Kim Davis & sharia law.

The opposition expressed by Dr. Ben Carson to a Muslim serving as President places the situation of Kim Davis in context.  Davis is the County Clerk of Rowan County, Kentucky, who refuses to issue marriage licenses to same-sex couples because such marriages are inconsistent with her religious beliefs as an Apostolic Christian.  She defied a federal court order to issue the licenses stating that she was acting “under God’s authority.”

Carson’s statements reflect the Islamophobic fear that it is the collective goal of Muslims to impose sharia law in countries within which they reside, meaning that the tenets of Islam governing the conduct of citizens would supersede the provisions of civil law.  In other words, Islamophobes fear that a Muslim would do exactly what Kim Davis has done:  Refuse to perform a duty imposed upon her by civil law because it conflicts, in her opinion, with the requirements of religious “law” as set forth in the Bible.

A universal requirement for elected and appointed officials of the federal, state and local governments is that they take an oath of office committing them to obey the Constitution of the United States.  The oath underpins the rule of law in this country, including the Establishment Clause and Free Exercise Clause of the First Amendment to the Constitution that were described by Thomas Jefferson as creating “the wall of separation between Church & State.”  That wall is what has allowed Protestants, Catholics, Jews, Muslims, members of other religions and non-believers to live in harmony and to make the United States the nation it is today.

I grew up in the Pennsylvania Dutch country.  Old Order Amish choose, as a matter of their particular variation of the Christian faith, not to hold civil office.  The principled choice available to Davis would have been to resign her office if she believed that its duties conflicted with her religious beliefs.  Had she done so would have been entitled to the same respect afforded to others such as the Amish who make sacrifices in the course of adhering to their religious values.

On the other hand, her decision to violate her oath and the support that she has received for doing so from current and former elected officials, such as Governor Bobby Jindal of Louisiana and former Governor Mike Huckabee of Arkansas should sent a chill up and down the spines of all Americans.  The proposition that a government official can deprive a person of a legal right because that right conflicts with the personal belief of the government official is a direct threat to the rule of law.

September 22, 2015

Davis has a question to answer.

Mayor Stephanie Rawlings-Blake wants to make Interim Police Commissioner Kevin Davis the permanent Police Commissioner of the Baltimore Police Department (BPD).  Davis has stated that he wants the position but wants to be appointed for the remainder of the six-year term of former Commissioner Anthony Batts.  A shorter term would “stall” progress in the department, according to Davis.  [The Baltimore Sun, September 17, 2015.]

Before Davis is confirmed as the permanent Police Commissioner, however, the City Council should seek a commitment from him that he will join Mayor Stephanie Rawlings-Blake in actively seeking reforms to the Law Enforcement Officers’ Bill of Rights (LEOBR) and to the Maryland Public Information Act (MPIA) during next year’s session of the Maryland General Assembly despite the strident opposition to such reforms by the Fraternal Order of Police (FOP).  There is no basis for assuming that Davis will support efforts to secure the necessary changes to the law unless a commitment to do so is obtained from him prior to his appointment.  Reform is less likely without the leadership and support of the incumbent commissioner.

In describing his plans for improving the department Davis mentioned foot patrol  training,  history courses on race relations and faith communities in the city for all new officers, better recruiting of city residents, and stronger incentives to get current officers to move into the city and veterans to remain on the force.  He said nothing about strengthening the process by which police officers are disciplined or about making that process more transparent.  [The Baltimore Sun, September 16, 2015.]

Lt. Gene Ryan, President of Lodge No. 3 of the FOP announced last week that the BPD is “headed in the right direction” under Davis.  This tacit endorsement of Davis by the head of the labor union that represents police officers in the BPD up to the rank of lieutenant gives the City Council cause for concern.  It would a stunning turnaround for the union to support a candidate for permanent commissioner who the union believed was intent upon reforming the police disciplinary process.  Does Lt. Ryan know something that the public does not?  That question must be answered.

It is naïve to believe that the FOP has anything other than the narrow interests of its members at heart when it speaks through its president, and Lodge No. 3 of the FOP in particular is not shy about throwing around its political weight in order to protect its members.  Lt. Ryan publicly blasted the settlement with the family of Freddie Gray approved by the Baltimore City Board of Estimates on the basis that it reflected negatively on his membership without regard to whether the settlement reasonably protected the city from greater financial loss.

In May Lt. Ryan sent a letter to State’s Attorney Marilyn Mosby demanding that she recuse herself from the decision whether to charge any of the officers involved in the death of Freddie Gray in order to avoid a violation of the Maryland Lawyers’ Rules of Professional Conduct.  In the letter he gratuitously assured her that “none of the officers involved are responsible for the death of Mr. Gray.”

