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Darcy Costello

The Baltimore Sun

March 14, 2024

An internal police investigation found “no justifiable reason” for fired Baltimore Police Officer Maxwell Dundore to push a teenage detainee’s head and kick him following a physical altercation in April 2020.

Investigators also found Dundore’s supervisor neglected to properly document the incident in a use of force assessment report.

The investigation, obtained through a Maryland Public Information Act request, reflects the Baltimore Police Department’s assessment of the well-publicized altercation in which Dundore threatened to choke and kill a teenager during an arrest in Baltimore’s Belair-Edison neighborhood.

Dundore was quoted as saying, “I swear to God, I’ll choke you out if you don’t stop” and “I will choke you. I will kill you.”

Internal Affairs investigators with Baltimore Police concluded Dundore used both abusive or discriminatory language and excessive force against the 17-year-old. The report said Dundore pushed the handcuffed teen’s head as he got up off the ground and “mule kicked” him with his left foot as he stood up.

Investigators wrote that Dundore’s actions were “more likely than not” intentional and the kick “appeared to be deliberate.”

The investigation was completed following last year’s Baltimore Circuit Court trial, where a judge found Dundore guilty of second-degree assault and misconduct in office, and sentenced him to 18 months of supervised probation. Baltimore Police subsequently fired him.

Dundore has since appealed the verdict; the matter is pending before the Appellate Court of Maryland. He declined through his attorney to comment for this article.

His supervisor, Sgt. Brendan O’Leary, meanwhile, saw criminal charges of making a false statement and misconduct in office dismissed last April.

Prosecutors previously said O’Leary’s report “minimized the severity” of Dundore’s actions and “materially distorted the nature of the incident to justify unlawful police conduct and mislead investigators.”

The investigative report reveals O’Leary wrote in an April 2020 use of force report that the teenager being arrested grabbed Dundore’s shoelaces and caused him to trip, which then led the officer to “inadvertently” strike the teen in his face. That written description contradicted what was captured on body camera footage, police wrote.

O’Leary later admitted to investigators that the teen never grabbed Dundore’s shoelaces. He also acknowledged he should have used “a better choice of words.”

He maintained in a 2021 police interview, though, that the teenager raised his hands and touched Dundore’s boot as the officer was in the process of standing up. O’Leary said he believed that, though Dundore’s falling was not captured on body camera footage, Dundore was on his knees and both feet were off the ground, which qualified as a fall.

“From what he saw, Officer Dundore’s kick appeared to be incidental and that is how he wrote it,” investigators said in a summary of their interview with O’Leary. “He had no intention to author his Use of Force report in an attempt to cover for Officer Dundore’s action. Sergeant O’Leary denied being deceptive in his use of force narrative and denied failing to supervise.”

Police investigators concluded O’Leary neglected his duty to properly document what occurred; however, they stopped short of a finding he failed to supervise or made a false statement. They wrote there was insufficient evidence to prove or disprove that his report was “intentionally” false.

Police spokeswoman Amanda Krotki said this week that O’Leary is suspended, pending a trial board hearing. The department declined to say what discipline it was pursuing and when the trial board was scheduled, saying Baltimore Police doesn’t “comment on personnel matters.” O’Leary does not appear on the department’s schedule of administrative hearings.

Maryland legislators in 2021 made police misconduct records subject to public release under what’s known as Anton’s Law. The records previously were shielded from public inspection under an exemption for personnel files.

BPD’s Internal Affairs cases are particularly noteworthy, given the department’s attempts to overhaul its misconduct investigations, as mandated in the city’s policing consent decree with the federal government. More recent reports suggest the department is more efficiently investigating allegations, but still must work on communication and consistent documentation.

In Dudore’s criminal case, Baltimore Circuit Judge Gregory Sampson found last year that there wasn’t evidence to prove beyond a reasonable doubt Dundore’s alleged kick was an assault, but said if it had been a lesser standard then Dundore would be guilty of it. Dundore’s defense team argued the contact between the officer’s boot and teen’s head was unintentional and the result of him losing his balance on slick pavement in a tight space.

Instead, Sampson found it constituted second-degree assault when Dundore said “I willl choke you. I will kill you,” with his hands on or near the teen’s neck. Sampson said it put the young person “in imminent fear of immediate bodily harm.” The judge additionally found Dundore deliberately pushed the teen’s face.

The threat to choke and kill the detainee was “so far out of bounds” that it counted as corrupt behavior and criminal misconduct, Sampson ruled last March.

A description of O’Leary’s use of force report in the BPD investigation says that Dundore was counseled following the altercation not to use harsh or abusive language and was given a non-punitive counseling form.

Dundore’s pending appeal is scheduled for the appeals court’s May calendar, according to attorney Carrie Williams. No exact date has been set, she said Tuesday.

The investigative report also contains summaries of several officer witness interviews, as well as one May 2020 interview with a sergeant assigned to BPD’s Education and Training Section. That sergeant, Scott Swenson, said Dundore’s force was within policy, except for his kick to the teen’s head. Swenson recommended Dundore receive deescalation training.

The training sergeant added that O’Leary’s report contained a discrepancy in its description of the kick — the body camera footage, Swenson said, didn’t show the teen grab Dundore’s shoelaces or show Dundore trip.

“Sergeant Swenson reiterated what he observed was Officer Dundore get to his feet and then come back with a reverse kick with the left foot to the head,” the investigative report said. “Sergeant Swenson stated it appeared Officer Dundore delivered the kick out of frustration.”

O’Leary’s supervisor, Lt. Matthew Day, in contrast, told investigators he viewed the contact between Dundore’s foot and the teen’s head as the result of him slipping, and said it looked like the teen had “reached up as Dundore was trying to get out from under him” and grabbed his shoe.

Day also said O’Leary was “not that kind of Sergeant who is going to cover something up or attempt to cover something up.”

The police investigation stemmed from an anonymous email that reported, based on numerous officers’ acounts, that Dundore had “lost control of himself and kicked a handcuffed suspect in the face.” The reporting person said this was the second incident between Dundore and the teen involving force, and added that he’d heard Dundore was “cursing and acting irate in front of the public.”

The anonymous person went on to say he believed Dundore needed help with anger management and better deescalation skills.

“The reporting person feared that Officer Dundore would lose control on his next arrest and accidentally hurt someone even further,” the police investigation said.

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