An incident earlier this month serves as an example of a phenomenon that is not being given enough attention during the continuing debate over police shootings. The phenomenon is scared cops. There are good cops, bad cops, racist cops, and scared cops, sometimes in various combinations of those characteristics. It appears that Deputy Sheriff Jake Shaw of Clark County, Ohio was an otherwise good cop who feared being shot.

The incident in Ohio allows us to look at the problem free of racial connotations because both Shaw and the man he shot, local newspaper photographer Andy Grimm, are white. In fact, the two men considered each other friends, and Grimm could be heard on Shaw’s body camera audio telling Shaw “I don’t want you to lose your job for this” while Grimm was lying on the ground writhing in pain. Fortunately, Grimm survived.

Grimm got out of his car to set up his camera to photograph an electrical storm near to where Shaw had made a traffic stop. Grimm was under a street lamp in plain view of Shaw, and waved in the direction of Shaw, believing that Shaw would recognize him. As Grimm was setting up his tripod, Shaw fired two shots at Grimm, striking him once in the abdomen.

Shaw himself can be heard on the audio explaining what happened: “Andy, I thought it was a friggin’ gun, dude. Stay strong with me. I love you, brother.” Whatever else the investigation of the shooting discloses, it will confirm that Shaw was frightened of being shot when he shot Grimm.

Fear is an equal-opportunity emotion. In July, Justine Damond, an émigré from Australia living in Minneapolis, was shot by a Somali-American policeman, Mohamed Noor, under circumstances still far from clear. The officer was black and the victim was white.  There is no doubt in my mind that fear in the mind of the officer who shot her will be part of the chain of causation. Her tragic death was a consequence of what the proliferation of handguns has done to policing – and life – in the United States and, again, it will not be the last of its kind.

The rise to national prominence of the Black Lives Matter movement in 2014 drew our attention to the very real problem of young black men dying at the hands of police officers acting based on racial stereotypes, if not overt racism. As it happens it was a shooting that occurred in North Miami, Florida on the first day of the Republican National Convention in 2016 that first persuaded me that there is another, more pervasive problem than racist cops: Scared cops.

A North Miami officer shot a mental health therapist attempting to calm an autistic patient. The officer fired three shots at the patient, one of which struck the therapist and none of which hit the patient. The officer was over 50 yards away and mistook a silver toy truck in the hands of the patient for a handgun. The victim survived and the officer subsequently was charged with attempted manslaughter. Were his actions grossly negligent? Probably. Were they motivated by fear? Undoubtedly.

Fear in combination with racial stereotyping, conscious or unconscious, is particularly deadly.  Better screening and training of officers, and more effective disciplinary action against those officers unfit to be given the power over life and death, will help. But cops are human beings, and it is human nature to be afraid in situations that we perceive as dangerous. Racial stereotyping was not a factor in the shooting of an unarmed 40-year-old white woman dressed in her pajamas. Apprehension of harm to the officer or his partner was.

The widespread availability of handguns has exponentially increased the number of potentially dangerous situations to which officers are exposed. Incidents like those in Clark County, Ohio, Minneapolis and North Miami will continue for as long as every criminal, terrorist, gang banger, and troubled individual who wants a handgun can get one. Officers know that they have only a split second to act if a person has a gun and intends to use it to shoot them. Tragic mistakes are inevitable.

Will some officers falsely claim fear for their lives to persuade jurors that their actions were justified? Of course. Another facet of human nature is that, faced with prison or other serious consequences, there are people who will lie to evade the consequences of their actions, police officers included. That doesn’t obscure the fact that there is real fear out there and that it affects the judgment and behavior of police officers.

Want to get an idea of the fear that always lies just beneath the surface? Listen to the terror in the voice of the partner of New York City police officer Miosotis Familia as he reported over the radio that she had been ambushed and shot to death while sitting next to him in a patrol car in July.

