E-FILED; Harford Circuit Court

Docket: 4/27/2022 10:02 AM; Submission: 4/27/2022 10:02 AM

BRIAN E. FROSH, ATTORNEY * IN THE

GENERAL OF MARYLAND,
* CIRCUIT COURT
Plaintiff,
* FOR
v.
* HARFORD COUNTY
JEFFREY R. GAHLER, SHERIFF
FOR HARFORD COUNTY, * Case No: C-12-CV-22-000272

Defendant. *

DEFENDANT’S OPPOSITION
TO PLAINTIFF’S EMERGENCY MOTION FOR
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Defendant Jeffrey R. Gahler, Sheriff for Harford County (“Sheriff Gahler”), by his

undersigned counsel, hereby opposes Plaintiff's Emergency Motion for Temporary Restraining

Order and for Preliminary Injunction.

INTRODUCTION

Instead of having a constructive dialogue about how both the IIU and the HCSO can both

fulfill their obligations under the law, the Attorney General has chosen litigation. The Sheriff has

been diligently attempting to discuss his concerns with the Attorney General since before Senate

Bill 600 became effective. Those concerns have fallen on deaf ears, and instead the Attorney

General has sought to expand his authority beyond what was given to him by Senate Bill 600.

The Harford County Sheriff’s Office (“HCSO”) has been fully cooperating with the

Attorney General’s Independent Investigative Unit (“IIU”) since the unfortunate events of

Saturday, April 23, 2022. The Sheriff remains ready to cooperate in the IIU’s statutorily

mandated independent investigation. Although the investigators on the ground have not voiced

concerns with the investigative methods employed by HSCO, the Attorney General has resorted

to sharply worded letters and litigation, seemingly oblivious to the polarization this would cause.

Under the law, this Court can issue a temporary injunction only to maintain the status

quo, and the status quo is that the evidence relating to the events of Saturday, April 23, 2022 has
been collected by HCSO personnel under the supervision of MSP Homicide investigators

detailed to the IIU. That evidence is secure and available to the IIU at any time. There is no

imminent irreparable harm that will occur. A temporary restraining order is not necessary, and,

indeed, is not legally available to change the status quo in this case.

The requested temporary restraining order would inflict substantial harm on the Sheriff

because it would prevent him from performing the duties he is required to perform under the

Maryland Constitution. This court should reject the Attorney General’s unwarranted escalation

of this dispute and deny the temporary restraining order. Maybe then the Attorney General would
finally realize that he needs to work with the Sheriff and not against him.

FACTS

On April 23, 2022 at approximately 4:10 p.m., there was a deputy-involved shooting near

Bel Air, Maryland. Simpson Aff., Exhibit 1, ¶ 3. By approximately 4:33 p.m., HCSO Forensics

Services personnel responded to the scene of the incident. Id. ¶ 4. At approximately 4:49 p.m.,

Sgt. Goodwin of HCSO left a voicemail notifying IIU of the incident, and a minute later

contacted IIU Chief Investigator Anthony Schartner. TRO Motion Exhibit A ¶ 4; TRO Motion

Exhibit B ¶ 4.

Members of IIU and troopers from the Maryland State Police (“MSP”) working with IIU

responded to the scene and interacted with HCSO personnel, including Major John (“Jack”)

Simpson. Exhibit 1, ¶ 6. Major Simpson and the other HCSO personnel walked the IIU and MSP

personnel through the scene, allowing them to observe the crime scene processing and evidence

collection process. Id. ¶ 7. MSP was also given the opportunity to observe evidence collection

and photograph the scene and evidence if they wished. Id. IIU and MSP personnel were also

welcome to attend any interviews that were to be conducted. Id. ¶ 8. The MSP crime scene

technicians did not arrive at the scene until approximately 6:45 p.m., after the HCSO Forensics

Services personnel had already been at the scene for more than two hours. Ghaner Aff., Exhibit

2, ¶ 4.

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 While at the scene, IIU and MSP personnel were invited into the HCSO mobile command

unit to review the available video footage –body-worn cameras, dash-cams and other video –

which they did with HCSO personnel and the Harford County State’s Attorney, everyone

viewing the footage together for the first time. Id. ¶ 9. This review took a few hours. Around the

same time, some additional IIU and MSP personnel responded to HCSO’s Northern Precinct,

where they extensively reviewed available camera footage of the incident and were permitted to

see any footage they requested. Lane Aff., Exhibit 3, ¶ 5. The Harford County State’s Attorney,

who was present at the scene of the incident, instructed the HCSO not to release copies of the
video footage to IIU without the State’s Attorney’s consent while the investigation is ongoing,

asserting that the public release of the video will compromise the investigation. Simpson Aff.,

Exhibit 1, ¶ 10.

IIU and MSP personnel remained on the scene until HCSO Forensics was finished

processing the scene and collecting evidence. Id. ¶ 11. They were not denied access to any

evidence they wanted to see. Id. ¶ 14.

On Sunday, April 24, 2022 at approximately 1:05 p.m., Major Simpson received an email

from Mr. Fernandez of IIU requesting 21 different categories of evidence related to the events of

April 23, 2022 under the Public Information Act. Id. ¶ 12. Major Simpson responded to that

email the same day at 2:54 p.m. acknowledging receipt and indicating that he would follow up.

