The subjects of this wide-ranging (rambling?) post are an informative article by The Sun’s Justin Fenton on the Baltimore City State’s Attorney’s Office, a recent comment by Baltimore Police Commissioner Kevin Davis, and the proposed consent decree agreed to by Baltimore and the United States Department of Justice (DOJ).  First up is my latest critique of the State’s Attorney’s Office.

In yesterday’s paper Fenton reported that 11 out the 17 police shootings in Baltimore during the past 16 months remain under investigation by the Baltimore City State’s Attorney’s Office.  Fenton noted that prosecutors in Baltimore and elsewhere routinely take months to make legal determinations about police actions, even when suspects who survive the encounters are charged immediately.

Fenton cited unnamed analysts for the proposition that “the standards by which police actions are judged are more complicated.”  The standards certainly differ but are not necessarily more complicated.  It is true that applying the standards governing the use of deadly force by police officers to the facts of specific cases can involve some very fine legal judgments, but that is not what is delaying the outcomes of these investigations.

There are two plausible explanations for the delays in Baltimore. The first is that sufficient resources are not being allocated to the task of investigating police shootings simply because there are too few attorneys in the Baltimore State’s Attorney’s Office with the requisite knowledge and experience to competently handle the task – an entirely possible scenario given the exodus of veteran prosecutors from the office.

The second plausible explanation is that there is no management interest in moving the cases along any faster, and that adequate resources therefore are being deliberately withheld or the cases are intentionally being placed on a slow track.  In other words, to use Fenton’s term, the cases “languish” by design.  In either case the frustration of Baltimore police union president Gene Ryan is understandable:

“If the officers did something wrong, prosecute them,” said Ryan, whose union represents all city officers below the rank of captain.  “If they didn’t, let them get back in the saddle and protecting the citizens of Baltimore. What are they waiting for?”

I agree with Ryan.  If the slowness is intentional then State’s Attorney Marilyn Mosby may be trying to convey the impression of a more thoughtful and deliberate process when it comes to alleged police misconduct.  After the Freddie Gray debacle Mosby likely wants to avoid more accusations that she is prone to rash actions and rushes to judgment.  In all fairness, she would not be the first chief prosecutor to be preoccupied by appearances in such matters, with the appearance of deliberateness being more important than deliberateness itself.

It would be hard to fault Mosby for being careful except for the fact that the explanation of the review process for police shooting cases by Deputy State’s Attorney Janice Bledsoe suggests that the process is designed to take as long as possible but is not designed to achieve the most careful decisions.  According to the article, the evidence in a police shooting case is examined by an assigned prosecutor, then the supervisor of the homicide or police integrity unit, then Bledsoe, then Schatzow, and ultimately Mosby.  “It goes through a number of screenings so we can answer all the questions and get a decision,” Bledsoe said in explaining the delays.

If that review is being done sequentially then the process is both inherently inefficient and unlikely to reach the best conclusion.  Let me respectfully suggest that the following is the best practice:  Have the assigned prosecutor and his or her supervisor come up with a recommendation, and then have them present that recommendation with the supporting facts to a panel that includes the final decision maker, Mosby.  If both Bledsoe and Schatzow also need to be on the panel, fine.  After reading the file, listening to a full and frank discussion about the pros and cons of the case, and soliciting the opinions of the individual panel members, Mosby can make the final decision whether to charge or not charge, or to send the case back for more work.

Unless the decision is made in this fashion Mosby and the other panel members do not get the full benefit of each other’s thoughts and questions.  The synergy of the group process leads to more informed decisions in this type of matter.  This should come as no surprise to a bunch of lawyers, because it is one of the theories underpinning the practice of having appellate tribunals hearing oral arguments in panels, with questions and responses flying back and forth.

The multi-level screening process described by Bledsoe is not appropriate to making decisions in police shooting cases where all final decisions whether to charge – or not to charge – should be made by the chief prosecutor.  At the current rate of police shootings Mosby and her deputies would have to sit down about once a month to review police shootings; it seems like a worthwhile expenditure of their time.

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The next subject is a comment by Commissioner Kevin Davis to city lawmakers last week that the Baltimore Police Department (BPD) lacks enough sergeants to adequately supervise patrol officers.  I have been making the point for two years that it is patently obvious that the front-line supervision provided by BPD sergeants and lieutenants is woefully inadequate and is the area in which the critical breakdown in police performance and discipline has occurred.  Police sergeants in particular have been as much part of the problem as part of the solution in terms of disciplinary infractions.

