73 A.3d 1186
Md. Ct. Spec. App.2013Background
- Cross, a Baltimore City Police Department officer (2004–2010), was terminated after a LEOBR hearing holding she violated General Orders tied to her marriage to Cabana, a convicted murderer and Dead Man, Inc. (DMI) gang member.
- Charges against Cross arose from: (i) conduct unbecoming based on marriage to Cabana; (ii) personal contacts with a person of questionable character; (iii) duties and responsibilities; (iv) failure to timely report marital-status change.
- Cross married Cabana in a “spiritual” ceremony in 2004 and formally notified supervisors of the marriage on July 10, 2009; the Department learned Cabana was a high-ranking DMI member and validated gang involvement.
- Investigators uncovered Cabana’s DMI leadership, prison gang ties, and Cross’s communications with Cabana (including visits, phone calls, and money).
- The Hearing Board found Cross guilty on several charges, recommended termination, and the Police Commissioner terminated her on December 9, 2010; the circuit court affirmed, and Cross appealed pro se.
- The appeal addressed whether General Order C-2, Rule 1, Section 5 unconstitutionally infringed the right to intimate association or marriage, and whether the Board’s findings were supported by substantial evidence; preservation issues were raised for some claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to intimate association protected by law | Cross argues the General Order burdens the right to intimate association. | Department contends the burden is rational and tied to department interests. | No direct violation; rational-basis standard applies. |
| Sufficiency of evidence for termination | Cross contends the Board lacked substantial evidence tying Cabana to DMI. | Department shows Cabana’s DMI validation and leadership support the finding. | Termination supported by substantial evidence. |
| Vagueness/overbreadth and preservation | Cross challenges vagueness/overbreadth of General Order and preservation of this issue. | Department argues issue not preserved for review; substantive merits not reached. | Issues not preserved; not reviewed on appeal. |
Key Cases Cited
- Roberts v. United States Jaycees, 468 U.S. 609 (Supreme Court, 1984) (right to marry and intimate association may be protected under First Amendment or due process)
- Zablocki v. Redhail, 434 U.S. 374 (Supreme Court, 1978) (strict scrutiny not always required for marriage-related regulation; rational basis may apply)
- Koshko v. Haining, 398 Md. 404 (Md. 2007) (limits on applying strict scrutiny to regulate marriage rights)
- Windsor v. United States, 133 S. Ct. 2675 (U.S. 2013) (federal liberty interest in marriage; equal protection considerations)
- Conaway v. Deane, 401 Md. 219 (Md. 2007) (right to marry as a federal liberty interest)
- Bautista v. County of Los Angeles, 190 Cal.App.4th 869 (Cal. App. 2010) (termination for relationship with high-risk inmate did not violate intimate association)
- Ortiz v. Los Angeles Police Relief Ass’n, 98 Cal.App.4th 1288 (Cal. Ct. App. 2002) (police department interests can rationally justify limits on intimate associations)
- Akers v. McGinnis, 352 F.3d 1030 (6th Cir. 2003) (recognizes rational basis review in department regulation contexts)
- Hodgson v. Minnesota, 497 U.S. 417 (Supreme Court, 1990) (state regulation of marriage permissible with legitimate interests)
- Parks v. City of Warner Robins, 43 F.3d 609 (11th Cir. 1995) (illustrates approach to intimate association in public employment)