BALTIMORE, MD – A federal judge ruled that there is enough evidence in a lawsuit brought by small business owners affected by the 2015 unrest following the death of Freddie Gray when police were ordered to stand down by the city.
Baltimore lawsuit could stop mayors from empowering violent rioters and antifa https://t.co/uobW0WIqMv
— RJ (@RJHimself) September 1, 2021
The lawsuit, brought by 70 plaintiffs, mostly small business owners, has been stuck in the courts for four years, but Thursday’s ruling by U.S. District Judge Stephane Gallagher has cleared the way for the case to go in front of a jury.
The judge said the Maryland Riot Act obligates the city to protect residents and businesses during the unrest. In the ruling, she said the act requires the city to take action to prevent “theft, damage or destruction.”
“The City may ultimately be right that it acted reasonably as a matter of overall policy and prioritization, and a reasonable juror could certainly agree.
“However, a reasonable juror could also (and perhaps simultaneously) conclude that the City remains liable for the ensuing property damage arguably attributable to the ‘trade-off’ between more traditional anti-riot measures and the City’s policy decisions in April of 2015.”
— ronald dygutowicz (@dasrad) September 1, 2021
Riots broke out in Baltimore following the in-custody death of Freddie Gray on April 19, 2015. City leaders argued that they did a good job controlling the riots and claimed the plaintiffs were “Monday morning quarterbacking.”
In the lawsuit complaint, the city denied there was a riot, but rather:
“Individuals opportunistically taking advantage of unrest in order to commit crimes and property destruction.”
The city also argued that police did a good job of suppressing the violence:
“Despite being under-equipped and understaffed as a result of the State and other jurisdictions refusing its requests for assistance in the days leading up to the funeral, BPD managed to suppress the unrest in approximately twelve hours, with no loss of civilian or officer life.”
A judge ruled there’s enough evidence in a lawsuit filed by nearly 70 businesses to allow a jury to determine whether the City fell short in its obligation to properly protect the businesses.https://t.co/QTWgz0qykd
— FOX Baltimore (@FOXBaltimore) September 1, 2021
City attorneys said the city performed well compared to other cities in similar situations:
“The violence that has erupted nationwide both before (Ferguson) and after (following the 2020 death of George Floyd), and even the last time Baltimore experienced rioting in 1968.”
The plaintiffs argued that police were ordered to stand by as their businesses were burned and vandalized. They claimed police stood by as many of them were attacked and injured during the riot.
The plaintiffs said in the complaint:
“Even in locations where BCPD officers were present, business owners helplessly watched their stores being looted and destroyed as BCPD officers also simply watched and/or turned away and let the destruction of property continue.”
Judge Gallagher said the city coordinated with police and ordered them to protect the First Amendment rights of rioters over any other duties:
“The City instructed the BPD that it did not want the BPD’s response to appear ‘overly aggressive,’ and that the BPD should prioritize protecting the protesters and their First Amendment rights.
“In the lead-up to the April 25th protests, the City remained focused on ensuring that the BPD not ‘silence’ protesters or ‘interfere with their First Amendment rights.’”
On April 12, 2015, Baltimore police arrested Gray, a 25-year-old black man. While in a police transport vehicle, his neck and spine were injured, and he fell into a coma. He died of his injuries on July 19, 2015.
Rioting broke out in protest of Gray’s death while in police custody, leading to the injuries of at least 20 police officers, the arrest of at least 250 people, and between 285b and 350 businesses damaged.
There were 150 vehicles set ablaze, 60 structure fires, and 27 drugstores looted in the chaos.
Thousands of police and the Maryland National guard responded to quell the violence and a state of emergency was declared. The state of emergency remained until May 6, 2015.
On May 1, 2015, the medical examiner ruled Gray’s death a homicide, and six officers were charged with various crimes for their involvement.
Three of the officers were acquitted of their charges, and in July 2016, Baltimore State’s Attorney Marilyn Mosby dropped charges against the remaining three officers.
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Baltimore ignores Supreme Court, charges officer for not defending “victim” attacked by other man
August 14, 2021
BALTIMORE, MD – According to reports, a Baltimore Police officer has been charged with reckless endangerment and misconduct in office regarding an August 2020 incident where the officer allegedly failed to protect an unresponsive victim from an assault launched by another individual.
However, the charges against the officer raise serious questions based upon conflicts with established SCOTUS rulings and has attracted the scrutiny of the Fraternal Order of Police Lodge No. 3 president.
A Baltimore City police officer faces charges after allegedly standing idle feet from an assault. https://t.co/APwK5xOlG6
— WJZ | CBS Baltimore (@wjz) August 14, 2021
On August 12th, 2020, 25-year-old Baltimore Police Officer Christopher Nguyen was responding to an assault call within the 4200 block of Kolb Avenue.
According to the Baltimore State’s Attorney’s Office, Officer Nguyen encountered and was interviewing 40-year-old Kenneth Somers, the man suspected of assaulting a man who was laid out on the sidewalk at the time and was unresponsive, while another officer on scene tended to the victim.
The victim had apparently stolen Somers truck on August 8th, which Somers tracked the vehicle down using a GPS system and pulled the victim out of the truck and commenced the beating that left him unconscious.
