A Baltimore County Police trial board found last week that an officer used reasonable force when, according to a county attorney prosecuting the case, he struck an unruly suspect in the head 15 to 20 times while the man was on the floor in 2020.
Earlier last week, the same county attorney dismissed a separate use-of-force allegation against the same police officer, David J. Folderauer Jr., who struck a man in the head with a flashlight during an incident in 2021, according to the officer’s defense lawyer. Another officer was acquitted of using unreasonable force when he struck a man with his gun.
Last week’s hearings offered a look at how the county’s trial board process — where police officers can challenge findings that they have violated department policy — has been playing out this year.
None of the three Baltimore County Police officers accused of use-of-force violations in trial boards held this year has been found guilty, according to a department spokesperson. The department did not provide information on the outcome of an April 3 trial board.
Under sweeping state police reform legislation passed two years ago, a new police disciplinary process will take effect in Baltimore County this summer for incidents occurring after July 1 of this year. Civilians will join trial boards for the first time and a new civilian committee is tasked with making initial findings of officer misconduct and recommending discipline.
Folderauer who joined the department in 2018, requested a trial board hearing to dispute an internal police administrative investigation that found he had engaged in misconduct. He faced two administrative charges of violating the agency’s policy against use of “unreasonable force,” defined as force “outside what an ordinary or prudent law enforcement officer would use.”
The consequences for using unreasonable force can be suspension or the loss of two to three days of leave, according to the department’s disciplinary matrix. More serious violations carry higher penalties, including the possibility of termination for the use of “brutal force.”
Beginning July 1, an administrative charging committee will review the police department’s internal investigations into sworn members, decide whether the officer should be charged and recommend discipline based on a new statewide matrix. The committee also will view relevant body-worn camera footage and issue a written opinion.
The committee is made up of five people, two appointed by the county executive and two by the Police Accountability Board, as well as one member of that board.
Sworn officers who disagree with the committee’s decision can request a trial board, just as they can today.
However, trial boards also will look different. Now, three police officers sit on trial boards for county officers and decide whether or not they violated department policy. Under the new procedure, the boards will consist of an active or retired judge appointed by the county executive, a community member appointed by the Police Accountability Board and one police officer of equal rank of the accused.
Fraternal Order of Police Lodge 4 President Dave Folderauer, also the father of Officer Folderauer, said he expects more trial board hearings after the county implements the administrative charging committee.
“If they’re too heavy handed, the officers will have no choice but to take a trial board to make sure the discipline is reasonable,” he said.
It’s hard to predict if adding civilians to the disciplinary process will mean more county officers are found guilty of use-of-force violations, said Pete Fitzpatrick, Baltimore County’s District 1 Police Accountability Board member who said he spoke for himself, not the board.
“Whether more cases are sustained or not will depend really on the validity of the case and whether the citizens appointed to this board feel differently. We’ll see,” Fitzpatrick said. “I don’t think our metric for accountability should be more cases sustained, it should be better policing.”
Maryland Sen. Charles Sydnor, who supported the state reform legislation in 2021, said his constituents wanted more input on police discipline.
“Police officers could not police themselves. The changes in the law stemmed out of that,” said Sydnor, a Baltimore County Democrat. “This was an effort to shine some light on the process.”
The trial board Thursday for the younger Folderauer found him not guilty of violating department policy when he repeatedly punched a man in the head during a chaotic domestic violence arrest. Police Capt. Wes Fischer chaired the board.
Folderauer declined to comment through his attorney, Michael Davey.
“Folderauer’s had his police powers suspended for 22 months, waiting for this trial board to occur,” Davey said. “It shouldn’t have taken this long.”
A Maryland Public Information Act request for body-worn camera footage of the incident, filed Friday by The Baltimore Sun, has not been fulfilled.
On May 24, a police trial board agreed to acquit another county officer, David B. Moser, who hit the man with his gun during the same arrest, of the administrative charge of unreasonable use of force. Moser declined to comment.
