All too often we hear about claims that police have used deadly force when it was unnecessary, but courts are also called upon to assess the use of less deadly force by officers in dealing with the public. How the Maryland courts handle such cases is illustrated by a recent unreported opinion from Maryland’s Court of Special Appeals in a case called George Merkel v. State of Maryland.
The opinion indicates that Merkle was a police officer on patrol late at night, who came upon an elderly homeless woman sleeping in the entrance to a business. In the course of attempting to awaken and move her from that location, Merkle grabbed the woman by her ears and raised her to a standing position, and then struck her. Two other officers observed this and later reported Merkle’s actions to their superior, and he was charged with second degree assault and misconduct in office.
At trial before a judge, one of the officer witnesses testified that when he came upon the scene he heard Merkle scream at the woman who was sitting on the ground, and then grab her ears like someone would grab a child until she was standing.
The second officer testified in a similar fashion, confirming that the woman appeared disoriented and unaware of what was happening until she was slapped. The State also called an expert in use of force by the police, indicating that police are taught never to slap anyone, and that for passive resistance such as what happened here the appropriate level of force would be continued verbal direction and escorting a person toward the direction intended.
Merkle admitted at trial that he screamed at the woman, and claimed that when she would not respond he held her under the jaw to get her to stand. He claimed he just tapped her face to try to get her to focus. The trial judge relied in large part upon the reaction of the two officers who witnessed what to them was clearly unreasonable force, in convicting Merkle of battery or unwanted touching which was a misdemeanor sufficient to also constitute misconduct in office.
The appellate court found that there was sufficient evidence to uphold the conviction. Since the crime in question was merely trespassing, the woman posed no threat of violence, and was only passively resisting by not responding to direction, the expert testimony showed that verbal direction and escorting the woman would constitute reasonable use of force.
The appellate court found that there was sufficient evidence to uphold the conviction. Since the crime in question was merely trespassing, the woman posed no threat of violence, and was only passively resisting by not responding to direction.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.