Officers file lawsuit over how Montgomery Co. reached new use of force policy

Montgomery County, Maryland, police officers are taking issue with how the county reached a new use of force policy, and they have filed a lawsuit citing breach of the county charter.

The Fraternal Order of Police that represents officers said they were left out of talks to craft the policy, which goes against the county charter.

“The policy, this week, finally came out,” said Lee Holland, corporate vice president of the FOP Lodge 35, on the timing of the lawsuit.

At the heart of the issue is officer health, safety and working conditions. The suit against Montgomery County outlines that by prohibiting collective bargaining over the minimum standards regarding use of force, the county violated its county charter “that police officers have a right to bargain over terms and conditions of their employment, including matters that bear a direct, material, and significant relationship to the health and safety of the police officers,” the suit states.

Montgomery County police said it could not comment on pending litigation.

Montgomery County Council member Will Jawando, one of the bill’s sponsors, said workers’ right have been used in the context of policing “all too often to water down or to go against the intent of legislation.”

Jawando, who did not address the lawsuit directly, believes the union has a problem with the law that allowed for the change.

“They’re worried about the standard of use of force being higher than the constitutional grand standard, which says reasonable officer. We changed to necessary, which is totally legal. It’s what the state of Maryland did, following our legislation recently,” Jawando said.

Jawando said the crux of the law was to outline when deadly and other force can be used.

“Unfortunately, the collective bargaining process is trying to be used here as a way to subvert the intent of the law. So that’s, that’s why it’s disappointing,” Jawando said.

County Executive Marc Elrich did not agree to leave officers out of the conversations in crafting the policy, Holland said. However, he contends that’s exactly what happened; and now, there is confusion among FOP members about the parameters of the policy passed by the council in August 2020.

“There’s wording in there that would affect our health and safety. For example, using only proportional force. So basically, meaning, if the person’s using hands against you, you can only use hands [on them] when we have other equipment on our belts to try to counteract a struggle, such as pepper spray,” Holland said.

Holland said there are parts of the new policy that officers do not take issue with, such as shooting at a moving vehicle or from a moving vehicle.

The policy adds other limits and conditions on officer’s actions, including prohibiting neck and carotid restraints, use of deadly force against someone who is fleeing, striking a suspect who is already restrained, and the use of no-knock warrants, to name a few.

However, Holland said more clarity is needed around parts of the policy, which would not have been an issue had law enforcement been invited to draw it up.

“I know questions have been raised about placement of knees on the upper back area, which has been trained on. Is that still going to be allowed? Because the bill says no neck restraints as they have imposed … But then again, it looks like you’re sitting on someone’s neck when you’re really sitting high on someone’s shoulder. So, there is very much concern amongst the rank-and-file about the prohibitions in this bill,” he said.

Jawando said that his staff and others have spoken with law enforcement several times and had gotten feedback before.

“There’s multiple conversations in multiple levels. They did participate in one kind of actual film session. But behind the scenes, there were other conversations happening,” Jawando said.

WTOP’s Scott Gelman and Abigail Constantino contributed to this report.

Megan Cloherty

WTOP Investigative Reporter Megan Cloherty primarily covers breaking news, crime and courts.

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