The issue is not one of sheer numbers, however.  The quality of the individuals in the positions and their training are crucial factors, as described in the report of the DOJ investigation of the BPD.  Simply adding more sergeants to the barrel will not have the desired effect until the bad apples are removed, and removed quickly.

In an op ed published in The Sun in 2015 I said that the first step was for the city to get sergeants and lieutenants out of the same union as the patrol officers that they supervise in order to combat the over-identification of supervisors with the officers that they supervise.  Also, the pay differential for supervisors is going to have to be great enough to persuade the best and brightest officers to apply for supervisory positions.

Setting the pay of supervisors at adequate levels is infinitely harder if the same union represents both the rank-and-file and supervisory tiers of employees.  The rank-and-file members vastly outnumber their supervisors in the union and that situation invariably results in the compression of pay scales, not elevating the pay of the relative handful of supervisors to adequate levels.  This concept is so fundamental that I have trouble believing that the city’s Labor Commissioner has not addressed it.

In another op ed published last year I suggested that the General Assembly enact a public local law that would have the effect of exempting BPD sergeants and lieutenants from the Law Enforcement Officer’s Bill of Rights, making it easier to get rid of bad ones.  Neither measure proposed in the op eds has been enacted which, in my opinion, makes it less likely that Commissioner Davis is going to see much improvement in the quality of the supervision of his patrol officers any time soon.

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The final subject is a remark made by United States District Court Judge James Bredar in a letter seeking additional information on the consent decree proposed to the court by the DOJ and the City of Baltimore.  Judge Bredar appeared to question the wisdom of a provision in the decree that would prohibit officers from using a high-crime area as a basis for a stop or detention, or base a detention on someone’s attempt to avoid contact with an officer.  I had the same reaction.

Bredar asked if the parties “intend to impose a standard on the BPD different from that set out in Illinois v. Wardlow.”  In Illinois v. Wardlow the Supreme Court held that a person’s sudden and unprovoked flight from police officers in a high crime area was sufficiently suspicious to justify the officers’ stop of that person; once stopped, the person could be questioned and frisked for contraband or weapons.

I do not have a problem with the Police Commissioner deciding as a matter of policy that he does not want his officers exploiting the full extent of their powers to stop and detain citizens because he has determined that such aggressive policing does more harm than good.  I do have a problem incorporating into a legally binding consent decree a restriction on the powers of BPD officers that exceeds constitutional limitations and does not apply to other officers in the state.

Stated as simply as possible, a ban on lawful police conduct does not belong in a consent decree intended to prevent unlawful police conduct.  To place this in perspective keep in mind that if the DOJ took their case against the BPD to trial and prevailed no judge would as a remedy enjoin the BPD from engaging in lawful police practices; it’s not what judges do under the law.  

The provision in the decree is consistent with the philosophy of the DOJ under President Obama, which opposed using stop-and-frisk (also known as stop-question-and-frisk) as a routine police tactic.  If you ask me why the DOJ believes that it has the expertise to dictate the practices of big city police departments in fighting crime in intense urban evironments I won’t have an answer for you.

In my experience with federal agencies I found that some of them tend to lack what I would describe as institutional humility and are prone to think that they know best, even when it comes to matters that are within the province of state or local government.  State or local officials, no matter how competent, often are regarded by federal officials as local yokels who need to be led around by the nose.

I would not be surprised if this provision attracts the attention of President Trump’s nominee to be Attorney General, Jeff Sessions, because it is the type of overreach by the DOJ that he has described as objectionable in the past. It also is the kind of attitude by federal agencies that has fed the anti-regulatory frenzy of the president and his supporters.  If Sessions sees this provision as objectionable then I would have to agree with him.

It makes no difference whether the current Mayor and Police Commissioner agree with the provision.  They have no more right than the DOJ to make policy decisions for the next Mayor and Police Commissioner.  Times and circumstances change, and police practices may have to change as well.  It is a bit arrogant for current elected and appointed officials to try to impose their policies and beliefs on future elected and appointed officials by memorializing them in a court judgment.

If the existing level of gun violence in some Baltimore neighborhoods does not abate in the near future then even the current Mayor and Police Commissioner may come to regret their agreement to give up the right to use stop-and-frisk in Baltimore’s deadliest neighborhoods, even if the practice offends the sensibilities of some citizens.  Stop-and-frisk can take some additional guns off of the streets.  With homicides in the New Year averaging almost one per day in Baltimore it seems premature and almost foolhardy to remove a perfectly legal tool from the police tool bag before we know exactly how desperate the situation will become.

January 23, 2017