By David Plymyer.
I commend Councilman Julian Jones, Jr., and the other sponsors of Baltimore County Council Bill No. 96-20, County Executive Johnny Olszewski, and Police Chief Melissa Hyatt for putting together a bill proposing meaningful, sensible reforms to policing by the Baltimore County Police Department (BCoPD). I believe that the proposed reforms will measurably improve the professionalism of the department without impeding its effectiveness.
Indeed, that effectiveness will be enhanced as trust by citizens in the department increases because of the reforms. A police department has no asset more important than the confidence of the people that it serves.
Police reform requires a comprehensive, nuanced approach
Reforms to policing in this country are long overdue. Those reforms must be comprehensive, but also well-conceived. Agendas vary among would-be reformers from little more than changing the window dressing to dismantling police departments as we now know them. Bill No. 96-20 follows a middle path, seeking to make necessary changes to policing without altering the basic model for delivering police services.
The bill requires the adoption of standards by the BCoPD for recognizing the dignity and value of all persons, de-escalating potential confrontations, minimizing the use of physical force, intervening to stop the use of excessive force by other officers, rendering aid to injured suspects, and reporting uses of force – a “code of conduct,” if you will, for BCoPD officers. The bill mandates establishment of an “early intervention system” to identify and resolve behavioral problems with officers before those problems escalate into the use of excessive force.
The comprehensive program of data collection and analysis required by the bill will allow both the department and the public to see how officers employ physical force in the course of their duties, and how improper uses of force are disciplined. Specifically, the program will ensure that racial and other disparities both in the use of force and in departmental discipline can be identified.
Putting the code of conduct where it belongs
Jones’s initial bill, Bill No. 73-20, criminalized every violation of the police officer code of conduct adopted by the bill. Bill No. 96-20 does not. It is a positive change.
I have criminally prosecuted police officers, and I have prosecuted police disciplinary cases before hearing boards. The criminal law, and criminal courts, are poorly suited for enforcing detailed prescriptions on how a police officer (or any other professional) must act under specified circumstances, especially when judgments have to be made quickly and under duress.
Police officers should be criminally prosecuted when appropriate, and the criminal laws on the books in Maryland are adequate for that purpose. It is worth noting that the well-known failure of the Baltimore state’s attorney to convict any of the six BPD officers that she charged in connection with the death of Freddie Gray in 2015 had nothing to do with the inadequacy of the laws. It had to do with the absence of evidence.
Prosecutors and grand juries must be allowed to make the decision whether an officer should be criminally prosecuted by considering the totality of the circumstances, not by focusing on each provision of a code of conduct in isolation. That discretion is necessary to make sure that only cases in which there clearly was criminal intent go forward.
Bill No. 96-20 does make use of a neck restraint, or “chokehold,” a misdemeanor subject to a fine not exceeding $1,000 or imprisonment for not more than 90 days. That would not preclude a more serious charge, up to and including murder, if circumstances warranted it.
The bill allows the use of a neck restraint “in defense against death or serious bodily injury.” This exception, which was not in Bill No. 73-20, essentially equates the use of a chokehold with any other use of deadly force. It protects citizens while recognizing that police officers sometimes find themselves in life-and-death struggles through no fault of their own. No department should send a message to its officers that they may not use chokeholds – or any other means –to save their own lives or the lives of others in such situations.
I would propose a minor amendment: Add the use of a neck restraint to the “mandatory reportable” uses of force under Section 19-1-201(e)(6) of the County Code as amended by the bill. That will ensure review of the legality of each use of a neck restraint.
A temporary band-aid
The effectiveness of the detailed code of conduct required by the bill will depend upon the effectiveness of departmental discipline in enforcing it, and the effectiveness of departmental discipline comes down to the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR). The need for the General Assembly to repeal or substantially revise the LEOBR has been the subject of several articles in Forward Baltimore, so I will limit my comments on the LEOBR to one point.
That point is that the fundamental problem with the LEOBR is that it takes the power to decide if police officers should be disciplined away from police chiefs and gives it to “hearing boards” consisting of other officers who are not accountable to elected officials or the public for their decisions. The LEOBR violates the principle that the key to success of any hierarchical organization like a police department is putting one person in charge, giving that person the necessary authority and tools to run the organization, and then holding that person fully accountable for the results.
The LEOBR was passed by the General Assembly at the behest of police unions, and it accomplished the intended result: Making discipline of police officers too cumbersome, too slow, and, too often, ineffective.
Bill No. 96-20 authorizes the police chief to appoint up to two voting or non-voting civilians to hearing boards as permitted by the LEOBR. I point out that, according to advice given by the Office of the Attorney General, the appointment of civilians to hearing boards is subject to collective bargaining only if the county administration wants it to be, so this change can be implemented unilaterally by the county.
In my opinion, the addition of civilians to hearing boards is a band-aid and does not solve the underlying problem, which is that unaccountable hearing boards decide whether police conduct warrants discipline. There is no hard evidence that indicates adding civilians to hearing boards improves the process.
I am not opposed to civilian advisory panels or civilian oversight boards. But I believe in giving the power to make decisions to someone who can be held accountable for the consequences of those decisions.
Bill No. 96-20 is a step in the right direction. Credit also goes to the union that represents the rank-and-file officers of the BCoPD, Lodge #4 of the Fraternal Order of Police (FOP), for supporting the bill.
The ultimate success of police reform in Maryland will be determined by the fate of expected legislation in the General Assembly revising the LEOBR and opening the records of police disciplinary actions to public inspection. Making progress toward meaningful reform in Annapolis will be much harder in Annapolis than it has been in Towson.
Mr. Plymyer retired in 2014 as the County Attorney for Anne Arundel County. He resides in Catonsville. (email: email@example.com Twitter: @dplymyer) His commentary on local and state government has appeared in publications including the Baltimore Sun, Washington Post, Baltimore Brew, Maryland Matters and the Maryland Daily Record.