Gaff v. State
| Decision Date | 06 November 2020 |
| Docket Number | No. 2037,2037 |
| Parties | DONALD GAFF v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore City
Case No. 116335009
UNREPORTED
Beachley, Shaw Geter, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned) JJ.
Opinion by Harrell, J.
* This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.
Following a bench trial in the Circuit Court for Baltimore City, Officer Donald Gaff, appellant, a patrol officer with the Baltimore City Police Department ("BPD"), was convicted of misconduct in office, but acquitted of second-degree assault.1 His motion for a new trial was denied. The court sentenced Officer Gaff to a term of one year, suspend all but time served, and to one year of supervised probation. In this appeal, Officer Gaff presents two questions for our review, which we have rephrased:
For the following reasons, we answer the first question in the affirmative and the second question in the negative and, so, affirm the judgment of the circuit court.
The charges against Officer Gaff arose from an arrest he effectuated in the early morning hours of 11 September 2016, while working the overnight shift in the Brooklyn neighborhood of South Baltimore. At the bench trial, the State presented testimony from the arrestee, Jamal Wilson, and from two other police officers on the scene, Officers Felix Torres and Miguel Rodriguez, both of whom were wearing department issued body-worn cameras.2 In his case, Officer Gaff testified and called Officer Nicholas Marks, who also was on the scene that night, but was not wearing a body camera. During trial, the circuit court granted the State's motion in limine to exclude Officer Gaff's use of force expert, Professor Maria Haberfeld, Ph.D.
The evidence adduced, viewed in a light most favorable to the State, showed the following. On 11 September 2016, Mr. Wilson was socializing with friends and family. He, his sister, Jamila Wilson ("Jamila"); his adoptive mother, "Mama Jean"; and her young granddaughter had traveled from West Baltimore to the Brooklyn neighborhood to pick up Mr. Wilson's friend, Mike, and some of Mike's friends. They planned to return to West Baltimore together to socialize further at Mr. Wilson's house.
On the way back to Mr. Wilson's house, the group traveled in two cars. Jamila drove a white Nissan Sentra, in which Mr. Wilson was her front seat passenger and Mama Jean and her granddaughter were backseat passengers. Mike drove a black car with at least one passenger. Jamila was following Mike because he knew the area better Before heading home, they made a stop at a bar and package goods store in the 600 block of East Patapsco Avenue. Mike parked at the curb. Jamila initially did the same. While Mr. Wilson was inside the store, Jamila pulled out of her parking space and double-parked near Mike's car, blocking one of the two eastbound lanes of traffic.
It was then, shortly after 1 a.m., that Officer Gaff, who was driving a marked cruiser, pulled up behind Jamila's double-parked vehicle. He yelled twice to her, "Hey, park your car." She gestured to him to go around her. He activated his lights and called for backup over the radio. Officer Gaff approached the driver's side window of the Nissan on foot as Mr. Wilson was returning to the car from the package goods store.
Officer Gaff and Mr. Wilson testified to vastly different versions of what transpired next. According to Officer Gaff, Mr. Wilson approached him yelling, "Get the f—k away from the car" and "F—k you and f—k your mother." He was behaving in a bizarre manner and repeating himself. Officer Gaff was scared and called out his location over his radio, a sign to the dispatcher that he was in danger.
According to Mr. Wilson, he told merely Officer Gaff to "give [them] a few seconds" because they were about the leave. Officer Gaff responded angrily, telling Jamila that he didn't care and to "move that piece of . . . s-h-i-t."
Officers Torres, Rodriguez, and Marks responded to the scene, along with Officer Jose Boscana. When Officer Rodriguez arrived, he saw Officers Gaff and Boscana standing on the passenger side of the Nissan.3 Officer Rodriguez parked his cruiser "nose- to-nose" with the Nissan. He got out of his vehicle and walked to the driver's side of the Nissan.
At that time, Officer Gaff was directing Jamila and Mr. Wilson to drive away, saying "Go now" and "I'm telling you to leave." Jamila told Officer Rodriguez that she needed to follow the car being driven by Mike, which still was parked at the curb, as confirmed on Officer Rodriguez's body camera video. She said she was following that car back to Baltimore and that he needed to "move out" first. A moment later, Jamila put the Nissan in reverse and Officer Rodriguez exclaimed, "Stop!" and told her to put her car in park.