Id. On Monday, April 25, 2022 at 5:37 p.m., Major Simpson wrote to Mr. Fernandez again

expressing that HCSO intended “to fully comply with [his] inspection request under §4-

351(c)(2).” Id. ¶ 13. In that response, Major Simpson also indicated that HCSO would provide

IIU with copies of 17 of the items requested and would provide inspection of the remaining 4

items. Id., Exhibit A.

HCSO has not denied any request from IIU for access to or inspection of any evidence

and intends to continue to cooperate fully with IIU’s investigation. Id. ¶ 14. HCSO is also

continuing to conduct its own investigation into the incident of April 23, 2022 and matters

related thereto, as it is mandated to do under state law. Id. ¶ 15.

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 LEGAL STANDARDS

A temporary restraining order may be granted “only if it clearly appears from specific

facts shown by affidavit or other statement under oath that immediate, substantial, and

irreparable harm will result to the person seeking the order…” Maryland Rule 15–504(a). The

Court also must examine and make “appropriate findings regarding: (A) the likelihood that the

moving party will succeed on the merits; (B) the balance of harm to each party if relief is or is

not granted; (C) whether the moving party will suffer irreparable injury unless the order is

granted; and (D) a determination that granting the order is not contrary to the public interest.” Id.
The Maryland Court of Appeals has observed that “it is fundamental that a preliminary

injunction does not issue as a matter of right, but only where it is necessary in order to preserve

the status quo.” Eastside Vend Distributors, Inc. v. Pepsi Bottling Grp., Inc., 396 Md. 219, 246

(2006), quoting Harford Cty. Educ. Ass'n v. Bd. of Ed. of Harford Cty., 281 Md. 574, 585 (1977).

See also State Dept. of Health and Mental Hygiene v. Baltimore County, 281 Md. 548, 559

(1977) (“[I]t is quite clear from our cases that a preliminary injunction will lie when it is

necessary to preserve the status quo.”). “The status quo to be preserved by a preliminary

injunction has been described as ‘the last, actual, peaceable, noncontested status which preceded

the pending controversy.’” Id. at 556 n.9 (quoting 43 C.J.S. Injunctions § 17, at 428 & n. 90

(1945)).

The factors in Rule 15-504(a) are drawn from the case law, including Department of

Transportation v. Armacost, 299 Md. 392 (1984), in which the Court of Appeals observed that,

“[a]s a general rule, the appropriateness of granting an interlocutory injunction is determined by

examining four factors: (1) the likelihood that the plaintiff will succeed on the merits; (2) the

‘balance of convenience’ determined by whether greater injury would be done to the defendant

by granting the injunction than would result from its refusal; (3) whether the plaintiff will suffer

irreparable injury unless the injunction is granted; and (4) the public interest.” Id. at 404-05

(footnote omitted) (citing State Dept. of Health and Mental Hygiene v. Baltimore County, 281

Md. 548, 554-57 (1977)). Borrowing heavily from the Fourth Circuit’s analysis in Blackwelder

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Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977), the Maryland Court of

Appeals has made clear that, in the usual case, a court must consider “all the factors” discussed

in Armacost in addressing a request for interlocutory injunctive relief. See Lerner v. Lerner, 306

Md. 771, 792 (1986). The respective harm to the parties that the grant or denial of such relief

will cause is the most critical part of that analysis, because “[t]he basis of injunctive relief . . .

has always been irreparable harm and inadequacy of legal remedies.” Sampson v. Murray, 415

U.S. 61, 88 (1974) (citation and quotations omitted). For this reason, “the balance of harm

evaluation should precede the determination of the degree by which the plaintiff must establish
the likelihood of success on his part,” Direx Israel, Ltd. v. Breakthrough Medical Corp., 952

F.2d 802, 813 (4th Cir. 1991), because that balance will decide the plaintiff’s burden with respect

to satisfying the likelihood of success factor. Id. at 813-14.

ARGUMENT

A. The Attorney General has not met his evidentiary burden for a TRO.
The Attorney General has failed to meet his evidentiary burden under Rule 15-504 for the

granting of a temporary restraining order. That rule expressly requires an “affidavit or other

statement under oath” supporting a conclusion “that immediate, substantial, and irreparable harm

will result to the party seeking the order before a full adversary hearing can be held on the

propriety of a preliminary or final injunction.” Rule 15-504(a). Instead of meeting this standard,

the affidavit of John Fernandez, Jr. (Exhibit A to TRO Memo) and the Affidavit of Anthony

Schartner (Exhibit B to TRO Motion) demonstrate that the IIU has full access to all evidence in

the case and provides no basis to conclude that any aspect of the IIU’s investigation will be

harmed in the next ten days. Indeed, Mr. Fernandez’s Affidavit indicates at paragraph 11:

MSP Homicide investigators remained at the crime scene until the

crime scene was finished being processed by the Harford County
Sheriff’s Office. Two MSP Homicide investigators monitored the
processing of the scene by Harford County Sheriff’s Office.
TRO Motion Exhibit A, ¶ 11.

