BALTIMORE POLICE DEPARTMENT v. SERGE ANTONIN
Court of Special Appeals of Maryland, D Eyler, June 1, 2018,
Due Process- Impartial Trial Board – BPD was not required to form a trial board from non-BPD members where public statements about the case by command staff “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.”

Facts from the Opinion:
In 2013, BPD officers were involved in a car chase on Belair Rd. The suspect, a fourteen-year-old named David Wilson, crashed into two parked cars and was apprehended.
Then-officer Antonin was the wagon man and arrived as other officers were detaining Wilson. “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 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.”
WBAL-TV was overhead videotaping and aired footage showing Antonin hitting Wilson on the head.
However, no use of force report was prepared at the time.
Then-Deputy-Commissioner Rodriguez quickly put out a statement to the media that “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.”
Antonin was criminally charged and then-Deputy Rodriguez put out a statement to the media that ““We will not tolerate the actions of any officer that breaks the law in order to enforce the law.”
Antonin pled to misconduct in office and received probation before judgment.
After the criminal charges were resolved, IAD 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.’ Antonin admitted to being upset about Wilson’s reckless driving and to yelling at Wilson, “you could have killed somebody.”
IAD charged Antonin departmentally with Misconduct/General and Excessive Force.
Antonin requested a trial board composed of non-BPD officers in light of Deputy Rodriguez’ statements, but this was denied by then-Commissioner Davis.
Antonin also argued that the trial board didn’t have jurisdiction because BPD hadn’t followed its use of force protocol and no on-scene investigation was performed.
The trial board found Antonin guilty of misconduct and use of excessive force. Antonin was subsequently terminated.
Antonin then filed an action in Circuit Court, arguing that BPD violated due process by failing to follow its own administrative procedure and not having his case heard by a non-BPD trial board.
The Circuit Court agreed with Antonin and vacated Antonin’s termination.
BPD appealed, arguing that the Deputy’s statement was moderate and that the Deputy had left BPD by the time of the trial board. It also argued that BPD didn’t violate its use of force policy because Antonin never reported the force to allow his supervisor to investigate. Moreover, the lack of a use-of-force report was irrelevant because the entire incident was captured on video.

Held: The Court of Special Appeals found that a trial board of BPD members was acceptable and the lack of an immediate use of force report didn’t harm Antonin’s case. Antonin’s termination was upheld.

Due Process – Law-enforcement officers are entitled to a trial board consisting of impartial members

Due Process – There is a “strong presumption” that members of a trial board are impartial and have a duty to refrain from serving on the trial board when they are not qualified based on impartiality or other reasons

Due Process – Impartiality is decided based on “whether a reasonable member of the public knowing all the circumstances would be led to the conclusion that the [trial board member]’s impartiality might reasonably be questioned.”

Due Process – In deciding whether due process requires bringing in members of other departments, courts will consider:
– the interest of the officer that will be affected by the official action
– the risk of wrongly depriving the officer of that interest through the procedures used
– the probable value, if any, of additional or substitute procedural safeguards
– the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would involve

From the Case: In a 2002 case, a BPD trial board was found not to be “impartial” when the commissioner had already said that the officer was guilty of “a horrible breach of the public trust” and the mayor had already declared that the officer is “not going to serve in my Police Department.” “Because of the intense public comments against [the officer] by the Commissioner and Mayor, BPD officers selected to serve on [the officer’s] hearing board would fear adverse employment action if they were to find in [the officer’s] favor. Therefore, [the officer’s] right to due process was violated by the selection of a hearing board comprised of BPD officers.” Moreover, the Court found in that case that selecting non-BPD officers would “bolster public confidence in the board’s decision,” the cost of having non-BPD officers hear the case was minimal, and the BPD did “not have a particularly strong interest in trying” the officer with BPD officers.

From the Case: In this case, BPD officials’ comments were “measured” and “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.” Moreover, “Deputy Commissioner Rodriguez and much of the BPD command leadership had departed from the BPD before Antonin’s hearing board was held.” Therefore, BPD members on the trial board “had no incentive to render a particular decision to satisfy the expectations of a departed administration.”

Agency Procedure – An agency’s decision will be vacated if:
– The agency violated its own regulations or procedures
– Those procedures related to an individual’s rights, obligations, or benefits
– The person suing can show that they were negatively affected by the agency’s failure to follow procedure

Agency Procedure – Prejudice – An individual challenging an agency decision has to show actual harm

From the Case: Antonin “provided no concrete examples of how the lack of a Use of Force Summary Report and investigation prejudiced him.” Antonin claimed that an immediate use of force investigation “’could have’ produced a different result. There is nothing to suggest that it would have, however.”

Prejudice – An individual isn’t prejudiced by passage of time where there is no demonstration that witness memory was affected

From the Case: “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.”

From the Case: A two and a half year delay in interviewing an officer in order to wait for criminal charges to conclude was not prejudicial where “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.”