The Port Covington circus continues.

I swore that I was done writing about the circus atmosphere surrounding Baltimore’s review of the proposed tax increment financing (TIF) of public infrastructure necessary for the redevelopment of Port Covington by Sagamore Development.  Sagamore is the private real estate firm owned by Kevin Plank, the founder of Under Armour.  I wrote a letter to the Daily Record followed by one to the Baltimore Sun expressing my opinion on the community benefit, profit-sharing and project labor agreements and affordable housing set-asides being demanded by various community and special interest groups.

An article in Friday’s Sun, however, caused me to reconsider.  The article discussed the importance of Under Armour’s commitment to remain in Baltimore and the unease expressed by some officials and business leaders about the ongoing negotiations over the TIF.  At least one of the community groups, however, seems undaunted by such concerns.

BUILD (Baltimoreans United in Leadership Development) is an advocacy group seeking an expanded community benefit agreement and increased affordable housing set-asides as part of the Port Covington project.  Rev. Glenna Huber, co-chair of BUILD, made the following statement:  “Mr. Plank has said that he’s committed to Baltimore City, so we are working under that assumption.  When you’re coming to the city asking for that much public funding, then the city’s in a position of power, so why does the city not act from a position of power.”

In other words BUILD thinks it is okay to exploit Plank’s proven loyalty to his home state and its largest city in order to squeeze from him whatever it can over and above that which is reasonably required from Plank under the TIF itself?  It is an asinine position to take.

Of course the problem is not so much the attitude of Rev. Huber and BUILD, it is the attitude of the city council as represented by Council President Jack Young, Councilman Carl Stokes, chairman of the committee vetting the TIF, and veteran Councilwoman Mary Pat Clarke.  They have told Sagamore that Sagamore has to reach agreement with the community groups before the council will approve the TIF.  No wonder BUILD believes that it is holding all the cards.

It is an absolute abdication of leadership and an abandonment of the proper role of the city.  The city council has for all practical purposes surrendered the power to approve the proposed TIF to citizen groups intent on pursuing their own particular interests, which may or may not correspond to the greater needs of the city.  Also, these private organizations are not constrained by the limits of regulatory authority applicable to the city, giving the process the Third World quality to which I referred in my letter to the Sun.

Having worked with many of them over the years I do not have a naïve point of view about developers.  Let’s just say that some developers are a lot more reasonable and responsible than others.  I’ve seen developers vilified in public hearings on numerous occasions, sometimes because they deserved it, but generally the public officials at such hearings do their best to stay above the fray and guide the discussion in an orderly and productive manner rather than play to the mood of the crowd.  Not in this case.

Stokes set the tone of a recent public hearing on the proposed TIF that he chaired by admonishing Sagamore that the city would not use public funds to pay for a “segregated community.”  One participant, Rev. C.D. Witherspoon, was thrown out of the meeting for accusing the Sagamore representatives at the hearing of racism.

A  lawyer for Sagamore pushed backed against what he referred to as the “snarkiness” of comments by another participant, Rev. Andrew Foster Connors, who said that Sagamore wanted to build a “wealthy enclave.”  The lawyer told Rev. Connors that “we’re not your enemy.”  He obviously felt like one at the time, and for good reason.  Developers and their lawyers tend to have thick skins, but who wants to listen to a city official imply that you are interested in building a “segregated community,” especially when you think that you are doing something good for a city that is a bit down on its luck?

If Sagamore officials have grown frustrated, it is easy to see why.  BUILD states that it endorses a community benefit agreement that Sagamore signed last month with six community associations calling for an investment of $39 million in educational, housing and job programs in South Baltimore neighborhoods as the Port Covington project is developed over the next 30 years.

BUILD however, says that is not enough.  It wants another agreement, one that expands the community benefits agreement citywide “because of the size of the TIF request.”  Whether Sagamore is being deliberately whipsawed or whether the demands coming from multiple directions are simply a product of the free-for-all encouraged by the city, the effect on Sagamore is the same.  It cannot be sure of when a done deal is actually a done deal.

My guess, or at least my hope, is that things will work themselves out and in the end everyone will pat themselves on the back for a job well done.  Maybe members of the council will come to their senses and get this process back under control.  In any event, the lesson that will be learned is that if you want to help redevelop Baltimore you need to either have an unshakable devotion to the city or be slightly crazy.