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 There are no Affidavits from the two MSP Homicide investigators who were present at

the scene indicating that there were any issues or complaints about the HCSO collection of

evidence. Neither Mr. Fernandez nor any other affiant provides any facts supporting any

conclusion that the HCSO engaged in any impropriety in collecting the evidence or that HCSO

hid any of their activities from the IIU or the MSP Homicide investigators. Nor do the affidavits

attached to the TRO Motion contain any facts establishing that the IIU requested or was denied

access to any physical evidence collected at the scene. To the extent the Complaint claims that

the IIU was denied access, such assertions are unsupported by an “affidavit or other statement
under oath,” as required by Rule 15-504(a), and must be disregarded for purposes of the TRO

Motion. Moreover, the Affidavit of Major John Simpson, submitted with this opposition states

unequivocally that the IIU has been given full access to all evidence. Simpson Aff., Exhibit 1, ¶¶

7, 14.

Likewise, with regard to the evidence requested in the letter emailed to Major John

Simpson, the Fernandez Affidavit establishes only that Fernandez emailed Major Simpson a

request to inspect certain records at 1:05 pm on Sunday, April 24, 2022, that Major Simpson

responded less than two hours later (on a Sunday) indicating a response would be forthcoming,

and that as of 10 a.m. on Monday, April 25, 2022, less than 24 hours after the request, Major

Simpson had not responded. The fact that Major Simpson had not responded by 10:00 a.m. on a

Monday establishes nothing, and certainly not that the HCSO would refuse access to the

information. In fact, at 5:37 p.m. on Monday, April 25, 2022, Major Simpson responded that it

was HCSO’s intention “to fully comply with your inspection request under [Md. Code Ann.,

Gen. Provisions] §4-351 (c)(2).” Simpson Aff., Exhibit 1, ¶ 13 & Exhibit A. Thus, no material

was withheld from the IIU.

B. The Attorney General is not likely to succeed on the merits.

The Attorney General is not likely to succeed on the merits. The Sheriff has cooperated

fully with the IIU. Under well-established Maryland law, the Sheriff retains his constitutional

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duties to investigate crimes occurring in his jurisdiction. Moreover, the Attorney General is not

entitled to the particular injunctive relief he seeks in this case.

1. The Sheriff has cooperated fully with the IIU.

The obligations of the Sheriff under Senate Bill 600 were codified in Section 3-527 of the

Public Safety Article. There are two obligations: notice and cooperation.

First, Section 3-527(b) requires the Sheriff to notify the IIU of “any alleged or potential

police-involved death of a civilian.” The Affidavits submitted by the Attorney General make

clear that the Sheriff fulfilled this obligation and promptly provided the required notice. See, e.g.,
TRO Motion Exhibit B, Affidavit of Anthony Schartner, ¶ 4 (describing call received from

HCSO).

Second, Section 3-527(c) provides that the Sheriff “shall cooperate with the Independent

Investigative Unit in connection with the investigation of a police-involved death of a civilian.”

Throughout the investigation of this incident, HCSO has provided full cooperation. IIU

investigators and MSP Homicide investigators were given full access to the scene and continue

to have full access to all evidence. Simpson Aff., Exhibit 1, ¶¶ 7-9, 11, 13-14. After receiving a

request from John Fernandez, Jr., IIU’s Deputy Chief Investigator, to inspect twenty-one discrete

items on Sunday, April 24, 2022 at 1:05 p.m., Major John Simpson responded the next day

indicating that the IIU would be permitted to inspect all of the items as requested. Id. ¶ 13.

Moreover, the Sheriff has unequivocally stated that the IIU will continue to have full access to

all of the evidence. Id. ¶ 14. There has been no lack of cooperation.

Even the Attorney General’s own evidence and allegations show the cooperation. The

Affidavit of John Fernandez, Jr., (Exhibit A to the TRO Motion) concedes that there was

significant cooperation provided by HCSO. Mr. Fernandez “was permitted access to walk the

crime scene and verbally received some additional information about the fatal incident.” ¶ 6. He

further recounts: “MSP Homicide investigators remained at the crime scene until the crime scene

was finished being processed by the Harford County Sheriff’s Office. Two MSP Homicide

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investigators monitored the processing of the scene by the Harford County Sheriff’s Office.” At

the direction of the Harford County State’s Attorney, Mr. Fernandez and others from IIU

reviewed footage from the body-worn cameras and dash-cams. ¶ 12.

2. The Sheriff retains his duty to investigate crimes in his jurisdiction.

The Attorney General is not satisfied with cooperation, and instead wants the Sheriff to

abdicate his constitutional responsibility as Sheriff. The Sheriff is an elected office established

by the Maryland Constitution. Md. Const. art. IV, § 44. The Constitution requires the Sheriff to

“exercise such powers and perform such duties as now are or may hereafter be fixed by law.” Id.
A long line of cases has established that “ordinarily sheriffs retain the powers they possessed at

common law including conserving public peace, preserving public order, preventing and

detecting crime, enforcing criminal laws, [etc.].” Soper v. Montgomery Cty., 294 Md. 331, 336–

37 (1982). These common law duties to engage in law enforcement functions are retained by the

Sheriff “until deprived of them by the Legislature.” Id. at 337. Indeed, “[a]bsent a statutory

provision or rule of [the Court of Appeals] explicitly abrogating a sheriff's [common law] duty ...

the common law duty continues[.]” Thornton Mellon, LLC v. Frederick Cty. Sheriff, 252 Md.

