Meyers v. Montgomery County Police Dept.

• Decision Date: 01 September 1992
• Docket Number: No. 1190,1190
• Citation: 96 Md.App. 668,626 A.2d 1010
• Parties: Stuart A. MEYERS v. MONTGOMERY COUNTY POLICE DEPARTMENT, et al. ,
• Court: Court of Special Appeals of Maryland

Page 668

96 Md.App. 668

626 A.2d 1010

Stuart A. MEYERS v. MONTGOMERY COUNTY POLICE DEPARTMENT, et al.

No. 1190, Sept. Term, 1992.

Court of Special Appeals of Maryland.

July 1, 1993.

Gary I. Crawford (Clarke, Crawford & Bonifant on the brief), Gaithersburg, for appellant.

Ramona Bell-Pearson, Asst. County Atty. (Joyce R. Stern, County Atty. and Bruce P. Sherman, Sr. Asst. County Atty. on the brief), Rockville, for appellees.

Argued before WENNER, CATHELL and HARRELL, JJ.

HARRELL, Judge.

Following a call to the police from a residence in Montgomery County concerning a domestic dispute, the police officers dispatched to the scene arrested both the husband and wife involved in the dispute. The wife subsequently filed a complaint alleging brutality against the arresting officers, Police Officer III Stuart Meyers, appellant, and Police Officer III Michael Diggs. The complaint was investigated by the Office of Internal Affairs of the Montgomery County Police Department. As a result of the investigation, the police department lodged two allegations of violations of the use of force directive, Montgomery County, Dept. Reg. 82-55, Function Code 300, II, Rule 6, against Officer Meyers and lodged one allegation of violation of the use of force directive against Officer Diggs.

Pursuant to the Law Enforcement Officers' Bill of Rights (LEOBR), Md.Ann.Code art. 27, §§ 727-734D (1992), the officers requested that testimony and evidence on the allegations be taken by an Alternate Hearing Board. The Alternate Hearing Board (AHB or the Board) was comprised of Earle W. Hockenberry, Jr., Esq., as the chairperson, Captain James A. Taylor, and Police Officer Victor A. Kennedy. The AHB convened on 1 October 1991 and heard testimony and received evidence for two days. At the conclusion of the hearing, the majority of the Board, through an oral ruling by its chairperson, found that Montgomery County had proven, by a preponderance of the evidence, that Officer Meyers was guilty of only one of the allegations. The Board further ruled that it unanimously found that the County had not met its burden of proof as to Officer Diggs.

Immediately following the ruling by the AHB, counsel for Officer Meyers made a motion for reconsideration, attacking the evidentiary standard--preponderance of the evidence--applied by the Board. Officer Meyers's counsel argued that based on § 730(e) of the LEOBR and the nature of the proceedings, the AHB should have applied the clear and convincing standard of proof. After considering counsel's arguments, the Board declined to apply the clear and convincing evidentiary standard.

The AHB then took evidence and heard testimony on Officer Meyers's service record. Following a brief recess, the Board reached a unanimous decision that Officer Meyers should be suspended from work without pay for two days.

On 15 October 1991, the AHB chairperson, in a memorandum to Colonel Clarence Edwards, the Montgomery County Chief of Police, set forth the findings of the Board and again recommended that Officer Meyers be suspended from duty for two days without pay. The Chief of Police, instead, placed a Letter of Reprimand, dated 28 October 1991, in Officer Meyers's personnel file.

On 26 November 1991, Officer Meyers filed an Order for Appeal with the Circuit Court for Montgomery County pursuant to Art. 27, § 732 and Md.Rule B2. On 12 March 1991, Montgomery County filed a motion to dismiss Officer Meyers's appeal. The circuit court (Weinstein, J.), by order dated 1 April 1991, denied the County's motion. At the direction of the circuit court and by agreement of the parties, each side presented their arguments in memoranda to the court in lieu of oral argument. On 9 June 1992, the circuit court issued an opinion and order affirming the decision of the Alternate Hearing Board and the chief of police. Officer Meyers noted a timely appeal to this Court on 6 July 1992.

Facts

On 7 October 1990, Mrs. Shahnaz Givpour ¹ called the police operator claiming that she had been beaten by her husband, Mr. Mohammed Givpour. Mrs. Givpour requested police assistance. Officer Diggs received the call from the police dispatcher to respond to Mrs. Givpour's request. Officer Meyers volunteered to back-up Officer Diggs; however, Officer Meyers was the first police officer to arrive at the Givpours' residence. Upon arriving, he approached the Givpours' town house and sought to assist Mrs. Givpour and the Givpours' three daughters in leaving the residence. Mr. Givpour, however, did not want his two younger daughters to leave with the officer. A fight between Officer Meyers and Mr. Givpour ensued; Officer Diggs joined this fight after he arrived at the scene. The fight spilled out of the Givpours' town house and into the parking lot where the officers eventually subdued, handcuffed, and arrested Mr. Givpour. Mrs. Givpour was also arrested by Officer Diggs for interfering in the struggle between the officers and her husband.