August 30, 2016

The Glen Keith Allen debacle.

The firing of attorney Glen Keith Allen by Baltimore City Solicitor George Nilson and its aftermath, which included the firing of Nilson by Mayor Stephanie Rawlings-Blake for hiring Allen in the first place, was a debacle of impressive scope.  The debacle could have been avoided if city official officials had followed one simple rule:  When you have the time to stop and think before acting, do so.

A report by the Southern Poverty Law Center (SPLC) calling Allen, who is white, a “known neo-Nazi” came on the heels of the report by the United States Department of Justice (DOJ) accusing the Baltimore Police Department (BPD) of systemic racial bias.  Among the cases being defended by Allen on behalf of the city is a suit by a black man, Sabein Burgess, who accuses Baltimore police of withholding and fabricating evidence in order to convict him of a murder to which another man later confessed.  In their panic to respond and cover their own posteriors city officials embarrassed themselves and lost an opportunity to promote racial reconciliation within the city.

Had the mayor, the former city solicitor, and other officials from the city not been in such a hurry they would have found out that Allen mended his ways before he was hired by the city and that he is not a member of a “hate group” under any reasonable definition of the term.  They could have avoided a blatantly unconstitutional termination and allowed him to resign, turning the situation into one of redemption and understanding rather than one of rancor and hostility.  And, maybe with a little thought certain city and state officials could have steered clear of making ludicrous statements reflecting their ignorance of the law.

Allen was working under a one-year contract with the city since February as an Assistant City Solicitor in the Litigation and Claims Practice Group of the Baltimore City Office of Law.  Allen began his legal career as a law clerk for Judge Robert Murphy, then the chief judge of the Maryland Court of Appeals.

Allen, age 65 and an Army veteran, retired last year from DLA Piper, a prominent global law firm with an office and roots in Baltimore, and came to work for the city to help with complex litigation.  He is married with three children, writes poetry and novellas as a hobby, and runs in the Maryland Senior Olympics.  The city was unaware of Allen’s personal and political beliefs, which by all accounts he kept to himself and out of the workplace.  He tried to keep his private life private and was successful until the SPLC report.

On August 17th the SPLC published its report calling Allen, who is white, a “known neo-Nazi.” The report documented his past affiliation with the National Alliance and his current membership with the American Eagle Party, both of which the SPLC considers “hate groups.”  The SPLC labels the National Alliance as a neo-Nazi hate group and the American Eagle Party as a white nationalist hate group.  In SPLC terminology “white nationalists,” sometimes referred to simply as “nationalists,” are persons who embrace white supremacist or white separatist ideologies often focusing on the alleged inferiority of non-whites.

On August 18th Allen was fired by Nilson, who told Luke Broadwater of The Baltimore Sun that he terminated Allen’s contract with the city immediately upon learning of the allegations against him.  Nilson was fired the same day.  In other words Nilson gave about as much thought to firing Allen as Rawlings-Blake gave to firing him.

There is no evidence contradicting Allen’s statements to reporters that he no longer is a white supremacist and that he ended his membership in the National Alliance long before he came to work for the city.  He attributed his decision to join the National Alliance, which he described as a “huge mistake,” to “pretty awful experiences with black people” that he had while he was in the Army from 1978 to 1982.  Allen admits that he remains a member of the American Eagle Party.

Barry Rascovar wrote an article taking Rawlings-Blake to task for her “insulting, back-of-the-hand dismissal” of Nilson, apparently done without explanation by an assistant to the mayor rather than by the mayor herself.  The abrupt dismissal of Nilson, who also is white, implied that he should have known of Allen’s background before he hired him.  Nilson’s callous termination after a long and distinguished career in law and public service was only one in a series of ill-considered and harsh decisions made in this matter.

________

If Nilson and Rawlings-Blake accepted on face value the accusation by the SPLC that Allen is a current member of a white nationalist hate group then they made a mistake.  Based on what Nilson reportedly told Luke Broadwater Nilson did not bother to do his own investigation of the SPLC’s allegations.  The problem is that the SPLC has become a bit like Chicken Little in warning us about white nationalist hate groups.

