Baltimore’s 21-foot rule necessary to protect police.

Lodge No. 3 of the Fraternal Order of Police, which represents rank-and-file officers of the Baltimore Police Department, recently released its recommendations in response to findings by the United States Department of Justice that the BPD engaged in a pattern or practice of unconstitutional conduct. The recommendations include the adoption of a “safe operational space” rule requiring onlookers to remain at least 21 feet away from “officers focused on a potentially dangerous suspect.”

In response, American Civil Liberties Union attorney David Rocah blasted the FOP recommendation as “sickening and disheartening” and as treating everyone in the city “as inherently the equivalent of someone charging at an officer with a knife.”

To the contrary, the recommendation is a reasonable measure intended to protect the safety of both officers and onlookers in light of the harsh reality that Baltimore has some of the most dangerous neighborhoods in America.

The proposed buffer no more treats everyone in Baltimore as an inherent threat than Maryland’s “move over” law for stopped emergency vehicles treats every driver as drunk or distracted. It strikes a balance between the rights of citizens to observe police actions and the safety of officers. The fact is that there are dangerous people on the streets of Baltimore just as there are dangerous drivers on the highways of Maryland.

I have been a critic of the culture of the BPD and its ineffective disciplinary system, as well as the FOP. The ACLU, including Mr. Rocah, has worked toward making the BPD a more transparent and accountable law enforcement agency. That does not mean, however, that we should forget about what the men and women of the BPD are up against.

“Shoot to Kill,” the riveting series of articles on Baltimore’s lethality by The Sun‘s Justin George, held a mirror up to the city’s face. We may not like what we see, but it needs to be seen. Police officers deal with it every day. There are neighborhoods in Baltimore awash with drugs, guns and gangs. Too many young men are lost to life on Baltimore streets where recourse to violence is second nature and especially deadly.

We expect police officers to maintain their discipline in the face of hostility and even physical abuse. In return police officers have the right to expect us to care about their safety and to do what we can to protect it.

The so-called “21-foot rule” is merely a rule of thumb. It is based on a study showing that in the time that it takes the average officer to recognize a threat, draw his sidearm and fire two rounds, the average person charging at the officer with a knife can cover a distance of 21 feet. It is widely used for police training and can form the reasonable basis for giving officers a safe space in which to deal with a potentially dangerous situation without violating anyone’s constitutional rights.

In a time when every person who wants a handgun is able to get one, the bigger threat to innocent citizens is not a bad cop, but a fearful one. More often than not when an unarmed suspect is shot, it is because an officer believes that his or her life is in danger. Fear in a dangerous situation is not a sign of cowardice or poor training; a healthy dose of fear keeps an officer alert and alive.

Members of a Baltimore grand jury who went through a lethal force simulator were surprised by how little time an officer has to react to the threat of a weapon, but well-trained officers are not. If the 21-foot rule improves the safety of officers and reduces their fear, it will make both officers and citizens safer.

In Baltimore crowds that gather near an arrest are often hostile to officers. Common sense tells us that the closer such a crowd is to officers, the tenser the situation becomes. If crowds are going to shower officers with verbal abuse, let them do so from a safer distance.

It is important for the officers of the BPD to know that critics of the department do not blame officers for the epidemic of violence in the city and do not want officers to become victims of that violence. Supporting the request by the FOP for a “safe operational zone” is one way to get that message across.

October 25, 2016

[Published as an op-ed by The Baltimore Sun on October 25, 2016 but not posted to my blog until December 9, 2016.  The date of posting that appears above was backdated to place all posts in the order in which they were written.]

 

Maryland Medical Cannabis Commission wasted over two years on grower licensing.

It now appears that Maryland’s Natalie M. LaPrade Maryland Medical Cannabis Commission wasted over two years crafting and implementing a process intended to result in the issuance of licenses to grow medical marijuana in Maryland.  The process is flawed and the results of the process should be thrown out and a new process designed.  Starting over may be the best hope for avoiding litigation that could delay the issuance of grower licenses for years.  A mind-boggling series of missteps led to this unfortunate situation.

When it enacted the Maryland Medical Cannabis Law in 2014 the General Assembly decided that state government, rather than market forces, would determine the number and location of grower and processor licenses to be issued.  It is a model used primarily for industries requiring close regulation such as the gambling and alcoholic beverage industries.  Having chosen that model the state had to do two things in order to protect its process for selecting licensed growers and processors from successful legal challenge.  At least as to grower licenses it accomplished neither.

The first requirement was to design a selection process that is fair and transparent.  The decisions must be based on predetermined objective criteria and result from procedures that limit to the extent possible subjective bias of any nature.  The  second requirement was to stick to the process decided upon. After-the-fact “adjustments” to the process are anathema to that standard, but that is precisely what occurred in August.

