Smith v. State
| Decision Date | 26 August 2022 |
| Docket Number | 61-2021 |
| Parties | EVERETT SMITH v. STATE OF MARYLAND |
| Court | Maryland Court of Appeals |
Watts Hotten Booth, Biran, Gould, Eaves, Getty, Joseph M. (Senior Judge, Specially Assigned), JJ.
2020 will be remembered as one of the most tumultuous years in American history. As the nation struggled to navigate the COVID-19 pandemic, a white Minneapolis police officer killed George Floyd, an unarmed African American man, on May 25, 2020. Floyd's murder, which followed multiple killings of African Americans around the country over the previous decade, galvanized the Black Lives Matter movement, leading to enormous protests and counter-protests around the nation throughout the summer of 2020. The pro-police "Blue Lives Matter" movement increased in prominence nationally as a response to Black Lives Matter and calls to "defund the police." The presidential campaign fanned the flames of controversy throughout the summer and into the fall of 2020.
The case before us here went to trial on October 14, 2020, against this backdrop of illness, fear, and civic and political unrest. In the Circuit Court for Kent County, the State charged Everett Smith, an African American man, with several criminal offenses arising from an alleged physical altercation with his 14-year-old daughter. In keeping with an Administrative Order issued by the Chief Judge of this Court, the trial court required all people in the courtroom for Smith's trial to wear face masks to prevent the transmission of COVID-19. At the time of Smith's trial, the Sheriff of Kent County was requiring all his deputies to wear face masks that displayed a "thin blue line" version of the American flag. The "thin blue line" is a controversial and polarizing symbol. Some view it as an expression of general support for law enforcement; others view it as a symbol of how police serve as a barrier between civilized society and criminals; and others view it as a racist symbol that expresses support for white supremacy and violence against African Americans.
The Sheriff's deputies who served as courtroom bailiffs during Smith's trial wore thin blue line face masks as required by the Sheriff. Immediately before jury selection, Smith's attorney asked the trial court to direct the deputy who was acting as the bailiff at that time to wear a different mask that did not include an image of the thin blue line. Believing the bailiff had a First Amendment right to wear the thin blue line flag mask, the trial court declined defense counsel's request. The jury convicted Smith of second-degree assault and second-degree child abuse by a custodian.
On appeal, Smith argued that the bailiffs' display of the thin blue line flag on their face masks violated his right to a fair trial under the Sixth Amendment to the United States Constitution. The Court of Special Appeals affirmed Smith's convictions. Although the intermediate appellate court recognized that a courtroom is not a public forum where restrictions on citizens' First Amendment rights are subject to heightened scrutiny, and the court expressed concern about the display of the thin blue line in courtrooms, it held that Smith did not his meet burden to demonstrate that he was deprived of a fair trial.
We conclude to the contrary. The bailiffs' display of the thin blue line flag - and the pro-law enforcement message it conveyed - was inherently prejudicial to Smith's right to a fair trial. We therefore vacate Smith's convictions and order a new trial.
By mid-March 2020, COVID-19 had arrived in Maryland and was spreading rapidly throughout much of the State. Under the direction of the then-Chief Judge of this Court, the Honorable Mary Ellen Barbera, Maryland's courts suspended most in-person hearings and initiated emergency procedures to protect the citizens of the State.[1] The unprecedented COVID-19 public health emergency caused the postponement of trials for months, as Maryland's citizens and judicial system grappled with the global pandemic.
In May 2020, Chief Judge Barbera issued an administrative order lifting the prohibition on jury trials, with trials to resume after October 5, 2020.[2] In October 2020, Chief Judge Barbera issued an amended administrative order on the phased resumption of operations as well as an amended administrative order on the resumption of trials scheduled to begin on October 5.[3] Trials were permitted to go forward with strict safety requirements, including required masking in court buildings, mandatory quarantining, etc. Jury trials subsequently resumed under these mandated reopening and safety precautions.