The National Alliance is a neo-Nazi organization properly labeled as a hate group.  The American Eagle Party, on the other hand, is a right-wing political party of little consequence, not a “hate group.”

The American Eagle Party has no explicit racial agenda and its basic tenets are remarkably similar to those in the current mainstream of the Republican Party as reflected by the nomination of its presidential candidate, Donald Trump.  The American Eagle Party seeks to:  1) end “wars of occupation” by the United States around the world; 2) stop the “immigrant invasion” of the United States; 3) reclaim the constitutional rights and liberties of Americans;  4) restore America’s economy and middle class; and 5) enable honest media alternatives.  Sound familiar?

The SPLC lists the American Eagle Party as a white nationalist hate group because of the SPLC’s over-inclusive definition of the term “hate” and its tendency to use the description “white nationalist” very loosely.  The SPLC labels an organization a “hate group” if its ideology puts it in opposition to the putative rights of immigrants, persons of another color, gays, etc.  Because violence, illegality or even ill will is not required for “hate” to be present, the term “hate group” covers an awful lot of the social and political landscape.

The SPLC is a private organization not bound by due process.  It does its best work when it keeps its focus on true hate groups – those that advocate violent or unlawful conduct.  It gets itself into controversy when it strays too far into the gray area that separates organizations like the KKK from organizations like the Family Research Council (FRC), a prominent Christian lobbying group headed by a popular.  The SPLC came under intense criticism from conservative and evangelical Christian groups in 2010 when it listed the FRC as a “hate group” because the FRC “has knowingly spread false and denigrating propaganda about LGBT people.”

In 2014 the SPLC put Dr. Ben Carson on its “Extremist Watch List” because of his views against same-sex marriage.  The SPLC apologized and took Carson off the list in 2015 after a firestorm of protest threatened to destroy the SPLC’s credibility entirely.

The fact is that on occasion the SPLC uses the “hate group” and “white nationalist” labels inappropriately in order to advance its own social and political agendas.  In recent weeks the SPLC has become almost frantic in its accusations that the Trump campaign is being taken over by “white nationalists.”  In its “Hatewatch Headlines” feature on August 18th the SPLC reported that “Trump’s new team lead by nationalists” and on August 19th the SPLC lamented that “Trump’s ties to white nationalists tighten.”  By August 24th the headline was “Trump’s alignment [with white-nationalist ideology] is now clear.”  Is the SPLC calling Trump a white supremacist?

Under the headline “Trump’s new team lead by nationalists” the SPLC quoted extensively from a rant by Robby Mook, Hillary Clinton’s campaign manager, against Steve Bannon.  Bannon is the former chief executive of Breitbart News and now the chief executive of Trump’s campaign.  In his rant Mook referred in turn to the SPLC’s assessment that Bannon had steered Breitbart toward “racist ideas” that make up “an emerging racist ideology known as the ‘alt-right.’”  Not coincidentally Clinton herself now has picked up the “alt-right” theme in a not-so-subtle attempt to brand Trump himself as a racist in order to counter Trump’s recent attempts to court black voters.

Labeling groups as hate groups is a little like identifying a conspiracy.  If you find yourself labeling too many groups as hate groups or including too many people in a conspiracy you probably need to revise your definition of a hate group or your conspiracy theory, as the case may be.

The SCLU report referred to Allen as a “known neo-Nazi” in the present tense.  From all indications it appears that city officials took the accusations by the SPLC at face value.  If they did, it was the height of irresponsibility.

__________

Allen’s firing was unconstitutional because it violated his freedom to engage in association with others for the advancement of beliefs and ideas.  “Freedom of association” is a liberty that the Supreme Court has found essential to the full enjoyment of the rights specified by the First Amendment to the United States Constitution that include the freedoms of religion and expression.  Allen was let go solely because of his associations and the personal and political beliefs that the associations represented.

Allen did belong to a hate group, the National Alliance, which advocates violent and illegal conduct.  His affiliation with the group, however, ended before his employment with the city began.  Moreover, it has been settled law for decades under cases decided in the aftermath of the McCarthy-era witch hunts that a state or local government cannot discharge an employee solely on the basis of the employee’s affiliation with such a group.  There must be evidence that the employee participated directly in the violent or illegal activities of the group.  Stated another way, it cannot be the affiliation that forms the basis for a discharge; it must be violent or illegal conduct that justifies the discharge.