Reports indicate that the victim was also stabbed three times – once in the eye, side of his head, and forehead – which this occurred prior to police arriving on the scene.
The Baltimore State’s Attorney’s Office alleges that Officer Nguyen “failed to secure or properly detain the suspect to protect the victim from any further injury as he investigated the assault.” With Somers freely able to move, officials say that Somers walked over to where the unresponsive man was and hovered over him, saying:
“Hey, can you see that? Can you see? So you can remember me.”
Somers then allegedly kicked the unresponsive man in the head after saying the aforementioned.
Officer Nguyen’s partner reportedly drew a taser on Somers and ordered him to place his hands on his head, which Somers complied and was taken into custody and has since been charged with attempted murder.
A Baltimore Police officer is criminally charged with failing to act when an an assault suspect he hadn’t secured kicked an unresponsive man in front of the officer, the Baltimore State’s Attorney’s Office announced Friday.https://t.co/3ovOYUq5jq
— The Baltimore Sun (@baltimoresun) August 13, 2021
But according to prosecutors, Officer Nguyen not placing Somers into custody before the victim being kicked in the head by Somers effectively “created a substantial risk of death or serious physical injury to the victim.”
Baltimore State’s Attorney Marilyn Mosby applauded the work of prosecutors bringing forth charges against Officer Nguyen, saying:
“Our Public Trust and Police Integrity Unit continues to hold law enforcement accountable for their actions just as any other prosecutor in our office does when a criminal act is alleged in the community. I am proud of the Unit’s work as they ensure accountability, professionalism, and integrity of the badge.”
However, not everyone is thrilled about these charges.
A letter from Fraternal Order of Police Lodge No. 3 President Sgt. Mike Mancuso that was distributed to members referred to State’s Attorney Mosby as a “social activist State’s Attorney” and that these charges send mixed messages to police in Baltimore:
“My answer is that we no longer know what we can and can’t do. In either case, you may be criminally charged for nothing more than what you have been trained to do within the law.”
Another area that raises questions are the charges that Officer Nguyen was hit with regarding this August 2020 incident.
According to Maryland Code § 3-204 – Reckless Endangerment, the law is defined as follows:
“(a) Prohibited. — A person may not recklessly:
(1) engage in conduct that creates a substantial risk of death or serious physical injury to another; or
(2) discharge a firearm from a motor vehicle in a manner that creates a substantial risk of death or serious physical injury to another.
(b) Penalty. — A person who violates this section is guilty of the misdemeanor of reckless endangerment and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $ 5,000 or both.”
What this means is that the state is alleging that Officer Nguyen not detaining and/or actively protecting the victim that was kicked by Somers within his purview is the “conduct” that created “a substantial risk of death or serious physical injury”.
Yet, there are instances of case law that notes state agencies and police officers don’t exactly have a firm duty to protect private citizens, such as DeShaney vs. Winnebago and Town of Castle Rock vs. Gonzales, where the Supreme Court ruled that the inaction of a state/local agency that results in injury or death doesn’t always mean someone’s rights were violated.
Both cases noted that a duty to protect only exists when a potential victim is in the custody of an agency whose inaction then led to injury or death. Whether or not these cases will be raised in Officer Nguyen’s defense remains to be seen.
Until now I just kind of assumed the cop being charged did _something_ wrong. But no. Mosby (who has charged cops for detaining suspects in the past) is now charging a cop for *not* detaining a suspect. Insane. Suspect kicked victim, was cuffed, arrested. https://t.co/Rn7Tp1VUER
— Peter Moskos (@PeterMoskos) August 14, 2021
As for the misconduct in office charge that Officer Nguyen faces, it’s a Common Law misdemeanor that doesn’t have an exact definition under the Maryland Criminal Code. Baltimore-based Herbst Firm offers the best explanation of how cases involving misconduct in office are approached:
“Misconduct in office in Maryland is defined as corrupt behavior by a public officer while in the exercise of official duties or while acting under color of law. The state must prove three basic elements to convict a defendant; the first element of misconduct in office is establishing that the defendant was a public officer.”
The Herbst Firm explains that a public officer can be anyone that is “employed by or holding appointment under the government”, which includes police officers.
Once that is established, the state would have to prove that Officer Nguyen used his role as a police officer in a corrupt manner to somehow benefit him:
“If prosecutors establish the public official element, they must then prove the defendant acted in his or her official capacity or took advantage of his or her office. Under this element the defendant does not actually have to be on duty or working, but rather held out his or her role in government for some sort of gain.”
“The third and final element is that the defendant corruptly did an act or failed to do an act required by their role. This basically means the defendant received an improper benefit from another person by doing something or neglecting to do something. The caselaw does not require that the defendant received money or any other specific type of gain, but rather that there was the broad term of ‘corruption’ involved.”
Whether or not the state can effectively prove that Officer Nguyen’s alleged inaction was tantamount to corruption is anyone’s guess, as John R. LEOPOLD v. STATE of Maryland even found in the 2014 decision that “What corruptly means in this context has not been well defined.”
This is an ongoing investigation.
Please follow Law Enforcement Today as we continue to gather further insight on this developing case.
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