App. 320, 331, cert. granted, 476 Md. 585 (2021) (emphasis added), quoting Prince George's

Cty. v. Aluisi, 354 Md. 422, 439 (1999). Nothing in Senate Bill 600, which established the IIU,

explicitly abrogated the Sheriff’s law enforcement duties. Rather, the Bill simply imposed the

additional duties of notice and cooperation. Thus, under Soper, Aluisi, and Thornton Mellon, the

Sheriff retained his common law duties to investigate incidents that occur in his jurisdiction.

The Sheriff’s retention of this duty to investigate crimes in his jurisdiction is an important

issue that must be addressed and permitted to continue as the IIU does its independent

investigation. While the Sheriff cannot discuss the particulars of any investigations relating to the

events of Saturday, April 23, 2022, in most cases where there is a police-involved death of a

civilian, there would be multiple investigations that need to occur. In addition to investigations

into the conduct of the officers, there will often be other crimes that may have occurred within

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the same sequence of events. The evidence in those investigations will necessarily overlap with

investigation of the officers, making cooperation between the IIU and the law enforcement

agency important. The Sheriff repeatedly attempted to discuss these issues with the Attorney

General but was never able to get a clear response on how the IIU would ensure that there would

be no interference with the investigations the Sheriff would be required to complete. See TRO

Exhibit C at 2 (noting that IIU Protocols “materially interfere with or usurp the Sheriff's

authority by confiscating evidence, excluding HCSO officers from the investigation, or usurping

notification and media response responsibilities”);1 TRO Exhibit D at 1-2 (“This is the only
workable way to proceed because most incidents of police-involved deaths of a civilian will also

include crimes committed by civilians that must be investigated – crimes that are beyond the

scope and responsibility of the IIU and which you indicated you would not investigate.”); TRO

Exhibit E at 1 (“the practical realities on the ground at a crime scene will likely not allow for the

clean division of investigations that you suggest”). The position taken and the relief requested by

the Attorney General in this litigation ignores these concerns and would necessarily impede

those other investigations that the Sheriff is legally required to undertake.

Ignoring the Sheriff’s constitutional duties, the Attorney General includes multiple pages

in his Memorandum relating to the statutory history of Senate Bill 600. However, the plain

language of the statute is dispositive here and resort to legislative history is not necessary. “[T]he

legislature's intent is expressed in the statutory language and thus [] statutory interpretation

focuses primarily on the language of the statute to determine the purpose and intent of the

General Assembly.” Washington Gas Light Co. v. Maryland Pub. Serv. Comm'n, 460 Md. 667,

682 (2018). “If there is no ambiguity in that language, either inherently or by reference to other

relevant laws or circumstances ..., we do not then need to resort to the various, and sometimes

inconsistent, external rules of construction, for the Legislature is presumed to have meant what it

1
Notably, Senate Bill 600 did not give the Attorney General rulemaking authority. Nor did the
Attorney General follow rulemaking procedures in adopting his protocols relating to IIU
investigations. Those protocols, therefore, do not have the force of law.

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said and said what it meant.” Arundel Corp. v. Marie, 383 Md. 489, 502 (2004), quoting Witte v.

Azarian, 369 Md. 518, 525 (2002). Moreover, “resort to legislative history is a confirmatory

process; it is not undertaken to contradict the plain meaning of the statute.” Mid-Atl. Power

Supply Ass'n v. Pub. Serv. Comm'n of Maryland, 361 Md. 196, 204 (2000). Here, the plain

language requires notice by the Sheriff to the IIU, which was given. The plain language also

requires the Sheriff to cooperate with the IIU in its investigation, which the Sheriff has done and

will continue to do. There is no need to resort to an extensive analysis of legislative history to

understand what these words mean.

The Attorney General asserts that “shall investigate” necessarily means that there would

be no other investigation, but the plain meaning of those words is only that there will be a

mandatory investigation by IIU – something the Sheriff has never disputed.

Nor can the language “shall cooperate” in Public Safety, § 3-527(c) be stretched to mean

that the Sheriff must abdicate his constitutional law enforcement duties.2 Cooperation does not

mean subordination or abdication. The cases cited by the Attorney General on page 19 of his

Memorandum do not support his position. The relationship of an insured to an insurer regarding

defense of a claim, in Allstate Ins. Co. v. State Farm Mut. Auto. Ins. Co., 363 Md. 106, 118–19

(2001), has no relevance to the Sheriff’s law enforcement duties and his statutory duty to

cooperate. The Community Development Administration’s obligation to “work closely, consult

and cooperate with local elected officials,” in Forestville Park Ltd. P'ship v. State, 50 Md. App.