One federal court has carved out a narrow exception for law enforcement agencies.  In 1985 the United States Court of Appeals for the Eleventh Circuit decided that the sheriff of Jacksonville, Florida could fire a clerical employee who joined the Ku Klux Klan while working for the sheriff and then took on a public role with the Klan as a recruiter.  The court held, after considering the fact that there was strong negative reaction to the clerk’s Klan membership among the city’s majority-black population:

“A law enforcement agency does not violate the First Amendment by discharging an employee whose active participation in an organization with a history of violent activity, which is antithetical to enforcement of the laws by state officers, has become known to the public and created an understandably adverse public reaction that seriously and dangerously threatens to cripple the ability of the law enforcement agency to perform effectively its public duties.”

__________

The end of Allen’s employment could have been handled in a manner that was better for him and, more importantly, better for the city.  When he spoke to reporters after being fired Allen was remarkably gracious and complimented the city on the professional manner in which he had been terminated, expressing regret for any embarrassment that he had caused Nilson or Rawlings-Blake.  He said that agreed with the city’s decision and that his departure was in best interests of the city because he could find himself in court with judges who disliked him because of his past and there was a possibility that this could affect the outcome of his cases.

In other words, it is crystal clear that Allen would have taken advantage of the opportunity for a more dignified exit that recognized that he had ended his affiliation with a neo-Nazi organization; with his background it is easy to understand why he would want to spare himself and his family any more embarrassment.  That opportunity was not made available, possibly because Rawlings-Blake was no longer speaking with Nilson as claimed by Rascovar.  It is hard to work out things like that when you don’t talk.

Had the city solicitor and the mayor talked it over and handled things properly this would have been the mayor’s statement:  “Mr. Allen has assured us that he is not a white supremacist and no longer has ties to the National Alliance or other neo-Nazi organization.  People do change, and we recognize that.  He has, however, informed us that he believes that the publicity given to his past affiliation with a neo-Nazi organization could jeopardize the interests of the city in the cases that he is litigating.  Consequently, he has graciously offered to resign his employment with the city.  We have accepted his offer, thank him for his service to the city, and wish him the best.”

Why would have that been a better outcome?  First of all, it would have avoided setting a precedent that the city cannot enforce.  The next employee “outed” by the SPLC and fired by the city may not be as compliant as Allen and the city will be dipping into its treasury to pay off yet another judgment or settlement.

Secondly, it would have promoted racial reconciliation.  Allen had renounced white supremacy and terminated his relationship with the National Alliance before he was hired by the city.  He had changed for the better, even if one shares the opinion of Dan Rodricks of The Sun that his transformation was not completely convincing.  Do we expect perfection in attitudes toward race and religion?  Good luck with that standard.

Kindness and some expression of appreciation for the changes Allen has made in his beliefs would have delivered a far more constructive message than the angry rhetoric that accompanied his firing.  The nature of the city’s action will not be lost on the legions of white people inside and outside the city who believe that their own race is under attack.  The sequence of events following the report by the SPLC will do nothing to change that belief.

__________

Tough talk that is nothing more than political posturing by elected officials is nothing new.  In this case the tough talk also reflected a rather profound lack of knowledge about the law.

Some elected officials from the city fell all over themselves explaining to reporters how outraged they were that Allen had been hired.  City Councilman Brandon Scott told The Sun that Allen’s hiring reflects poorly on the city.  “Before we hire anybody in this day and age we should be doing thorough checks,” Scott said. “I’m disgusted. It’s unacceptable.”

City Council President Jack Young released a statement saying:  “I am angry that someone who allegedly harbors such disgusting views as Mr. Allen was allowed to work on behalf of the citizens of Baltimore. I am pleased that Mr. Allen’s contract with the City of Baltimore has been terminated. Moving forward, each department and city agency should conduct an internal review of their hiring practices.”  Councilman Robert Curran criticized Nilson for not doing a better job in vetting Allen before hiring him.

Delegate Jill Carter told The Sun that the vetting process “should consist of more than credit checks and criminal background checks.”  “Clearly, there was no due diligence done,” according to Carter.  “Who else do we have working for the city? It’s particularly concerning because we are dealing with issues of systemic racism.”