Yes, police officers fear things besides guns, as demonstrated by the shooting last week of the troubled president of a gay and transgender student group who allegedly was threatening campus police officers with a small knife outside a dormitory at Georgia Tech. But guns are different.

A friend of mine from Edinburgh retired from the Police Service of Scotland. He attributes the difference between policing in the United States and policing in the United Kingdom to one thing: Handguns. “Guns change everything.” Yes, they do and, when it comes to the landscape of policing in America, not for the better.

What can we do? Some empathy may help. Don’t accept racism or other bad behavior from cops but don’t jump to conclusions, either. Try to understand what it’s like to decide between shooting or being shot in less than a heartbeat. Unless we somehow can find a way to end the ready access to handguns by people who should not have them, the only other thing that we can do is get used to officers shooting people who didn’t need to be shot.

September 23, 2017

Anyone who has worked with me for any length of time knows that I have a special antipathy toward half-assed actions by government. The consent decree negotiated between the City of Baltimore and the United States Department of Justice (DOJ) over the management of the Baltimore Police Department (BPD) is a half-assed attempt to fix what ails the department, an imperfect and costly measure that only obliquely addresses the core of the problem with the BPD. Just because an action is expensive doesn’t mean it isn’t half-assed.

As the city and the DOJ cobble together a proposed team to monitor compliance with the consent decree, there are three things to keep in mind: The consent decree is adding another layer of bureaucracy, it will be extraordinarily expensive, and there is no guarantee of long-term success. There is in fact a fourth thing: The consent decree could have been avoided had the State of Maryland acted when it should have to assert control over what by the end of 2014 was obviously a rapidly deteriorating situation with the BPD.

By design, the monitoring team will not take control of the BPD; the team will generally hover above department management to make sure that those in control do what is necessary to reduce the incidence of unconstitutional police practices. It is a balancing act that, according to reports around the country, some monitors have done better than others.

Compliance monitoring is an intrusive process, demanding time and attention from police commanders – an inevitable distraction from the other tasks at hand. A lot of time (and money) will be spent gathering and processing information. In the end, there is no guarantee of success, in part because the monitoring team itself has no direct power to make the type of structural changes to departmental governance and labor relations necessary to effect long-term change to departmental culture, a point that I have made ad nauseam.

Another factor to consider is that, as far as I can tell, no other police department has had to go through the compliance process while also trying to cope with an out-of-control epidemic of violent crime of the type being experienced in Baltimore. The compliance process tends to slow down operational decisions within a department, and in the case of the consent decree in Baltimore will certainly moderate any thought by police commanders that more proactive police tactics are necessary. Risk-taking, and therefore innovation, will not be encouraged while the decree is in effect.

To be considered a success under the circumstances applicable to Baltimore, the consent decree cannot simply result in fewer violations of citizens’ constitutional rights.  It must do so while allowing the BPD to take the actions necessary to help reduce the rate of violent crime.  That is a big challenge.

Also, a comment as to police morale. I admit to some cynicism, having never participated in labor negotiations with a public safety union in which the union didn’t begin with the complaint that “morale is at an all-time low” because of actions management took or failed to take to support union members. On the other hand, I recognize the vital importance of having police officers believe that they have the support of police management when it comes to actions taken in the course of their duties, especially in a tough-to-police place like Baltimore.

A precondition to that type of trust is a very clear set of rules, and a very clear set of consequences. The commissioner must be able to say to the officers on the street:

“If you are doing your job, even if you make an honest mistake, I have your back. But if you intentionally break the rules – use force when it obviously isn’t necessary or deliberately violate someone’s 4th Amendment rights – you’re gone. And, supervisors, if you can’t keep your subordinates from breaking the rules, you’re gone, too.”

Will the Police Commissioner be able to establish that type of relationship with officers while the department is under the consent decree? I have my doubts. Not only will the monitor be looking over his shoulder, it also appears that the new City Solicitor will be doing so as well; there is no way of getting around the fact that the commissioner will be on a shorter leash when it comes to his responses to the conduct of his officers.

