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

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