There is one problem with all of that rhetoric:  The city cannot constitutionally ask a job applicant about the applicant’s personal and political beliefs or any organizations to which the applicant belongs for the purpose of advancing those beliefs.  Well, the city can ask, but it cannot refuse to hire an applicant because the applicant refuses to answer the question.

Moreover, if the applicant is asked and admits membership in a hate group and does not get the job, the applicant can sue the city for a violation of the applicant’s First Amendment rights.  In the suit the city would bear the burden of proving that the refusal was not based solely on the applicant’s membership in a hate group.  So why ask?

Scott, Young, Curran, and Carter should forget about trying to purge from city government bureaucrats, lawyers, clerks, and laborers who are members of white nationalist (or black separatist) organizations and who keep their activities lawful and out of the workplace.  The law does not support those officials’ view of employees’ constitutional rights and they have other things to do.

As an aside, I agree with the SPLC that there is a legitimate concern about having members of law enforcement agencies belong to the KKK, which is a racist and anti-Semitic organization with a long history of violent and illegal activity, or similar organizations.  The issue has been on the radar since the FBI issued its report on white supremacists in law enforcement in 2006.

In light of the DOJ report the Baltimore Police Commissioner could make an even stronger argument than the one made by the City of Jacksonville sheriff in defending the firing of an employee whose membership in the KKK had become public knowledge.  Given how the Allen situation was handled, however, I believe that matter is best left up to the commissioner, the city’s Director of Human Resources, and the new city solicitor without too much “help” from the mayor and city council.

August 25, 2016

Eliminating the BPD’s bad apples.

The Maryland Legislative Black Caucus promises that legislation will be introduced during the next session of the General Assembly to rectify the problems with the Baltimore Police Department reported by the Department of Justice. If they are looking for suggestions that do more than make cosmetic changes, here is mine: Amend Section 16-7 of the Code of Public Laws of Baltimore City to give Commissioner Kevin Davis the same power to fire sergeants and lieutenants that he now has for officers in the ranks of captain and above.

Nothing stands out in the DOJ report more than the deficiencies in the front line supervision of rank-and-file officers — the responsibility of sergeants and lieutenants, who train, supervise and evaluate rank-and-file officers. It is their job to make sure that the policies and procedures adopted by the commissioner are carried out on the street. They are the guardians and transmitters of the values and culture of the department.

Failure to do their jobs properly contributes to the staggering number of unconstitutional stops, searches and arrests reported by the DOJ, which found that many sergeants and lieutenants don’t even bother to supervise. “Indeed, our review did not identify a single stop, search, or arrest that a front line supervisor found to violate constitutional standards — even though numerous incident reports for these activities describe facially unlawful police action,” the department’s report said.

In one incident, a patrol officer protested to his sergeant that he had no valid reason to confront and disperse a group of black men on a street corner. The sergeant, with a DOJ investigator looking on, told the officer to “make something up.” That was not ignorance of the law requiring retraining or clearer direction; that was the sergeant giving the proverbial middle finger not only to the DOJ, but also to his bosses. He knew what he was doing was wrong, and he didn’t care.

Noted Baltimore attorney Billy Murphy has stated that the problems with the BPD run so deep that a “Camden-type” solution is needed. Camden, N.J., disbanded its police force and replaced it with one run by the surrounding county. That is not going to happen in Baltimore; there were about 400 sworn officers in Camden and about 2,600 in Baltimore. But Mr. Murphy is not wrong about the depth of the problems. Attrition alone is too slow to fix the personnel shortcomings within the supervisory ranks, and the current disciplinary process is not adequate to the task. Nibbling around the edges of the problems will accomplish nothing.

Amending Section 16-7 of the Code of Public Laws of Baltimore City as described above will give Commissioner Davis a reasonable chance of changing the culture of the BPD because it would give him an effective tool to deal directly with the sources of the problem. The legislation would apply only to Baltimore and does not involve touching the LEOBR. Consequently, with the support of the mayor and the senators and delegates from the city it should meet little opposition in the General Assembly.

David A. Plymyer

[Published as an op-ed by The Baltimore Sun on August 17, 2016 but not posted to my blog until October 2, 2016.  The date of posting that appears above was backdated to place posts in the order in which they were written.]