The FOP’s greatest disdain has been reserved for Mayor Rawlings-Blake and former Police Commissioner Anthony Batts, outspoken advocates for reform within the department.  A month before his termination Batts stated that “our reform efforts will very likely see more police officers arrested [and] we will have more officers who are forced out because their outdated, outmoded views of policing do not match the standards the community expects and demands.”  That was not music to the FOP’s ears, and the union was elated to see Batts go.

The repeated assertion by the FOP that the disciplinary process is working well in the BPD almost defies belief, but is consistent with the general approach taken to issues by the FOP.  The day after Mayor Rawlings-Blake announced plans to seek some minor reforms to the LEOBR Lt. Ryan released a defiant statement promising that Lodge No. 3 “stands ready to combat any attempt to disrupt the LEOBR.”  In May Lt. Ryan released a statement blaming the surge in crime in the city on the fear of police officers that they would be arrested for doing their job like the officers charged in Freddie Gray’s death, and claiming that “criminals feel empowered now [and] there is no respect.”  In other words, everything is someone else’s fault and everything would be fine if police officers were just given more respect.

It also is naïve to believe that a police chief or commissioner cannot be intimidated by the FOP.  In over 31 years in the Anne Arundel County Office of Law I worked with many chiefs of police.  Few were anxious to draw the ire of the FOP and some I would describe as so concerned with keeping the peace with organized labor that in my opinion it affected their judgment as leaders of the police department.

Even former commissioner Batts blinked in the face of a showdown with the FOP over the LEOBR.  He declined to appear before the General Assembly last spring to testify in support of changes to the LEOBR requested by Mayor Rawlings-Blake.  According to reports in The Baltimore Sun Batts’ reticence to support changes in the law surprised some legislators because Batts had made public comments about having his “hands tied” in the discipline of police officers.  Indeed, on October 6, 2014 the BPD had released a report entitled “Preventing Harm” that called for strengthening the commissioner’s role in the disciplinary process.

As reported by Roberto Alejandro writing for the Afro, Batts’ change of heart came after a private hour-and-a-half meeting between Batts and FOP representatives.  [Afro, March 15, 2015.]  Instead of going to Annapolis to testify Batts sent an email to the members of the BPD assuring them that he would not support changes to the LEOBR.  As I noted in a previous post it is not uncommon for police chiefs or commissioners to fear the collective disapproval of their officers through the FOP more than the officers fear the disapproval of their conduct by the police chiefs or commissioners.  When management is afraid of organized labor it is organized labor that controls the culture of the workforce.

The next permanent police commissioner cannot blink.  Changes to the LEOBR are vital to changing the culture in the BPD.  The absence of a fully-functional disciplinary system emboldens officers who do not share the commissioner’s vision for how citizens should be treated because those officers know that it is extraordinarily hard to get rid of bad cops.  Equally as importantly, the disciplinary process must be under the direct control of the commissioner so that the commissioner can be held accountable for the results.

Reforming the disciplinary process and making it transparent are more important than the changes proposed to date by Interim Commissioner Davis.  They are more important than him having an extended term of office.  Baltimore’s police department faces enough challenges without creating problems for itself through the behavior of its officers, and the focus on reducing the murder rate cannot serve as an excuse to ignore the need to restore the trust between the citizens and the police department that serves them.

September 18, 2015

Gut reactions – Freddie Gray trials in the city.

There are some gut reactions that come to mind in light of the decision by Judge Barry Williams to attempt to impanel juries in Baltimore to try the defendants in the cases resulting from the death of Freddie Gray.  First, my guess is that Judge Williams knows in his gut that it will be difficult if not impossible to find fair and impartial juries from a pool of jurors who reside in the city.  Other gut reactions that come to mind are the sinking feelings in the pits of the defendants’ stomachs.  I am sure that they believe that their chances of getting a fair trial have now diminished.

The problem is not the taint of pretrial publicity.  Information no longer travels merely by word of mouth or the printed page. In the Digital Age people in Garrett County got the news about the death of Freddie Gray and the subsequent riots as quickly as did residents of the city.  In this case there is something far more prejudicial, and that will be the pressure felt by jurors residing in the city to return guilty verdicts to satisfy the expectations (and in some cases the thirst for vengeance) of their neighbors.

There are abhorrent crimes that generate heated emotions, but nothing comparable to the widespread visceral feelings arising from Freddie Gray’s death.  When is the last time that stores were looted and burned and police officers attacked with rocks because of the actions of a serial murderer or child molester?  For many citizens of the city this is very, very personal, and taps into an anger that simmers not far beneath the surface.  It takes little to turn that anger into rage.