Only 15 grower licenses may be issued under Maryland’s law.  After the initial selection of 15 finalists for licenses to grow marijuana the grower selection subcommittee of the commission reconsidered its findings and dropped two of the original finalists and replaced them with lower-scoring applicants in order to achieve the legislature’s goal of “geographic diversity” among the licensees.  The subcommittee’s recommendations were then approved by the full commission.

The replacement finalists were not the next highest-scoring applicants; they were ranked 20th and 21st. According to the vice chairman of the commission the displaced applicants were selected by looking “at the places that had the most density of pre-approved applications and take the lowest rank from there so that we could move them down.”

The method used to revise the list of finalists to achieve geographic diversity was not devised until after the chairman of the grower selection subcommittee decided that the 15 finalists selected by his subcommittee for recommendation to the full commission were not geographically diverse.  The criteria that he used to arrive at that decision were not written, nor are they altogether clear.

As pointed out by medical marijuana industry consultant Rebecca S. Gasca such after-the-fact decisions have led to lawsuits in other states.  Gasca suggested that another option would have been to ask the two higher-ranking applicants who were bumped and replaced whether they would be willing to relocate in order to get a license.  That may have been the fairer option because the application instructions led applicants to believe that the location of their growing operations was not even relevant to the selection process.

To make matters worse the commission used as its basis for measuring geographic diversity a map of Maryland’s “agricultural regions” that is more relevant to growing conditions and types of  agricultural activities than to achieving geographic diversity within the ordinary meaning of that term as intended by the General Assembly.  Although the use of agricultural regions may seem at first blush to have some relevance to the growing of marijuana, closer examination demonstrates that any relevance is only superficial, especially because medical marijuana frequently is grown indoors.

The map divides the state into five agricultural regions, with one region (the North Central) including a broad swath of the state from Baltimore City and County to Washington County that contains 61% of the state’s population.  It defies common sense to use a metric that equates Middle River with Hagerstown for purposes of achieving “geographic diversity” within Maryland.

In fact, commission members at some point must have reached a similar conclusion when they decided that Anne Arundel County should not be considered to be in southern Maryland for purposes of geographic diversity.  The commission decided that having a grower license issued to an operation in Anne Arundel County did not satisfy the need under its geographic diversity mandate to have a licensed operation in southern Maryland despite the fact that Anne Arundel County is in the Southern Region on the agricultural map.

The commission, however, did appear to use the agricultural map as justification for taking a license from an applicant from the North Central region and awarding it to an applicant in Prince George’s County, which also is in the Southern Region, in order to achieve geographic diversity.  It remains unclear why a licensed grower in Anne Arundel County did not satisfy the requirement for a grower license in southern Maryland but a licensed grower in Prince George’s County did, given that both counties are in the Southern Region of Maryland according to the map purportedly used by the commission to determine geographic diversity.  In common parlance “southern Maryland” usually refers to Calvert, Charles, and St. Mary’s Counties, not to Anne Arundel or Prince George’s County.

According to The Sun what we do know is that the beneficiary of that adjustment was a company with very close ties to Prince George’s County politics.   The chairman of the grower selection subcommittee was from Prince George’s County, and he was the person who persuaded the other members of the subcommittee to change their initial votes based on his conclusion that selection of finalists lacked geographic diversity.  As described above the applicant that benefited from the “adjustment” would not have made the final list except for the change.

There is no allegation that the chairman or other members of the subcommittee were aware of the identity of the company that benefited from subcommittee’s recommendation, although that has done little to eliminate suspicions.  Lawsuits already have been filed over the switch and I am sure that the subject of what subcommittee members knew and when they knew it will be broached during the litigation.

It is bad enough that 1) the outcome of the grower selection processed was altered after it appeared to be final based on a vague requirement for geographic diversity, 2) there was a subjective determination that the requirement had not been satisfied after the selection of the 15 finalists, and 3) the method for reallocating the licenses to achieve the requirement was crafted only after initial selection of the 15 finalists.  Throw in the fact that the method settled upon to reallocate to the licenses to achieve geographic does not appear to be consistently applied and you have a selection process that is unlikely to survive judicial scrutiny.

Any experienced government attorney or regulator would have known that for the “geographic diversity” requirement to be applied the requirement would have to be defined and the means for applying it to the selection process placed in writing and provided to applicants before they submitted their applications.  The fact that this did not occur tells you everything you need to know about the lack of professional support provided to the commission.

It is no surprise that the commission fumbled the ball during its work – it was never properly equipped to do the job in the first place.  The commission was a group of untrained volunteers provided with few resources and limited oversight.  Commission members themselves have openly expressed frustration with being given the responsibility for writing regulations without guidance on how to do so.