Demand for concessions risks derailing Port Covington TIF.

Some members of the Baltimore City Council are acting more like kids in a candy store than public officials entrusted with regulating development and safeguarding the city treasury (“Young urges Sagamore to cut deals with unions, BUILD on Port Covington TIF,” Aug. 4).

If Sagamore Development has the money to fund all the community benefit agreements, profit-sharing agreements and project labor agreements the City Council is demanding in exchange for its approval of tax increment financing for the public infrastructure at Port Covington, it should use that money to reduce the amount the city has to borrow rather than spend it on side deals that have nothing to do with the TIF or the merits of the project.

What distinguishes the business environment in the developed world is that there are established, predictable sets of government regulations that have to be satisfied as well as taxes, fees and other charges that have to be paid.

Extending the requirement of a PLA to a private development means that Port Covington will be subject not only to a unique set of fees and charges but also to a unique set of labor regulations. Will the next private development be subject to its own unique set of fees, charges, and laws?

It looks a lot like the city is making it up as it goes along. That is the way things are done in much of the Third World. The city is fortunate that it is dealing with Kevin Plank, who has made a special commitment to Baltimore and Maryland. Anyone else would walk.

I do not know everything about this deal, but I do know this: The City Council needs to keep its eye on the ball, which is reducing to an absolute minimum the long-term financial risk the city is taking.

There is a danger of compromising that objective if the focus is on exacting concessions from Sagamore to sweeten the deal rather than on the deal itself.

I am not accusing council members of seeking any personal benefits, but I am suggesting that their judgment could be influenced by the political attractiveness of the sweeteners.

David A. Plymyer

[Published as a Letter to the Editor by The Baltimore Sun on August 11, 2016.  I did not post the letter until October 2, 2016; the date of posting listed above was backdated to place the letter on the blog in the order that it was written.]

 

Mentally ill lives matter.

Korryn Gaines was shot and killed after a lengthy standoff with officers of the Baltimore County Police Department when she threatened to kill them and aimed a 12-gauge pistol-grip shotgun in their direction with her 5 year old son beside her.  Her son was wounded by a shot fired by one of the officers.  This incident is another example of what can happen when a seriously mentally ill person gets his or her hands on a firearm.

I am confident that the Baltimore County Police Department will review the tragic death of Korryn Gaines in order to determine if there is anything that they could have done differently to avoid taking her life and injuring her son.  The chief of the department, James Johnson, has a well-deserved reputation for being an enlightened and effective leader.  I was impressed by the comments of County Councilman Julian Jones in the aftermath of the incident.  He acknowledged that the officers were following their training, but stated that the protocols for responding to such emergencies should be reviewed to determine if changes should be made.  That is always the correct approach in any tragedy of this type, especially when legitimate questions have been raised about the tactics used by the police.

I hope that the rest of the community takes a similar approach, because there are other lessons to be learned.  One of those lessons is the need for family and friends to be alert for indications that there may be more to a person’s commitment to particular set of beliefs than meets the eye, particularly when those beliefs include feelings of persecution and a preoccupation with violence.

Before I became a lawyer I was a psychiatric social worker trained at the University of Pittsburgh with internships at the Western Psychiatric Institute and Clinic and the Pennsylvania and the Pennsylvania Board of Probation and Parole.  I spent quite a bit of that part of my career evaluating soldiers sent by their commanders to the mental health clinic or emergency room of Kimbrough Army Hospital on Ft. Meade.  Many had overt symptoms of mental illness.  Others were sent because of “strange” things that they said or did that struck their commanders as abnormal even though they continued to function more or less adequately as soldiers; one psychiatrist with whom I worked referred to them as the “walking wounded.”  One of the thoughts in the backs of the minds of the commanders who referred them had to be that these individuals were entrusted with weapons and knew how to use them.  A fair number of such soldiers eventually described to me delusional thoughts and even hallucinations influencing their behavior.  Many things have changed since then but the walking wounded are still out there.