For jurors living in some neighborhoods the pressure will be even greater.  How would you feel upon returning to your home in Sandtown-Winchester after voting to acquit one of the defendants?  Ostracism could be the least of your worries. The harsh reality in the City of Baltimore is that jurors may need physical as well as moral courage.  The situation is likely to get worse if the first defendant to go to trial is acquitted, because it is unrealistic to believe that the acquittal would not lead to riots or some other form of violent demonstration.  How could an acquittal followed by a riot in the city not prey on the minds of subsequent jurors who live in the city?  Even if he is successful in impaneling a jury from the city for the first one or two trials, Judge Williams may find himself unable to do so for the later trials.

My own gut reaction is that State’s Attorney Marilyn Mosby did her part to make life as difficult as possible for the prospective jurors with her overheated rhetoric and by implying that part of her duty was to appease the rioters by quickly bringing charges against the police officers.  She also appears to have overreached by charging Off. Caesar Goodson, Jr. with second degree murder.  Few experienced prosecutors and criminal defense lawyers believe that she did so for any reason other than dramatic effect:  “Murder” was the word that her audience wanted to hear.  In my opinion Ms. Mosby not only allowed herself to be swept along by a tide of emotion she exacerbated it.  She basically set up the jurors, who will be required to do what she could not bring herself to do:  Carefully and dispassionately apply the law to the facts without regard to the consequences “on the street.”

I am left with the concern that we may be asking too much from jurors living in the city to put the events of April and the feelings of their neighbors out of their minds while deliberating the guilt or innocence of the defendant police officers.  If an officer is convicted by a Baltimore jury under circumstances in which the evidence of guilt is equivocal there will be one more stain on the reputation of the city.

Reform of the Maryland LEOBR will require a paradigm shift in police discipline.

In an article that appeared in The Baltimore Sun on August 24, 2015 a spokesperson for the Maryland ACLU expressed dismay that advocates for reform of the Maryland Law Enforcement Officers’ Bill of Rights were underrepresented on the list of speakers invited to address the Maryland General Assembly Public Safety and Policing Workgroup at the hearing on the LEOBR held that day in Annapolis.   I shared the ACLU’s disappointment and, in my opinion, the over-allocation of time to the FOP at the hearing reflected the major impediment to reform of the LEOBR, which is the inordinate influence that the FOP exerts over State and local officials in Maryland.

In an op-ed piece that appeared in The Sun in January Susan Goering of the Maryland ACLU concluded that Maryland’s LEOBR had to be rebalanced because in its current form it “imposes significant impediments to conducting an adequate investigation and takes responsibility for discipline away from police chiefs.”  There is no doubt in my mind that she is correct, but achieving a proper balance will require a paradigm shift in the way that police discipline is administered in the State of Maryland which in turn will require overcoming the opposition not only of the FOP but also of police chiefs throughout the state.

The current paradigm is a “closed system,” with the discipline of police officers administered solely by other police officers.  Police chiefs have a secondary role, with the threshold responsibility for deciding whether discipline should be imposed assigned to “hearing boards” accountable to no one.  Only police officers may investigate police officers and only officers may sit in judgment of police officers as members of the hearing boards.

Citizens not only are excluded from the process they also are not privy to the outcomes, a point reiterated by Court of Appeals in Dashiell v. Maryland State Police.  Maryland’s LEOBR is a manifestation of the “us vs. them” culture in which police officers believe that they are entitled to be governed by a set of rules that is different from the rules that govern the citizens that they are hired to serve.

The current paradigm needs to be replaced with a new paradigm that returns to police chiefs the power and the responsibility to maintain the discipline of their officers and holds police chiefs accountable for the results.  Nothing should require a police chief to get “prior approval” for disciplinary action; for purposes of an administrative appeal of the chief’s decision a hearing officer or tribunal with the power to set aside the discipline imposed by a police chief on the basis that it was arbitrary, capricious, or unlawful should be entirely independent from both the police chief and the police union.

If a civilian review board is constituted by a jurisdiction in order to monitor how well a police chief is doing in maintaining the discipline of his or her officers the board should have full access to investigatory and personnel files.  All citizens should be entitled to disclosure of the outcome of disciplinary action for what Judge Watts described in her dissent in Dashiell v. Maryland State Police as “misconduct that arises out of contact with the public.”

Resistance to a paradigm shift will come from two sources.  The first source is an obvious one; the second may be less obvious.  The FOP will of course resist any dilution of the LEOBR.  The second source of resistance will come from police chiefs because few police chiefs in Maryland appear to want more responsibility for the discipline of their departments, and I believe that their reticence also is largely attributable to the political power of the FOP.  Police chiefs are as intimidated as elected officials by the FOP, if not more so.

The FOP’s opposition to reform of the LEOBR is just old-fashioned trade unionism at work; the FOP’s actions are typical of organized labor, and few labor unions make concessions on the terms and conditions of employment unless absolutely compelled to do so.  In the private sector market forces sometimes compel concessions; there are no analogous forces at work for police unions:  Crime is not going away nor is the tax money that supports police departments.  The only “market force” at issue is political muscle, and the FOP has plenty of that.