To paint a fuller picture of the events that took place at the Givpours' residence on 7 October 1990, we recount the testimony given by the witnesses that appeared before the AHB.

At the hearing, Mrs. Givpour testified to the following events: On 7 October 1990, she and her husband had an argument and she called 911 to request assistance. Shortly after she placed the call, Officer Meyers knocked on the door of the family home. Officer Meyers entered the residence and Mr. Givpour, who had been lying on the floor, stood up. Mrs. Givpour told Officer Meyers that she and her husband had just had a fight and that she wanted the officer to take her husband out of the house.

Mrs. Givpour sought to have Officer Meyers remove her husband from the house because she had received police assistance in a similar situation on a prior occasion. Approximately one and a half years prior to the incident giving rise to this appeal, Mrs. Givpour had called the police seeking assistance during a domestic dispute. The officers responding to the call, whom Mrs. Givpour described as very nice, calmed Mr. Givpour by sending him outside for a walk and to smoke a cigarette.

After Mrs. Givpour asked Officer Meyers to remove her husband from the home, Meyers asked Mrs. Givpour to follow him so that she could make out a complaint. Mrs. Givpour did not understand what that entailed, but Officer Meyers stated that he would explain it to her outside the house. Mrs. Givpour and her eldest daughter, then about seventeen years of age, began to leave with the officer. Officer Meyers then asked Mrs. Givpour about the two younger daughters, whose ages at that time were approximately nine and three and a half years. Meyers asked the girls if they wanted to leave with their mother. The girls indicated that they did not wish to leave the house, but Officer Meyers approached the younger children and told them to come with him. Mr. Givpour then stepped toward the officer and sought to prevent the children from leaving. Officer Meyers pushed Mr. Givpour out of the way, but Mr. Givpour again sought to prevent his children from leaving and, again, Meyers pushed Mr. Givpour out of the way.

The altercation between Officer Meyers and Mr. Givpour eventually turned into a fight with punches being thrown, at which point, Mrs. Givpour and her eldest daughter ran outside. Once outside, they sat in Mrs. Givpour's car, but eventually Mrs. Givpour approached the house and watched the fight through the screen door of the house. After approximately two minutes, Officer Diggs arrived and went inside the town house and joined Meyers in hitting Mr. Givpour. Mrs. Givpour then approached Mr. Calvin Richards, a neighbor who was outside washing his car, and asked him to enter the house to take the younger children outside. Mr. Richards entered the home, but one of the officers told him to leave. Mrs. Givpour then entered the home and when she saw her husband lying on the floor, she told the officers, "You killed my husband." Officer Meyers then hit Mrs. Givpour with an unidentified object.

Continuing to testify, Mrs. Givpour related that Officer Meyers then pushed her husband through the screen door. Her husband stumbled down the front steps of the town house and fell in the parking lot, which is only a short distance from the front steps, between two parked cars. Officers Meyers and Diggs and Mrs. Givpour followed Mr. Givpour outside. While Mr. Givpour was on the ground, the officers handcuffed him. Mrs. Givpour stated that even after the officers had handcuffed her husband, they continued to hit and kick him. In addition, Mrs. Givpour stated that she observed one of the officers walk on her husband after he was handcuffed.

Mrs. Givpour testified that during the struggle between the officers and her husband she was screaming and crying. Officer Diggs had pushed her to the ground twice and, after the second time, Diggs handcuffed Mrs. Givpour and put her in a patrol car. Mrs. Givpour stated that she never touched either of the officers during the incident and after being placed in the police car was unable to observe any further actions by the police officers.

On cross-examination, Mrs. Givpour denied that she told the District Court Commissioner, Ms. Sandra Farber, that her husband had beaten her on 7 October 1990. Mrs. Givpour further denied asking the commissioner to explain a domestic violence petition and how she could stop her husband from beating her. Mrs. Givpour also denied admitting to the commissioner that she had jumped on Officer Diggs's back. Mrs. Givpour did acknowledge, however, that she had pressed charges against her husband several years earlier and that she had requested police assistance during a domestic dispute in October 1989. Mrs. Givpour did not remember that it was Officer Meyers, along with a female police officer, who had responded to her request for assistance in 1989.

Mrs. Givpour further testified on cross-examination that she never saw her...