On May 25, 2020, George Floyd, an African American man, was killed by Derek Chauvin, a white Minneapolis police officer, during Floyd's arrest for allegedly using a counterfeit 20-dollar bill at a convenience store.[4] Officers stopped Floyd, pulled him out of his vehicle, and restrained him on the ground. Chauvin kneeled on Floyd's neck for over eight minutes. An unresponsive Floyd was declared dead, and his death was ruled a homicide.[5]
Bystanders' videos of Floyd's killing spread rapidly, sparking widespread outrage against police brutality and racial injustice. Major cities across the United States saw large protests and civil rights demonstrations. The Black Lives Matter movement ("BLM"), founded in response to George Zimmerman's fatal shooting of Trayvon Martin in 2012, gained significant support and following in the aftermath of Floyd's murder.[6] This social outcry brought other recent killings of African Americans - in particular, Ahmaud Arbery and Breonna Taylor - to national attention. Ahmaud Arbery was murdered by white men while out jogging; Breonna Taylor was killed by police in her own home.[7]
These highly publicized killings of African American men and women, and subsequent protests, led to widespread calls for police accountability, combatting of reported systemic racism in law enforcement, and introspection concerning police interaction with people of color. A call to "defund the police" gained support among protestors and reformers, leading to public discussion, proposals, and policymaking in cities and states across the country.[8] Proponents of the "defund the police" movement sought to restructure and reallocate police responsibilities and funding toward other resource investments in communities, such as addressing housing and education disparity, mental health, poverty, and social services.[9] Many law enforcement organizations and pro-law enforcement groups took defensive postures toward these calls to "defund the police."[10] C. The "Thin Blue Line" Flag
Counter-protests to BLM also appeared around the country during the summer of 2020. Pro-law enforcement demonstrations, e.g., the "Blue Lives Matter" movement launched in response to murders of New York City police officers in 2014, served as a counterpoint to the BLM and "defund the police" movements.[11] The "thin blue line" symbol, while having existed for some time, began to appear more frequently at these counter-protests.
The "thin blue line" draws its origins from the "thin red line" of the British Army during the Crimean War. During the battle of Balaklava, an unconventional two-deep line of Scottish infantry successfully repelled a Russian cavalry charge. Trevor Royal, Crimea: The Great Crimean War, 1854-1856, at 266-68 (St. Martin's Press, 2000). The soldiers wore red uniforms and were described as a "thin red streak" or "thin red line" standing as the line in defense of their country. Id. at 267-68. This usage and imagery of a "thin red line" describing military as the last line of defense has continued into modern popular culture, including the 1998 film The Thin Red Line.
While it is unclear when exactly the thin red line inspired the creation of the "thin blue line," the phrase and image were first publicly used in the 1920s and became more widely known in the 1950s due to Los Angeles Police Department (LAPD) Chief William H. Parker.[12] Tasked with cleaning up department corruption, Parker reformed the LAPD from "local disgrace to national fame - a crisp, militaristic 'thin blue line' ...." Parker also established a department-sponsored TV program called "The Thin Blue Line" and consistently used the phrasing in interactions with the press.[13]
There are at least two popular iterations of the "thin blue line" flag, one depicting a plain black flag with a large blue stripe across and another as a version of the American flag depicting black and white stars and stripes with a distinct blue line substituted for one of the stripes.[14] Andrew Jacob, president of Thin Blue Line USA, claims credit for creation of the thin blue line flag in 2014, although not the image itself.[15]
In 2020, some counter-protesters to BLM and pro-police protesters adopted the thin blue line image and flag as symbolic of their support for law enforcement.[16] The thin blue line flag also has been displayed by white supremacists and violent extremists. During the "Unite the Right" rally in Charlottesville, Virginia, in 2017, the thin blue line flag was flown by white supremacists along with Confederate and Neo-Nazi flags and symbology.[17]Due to white supremacist co-option of the thin blue line flag, some law enforcement agencies have banned the use of the image.[18]
The thin blue line flag has been interpreted to convey several meanings...
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