Justin Russell just wanted the police cruiser’s window opened, he testified Tuesday in a trial for the Baltimore County cop who sprayed mace into the closed vehicle where the 32-year-old was being detained.
Whether the officer’s actions were criminal — or “lawful, but awful” as a witness said in a Baltimore City circuit court this week — is the question at the heart of the case. The phrase describing police officers’ use of force featured prominently in the 2021 trial of the former Minneapolis police officer following the death of George Floyd.
Three years later, the impact Floyd’s murder and the policing reforms it spurred in Maryland are still reverberating through the state’s criminal justice system. And they echoed throughout the first day of trial this week for Cpl. Zachary Small, who pleaded not guilty to second-degree assault, reckless endangerment, misconduct in office and a related charge.
Baltimore City prosecutors say the 52-year-old officer violated multiple criminal laws and county police procedures during the pepper spraying incident that took place on Sept. 27, 2023. County police arrested Russell in Towson that morning but agreed to take him to Johns Hopkins Hospital where he was being treated for an unrelated gunshot injury to his hand.
Russell said he noticed a weak link in his shackles and bolted from his hospital room. City police officers found him about 10 minutes later and transferred him back to county police custody. Russell was handcuffed, shackled and buckled into the back of a Baltimore County patrol vehicle with the windows rolled up when he began to bang the inside of the vehicle with his body, saying the temperature inside the cruiser was too hot and that he couldn’t breathe.
Small responded: “You break that fucking window and you’re gonna get the whole can of pepper spray!”
The officer fired at least seven shots of pepper spray directly into his face, according to the indictment. Body-camera footage shows Small pulled Russell out of the vehicle, threw him to the ground and then held him by his hair for 28 seconds, while Russell repeatedly asked for help and stated that he could not breathe.
“You asked for it!” Small said. “You remember this! I warned you!”
Small has opted for a bench trial, meaning Circuit Judge Paul Alpert will determine whether he is guilty of the charges instead of a jury of city residents.
Two other county police officers, Justin Graham-Moore and Jacob Roos, are listed as codefendants in the case. Baltimore City prosecutors charged them with misconduct in office for allegedly failing to intervene.
The outcome of their cases will test the Maryland Police Accountability Act of 2021, a reform passed in the wake of the murder of Floyd that requires officers to intervene to “prevent or terminate” a use of force beyond what’s authorized under the law. The provision went into effect on July 1, 2022.
A fourth Baltimore County officer, Thomas Desmond, 35, was also indicted in April on one count of misconduct in office, though the indictment does not elaborate on what led to the charge.
Baltimore County Police spokesman Trae Corbin said Monday the four officers have been suspended with pay. An internal affairs case remains open.
Throughout the first day of trial, defense attorneys Brian Thompson and Patrick Seidel, of Silverman Thompson, argued Small’s actions fully complied with the county police policies on acceptable use of force. The temperature in Baltimore City that day was mild, they said, and the air conditioning in the vehicle was on. Small believed Russell’s banging and kicking could break the car window and warned him twice to stop. The defense also claimed Small could reasonably interpret Russell as a flight and public safety risk, given his earlier escape and arrest for allegedly committing a string of armed robberies.
Defense attorneys at one point referenced a call Russell made on Sept. 28, 2023, from jail, in which he allegedly said he was “about to grab the police gun” and “I would have popped him.” However, audio from the alleged call was not played during the trial.
City prosecutors called Baltimore County Police Capt. Michael Fruhling as a witness in the trial. He testified that on first review of the body-worn camera footage, he “thought it was ugly” but was okay with the officer’s actions. He later changed his mind after reviewing the footage frame-by-frame.
Department policy states officers should attempt to de-escalate a combative suspect and use measures that are proportional to the safety risk posed. Fruhling believed it was unnecessary to use pepper spray on a handcuffed man detained in the rear or a cruiser and said there were other measures, such as calling for a prisoner transport van, that would have been appropriate.
Still, the captain stopped short of labeling his officer’s actions
as criminal — testifying that he did not believe Small had violated Maryland law.
Russell took the stand Tuesday afternoon and raised a still-bandaged hand as he was being sworn in. Law enforcement have an obligation to save babies and dogs from hot vehicles, and he was banging on the inside of the vehicle to get their attention, he said.
Russell attacked the defense’s position that the weather was cool and the air conditioning in the vehicle was on. He was wearing a black hoodie when he fled the hospital on foot, he said, and was already out of breath when police recaptured him. Russell felt the sting of mace in his nose and on his face and hair. He said he thought of George Floyd and wondered if he was about to die.
“I’m a human being and y’all treat me worse than a dog,” he said on the stand.
Both the state and defense’s arguments at times touched on race. Defense attorneys questioned Russell about why he had not criticized actions taken by the city’s officers that day. Two city officers who recaptured him in a backyard near the hospital had pulled him out from a bush by the ankles, they said, and grabbed him by his sweatshirt to lift him to his feet.
“You know what the biggest difference is? They’re black,” he said of the city police officers, “and he’s white,” Russell referring to Small.
The defense also questioned Russell’s claim that he sewed two of his dreadlocks back into his hair after he said they were ripped from his scalp during the encounter. How was he able to hold onto his locks if his hands were cuffed throughout the incident? Seidel asked.
State’s attorney Kimberly Rothwell jumped on the question, too, asking Russell to explain. He replied that some of his locks were connected both at the root and farther down the shaft, which is why they stayed with his person despite being pulled from his scalp.
Rothwell on redirect asked Russell about the race of the officers. Russell said he felt the white county officers felt superior to him and judged him based on his physical appearance. At times during the testimony, Russell discussed how a city officer had immediately granted his request to roll down the window of another cruiser in which he was detained.
Maybe if Small had done the same, the indictments and trial this week would not have been necessary, Russell said.
“I just wanted the window down,” Russell said.
Baltimore Banner reporters Dylan Segelbaum and Justin Fenton contributed to this story.
This story has been updated to clarify why Baltimore County Police Capt. Michael Fruhling changed his opinion on the incident. The story has also been updated to reflect that a witness testified the officer's conduct was “lawful, but awful."
