Judge acquits Baltimore County Police corporal in assault and misconduct case

Dan Belson

The Baltimore Sun

September 18, 2024

A Baltimore judge acquitted Baltimore County Police Cpl. Zachary Small on all counts Wednesday afternoon, concluding the officer’s trial on assault and misconduct charges.

Baltimore Circuit Judge Paul E. Alpert ruled that Cpl. Zachary Small’s conduct during a Sept. 27, 2023, arrest did not violate a criminal law regarding police uses of force, nor did his actions constitute a misdemeanor assault charge. Alpert also acquitted the corporal of misconduct in office and reckless endangerment, laying out his reasoning from the bench.

Alpert said in his ruling that Small had “a right to use force,” including using pepper spray and pulling the man’s hair, to accomplish the “legitimate law enforcement objective” of returning him to custody.

Small, 52, embraced his defense attorneys shortly after Alpert finished reading his opinion.

“Of course, we’re in total agreement with the judge’s decision,” said attorney Brian Thompson, who represented Small alongside fellow defense attorney Patrick Seidel.

Thompson said he didn’t believe the case “should’ve ever been bought,” adding that the corporal “did his job that day.”

Small, who requested a bench trial, was indicted in February on charges that included second-degree assault and misconduct in office after his superiors determined he had used unnecessary force during the arrest of an armed robbery suspect who had escaped custody at the Johns Hopkins Hospital.

Body camera footage showed the 52-year-old officer pepper-spraying the man in the face eight or nine times while he was handcuffed and shackled in the back of a police cruiser. After the man continues banging on the door of the police cruiser, the corporal is seen grabbing him out of the vehicle and holding his hair for approximately 28 seconds, yanking the man’s dreadlocks to punctuate certain words.

Prosecutors had argued that the pepper-spraying and the hair-pulling were unnecessary and constituted an excessive amount of force. The conduct did not help officers achieve any “legitimate law enforcement objective,” Assistant State’s Attorney Kimberly Rothwell said.

Alpert said he found “there was offensive physical contact” between Small and the man, but that he was not convinced that the contact was not legally justified.

The man Small was arresting was “not in a cooperative body mode, even when he was on the ground,” Alpert said.

“He was constantly kicking on the door of the police vehicle, he could’ve broken the window and he could’ve injured himself,” the judge said.

Alpert also ruled that the use of pepper spray and Small’s pulling of the man’s hair did not cause any “permanent or protected impairment of a bodily element,” which would constitute a penalty under Maryland’s use-of-force statute.

Thompson called Small’s conduct “a textbook application of the use of force.” Small “achieved his objective, which was getting [the man] back to the precinct, and he did not injure him,” he said.

The trial concluded on its sixth day after lawyers made their final cases Wednesday morning.

Rothwell noted during her closing arguments that the prosecution’s witnesses, which included Small’s captain and major, testified that they found Small’s behavior was unnecessary.

She noted that with more than a dozen officers at the scene, the situation would have remained under control until a transport wagon could arrive. Small “consciously disregarded” the risk of injuring the man by pepper-spraying and slamming the police car’s door closed. And if there was any objective for Small sought to achieve by using force, she argued, he didn’t stop once it was met.

There was “no threat to anyone” while Small pulled on the man’s hair, Rothwell said. She argued that Small’s conduct caused “disfigurement” to the man by causing him to lose a portion of his hair and by exasperating his respiratory issues with the pepper spray.

Instead of de-escalating the situation, Small used “antagonizing” language to escalate the arrest while the man complained he could not breathe, Rothwell said. That detail was one of the few where Alpert agreed with prosecutors in his opinion.

“I would, however, comment that the language used … was rude and crude, and certainly not a good example for the younger officers” at the scene, Alpert said at the end of his opinion, later adding that the swearing “only escalated the situation.”

Thompson said during closing arguments that it was “really laughable that the state” argued the encounter caused the man to suffer from a “serious physical injury.” He noted that the man did not note any injuries related to his hair or his breathing when he was asked later in the Woodlawn precinct if he had injuries “other than the pepper spray.”

Thompson argued that his client took reasonable steps in the moment to control the situation, calling the prosecution’s case “Monday morning quarterbacking.” He later called it a “political prosecution,” citing that no Baltimore City officers who were on the scene faced charges. Three other county officers were indicted earlier this year on misconduct charges accusing them of failing to intervene.

The state “did not want to interfere with their relationship with their own police officers,” and didn’t charge them, he said.

It was not clear Wednesday evening what would happen to the related misconduct charges against the three other county officers on the scene. One, Justin Graham-Moore, was scheduled for trial Thursday morning. Another, Jacob Roos, was scheduled for Tuesday morning. The third, Thomas Desmond, was scheduled for December.

The Baltimore State’s Attorney’s Office did not respond immediately to a request for comment.