570, 577 (1982), meant only that the agency could not disregard the opposition of the local

officials – a situation very different from the one here where the Sheriff is supporting and

2
Contrary to Plaintiff’s suggestion on page 9 of its Memorandum, nothing in Senate Bill 600
was inconsistent with Sheriff Gahler’s recommendations made to the Judiciary Committee. As
Plaintiff notes, Sheriff Gahler was testifying concerning a different version of the Bill, and
suggested that there should be “parallel and collaborative” investigations. Senate Bill 600
ultimately included the concept of an IIU investigation and cooperation by local law enforcement
agencies; it did nothing to strip the Sheriff of his constitutional law enforcement duties. Thus,
Senate Bill 600, as passed, is entirely consistent with Sheriff Gahler’s suggestions, a point the
Sheriff has stressed with the Attorney General previously. TRO Motion Exhibit E at 1.

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cooperating with the IIU’s investigation, providing full access to any items requested. The

disciplinary issue in Solomon v. State Bd. of Physician Quality Assur., 155 Md. App. 687, 695

(2003), likewise has no relevance here because the Sheriff is providing access to everything the

IIU has requested. None of these cases hold or even suggest that the words “shall cooperate”

somehow put the person required to cooperate in a subordinate role.

Finally, the isolated comments of a single legislator during the floor debate that the IIU

would “take over” the investigation are not indicative of the intent of the full legislature. In

looking at the views of individual legislators, the Court must be mindful of “the critical caveat
that those views may not have been shared by anyone else and, to that extent, may be irrelevant.”

State v. Phillips, 457 Md. 481, 488–89 (2018). See also Sigmon Coal Co. v. Apfel, 226 F.3d 291,

304–05 (4th Cir. 2000) (“The intent of Congress as a whole is more apparent from the words of

the statute itself than from a patchwork record of statements inserted by individual legislators

and proposals that may never have been adopted by a committee, much less an entire legislative

body—a truth which gives rise to ‘the strong presumption that Congress expresses its intent

through the language it chooses.’”), aff'd sub nom. Barnhart v. Sigmon Coal Co., 534 U.S. 438

(2002).

3. The Attorney General is not entitled to an injunction relating to physical evidence.

The Attorney General is not entitled to an order requiring Sheriff Gahler to transfer “all

physical evidence” to the Maryland State Police Forensic Sciences Division. Importantly, he has

not supported this request with affidavit evidence or other evidence under oath. Rule 15-504(a) is

clear that requests for temporary restraining orders must be based on “specific facts shown by

affidavit or other statement under oath.” Here, there are no facts shown in affidavits or other

statements under oath relating to the custody of or access to physical evidence. Thus, the

Attorney General is not entitled to an injunction relating to the physical evidence.

In addition, the plain language of the law establishing the IIU does not permit the IIU to

use the civilian employees of the Maryland State Police Forensic Sciences Division. The statute

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that created the IIU expressly provides for the IIU to “detail one or more police officers

employed by the Department of State Police” and for the IIU to “employ other civilian personnel

as needed.” Md. Code Ann., State Gov't § 6-106.2(f). The civilian employees of the Maryland

State Police Forensic Sciences Division do not fit within either of these categories. They are not

“police officers employed by the Department of State Police.” The term “police officer” is

defined in Section 3-201 of the Public Safety Article as officers “authorized to enforce the

general criminal laws of the State” who are members of various listed departments. See State

Gov't § 6-106.2(a) (incorporating definition). Civilian personnel employed by the Maryland State
Police are not “police officers” under this definition. In addition, civilian employees of the

Maryland State Police do not fall under § 6-106.2(f)(2) because they are not employed by the

IIU, but rather by the Maryland State Police. See also TRO Exhibit C at 3 (raising issues with the

IIU’s use of MSP); TRO Exhibit D at 2 (same).

There is also a more practical aspect to the custody and analysis of physical evidence.

While the Sheriff cannot discuss the particular evidence relating to the events of Saturday, April

23, 2022, the Maryland State Police Crime Lab has historically been very slow in returning

results. Ghaner Aff., Exhibit 2, ¶¶ 5-6. For example, with regard to ballistics testing, a few years

ago, HCSO stopped using the Maryland State Police Crime Lab for analysis of firearms evidence

because results could take eight months to receive. Id. More recently, HCSO has used the

Frederick County Sheriff’s Office Lab, which has the same National Integrated Ballistic

Information Network (NIBIN)3 that is used by the Maryland State Police. Using the Frederick

lab, HCSO is able to have results in less than a week. Id. ¶ 7. Nevertheless, the IIU is demanding

that this Court order the Sheriff to transfer all physical evidence to the Maryland State Police

Forensic Sciences Division.

Finally, with regard to the physical evidence, the Attorney General does not seek to

preserve the status quo, but instead seeks to force the Harford County Sheriff to change the status

3
See https://www.atf.gov/news/pr/new-ballistic-forensic-resource-established-frederick-county
(last visited 4/26/2022).

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quo and move the evidence to another custodian. Such an order could not easily be undone after

the expiration of the temporary restraining order because multiple changes of custody create

evidence problems in an investigation. As noted above, a temporary restraining order is designed

to maintain the status quo, and this Court should not issue the requested order disturbing the

status quo. Eastside Vend Distributors, 396 Md. at 246.

