In a court filing Wednesday, an attorney representing Harford County Sheriff Jeff Gahler called Maryland Attorney General Brian Frosh’s suit against him an “unwarranted escalation” of their debate over how fatal police shootings in Maryland should be investigated.
The pair’s monthslong disagreement over a 2021 law that requires Frosh’s office to investigate civilian deaths involving police came into the spotlight over the weekend, when two Harford County sheriff’s deputies shot and killed 53-year-old John Raymond Fauver near a Forest Hill shopping center, following reports that the man was carrying a gun and expressing suicidal thoughts.
The Maryland Attorney General’s Office has since maintained that access to evidence in the case is being limited by the sheriff. The sheriff has asserted his office has a duty to investigate the incident in case any criminal activity led up to the shooting, and therefore had the right to collect evidence on the scene of Saturday’s shooting, and retain the digital versions of items like body camera footage.
The two parties will meet Thursday morning in Harford County Circuit Court for an emergency hearing, the results of which could shape the future of one piece of Maryland’s recent police reform efforts, experts say.
Frosh’s decision to litigate the dispute could carry some risk.
Were the judge to decide that local law enforcement agencies can choose whether they would like to collect and retain the original evidence in a police-involved fatality, the attorney general’s office may need to craft agreements with each jurisdiction in Maryland, said David Gray, who teaches criminal law at the University of Maryland’s Francis King Carey School of Law. The office likely will argue that is excessively onerous, Gray said.
But perhaps the greater risk, Gray said, is allowing challenges like Gahler’s to persist without resolution, creating confusion statewide.
“The real risk is having a persistent ambiguity and being on the scene of one of these incidents and not knowing who has primary authority,” he said.
Gray said the new law certainly requires the attorney general’s office to investigate in matters like Fauver’s death and requires local law enforcement to “cooperate,” but its language is unclear about whether the attorney general has exclusive authority and what kind of cooperation is required.
That could compromise chains of evidence in such investigations, among other things, Gray said.
“If you have two agencies that are on the scene trying to do the same thing that can have deleterious effects,” he said. “That just needs to be resolved.”
This year, the Maryland General Assembly passed an updated bill stating the attorney general’s Independent Investigations Division is “the primary investigative unit” for such cases. The bill also stated that local law enforcement agencies “shall provide any requested evidence” to the division.
It does not take effect until July 1, but the judge may consider it while assessing the intent of the legislature, Gray said.
In his filing Wednesday, Gahler’s attorney David Wyand said that Maryland State Police crime scene technicians did not arrive to the scene of the shooting until 6:45 p.m., roughly two hours after the sheriff’s forensics team. State officials already on the scene were invited to observe and photograph evidence collection, and observe any interviews conducted.
A filing from Frosh indicated investigators from the attorney general’s office first arrived at the scene at about 5:30 p.m.
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“They were not denied access to any evidence they wanted to see,” Wyand wrote.
Gahler’s attorney also expressed concerns with the Maryland State Police crime lab, which he said “has historically been very slow in returning results” for firearm-related investigations. As a result, in September 2019, the sheriff’s office switched to using Frederick County’s crime lab, according to a supporting affidavit from Harford County Cpl. Brad Ghaner.
“At times evidence analysis results from MSP took as much as eight months,” Ghaner wrote. “Using the Frederick County lab, [Harford County Sheriff’s Office] can typically produce analysis results in less than a week.”
If the court forced Harford to hand its evidence from Saturday’s shooting over to the state police crime lab, the filing read, it would “introduce unnecessary chain of custody issues” and “cause significant delay in the investigations.”
With regard to the video evidence, which all parties have been able to view, Gahler’s attorney argued that the county’s state’s attorney has the authority over whether to share it with the attorney general’s office, which has a policy of releasing body camera footage publicly within two weeks, at least in most instances.
“The Harford County State’s Attorney has specifically instructed the Sheriff not to release the video without his consent while the investigation is ongoing, asserting that the public release of the video could compromise his investigation,” the filing stated. “Neither the Sheriff nor the Harford County State’s Attorney has received assurances that they will be consulted prior to such a public release.”
Baltimore Sun reporter Alex Mann contributed to this article.