The commission’s vice chairman, Buddy Robshaw, had no experience writing regulations when appointed to his position.  “I went to my first meeting, and I told everyone that I didn’t know what they were talking about,” Robshaw recalled. “Some classes or training on how to write regulations might have been helpful. . . Even just a primer on writing regulations would have been really helpful in getting this done.  Once the regulations were written, though, was when we began to realize that we were a regulatory agency.  We didn’t hire any consultants at all. We used the resources that were available. . . We had to figure it all out ourselves as we went along.”

Former commission member Deborah Miran described members’ surprise at being tasked with drafting regulations.  “We were like, ‘holy [expletive],’ we have to write regulations. We had no help. We had one-tenth of an assistant attorney general’s time. … The six of us sat around a table with a blank piece of paper, and we started writing regulations. It was literally from scratch.”

Patrick Jameson, who took over as the executive director of the commission this spring, lamented to the commission in July that he had inherited a mess.  He told the commission that there were “layers of internal deficiencies and weaknesses,” “poor business planning,” “no long-term financial planning,” and no enforcement, regulatory or compliance structure in place. Even though the state budget allowed for up to nine people to be employed by the commission, he said there was “a very limited and inadequate staffing plan.”

Del. Cheryl Glenn is a Baltimore Democrat and a driving force behind the efforts to legalize marijuana for medical use in Maryland.  The commission is named after her mother.  This week Del. Glenn told The Sun:

“This should have been done completely different.  There was never any thought given to the idea that this commission would end up with the huge responsibility of issuing these licenses.

Exactly whose fault is that?

Del. Glenn also has been a driving force behind the efforts to get the results of the grower licensing process set aside because of the failure to achieve racial diversity in the selection of grower licensees, efforts I discussed in an op ed published in The Sun.  If she gets her way and the process is revised to assure racial diversity the state will simply be adding more grist to the litigation mill.

Veteran Assistant Attorney General Kathryn Rowe advised the commission that it could not use “race-conscious” measures to achieve racial diversity in the absence of a “disparity study” showing past discrimination in similar programs administered by the state.  No such study exists and she expressed doubts that any such study of licensing programs run by the state would produce evidence of racial discrimination warranting race-conscious measures.

Rowe’s advice meant that the commission could not use race-conscious measures such as minority set-asides, which appear to be what Glenn and the Legislative Black Caucus want.  According to Rowe efforts to achieve racial diversity had to be race-neutral and therefore “limited to broad publicity given the availability of the licenses and encouragement of those from various groups” to apply.

After the criticism levied by Glenn and others, Maryland Attorney General Brian Frosh suggested that perhaps the commission had drawn the wrong conclusions from Rowe’s advice.  I don’t know where he is headed with that because Rowe’s advice is absolutely sound and based on decades of settled law.  If Frosh bows to political pressure and walks back Rowe’s admonition against race-conscious measures he is planting yet another legal time bomb in the process.

It already has taken Maryland longer to get a program up and running than almost every other state that has approved the use of medical marijuana.  Lengthy further delays appear inevitable.  Only three years after the Maryland Health Benefits Exchange debacle our state government again is attracting national attention for its ineptitude.  It is embarrassing and a disservice to the patients and their families that medical cannabis is intended to help.

October 14, 2016

When the questions get tough, the tough get thrown out.

The City of Baltimore and the United States Department of Justice (DOJ) are negotiating a consent decree that will govern reform of the Baltimore Police Department (BPD).  I drafted this post a month ago after Police Commissioner Kevin Davis publicly stated his position that the person appointed to monitor progress under the consent decree should have “big city” or “big county” police experience, preferably on the east coast.  In other words, he wants a police officer rather than a lawyer to be the consent decree monitor and he wants that police officer to be from the east coast.

My immediate reaction to his statement was negative.  I didn’t post this right away, however, because I thought I might be overreacting; after all, it was just his opening gambit in negotiations with the DOJ.  I still might be overreacting a bit but I decided to post my thoughts because anything that smacks of equivocation in the efforts to reform the BPD deserves the greatest scrutiny.  The city can’t afford to have both a police commissioner and a mayor fearful of antagonizing the FOP; two weeks ago the likely next mayor, Senator Catherine Pugh, signaled her own reluctance to confront the FOP over its resistance to change, which heightened my concern.

The DOJ will be skeptical of the proposal by Davis, as it should be.  Moreover, Davis is making a mistake if he is trying to appease the Fraternal Order of Police (FOP), the labor union that represents BPD officers.

The role of the monitor involves applying the terms of the consent decree to facts gathered during the oversight process and requires an understanding of federal and state law governing the actions of a police department.  The monitor heads a team that invariably includes experienced police chiefs or commanders possessing “subject matter” expertise to advise the monitor as necessary.