As I noted in a letter that I sent to the Workgroup on July 15, 2015 Maryland’s LEOBR is less about fairness to police officers than it is about  throwing as many obstacles as possible in the way of effective disciplinary action by police chiefs.  This imbalance was created by design, and reflects the longstanding influence of the FOP over the Maryland General Assembly.

The Workgroup invited eleven separate FOP lodges to present their points of view on the LEOBR but only a handful of groups interested in reform.  Was the Workgroup surprised when none of the FOP representatives did anything other than toe the union line and profess that the LEOBR should not be changed because it is absolutely necessary to protect conscientious officers from frivolous complaints and vindictive police chiefs?  I hope not, because that is how a labor union operates when it is confident that it is holding all of the cards.

The apparent consensus of the police management representatives who testified was that the LEOBR was working fine, although they conceded that the ten day suspension of interrogation should be eliminated in order to restore public confidence in the law.  Their position has all the earmarks of a potential “compromise” intended to throw a bone to advocates for reform.

Although I agree that the ten-day rule should go, I would never accept removal of that provision alone as a reasonable “compromise.”  As anyone with any experience with the LEOBR knows, it is the LEOBR’s removal of authority from a police chief to initiate discipline that needs to be undone.

It may seem hard to believe that the FOP persuaded the General Assembly to go down a rabbit hole and take the responsibility for police discipline away from police chiefs where it plainly belongs.  That happened only because the Maryland Chiefs of Police Association and the Maryland Sheriffs’ Association did not oppose the abrogation of their authority when it was enacted into law.

In over 30 years in the Anne Arundel County Office of Law, the last two as County Attorney, I had the opportunity to work with many chiefs of police.  Few were anxious to draw the ire of the FOP; some I even would describe as completely intimidated by the FOP and overly concerned with “keeping the peace” with the FOP because of the FOP’s access to the County Executive and members of the County Council.

Former Baltimore Police Commissioner Batts refused to appear in Annapolis this spring to testify in support of changes to the LEOBR requested by Mayor Rawlings-Blake.  According to reports in The Baltimore Sun Mr. Batts’ reticence to support changes in the law surprised some legislators because Mr. Batts had made public comments about having his “hands tied” where discipline is concerned.  Instead of going to Annapolis to testify Mr. Batts sent an email to the members of the BPD assuring them that he would not support changes to the LEOBR. If Mr. Batts was worried that his support of changes to the LEOBR would result in a threatened “no confidence” vote by the FOP he would not have been the first head of a police department to back down in the face of a confrontation with the union.

The decision to terminate or even suspend an officer often is a controversial one, and I believe that many police chiefs are just as happy that they do not have to take full responsibility as the decision makers.  Not being the primary decider makes it less likely that a chief will become a target for retribution by the FOP for a disciplinary action with which the FOP disagrees.  The problem of course is that this arrangement violates the fundamental proposition that unless a police chief is given adequate authority to maintain the discipline of his or department, he or she lacks control over that discipline and cannot reasonably be held accountable when discipline breaks down.

The commentary written by Karl Bickel that appeared in The Sun on August 26, 2015 illustrates the mindset that the advocates for reform of the LEOBR are up against.  Mr. Bickel, most recently an unsuccessful candidate for Sheriff of Frederick County, argued that the LEOBR is not a problem, and that attempts to reform it result in antagonism between police officers and their elected leaders.  He stated that the LEOBR in its current form works well and that attempts to reform it do no more than upset police officers and result in “further widening the gulf between police and the communities they serve.”

As indicated in my own op-ed piece that appeared on August 18, 2015 I agree with everything said by Mr. Bickel except for his conclusion that the LEOBR does not need to be changed and his assertion that efforts to reform the LEOBR somehow are worsening the broken relationships between police officers and the communities they serve.  He is correct that the problem is broader than the LEOBR and includes the “us vs. them” culture, a culture that has as elements the blue wall of silence and the perception among officers that different rules apply to their actions.  I doubt, however, that a change in culture will occur until there is a functional disciplinary system and a paradigm shift in the manner in which police discipline is addressed.  Not every bad cop will respond to the improved training and tactics and better leadership advocated by Mr. Bickel.

Under the current paradigm, police chiefs fear the collective disapproval of their officers through the FOP more than the officers fear the disapproval of their conduct by the police chiefs.  That is a backward situation, and a recipe for the loss of discipline.   When management is afraid of organized labor it is organized labor that controls the “culture” of the workforce.

Finally, State and local elected officials must accept full responsibility for the nature of the disciplinary system administered by police chiefs, and not allow it to be bargained away or shaped by some labor arbitrator.  There are plenty of proper subjects for collective bargaining, but a police chief’s responsibility for the conduct of his or her officers and the manner of maintaining police discipline is not one of them.