner adopted that recommendation and terminated Antonin.

        Antonin brought an action for judicial review, in which he argued, among other
things, that the hearing board had erred by denying his request for a hearing board
composed of non-BPD officers and that the BPD had violated the Accardi doctrine. The
circuit court ruled in Antonin’s favor on both those issues. The BPD noted this appeal.

       Held: Circuit court judgment reversed and termination by BPD reinstated. This
case stands in contrast to Sewell v. Norris, 148 Md. App. 122 (2002), in which we held
that a BPD officer could not be fairly tried by a hearing board composed of BPD officers
because, as widely covered in the press, the Mayor of Baltimore City and the Police
Commissioner had publicly criticized his alleged misconduct in ways that made clear to
BPD officers that they did not want him on the police force and would not tolerate
findings in his favor. Here, the public comments by the Deputy Commissioner were not
widely covered, were benign, and did not suggest that there could be retaliation by the
police command if the hearing board found in Antonin’s favor. In addition, there had
been a complete turnover in the police command by the time of the hearing board.

        Among other elements, Maryland’s version of the Accardi doctrine requires proof
that the agency’s failure to follow its own rule resulted in prejudice. Here, Antonin made
no showing that he suffered prejudice as a consequence of the BPD’s failure to follow its
procedural rule on use of force.
Circuit Court for Baltimore City
Case No. 24-C-16-006333

                                                  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 doctrine,1 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 non-BPD officers?

       II.      Did the BPD violate the Accardi doctrine, 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 6:10 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.


       1
           See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).
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 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 effectively 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

       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.


                                           -2-
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:

       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 11:30 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



       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
                                                                           (Continued…)

                                            -3-
violation of General Order C-2 Rule 1, Section 6.4 Between July 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 after 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




(…continued)
     unbecoming a member of the B[PD], and subject to disciplinary action by
     the Police Commissioner.
       4
           General Order C-2 Rule 1, Section 6 provides:

       Every member of the Department is prohibited from using unnecessary
       force or violence and shall not strike a prisoner or 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.


                                             -4-
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 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 on-
       going 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. In 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

       5
         Neither Officer Cupid nor Officer Galfi made any mention in their IAD
interviews of Wilson spitting or threatening to spit.


                                           -5-
      toward Mr. Wilson, slaps him 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.”

      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 § 3-107(c)(1)(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


                                           -6-
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 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




      6
        Antonin unsuccessfully renewed his motion to have the hearing board members
replaced with non-BPD officers.




                                           -7-
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 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




      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.


                                           -8-
Rodriguez’s two statements together “demonstrate the position of the BPD: [Antonin]

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 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, [Antonin]
       was not interviewed until almost two and a half years after the incident.
       Although BPD argued that IAD wanted to wait to interview [Antonin] until
       after the criminal case concluded, [Antonin] entered the Alford plea on
       October 5, 2014, yet IAD did not interview [Antonin] until a year and a half
       later on March 10, 2016.[8]




       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-
The court ruled that the final agency action could not stand under Accardi.9

       The BPD 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 (2011)).

       “‘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

       9
        In its order, the court stated that if the BPD “decides to retry this matter, it must
use a hearing board comprised of officers of a different law enforcement agency[.]” It
did not explain, however, how the Accardi doctrine violation could be cured by a new
hearing board.


                                            -10-
by reviewing courts. Bd. of Physician Quality Assur. v. Banks, 354 Md. 59, 69 (1999)

(citing Lussier v. Maryland Racing Comm’n, 343 Md. 681, 696–97 (1996)).

                                        DISCUSSION

                                               I.

       Antonin contends the BPD violated his procedural due process rights because the

hearing board was composed of BPD members, and BPD members could not be

impartial. He argues that the

       two separate statements [that] were made by Deputy Commissioner
       Rodriguez . . . demonstrated that it was the [BPD]’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 BPD 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 BPD 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.

       “[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


                                              -11-
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 (1993)). 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 the

conclusion that the [decisionmaker]’s impartiality might reasonably be questioned.’” Id.

(quoting In re Turney, 311 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.



                                               -12-
       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.”

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


                                            -13-
select members for the hearing 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 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

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

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.


                                             -14-
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 non-BPD 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 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 even-tempered reaction to footage of an


                                             -15-
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. 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.


                                           -16-
       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 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.




                                            -17-
         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.”

         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).

         11
         The policy refers to a separate policy that is to be followed if the reported force
involves the discharge of a weapon.


                                            -18-
       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 deadlines.      In addition, it states that the BPD 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 K-15 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


                                           -19-
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. Bd. of

Review, 374 Md. 463, 467 n.1 (2003). Its genesis was United States ex rel. 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. 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


                                          -20-
       issue to determine if it implicates Accardi because it affects individual
       rights and obligations or whether it confers important procedural 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 business.12 Finally, the party alleging a

violation must show that the violation resulted in prejudice to him or her.


       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.


                                            -21-
       In this case, Antonin asserts that the BPD 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-in-Charge, 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 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-15

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 K-15.

       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


                                          -22-
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 K-15.

       Dep’t 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.

       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

       13
            The court mistakenly understood that filing charges was part of the investigation
process.


                                             -23-
       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 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



                                           -24-
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 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


                                          -25-
“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 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 self-incriminating 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.


                                            -26-
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.




-27-