The job does not require police experience, and there is every reason to be leery of appointing someone to the job who identifies too closely with police officers.  The problems in the BPD did not occur overnight.  They were allowed to accumulate over time because of a pronounced insular culture within the department protected by a union that uses every bit of its political muscle to resist change, particularly changes that would improve officer accountability.

In a very real sense, the culture is the problem.  That police culture is not unique to Baltimore and exists to some extent in every large police department.  Placing someone from that cultural background in charge of monitoring the progress of the BPD in satisfying the consent decree could turn out to be a very bad idea.  It certainly will do nothing to promote the confidence of the citizens in the outcome of the process.

The view that only police officers should sit in judgment of other police officers is deeply ingrained in that culture.  It plays out in the debate over the composition of police disciplinary boards.  The FOP has fought the inclusion of civilians on those boards by arguing that such boards require “specialized knowledge about policing” and civilians lack the “information” necessary to make decisions about officers’ actions.

Let’s put that nonsense to rest.  Lay persons serve as members of the Maryland Board of Physicians, Board of Nursing, Board of Pharmacy, Board of Dental Examiners, Board for Professional Engineers and Board of Veterinary Medical Examiners.  Those boards have the power to end the careers of the professionals they regulate and sometimes involve technical issues vastly more complicated than those confronted in police disciplinary hearings.

The lay persons on those boards successfully evaluate the evidence and render decisions on professional competency.  I’ve sat in on many police disciplinary boards and it is nothing less than insulting for the FOP to suggest that citizens are incapable of comprehending police work.

Davis also believes that the monitor’s police experience should be on the east coast, which is baffling.  It raises cause for concern because it sounds like a left-handed slap at his predecessor and a coded message to union members.  The Baltimore FOP detested Anthony Batts, whose experience was in California before coming to Baltimore. Batts infuriated the FOP with his outspoken reform agenda, famously describing the BPD as stuck in a “cycle of scandal, corruption and malfeasance.”

The purpose of the consent decree will be to address the DOJ’s findings that the BPD engages in a pattern or practice of unconstitutional conduct.  The constitutional rights of citizens are the same in the rest of country as they are on the east coast.  Unless Davis can explain his preference for east coast experience there is a good possibility that his reference to east coast experience is coded language intended to assure the FOP that he doesn’t want anyone like Batts monitoring the department’s performance.

If that is what Davis is trying to do it is a bad idea.  Appeasing the FOP has been a big part of the problem with the BPD in the past.  Appeasement doesn’t overcome FOP resistance to change; it encourages it.  It is a pipe dream to believe, for example, that the FOP will not fight changes to the grossly inadequate systems within the BPD for investigating complaints against officers and imposing discipline.

The reality is that a consent decree is a substitute for cooperation.  Former Pittsburgh Police Chief Bob McNeilly said that a consent decree with the DOJ forced needed reforms in his city that otherwise would have been stymied by the police labor union.  Former D.C. Police Commissioner Charles Ramsey said the same thing.  Everything reasonably possible should be done to gain the cooperation of the FOP but that does not include trying to get a monitor who will have any agenda other than fairly and accurately reporting progress by the BPD in satisfying the requirements of the consent decree.

Pugh announced that she will retain Davis as commissioner if she is elected.  That means that they need to have each other’s back going forward; if either or both gets weak in the knees when dealing with the FOP the efforts to reform the department will be compromised.  The things that they have said over the past month have not been encouraging.

The final thing that convinced me to post this piece happened today.  WYPR reporter Ken Burns was banned by Mayor Stephanie Rawlings-Blake from her weekly press briefings after he pressed for answers to questions similar to those I have discussed regarding the extent of the city’s control over the BPD, which nominally is an agency of the state.  The mayor stated that Burns was banned because he became “physically intimidating,” not because his questions made her uncomfortable.

There is nothing on the tape of the briefing that suggests physical or verbal intimidation, no one has come forward to support her allegations as of yet, and she won’t even describe what it is that Burns supposedly did.  I don’t want to say that I don’t believe the mayor, but if she doesn’t come up with something more than this then I will conclude she is dissembling and trying to avoid tough questions about why she did not do more as mayor about the problems in the police department.

To her credit Rawlings-Blake did show some willingness during her administration to take on the FOP, but never before the city council.  One of the best-kept secrets in city hall is the extent to which the city council could, if it wished, rein in the influence of the FOP over the governance of the department.  If citizens realized that they might actually starting holding city officials responsible for their failure to do so, and that is the last thing that the mayor and city council want.  Last month in an editorial The Sun called on the General Assembly to give the city more control over its police department.  I assume the Sun’s position was not based on the manner in which the city has exercised the control that it does have.

So this post is dedicated to WYPR’s Ken Burns, who got himself banned from mayoral press briefings for a noble cause.  Hopefully he has been thrown out of better places.

October 12, 2016