4. The requested injunction relating to the April 24, 2022 letter is moot.
The Attorney General seeks an order requiring Sheriff Gahler to provide “all documents

enumerated in the April 24, 2022, letter from” the IIU. This letter was sent pursuant to Section 4-
351(c)(2) of the General Provisions Article, which requires a custodian to allow the Attorney

General to inspect police misconduct records including “an internal affairs investigatory record,

a hearing record, and records relating to a disciplinary decision” and is arguably not applicable to

the records requested in the April 24, 2022 letter. The Attorney General waited less than 24

hours for a response before filing suit and cannot establish any justiciable controversy

concerning the response to this letter. In fact, HCSO responded the following day to state its

intention “to fully comply with your inspection request under [Md. Code Ann., Gen. Provisions]

§4-351(c)(2).” Simpson Aff., Exhibit 1, ¶ 13 & Exhibit A. This request is moot. Not only has the

Sheriff never indicated that that he would not comply, he has gone one step further and

affirmatively stated that he will comply. The Court of Appeals has held that “an injunction

should not issue if the acts sought to be enjoined have been discontinued or abandoned.” Att'y

Gen. v. Anne Arundel Cty. Sch. Bus Contractors Ass'n, Inc., 286 Md. 324, 327 (1979). Here,

there is even less need for an injunction because the Sheriff never engaged in the acts sought to

be enjoined in the first place – something the Attorney General would have known had he waited

a few hours for the promised response.

5. The Attorney General is not entitled to an injunction relating to video footage.

The Attorney General seeks an order requiring Sheriff Gahler to “immediately provide all

body-worn camera footage of responding officers, the patrol car dash-cam video of patrol

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vehicles on scene, and other civilian camera footage, all in their native formats, related to the

events that led to Mr. Fauver’s death.” The Harford County State’s Attorney has specifically

instructed the Sheriff not to release the video without his consent while the investigation is

ongoing, asserting that the public release of the video could compromise his investigation.

Simpson Aff., Exhibit 1, ¶ 10. Under Senate Bill 600, the State’s Attorney is the one who retains

jurisdiction “to prosecute the matter,” and it is reasonable for him to provide direction

concerning the release of the footage might have on investigation and prosecution. State Gov't §

6-106.2(e)(1). The IIU, however, will generally release the video publicly within 14 days of the
incident. See https://www.marylandattorneygeneral.gov/Pages/IID/IID_Media_Protocol.pdf (last

visited 4/26/2022). In fact, the IIU has a YouTube channel devoted to such releases.

https://www.youtube.com/channel/UCq0pjwZBn9wkBZ4xw6lPXgw (last visited 4/26/2022).

Neither the Sheriff nor the Harford County State’s Attorney has received assurances that they

will be consulted prior to such a public release. In contrast, the Sheriff’s policy expressly

indicates that HCSO will consult with IIU prior to releasing such video. Complaint Exhibit A, ¶

4.I.4.

Also, as with the physical evidence, the Attorney General seeks to change the status quo

and facilitate the public release of the video footage – an action that cannot be reversed after the

expiration of the temporary restraining order. This Court should not issue the requested order

disturbing the status quo. Eastside Vend Distributors, 396 Md. at 246.

6. The Attorney General is not entitled to an injunction relating to future evidence.

The Attorney General seeks an order requiring Sheriff Gahler to provide immediately any

new evidentiary information provided. Sheriff Gahler, however, has repeatedly stated his

intention to fully cooperate and provide IIU with full access to all evidence in the case. There is

no evidence to the contrary. Thus, there is no dispute and an injunction should not issue. Att'y

Gen. v. Anne Arundel Cty. Sch. Bus Contractors Ass'n, Inc., 286 Md. at 327.

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C. The balance of convenience favors the Sheriff.
The injunction sought by the Attorney General is a direct attack on the constitutional

authority of the Sheriff to investigate crimes that occur within his jurisdiction. Issuing the

injunction, therefore, would inflict significant injury on the Sheriff because the Court would be

ordering him not to do his constitutional duty. Moreover, the injunction would further inflict

injury by compromising and hindering the investigations he is legally required to undertake.

With regard to the video evidence, the Harford County State’s Attorney has specifically

instructed the Sheriff not to release the video without his consent while the investigation is

ongoing, asserting that the public release of the video will compromise the investigation.
Simpson Aff., Exhibit 1, ¶ 10. Permitting the Attorney General to publicly release the video

within 14 days in accordance with the IIU’s protocols would harm the investigation, particularly

where there is no commitment to consult with the Sheriff or the Harford County State’s Attorney

prior to such a public release.

With regard to the physical evidence, moving that evidence to the Maryland State Police

Forensic Sciences Division would introduce unnecessary chain of custody issues. In addition,

mandating the use of the Maryland State Police Forensic Sciences Division would cause

significant delay in the investigations because the months required to get results back from that

lab. Ghaner Aff., Exhibit 2, ¶¶ 5-6.