Mr. Wilson's side of the conversation is not audible on the body camera footage, but Officer Gaff can be heard saying, "Say another word and you're going to jail." Officer Torrres arrived at this point and approached the driver's side of the Nissan from behind Officers Boscana and Gaff. From his body camera footage, Mama Jean can be seen reaching forward from the backseat to put her hand over Mr. Wilson's mouth. According to Officer Gaff, Mama Jean whispered to Mr. Wilson that he was "in enough trouble, just stop." This caused Officer Gaff to suspect that Mr. Wilson might be on probation or have an open warrant. Officer Gaff began asking Mr. Wilson to show him ID, saying Jamila, who was crying and visibly upset, began begging Mr. Wilson to get out of the Nissan.
Mr. Wilson opened the passenger side door and got out. Officer Gaff, facing Mr. Wilson, asked him for ID and said, "You're going to jail." Mr. Wilson replied, "I'll go" and placed his hands behind his back. While Mr. Wilson remained facing Officer Gaff with his hands behind his back in a position to be handcuffed, Officer Gaff reached out his left hand and shoved Mr. Wilson's right shoulder, causing him to fall backwards against the Nissan. As he fell, Mr. Wilson's right hand swatted at Officer Gaff's left arm, making contact.
After he steadied himself against the Nissan, Mr. Wilson's arms were down at his sides. Officer Gaff then lunged toward Mr. Wilson, grabbing and hitting him around the face, yelling repeatedly, "You're going to jail motherf--ker." Officer Torres exclaimed, "Just chill, hey, hey hey!" Officer Boscana placed his right arm between Officer Gaff and Mr. Wilson, blocking Officer Gaff from getting closer to Mr. Wilson. At the same time, Officer Torres grabbed Officer Gaff's left arm and shoulder, attempting to pull him off Mr. Wilson, repeating his admonition, "Hey, hey, hey, chill, chill, chill." Officer Torres testified that he was speaking to Officer Gaff, not Mr. Wilson. During the encounter, Officer Gaff paused for a moment and looked in the direction of Officer Torres, who was urging him to "chill," and then turned back and shoved Mr. Wilson in the face again.
Officer Marks arrived on the scene after Mr. Wilson was out of the vehicle. He testified that as he arrived, he thought he saw Mr. Wilson strike Officer Gaff. He was shown the body camera footage at trial and acknowledged that Mr. Wilson appeared to have his hands behind his back when Officer Gaff shoved him.
Mr. Wilson was arrested and charged with failure to obey a lawful order of a police officer, second-degree assault, and resisting arrest. He was transported to Harbor Hospital, where he was evaluated for abrasions and pain in an eye, and then was transported to Central Booking. Five days later, the State entered a nolle prosequi as to each charge.
The State introduced into evidence at trial the BPD's "Use of Force" Policy ("Policy 1115") (published 1 July 2016). As pertinent, Policy 1115 provides that police officers "shall use only the force objectively reasonable, necessary, and proportional to effectively and safely resolve an incident, while protecting the lives of the member or others." An officer "shall de-escalate as soon as possible and appropriate" and "may be justified in using force at one moment, but not justified in using force several seconds later due to the changing dynamics of a situation." Relatedly, an officer must "continually assess the situation and changing circumstances, and modulate their use of force appropriately." This includes ""slow[ing] down' the situation and re-assess[ing] how [an officer] can achieve the most peaceful outcome."
The "De-Escalation" section of Policy 1115 further explains that de-escalation techniques "include verbal persuasion, warnings and tactical de-escalation techniques, such as slowing down the pace of an incident, waiting out subjects, creating distance (and thus the reactionary gap) between the member and the threat, and requesting additional resources[.]" Creating distance may be achieved by "withdraw[ing] to a position that is tactically advantageous or allows [the officer] greater distance in order to de-escalate a situation[.]" An officer "shall not use tactics designed to intentionally escalate the level of force."
The State also introduced into evidence the BPD Code of Ethics ("Policy 301") and the BPD Rules & Regulations ("Policy 302"). Policy 301 states, in relevant part, that a police officer will "enforce the law courteously and appropriately without fear or favor, malice or ill will, never employing unnecessary force or violence[.]" Policy 302 provides...
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