Ellsworth v. Balt. Police Dep't

• Decision Date: 24 April 2014
• Docket Number: No. 58,58
• Citation: Ellsworth v. Balt. Police Dep't, No. 58 (Md. App. Apr 24, 2014)
• Parties: JOSHUA TRIPP ELLSWORTH v. BALTIMORE POLICE DEPARTMENT
• Court: Court of Special Appeals of Maryland

JOSHUA TRIPP ELLSWORTH v. BALTIMORE POLICE DEPARTMENT

No. 58

COURT OF APPEALS OF MARYLAND

Argued: February 10, 2014

September Term, 2013

Filed: April 24, 2014

Joshua Tripp Ellsworth v. Baltimore Police Department, No. 58, September Term 2013.

PUBLIC SAFETY - LAW ENFORCEMENT OFFICERS' BILL OF RIGHTS -RIGHT TO DISCLOSURE OF INFORMATION UNDER SECTION 3-104(n) OF THE PUBLIC SAFETY ARTICLE

Section 3-104(n) of the Public Safety Article, Maryland Code(2003, 2011 Repl. Vol.) provides that prior to a hearing under the Law Enforcement Officers' Bill of Rights, an officer under investigation shall be provided with "a copy of the investigatory file and any exculpatory information," but not "nonexculpatory information," upon certain conditions.The Court of Appeals of Maryland concluded the Legislature did not intend to require state and federal agencies to provide information regarding pending investigations unrelated to the officer and his or her specific charges, but rather, to require disclose of information related to the officer and the charges specified.

Circuit Court for Baltimore City

Case No. 24-C-11-005397

Barbera, C.J.,

Harrell,

Battaglia,

Greene,

Adkins,

McDonald,

Raker, Irma S.(Retired, specially

assigned),

JJ.

Opinion by Battaglia, J.

Barbera, C.J., Harrell and Adkins, JJ.,

dissent.

In this casewe are called upon to interpret the Law Enforcement Officers' Bill of Rights ("LEOBR"),¹ which is triggered when a "law enforcement officer"² is under investigation or subject to interrogation for a reason that may result in "a recommendation of demotion, dismissal, transfer, loss of pay, reassignment, or similar action that is considered punitive".Section 3-107(a).Under Section 3-104(n)(ii) of the LEOBR, a law enforcement officer must be provided with "any exculpatory information" upon completion of an investigation, at least ten days before a hearing, upon certain conditions not relevant here.³It is the definition of "exculpatory" with which weare concerned.⁴

In the present case, Joshua Tripp Ellsworth, Petitioner, a homicide detective with the Baltimore City Police Department("Department"), Respondent, was involved in an incident with Baltimore City PoliceSergeant Jonathan Brickus of the Patrol Division.The incident arose during an investigation into a possible abduction, when the victim of the abduction was purportedly being held in a house located on the 2700 block of West Garrison Boulevard.⁵After members of the homicide unit, including Detective Ellsworth, arrived, no agreement was reached as to which unit would supervise the scene,but Sergeant Brickus advised Detective Ellsworth not to enter the home in which the victim and abductor were allegedly ensconced.Detective Ellsworth, however, began walking toward the house and failed to adhere to Sergeant Brickus's orders to stop; Sergeant Brickus told Detective Ellsworth that he was suspended and seized Detective Ellsworth's gun.A more heated argument ensued; Detective Ellsworth, without his gun, advanced on the house and entered the porch.Sergeant Brickus, thereafter, removed Detective Ellsworth from the porch and attempted to handcuff him and then filed a complaint against Detective Ellsworth, which precipitated an investigation by the Internal Investigation Division of the Baltimore Police Department.⁶The investigator found that the allegations against Detective Ellsworth were supported by sufficient evidence,⁷ and he was charged with seven violations of four administrative rules:

CHARGE 1

***

Rule 1, Conduct: Any breach of the peace, neglect of duty, misconduct or any conduct on the part of any member of the department, either within or without 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 prejudicialto the efficiency and discipline of the department, even though these offenses may not be specifically enumerated or laid down, shall be considered conduct unbecoming a member of the Baltimore Police Department, and subject to disciplinary action by the Police Commissioner.

Specification 1: For that, on or about August 7, 2009, Detective Joshua Ellsworth undermined the good order, efficiency and discipline of the Department by failing to obey several lawful commands and/or orders given to him by Sergeant Jonathan Brickus, a permanent ranking supervisor, not to approach the dwelling located at 2727 W. Garrison Avenue, thereby, conducting himself in a manner unbecoming a member of the Baltimore Police Department.