D. The Attorney General will not suffer irreparable injury.

There is no irreparable injury here. The IIU has full access to all evidence in the case.

The physical evidence has already been collected and cataloged. HCSO continues to provide the

IIU investigators full access to all the evidence. IIU investigations typically have lasted many

months. Indeed, on the same day this lawsuit was filed, the IIU issued a press release concerning

an investigation that was concluded on March 30, 2022 of an incident that occurred on October

11, 2021 – a period of almost six months. See

https://www.marylandattorneygeneral.gov/press/2022/042522.pdf (last visited 4/26/2022).

-15-
E. The public interest favors denial of the injunction.
The injunction sought by the Attorney General does not further the goals of Senate Bill

600. Indeed, as noted above, in several important respects the Attorney General seeks to follow

protocols that violate Senate Bill 600. Moreover, these protocols, going well beyond the text and

intent of Senate Bill 600, unlawfully interfere with the constitutional authority of the elected

Sheriff of Harford County, who must answer to voters for his handling of public safety and law

enforcement accountability in the community. Moreover, the Harford County State’s Attorney

has expressly requested that the video evidence not be released publicly while his investigation is

ongoing, asserting that it will compromise that investigation.

WHEREFORE, Defendant Jeffrey R. Gahler requests that this Court deny Plaintiff Brian

E. Frosh’s Emergency Motion for Temporary Restraining Order and Preliminary Injunction.

/s/ David M. Wyand

David M. Wyand (CPF No. 9412150301)
G. Adam Ruther (AIS No. 0806170210)
Rosenberg Martin Greenberg, LLP
25 S. Charles Street, Suite 2115
Baltimore, Maryland 21201
410-727-6600
(FAX) 410-727-1115

Attorneys for Defendant

Jeffrey R. Gahler, Sheriff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 27th day of April, 2022, a copy of the foregoing

Defendant’s Opposition to Plaintiff’s Emergency Motion for Temporary Restraining Order and

Preliminary Injunction was served by through the Court’s MDEC System on: Robert A. Scott,

Esq., Ryan R. Dietrich, Esq., and Perry Wasserman, Esq., Office of the Attorney General, 200

Saint Paul Place, 20th Floor, Baltimore, Maryland 21202.

/s/ David M. Wyand

David M. Wyand (CPF No. 9412150301)
4863-4387-9709, v. 1

-16-
 E-FILED; Harford Circuit Court
Docket: 4/27/2022 10:02 AM; Submission: 4/27/2022 10:02 AM

TRO Opposition
Simpson, Jack

From: Simpson, Jack

Sent: Monday, April 25, 2022 4:21 PM
To: Fernandez, John
Subject: RE: POIS - Materials Request

Deputy Chief Investigator Fernandez,

I am in receipt of your email dated 04‐24‐2022 at 3:39pm and have reviewed the attached request for any and all
documents related to Harford County Sheriff’s Office, IID# 22‐007, which contained a list of 21 enumerated items. We
have consulted with the Harford County State’s Attorney’s Office and offer this response. Instead of the inspection
authorized by Md. Code Ann., Gen. Provisions §4‐351 (c)(2), you will receive copies of the following:

1. 911 Calls
2. CAD Reports
3. Historical Calls for Service
4. Civilian Witness Information, on ongoing basis
5. Civilian Witness Statements, on ongoing basis
6. Relevant Departmental Policies
7. Involved Officer Internal Affairs Complaint and Disciplinary History
8. Involved Officer Training Records
9. Lab Reports
10. Physical Evidence Inventory
11. Officer Witness Information
12. Officer Witness Statements
13. Rundown of all Officers to Include Unit #s and Vehicle #s
14. Photographs
15. Police Reports and Supplements
16. Use of Force Reports
17. Vehicle Pursuit Reports, if applicable

You will continue to be allowed to inspect the following, as you have been able to since the beginning of this matter:

18. KGA Communications Audio Recording(s)

19. Body‐worn Camera Video of all Responding Officers
20. Dash‐Cam Video of all Vehicles On‐Scene
21. Other Video, such as private or commercial surveillance video or cellphone video

It is our intention, therefore, to fully comply with your inspection request under §4‐351 (c)(2). I am sure that you
understand that the volume of information will take some time to compile. If there is an item you wish to inspect prior
to receiving the above information, we will make it available to you.

Thank you for your continued cooperation in this matter.

Sincerely,

Major John Simpson

Harford County Sheriff’s Office
Simpson Affidavit

1
From: Fernandez, John <[email protected]>
Sent: Sunday, April 24, 2022 2:58 PM
To: Simpson, Jack <[email protected]>
Subject: RE: POIS ‐ Materials Request

Thank you. I appreciate that.

John Fernandez
Deputy Chief Investigator
Office of the Attorney General
Independent Investigations Division
200 Saint Paul Place
Baltimore, Maryland 21202
p:
[email protected]
www.marylandattorneygeneral.gov
https://www.marylandattorneygeneral.gov/Pages/IID/IID.aspx

The information contained in this communication (including any attachments) may be confidential and legally privileged. This email may not serve as a
contractual agreement unless explicit written agreement for this purpose has been made. If you are not the intended recipient, you are hereby notified that
any dissemination, distribution, or copying of this communication or any of its contents is strictly prohibited. If you have received this communication in
error, please re‐send this communication to the sender indicating that it was received in error and delete the original message and any copy of it from your
computer system.