After a 911 call, police responded to the 400 block of Margaret Avenue in Essex in the early hours of Dec. 22, 2020. A dispatcher told officers that a woman in a home reported the man had a knife, both the department and Folderauer’s attorney said. The man later pleaded guilty to assaulting his girlfriend and Folderauer.
When officers arrived, the man “was uncooperative and refused to talk to police” and the woman told police he was preventing her from leaving the house, according to charging documents. After the man slammed the door on Moser’s foot and wrist, the officer sprayed him with chemical spray. Moser’s right wrist and left toe were fractured, court records said.
Charging documents said the man then grabbed “a large black knife,” although the object is now “believed to be a remote control,” police investigator Lt. Deneisha Seaman testified last week.
Three officers, including Folderauer, entered through the front door, and Moser hit the man with the butt of his handgun, according to court records.
“Officer Folderauer then struck the defendant multiple times in order to have him comply but he continued to resist,” charging documents said.
Assistant County Attorney Joseph Allen, who acted as a prosecutor representing the department, said it was unreasonable for Folderauer to “deliver 15 to 20 strikes to the head of a prone, apparently unconscious, subject.”
Allen said the trial board should give the body-worn camera footage more weight than “justifications that have been provided secondhand” by use-of-force experts within the department.
Davey, Folderauer’s attorney, said the board was limited to judging Folderauer’s actions based on the officer’s perceptions at the time. Davey said the man acted violently and “was not compliant” toward officers earlier in the interaction and no medical records said he was unconscious.
“If someone fails to comply based on the totality of the circumstances, it’s permissible to punch him,” Davey told the trial board. “Police work is not always pretty.”
On May 22, Allen agreed to dismiss a second allegation of unreasonable use of force against Folderauer after Davey argued he was not provided with exculpatory evidence 10 days ahead of the proceeding as required by law, including conclusions by members of a department training unit that found Folderauer’s actions were consistent with agency training.
Folderauer was accused of striking a man in the head with a flashlight, injuring him, Davey said during the May 22 hearing. In an interview Thursday, Davey said Folderauer was aiming for the man’s shoulder and accidentally struck the side of his head.
The Harford County State’s Attorney’s Office investigated the incident, which took place Aug. 1, 2021, after Baltimore County State’s Attorney Scott Shellenberger decided another office should handle a review and potential prosecution of the incident.
“The State’s Attorney’s Office has a relationship with a relative of the officer involved,” Shellenberger said Friday. “The State’s Attorney’s Office has a close working relationship with the FOP and we wanted to avoid the appearance of any impropriety. So that’s why we sought outside help and passed on their decision.”
The FOP endorsed Shellenberger in March 2022, in a letter signed by the elder Folderauer, and the union’s political action committee has donated to a committee called Friends of Scott Shellenberger as recently as October, according to campaign finance records.
In the Aug. 1, 2021, incident, officers responded to a call for a “suicidal subject” in the 3000 block of Eastern Boulevard in Middle River, according to court records. The man was charged with assaulting two police officers in the encounter. Those charges were later dismissed.
The individual told officers he wanted to be taken to a particular hospital and that he would fight officers if they tried to bring him to another facility, according to a Nov. 10, 2021, letter from then-Harford County Assistant State’s Attorney Timothy Doory that recommended no criminal charges be filed against Folderauer.
As the man “lined up to fight” an officer and drifted toward traffic, Folderauer got his 12-inch Maglite flashlight from his car and “about 26 seconds later” struck him on the left side of his head, Doory wrote.
Folderauer wrote in the third version of his report filed that morning that he had retrieved his flashlight in case the man fled to a darker area and that he was aiming for his shoulder.
The man was diagnosed with a concussion, which he said caused him “additional seizures,” and needed staples and stitches in his head.
“Criminal charges would be difficult to sustain,” Doory wrote. “To the extent that more force than necessary was used, I am confident that departmental discipline can adequately provide justice in this circumstance.”
The Baltimore County Police Department has not yet fulfilled a Maryland Public Information Act request for files related to administrative investigations into Folderauer that The Sun filed on May 18.
Baltimore Sun reporter Lia Russell contributed to this article.
