A Baltimore County Police officer who pepper-sprayed a shackled and handcuffed man in the back of a patrol vehicle multiple times and later held him by the hair has been acquitted of second-degree assault and other charges, a judge ruled Wednesday.
Circuit Judge Paul E. Alpert issued his decision at the end of a seven-day bench trial for Cpl. Zachary Small, a 20-year veteran of the Baltimore County Police Department.
The judge found the force that he used was reasonable under the circumstances.
Small, 52, testified that he used force against Justin Russell on Sept. 27, 2023, to gain compliance and carry out legitimate law enforcement objectives. The interaction was captured on multiple body cameras, which featured prominently in the trial. Small had been also charged with reckless endangerment, misconduct in office and violating Maryland’s Use of Force Statute.
In a statement Wednesday night, Baltimore City State’s Attorney Ivan Bates criticized the judge for comparing the case to those of George Floyd, who died in police custody, or Freddie Gray, who died seven days after being arrested by Baltimore Police in 2015.
“This is an 89-year-old former Baltimore County judge who appears to be out of touch with the state of policing in 2024,” Bates said. “This type of behavior is what led to Baltimore City being under a consent decree. While we disagree with the verdict, we respect the judge’s decision; however, we will allow the video to speak for itself.”
“We don’t believe this case should have ever been brought,” Small’s attorney, Brian Thompson, told The Baltimore Banner.
Russell had been convicted of armed robbery and armed carjacking, Thompson said. He had escaped from custody and had refused to cooperate, Thompson said.
Small executed a “textbook use of force,” Thompson said, warning Russell repeatedly and using de-escalation techniques. He tried to get Russell back in the car repeatedly and ultimately did so without injuring him, Thompson said.
Thompson also said there were 15 or so officers that were obligated to intervene if they saw improper use of force, Thompson said. None of them did, Thompson said.
“This is an officer with 20 plus years of experience who’s relying on his training and his instincts,” said Patrick Seidel, a defense attorney in the case. “And it turned out he was right.”
Baltimore County Police arrested Russell in Towson that morning but agreed to take him to Johns Hopkins Hospital to receive treatment for an unrelated gunshot injury to his hand. He escaped, but Baltimore Police a short time later recaptured him.
Law enforcement preparing to take him to the Woodlawn Precinct for booking and processing when he started banging on the inside of the patrol vehicle. Russell shouted through the window that the temperature inside the cruiser was too hot and later testified that he felt like he was going to die.
Small fired at least seven shots of pepper spray directly into his face, according to the indictment.
Body camera footage shows Small later pulled Russell out of the vehicle, threw him to the ground and then held him by his hair for about 30 seconds. That’s while Russell repeatedly asked for help and stated that he could not breathe.
Thompson said he expects Small’s suspension will be lifted but does not know yet when or if Small will return to the force.
”If he is going back after going through what he went through, I don’t know,” he said.
During closing arguments Wednesday, Assistant State’s Attorney Kimberly Rothwell asked the judge to “believe your own eyes” in viewing officers’ body camera footage.
“Some things are just common sense,” she said.
Rothwell argued Russell was already under police control — handcuffed, shackled and belted into the back of a police cruiser — when Small pepper-sprayed him inside of the vehicle while the windows were rolled up. She pointed to comments made by some of Small’s superior officers, who testified they did not believe he had acted according to county policy.
Russell testified that some of his hair was yanked from his scalp later during the exchange when Small had grabbed his locks and pulled his head back, a detail that Rothwell argued constituted serious injury. Russell was already complying with police directives, she said, when Small pulled him to his feet partially by grasping his hoodie.
Meanwhile, defense attorney Brian Thompson called the prosecution “political” and said Small shouldn’t have been charged at all. He called out city state’s attorneys for stopping short of prosecuting officers in their own jurisdiction. City Sgt. Christopher Mumey was the highest-ranking officer on the scene, Thompson said, but was not charged for failing to intervene as three other Baltimore County officers were.
Defense attorneys argued Small’s actions were in line with county police training and included several warnings as de-escalation tactics. Russell had already escaped custody once, they said, and posed a safety risk to himself and to officers. His claims about not being able to breathe were a lie, they said.
The defense played audio from a phone call Russell allegedly placed from jail in the days following the incident. In the recording Russell could be heard saying he “would have straight popped him and got out of there, but it would have been a man hunt for me.” The audio was referenced during the trial but played for the first time during closing arguments.
Small’s superior officers did not review all available body camera footage before they determined his actions were inappropriate, Thompson said. Russell had failed to comply with orders, was physically aggressive and posed a risk of destruction to the police cruiser when he banged on the glass, he said.
The defense also pointed to a moment captured on camera later at the county precinct. An officer asked Russell whether he had any major health complaints beside the pepper spray. Russell replied no and mentioned an older injury to his hand from an unrelated gunshot wound.
Three other Baltimore County police officers, Justin Graham-Moore, Jacob Roos and Thomas Desmond, remain charged with misconduct in office.
They’re accused of failing to intervene as required under the Maryland Police Accountability Act of 2021, a reform passed in the wake of the murder of George Floyd that requires officers to “prevent or terminate” a use of force beyond what’s authorized under the law. The provision went into effect on July 1, 2022.
Baltimore Banner reporter Dylan Segelbaum contributed to this report.
This story has been updated to correct the number of days between Freddie Gray's arrest and death.