From: Simpson, Jack <[email protected]>

Sent: Sunday, April 24, 2022 2:54 PM
To: Fernandez, John <[email protected]>
Subject: RE: POIS ‐ Materials Request

Thank you. I will contact the investigator and the States Attorney and get back to you.

Sent from my Verizon, Samsung Galaxy smartphone

‐‐‐‐‐‐‐‐ Original message ‐‐‐‐‐‐‐‐

From: "Fernandez, John" <[email protected]>
Date: 4/24/22 1:05 PM (GMT‐05:00)
To: "Simpson, Jack" <[email protected]>, "Lane, Andrew" <[email protected]>
Cc: "Wasserman, Perry" <[email protected]>, [email protected]
Subject: POIS ‐ Materials Request

Please see the attached request for materials related to the police‐involved shooting fatality occurring on 4/23/22 in the
1500 block of Rock Spring Road. Thank you.

2
 John Fernandez
Deputy Chief Investigator
Office of the Attorney General
Independent Investigations Division
200 Saint Paul Place
Baltimore, Maryland 21202
p:
[email protected]
www.marylandattorneygeneral.gov
https://www.marylandattorneygeneral.gov/Pages/IID/IID.aspx
The information contained in this communication (including any attachments) may be confidential and legally privileged. This email may not serve as a
contractual agreement unless explicit written agreement for this purpose has been made. If you are not the intended recipient, you are hereby notified that
any dissemination, distribution, or copying of this communication or any of its contents is strictly prohibited. If you have received this communication in
error, please re‐send this communication to the sender indicating that it was received in error and delete the original message and any copy of it from your
computer system.

3
 E-FILED; Harford Circuit Court
Docket: 4/27/2022 10:02 AM; Submission: 4/27/2022 10:02 AM

BRIAN FROSH, ATTORNEY * IN THE

GENERAL OF MARYLAND
*
Plaintiff, CIRCUIT COURT FOR
*
v. HARFORD COUNTY
*
JEFFREY R. GAHLER, SHERIFF
FOR HARFORD COUNTY, MARYLAND * CASE NO.: C-12-CV-22-000272

Defendant. *

* * * * * * * * * * * * *
AFFIDAVIT OF CPL. BRAD GHANER

I, Corporal Brad Ghaner, being over the age 18 and competent to testify to the matters

stated herein, state as follows:

1. I am a Corporal in the Harford County Sheriff’s Office (“HCSO”), where I am

supervisor of the Forensic Services Unit, which is responsible for processing crime scenes and

collecting, managing, and analyzing, directly or indirectly, evidence collected in relation to

investigation conducted by the HCSO.

2. As part of my duties, I responded to the scene of the deputy-involved shooting

that occurred at approximately 4:10 p.m. on April 23, 2022 that is referenced in the complaint in

the captioned case.

3. I arrived on the scene at approximately 5:10 p.m.

4. Maryland State Police crime scene technicians did not arrive at the location until

approximately 6:45 p.m., when I directed them to the crime scene itself.

5. HCSO does not maintain its own firearms evidence analysis laboratory.

Historically, HCSO sent firearms evidence to the Maryland State Police (“MSP”) crime lab for

analysis, including comparing firearms evidence against the National Integrated Ballistic

Information Network (“NIBIN”).

TRO Opposition
 E-FILED; Harford Circuit Court
Docket: 4/27/2022 10:02 AM; Submission: 4/27/2022 10:02 AM

TRO Opposition
 E-FILED; Harford Circuit Court
Docket: 4/27/2022 10:02 AM; Submission: 4/27/2022 10:02 AM

BRIAN E. FROSH, ATTORNEY * IN THE

GENERAL OF MARYLAND,
* CIRCUIT COURT
Plaintiff,
* FOR
v.
* HARFORD COUNTY
JEFFREY R. GAHLER, SHERIFF
FOR HARFORD COUNTY, * Case No: C-12-CV-22-000272

Defendant. *
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
Upon consideration of Plaintiff's Emergency Motion for Temporary Restraining Order

and for Preliminary Injunction, the Opposition thereto, the hearing on April 28, 2022, and the

arguments during said hearing, it is this day of , 2022,

ORDERED:

1) That Plaintiff's Emergency Motion for Temporary Restraining Order is DENIED;

2) That the court finds that the Plaintiff has failed to establish a likelihood of success on

the merits;

3) That the court finds that the balance of harm favors the Defendant;

4) That the court finds that the Plaintiff has failed to establish that he will suffer

irreparable injury unless the order is granted;

5) That the court finds that that the balance of harm favors denial of the requested order;

and

6) that the Clerk shall docket this Order denying the temporary restraining order in

accordance with Rule 2-601(b) and Rule 15-504(e).

___________________________________
Yolanda L. Curtin, Judge
Circuit Court for Harford County
4886-7088-3101, v. 1