I do not know exactly what was wrong with Ms. Gaines, but in retrospect there were plenty of warning flags:  Her increasingly more bizarre conduct and hostile interactions with the police, her conviction that the police were out to harm her and her concrete preparations for the violent confrontation with police that she believed was inevitable.  And then of course there was the reported history of exposure to lead paint and its effects on her intellect and behavior.  There was no plan or conspiracy by the Baltimore County Police Department to kill Ms. Gaines, regardless of what was in her head; she was delusional if she truly believed that the Baltimore Police Department was out to kill her.  And, it is almost unheard of for a mother to put her child in that type of danger in the absence of delusions or hallucinations driving her behavior.

Ms. Gaines purchased her shotgun in 2015.  It is a weapon designed solely for killing people at relatively close range.  She posted a video to Instagram showing her loading the weapon.  “Gotta thank my dad for teaching me how to protect myself” and “thank myself … for teaching me who i need protection from,” she wrote.  At 23 years of age Ms. Gaines had prepared herself for a final deadly showdown with police.  The showdown came when police arrived at her apartment to serve a warrant on August 1st.

According to her social media posts Ms. Gaines was outspoken in her concerns about the death of black people at the hands of the police, and right-wing media were quick to blame the Black Lives Matter movement for inciting her behavior.  At the other end of the spectrum members of the Black Lives Movement pointed to the death of Ms. Gaines as another example of the disparate treatment of black people by the police.  Both miss the point.  The Black Lives Movement is not to blame, but I do believe that family and friends should be vigilant for signs that an unusually militant commitment to the movement by a loved one is based on a mental illness that could put both their loved one and the police in danger.  Whatever else people saw in Ms. Gaines, it is what they apparently did not see that killed her:  The fact that she was too ill to be in possession of a firearm.  She wasn’t a warrior or a martyr; she was mentally ill.

I also was struck by the news coverage of this incident.  As far as I can tell no reporter asked the family members of Ms. Gaines whether they knew if she had reached out for mental health help or if they had tried to get such help for her.  If mental health help was sought and it was either unavailable or of no use in preventing her death, then that is an important part of the story of this tragedy.

If a breakdown in our system for delivering mental health services contributed to the tragedy, it certainly would not be the first such failure.  The death of Ms. Gaines came one day after the 50th anniversary of the Texas Tower massacre.  On March 29, 1966 Charles Joseph Whitman went to see a psychiatrist at the University of Texas at Austin.  The psychiatrist’s notes reflected that Whitman was “oozing with hostility” and told him that he was “thinking about going up on the tower with a deer rifle and start shooting people.”  On July 31, 1966, after first killing his wife and his mother Whitman took three rifles, three pistols and one shotgun to the observation deck of the tower on the university campus and killed 14 more people and wounded 32 others.

Social movements come and go, but mental illness is here to stay.  And, as long as everyone who wants a firearm can get one legally or illegally, we should try to figure out a way to reduce the number of firearms that get into the hands of those persons who present a danger to themselves or others, such as Ms. Gaines.

August 9, 2016

Stop the vendetta, Ms. Mosby.

The vendetta by Baltimore City State’s Attorney Marilyn Mosby against the Baltimore Police Department (BPD) needs to end.  I have been a frequent critic of the lax discipline in the BPD and joined many others in calling for a change in the union-dominated “us versus them” culture of the department that too often has contributed to incidents of police misconduct being ignored.  [“The tail wags the dog at BPD,” The Baltimore Sun, August 18, 2015.]  Indeed, the BPD’s history of failing to police itself helped to set the stage for Mosby’s actions.  A vendetta against the officers of the BPD led by the city’s chief prosecutor is not the answer to the problems, however, and will harm Mosby, the BPD, and the city.

In my opinion Mosby’s attitude toward the police department has turned vindictive, a view of Mosby I share with former BPD commissioner Anthony Batts.  Mosby came under enormous criticism, including my own, when it became apparent that she based her decision to file criminal charges against six BPD officers allegedly responsible for the death of Freddie Gray on an inadequate investigation and flimsy evidence.  [“Baltimore prosecutor’s office should be investigated for Gray-related murder charge,” The Baltimore Sun, June 27, 2016.]  I believed that Mosby had her allowed herself to be carried away by the angry emotions that prevailed in the streets of Baltimore after Gray’s death in April 2015.  It now appears that, wounded and embarrassed by her defeats in court, she has doubled down and become almost spiteful toward the police.