We will see how this affects the willingness of the commissioner to act decisively when controversies arise. I believe that the tightrope that a commissioner always must walk will get a lot higher and scarier under the consent decree.

∞ ∞ ∞

This costly and cumbersome process could have been avoided had former mayor Stephanie Rawlings-Blake turned to the State of Maryland for help, rather than put all her eggs in the federal basket. Of course, the State of Maryland, in the person of former governor Martin O’Malley and current governor Larry Hogan, would have had to be willing to do what was necessary.  It would have required the mayor and governor working in concert to overcome the political hurdles.

What am I talking about? I am talking about the type of receivership that some states employ to take over failing law enforcement agencies and even entire municipalities. The irony is that the legal foundation for such action regarding the BPD already exists, because the General Assembly has retained legislative authority over the BPD since taking it back from the city in 1860. The notable exception to the plenary authority of the state lies in some aspects of labor relations with BPD officers, and the City Council has done its best to make a hash of that.

In one fell swoop, the General Assembly could have passed a law that effectively placed the BPD in receivership, and gave the governor the authority to appoint a board with complete power over the BPD, including the power to hire and fire the Police Commissioner. To be effective, any such law also would have had to exempt the BPD from the Law Enforcement Officers’ Bill of Rights and from city and state labor and personnel laws that currently render the department ungovernable, and have resulted in the slow, painful deterioration of the department. I have long believed that the core problem behind the long, painful deterioration of the BPD is the gradual dilution of the authority of the Police Commissioner to run the department.

One good commissioner, answerable only to a panel of bona fide experts and ultimately to the General Assembly (and allowed to build a management team of his or her own choosing) would be able to right the BPD ship more quickly and less expensively than will be possible under the consent decree. Just as importantly, the commissioner would be free from the second-guessing of federal monitors, and therefore able to adjust police tactics more rapidly as circumstances required.

The only reason that the “receivership” model is worth mentioning at this late date is that it still may turn out to be the best way forward. At some point the monitor will have to confront the barriers posed to compliance by the structural governance issues described above, and receivership will be the cleanest and most effective way to overcome those obstacles.

The consent decree sets ambitious goals and objectives, and there will be nothing half-hearted about the efforts of the monitoring team.  Moreover, it appears that little effort or expense will be spared toward achieving compliance. At the end of the day, however, the consent decree is a glorified half-assed attempt to fix problems that the city and state have lacked the political will to fix in the most effective and efficient way. I hope it works, but half-assed measures seldom do.

September 16, 2017

There are many discouraging things about the manner in which the City of Baltimore goes about its business, but right up there near the top of my list is the feckless way that the city manages its relationship with Lodge No. 3 of the Fraternal Order of Police (FOP). The FOP represents the sworn officers of the Baltimore Police Department (BPD) up to and including the rank of lieutenant. I’ve done many pieces on the destructive consequences of the failure of the City Council to use its power under the City Charter to limit the scope of collective bargaining with the FOP and rein in the inordinate power of the union over the governance of the BPD.

A prime example of the city’s fecklessness is the extended controversy over placing up to two voting or nonvoting civilian members on the hearing boards impaneled to hear disciplinary charges against BPD officers as authorized by a change to Maryland law passed by the General Assembly in 2016.  The city has been attempting for nearly a year to get the FOP to agree to placing civilians on hearing boards as part of the labor agreement intended to replace the one that expired on June 30, 2016; the city and FOP have been operating without a signed agreement since that time.

I thought I read a few days ago that Mayor Catherine Pugh had decided to abandon the efforts to place civilians on hearing boards through negotiation, and to focus on getting a state law passed that eliminated the alleged need to secure the approval of the FOP to placing civilian members on the boards through negotiation. I couldn’t find the story after a brief search, and I am too tired of this issue to look any further. In any event, I read in a story printed in today’s Baltimore Sun that Mayor Pugh plans to continue to push for inclusion of civilians on hearing boards as part of the ongoing negotiations with the FOP.

