Baltimore Police disciplinary records remain shielded despite revelations of misconduct

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.

• Det. 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.

• Det. 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.

• Det. 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 second-guessing of investigations … by non-professionals,” and create “intrusive opportunities to challenge a chief or sheriff’s decision-making 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?”

jfenton@baltsun.com

twitter.com/justin_fenton

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