Any doubt in my mind about Mosby’s motives was dispelled when she stated that she intended to seek legislation conferring on Maryland prosecutors the right to insist upon having a case decided by a jury even if the defendant wanted his or her case to be heard by a judge.  The statement came on the heels of her announcement last week that she was dropping criminal charges against the three remaining officers charged in the death of Freddie Gray.  Her stated desire to change the law not only slighted Judge Barry Williams, who had acquitted three of the six officers in bench trials, it also sent an unmistakable message to BPD officers:  She wants to able to use the well-known skepticism of Baltimore jurors about the credibility of police officers against officers when she prosecutes the officers for misconduct.

In 2008 Ahmet Hissim, an attorney who spent decades prosecuting homicides for the State’s Attorney’s Office, stated publicly that which everyone had known for a long time:  Jury trials are a “great risk for prosecutors in Baltimore City because jurors are likely to believe the cops aren’t telling the truth.”  [“Requests for jury trials swamping city courts,” The Baltimore Sun, October 10, 2008.]  The problem has not gotten any better.

In other words, Mosby wants to be able to exploit the inherent bias of many city jurors against a particular category of individuals, in this case police officers, in order to convict those individuals of crimes.  That tactic generally is considered anathema to our system of justice; we expect defendants to be protected from juror bias, not to have it be used against them.  Mosby already has shown her willingness to charge police officers with crimes despite a lack of solid evidence against them and now she wants to try them before jurors predisposed to disbelieve them.  What does this say about her general feelings toward police officers?

I hasten to add that Mosby has every right to initiate a discussion on whether Maryland should join other states that allow prosecutors to demand that certain cases be tried before a jury.  Timing and context are everything, however, and there is no doubt about the reasons behind her proposal.  Does anyone believe that, given the situation described by Mr. Hissim, she wants to be able to seek jury trials for defendants other than police officers?

Deliberately or not, Mosby also interjected a racial agenda into the relationship between her office and the BPD.  The substance and tone of her rhetoric during the news conference in 2015 during which announced the criminal charges against the six officers gave rise to allegations that the charges were based more on their appeal to the black citizens of the city aggrieved by a history of racism and brutality in the BPD than on the evidence.  There was a distinct “get even” quality to her remarks that led both white and black officers to be concerned about her objectivity.

It is every bit as important for a prosecutor to maintain a reputation for fairness and impartiality as it is for a judge; decisions must be based on the law and the facts, not on who the defendants are.  It is fine for a prosecutor to be seen as a champion of the poor and the downtrodden but not at the expense of fairness and impartiality to others.  There is a line that cannot be crossed.  Last week Mosby went to Sandtown-Winchester, where Gray was arrested, to deliver the speech in which she explained her decision to dismiss the charges against the three officers not already acquitted by Judge Williams.  Listening again to the substance and tone of her remarks I am not convinced that she even recognizes that the line exists.  CNN legal analyst Paul Callan, a former deputy chief of the Homicide Bureau of the Brooklyn District Attorney’s Office, described Mosby’s speech, which included claims that police sabotaged her investigation and tampered with evidence, as “the most inflammatory statement I have ever seen a prosecutor deliver.”

Here is the standard that I apply:  There is a serious problem when even good officers have reason to fear a prosecutor. Racism still exists within the BPD, but the solution to it does not lie in tipping the scales of justice in the other direction.  Mosby cannot possibly believe that compensating for past injustices by committing new ones is the path forward. Mosby’s vendetta not only will destroy the collaborative spirit between her office and the BPD that is necessary to make the city’s criminal justice work it also will make the needed reforms within the BPD harder to achieve.

Officer Wesley Cagle was convicted yesterday of felony assault for needlessly shooting an unarmed suspect in 2014 because two of his fellow officers reported his actions to internal affairs investigators.  The specter of a vindictive State’s Attorney willing to charge officers on flimsy evidence reinforces the “blue wall of silence” in the minds of officers and makes it less likely officers will come forward in the future; officers are more likely to cooperate when they trust that the information that they provide against their fellow officers will be used fairly.

Mosby has wasted an enormous amount of time, effort, and money, and done a lot of other harm.  She needs to put a halt to the vendetta before it is too late, if it is not too late already.

August 5, 2016