The story, written by Kevin Rector and Justin Fenton, also parroted the city’s apparent position that “state law prohibits the city from putting civilians on the boards without the union’s consent.” Just to be clear, gentlemen, that statement is an expression of an opinion, not a fact. And, by the way, it is not the opinion of Assistant Attorney General Kathryn Rowe as described in her letter of advice to State Senator Nathaniel McFadden dated November 4, 2016.

I found Ms. Rowe’s letter after I had a conversation in April with City Councilman Brandon Scott. As I understood the description of his position, it was that the City Council lacked the authority to authorize the Police Commissioner to appoint civilian members of hearing boards because the General Assembly retained control of the Baltimore Police Department (BPD).  Mr. Scott told me that this position was based on advice received from the Attorney General.

Mr. Scott said that he would provide me a copy of the advice if it was reduced to writing and he could locate it. I never received anything further from him, so I went looking for the advice myself, and after some effort found Ms. Rowe’s letter. Her advice may not be the same advice to which Mr. Scott referred, because it is different than what he told me.

According to Ms. Rowe’s letter, Senator McFadden requested the AG’s advice based on an op-ed that I wrote in July 2016 urging the City Council to act on the issue. To my knowledge, neither the request nor the letter of advice became a matter of public knowledge – I certainly did not know about the request or letter until I found the letter six months after it was written.

In her letter of advice, Assistant Attorney General Rowe drew the city a road map on how to place civilians on hearing boards without gaining approval to do so from the FOP through negotiation. First, the City Council would have to enact an ordinance authorizing the Police Commissioner to place up to two voting or non-voting civilians on BPD hearing boards under the authority of Section 3-107(c)(3)(ii) of the Public Safety Article, which is a provision of the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR).

Thereafter, the Labor Commissioner could simply refuse to negotiate the issue with the FOP, and the Police Commissioner would be free to exercise his authority to appoint civilian members as authorized by the city ordinance. The authority to appoint civilian members would flow from the ordinance, not from the labor agreement, which would be silent on the issue.

(Skip to the last paragraph on page 5 of Ms. Rowe’s letter if you are not interested in the detailed analysis.)

Of course, there may be another legal opinion out there that I am not aware of. Even if the City disagrees with Ms. Rowe and is queasy about its authority to pass an ordinance as described by Section 3-107(c)(3)(ii) of the Public Safety Article, however, the Mayor should not have gone to the General Assembly this year with the request that she did in the form of SB545/HB1023.

If she had doubts about the accuracy of Ms. Rowe’s conclusions, Mayor Pugh should have asked the General Assembly to clarify that the City Council had the power under the 2016 changes to the LEOBR to decide whether to authorize the Police Commissioner to appoint civilians to BPD hearing boards, and whether to withdraw the subject of civilian participation from collective bargaining. Instead, Mayor Pugh asked the General Assembly to make those decisions for the City Council. It was, to be blunt, a chicken-shit request on the part of the mayor and it was dead on arrival.

By asking the General Assembly to remove the subject of hearing board composition from the scope of collective bargaining rather than empowering the City Council to do so, she was asking state legislators to take on a political fight with the FOP that she and city legislators have no stomach for – and that is never going to happen. The mayor had been informed in no uncertain terms before the 2017 session by an influential state senator not to expect the General Assembly to rescue the city from its inability to solve its own labor relations problems, and SB545/HB1023 went nowhere.

Maybe someone can ask the Mayor and members of the City Council whether they agree with the advice given by Assistant Attorney General Kathryn Rowe and, if so, why they haven’t acted on it. It would be interesting to know whether the city is holding back because of genuine legal concerns, or because of the usual trepidation by city officials about offending the FOP. Given the nature of the legislation requested during the 2017 session of the General Assembly by Mayor Pugh, my money is on the latter explanation.

September 12, 2017