Specification 2: For that, on or about August 7, 2009, Detective Joshua Ellsworth undermined the good order, efficiency and discipline of the Department by failing to obey a lawful command and/or order from Sergeant Jonathan Brickus, a permanent ranking supervisor, to not knock on the door of the dwelling located at 2727 W. Garrison Avenue, thereby, conducting himself in a manner unbecoming a member of the Baltimore Police Department.

Specification 3: For that, on or about August 7, 2009, Detective Joshua Ellsworth reflected discredit upon himself and the Department, when, while on the scene of a possible domestic abduction, Detective Ellsworth entered into a verbal confrontation with Sergeant Jonathan Brickus, a permanent ranking supervisor, while in plain view of numerous law enforcement members and the general public, thereby, conducting himself in a manner unbecoming a member of the Baltimore Police Department.

CHARGE 2

***

Section 14: No member of the Department shall willfully disobey any lawful command or order, either verbal or written, of any superior or other member designated to command.

Specification 1: For that, on or about August 7, 2009, Detective Joshua Ellsworth failed to obey several lawful commands and/or orders from Sergeant Jonathan Brickus, a permanent ranking supervisor, not to approach the dwelling located at 2727 W. Garrison Avenue, a home possibly harboring an alleged abduction victim.

Specification 2: For that, on or about August 7, 2009, Detective Joshua Ellsworth failed to obey a lawful command and/or order from Sergeant Jonathan Brickus, a permanent ranking supervisor, to not knock on the door of the dwelling located at 2727 W. Garrison Avenue.

CHARGE 3

***

Cooperation with Other Offices and Agencies

Members will cooperate with all legally authorized agencies and their representatives in the pursuit of justice.

An officer or agency may be one among many organizations that provide law enforcement services to a jurisdiction.It is imperative that members assist colleagues fully and completely with respect and consideration at all times.

Specification: For that, on or about August 7, 2009, Detective Joshua Ellsworth, a detective within the Homicide Section entered into a verbal confrontation with Sergeant Jonathan Brickus a permanent ranking member of the Northwestern District, while at the scene of a possible domestic abduction at the dwelling of 2727 W. Garrison Avenue, in plain view of numerous law enforcement members and the general public.

CHARGE 4

***

Section 13: No member of the department at any time shall be insubordinate or disrespectful to a superior.

Specification: For that, on or about August 7, 2009, Detective Joshua Ellsworth, a detective within the Homicide Section behaved in an insubordinate and/or disrespectful manner when he entered into a verbal confrontation with Sergeant Jonathan Brickus a permanent ranking member of the Northwestern District, while at the scene of a possible domestic abduction at the dwelling of 2727 W. Garrison Avenue, in plain view of numerous law enforcement members and the general public.

Detective Ellsworth elected a trial board hearing rather than accept the sanction recommended by the Department.⁸Prior to the hearing, counsel for Detective Ellsworth requested in writing from the City Solicitor,⁹ representing the Department, "discovery tothe fullest extent allowed by law, and to the fullest extent required by the Maryland Law Enforcement Officers' Bill of Rights, Md. Ann. Code Public Safety § 3-101, et seq."In relevant part, Detective Ellsworth's written request stated:

Please provide me with a copy of the investigatory file and exculpatory information.Md. Ann. Code Public Safety § 3-104(n)(ii).

***

Please understand that I interpret the phrase "exculpatory evidence" to mean any evidence favorable to the accused because it tends to prove the accused to be not guilty or tends to mitigate punishment.Brady v. Maryland, 373 U.S. 83(1963).

At the hearing before a three member board,¹⁰ seven law enforcement witnesses were called to testify by the Department, including Officer Daniel Redd, who had been present during the incident between Detective Ellsworth and Sergeant Brickus.¹¹Counsel for Detective Ellsworth cross-examined Officer Redd regarding whether Officer Redd had "an attorney in [his] employ protecting [his] interests for an ongoing federal criminal investigation" in addition to whether Officer Redd knew he was "the subject, in fact the target, of an ongoing federal criminal investigation."Officer Redd answered both questions in the negative.Counsel for Detective Ellsworth further queried Officer Redd, "Since you were 18 years of age, have you ever distributed a controlled dangerous substance?"Officer Redd again answered "No."

The hearing board found Detective Ellsworth guilty of two of the charges, but not guilty of five.The guilty findings included: Charge I, Specification III for conduct "in a manner unbecoming a member of the Baltimore Police Department" by entering into a verbal confrontation with Sergeant Brickus and Charge IV, Specification I for behaving "in an insubordinate and/or disrespectful manner when he entered into a verbal confrontation" with Sergeant Brickus.The hearing board found Detective Ellsworth not guilty of Charge I, Specification I for conduct "in a manner unbecoming a member of the Baltimore Police Department" by approaching the...