Scared cops.

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

Holding judges accountable.

It is one thing for judges to refuse to be intimidated by criticism. It is quite another to avoid possible criticism by blocking public scrutiny of judicial performance. That is why the Maryland State Commission on Criminal Sentencing Policy should begin recording the names of judges in the database created from the sentencing guidelines worksheets prepared by judges so the public can find out the rates with which individual judges comply with the state’s sentencing guidelines.

When Court of Appeals Chief Judge Mary Ellen Barbera informed Gov. Larry Hogan the three judges who sit on the Baltimore City Criminal Justice Coordinating Council would not attend the meeting Hogan called to question the suspension of sentences for crimes involving the use or possession of handguns in Baltimore, she explained that under the Maryland Code of Judicial Conduct judges “shall not be swayed by public clamor or fear of criticism.” Fair enough, because it sounded as if the governor’s agenda was to jawbone the judges into reducing the number and length of suspended sentences.

There is nothing in the Code of Judicial Conduct, however, that suggests that judges have the right to thwart criticism by secreting their performance from public view. The database maintained by the MSCCSP contains a wealth of information about criminal sentences but it does not allow members of the public to determine the rates with which individual judges comply with the sentencing guidelines promulgated by the commission. The names of the judicial circuits are captured in the database – but not the names of the individual judges.

The sentencing guidelines are an effort at establishing sentencing best practices, intended to “support fair and proportional sentencing policy (and) increase equity in criminal sentencing practice.” Judges are required to document their reasons for imposing sentences outside of the recommended guideline ranges. The guidelines also are supposed to “promote increased visibility . . . of the sentencing process.” Increased visibility, but not total visibility?

The Code of Judicial Conduct also compels judges to act in a manner that promotes public confidence in the Judiciary. It strikes me that nothing inspires confidence less than an unwillingness to be completely open and transparent about a judge’s performance, including the extent to which he or she complies with sentencing guidelines.

It is human nature to suspect that someone is trying to hide something when information is withheld. Based on about 40 years of experience in government, I have found that such suspicion is not unreasonable when applied to public officials.

Openness, transparency

Making the compliance rates of individual judges available is likely to demonstrate judges are doing their best to impose fair and data-based sentences that protect the public. If, however, the information discloses that one or more judges are deviating significantly from the sentencing guidelines, then that is something that citizens and members of the General Assembly have the right to know. That knowledge would inform decisions about legislation and about the retention or removal of specific judges.

The Judiciary is hardly the only component of the state’s criminal justice system that is reticent to reveal too much information to the public. For example, the Baltimore Police department provides case closure rates but no data on how many of the closed cases result in convictions or guilty pleas. The Baltimore City State’s Attorney’s Office boasts a conviction rate of 93 percent based on cases taken to trial but gives no useful information on the cases that do not go to trial, or on charges that are dropped or reduced for purposes of plea agreements.

For each component of the criminal justice system, the reason for the gap in information is the same: The more information you make available, the more you expose yourself to possible criticism.

The only way to restore the faith of the public in the criminal justice system is for the three components of the system to fully commit to openness and transparency, making as much information available to the public as possible. Judges, prosecutors and police must trust the public to evaluate the information responsibly – that old trust-is-a-two-way-street thing.

Sitting at the top of the system, the Judiciary should initiate the shift in philosophy by making it possible for the public to find out the extent to which individual judges comply with Maryland’s sentencing guidelines. The principle of judicial independence can coexist with the public’s right to information about its government.

[Published as guest commentary by The Daily Record on September 22, 2017 but not posted to my blog until December 24, 2017.  The date of posting that appears above was backdated to place all posts in the order in which they were written.]

The consent decree with the DOJ is a glorified half-assed attempt to fix the BPD.

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

With the City of Baltimore, be careful about reporting a legal opinion as a fact.

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

Balt. County pension reform: Too little, too late.

Congratulations to Baltimore County Councilwoman Vicki Almond and her colleagues on the County Council for closing the Baltimore County pension-grab barn door long after the horses have gone (“Baltimore County Council scales back pension benefit,” Sept. 6). Ms. Almond’s bill accomplishes nothing of value because she waited far too long to act. Specifically, she waited until after the primary beneficiaries of the controversial 2010 bill that created the pension windfall, including County Executive Kevin Kamenetz, had legally vested in the benefits created by the bill.

By waiting so long, Ms. Almond assured that the windfall could not be taken away from Mr. Kamenetz and the other high-ranking county officials. Are we to believe that was not her intent?

Her comment implying that she acted to stop the windfall when it was “brought to light” that the subject provision of the 2010 bill “benefited just a few people” was particularly disingenuous, even by Baltimore County government standards. Ms. Almond took office in 2010, months after Bill No. 30-10 was enacted into law, but just as the public furor erupted over the amendment that created the windfall. The amendment was slipped into the bill at the last minute and initially escaped public notice.

The Baltimore Sun ran two editorials decrying the windfall, one in 2011 and another in 2012. Former Baltimore County Attorney Virginia Barnhart wrote a scathing letter to the editor of The Sun in 2011 questioning the legality of the “sweetheart pension deal” and calling on the new County Council — which included Ms. Almond — to repeal it (“Baltimore County pension windfall should be investigated,” Dec. 20, 2011). Had Ms. Almond acted in a timely manner when the problem was “brought to light,” the windfall could have been lawfully eliminated. She and other members of the County Council chose not to do so.

So why act now? Could it have anything to do with her run for county executive in 2018? Ms. Almond gets to lay claim to being a “reform” candidate without accomplishing any reform. How clever, except for the fact that the voters of Baltimore County are not as stupid as she takes them to be.

[Published as a letter to the editor by The Baltimore Sun on September 7, 2017 but not posted to my blog until January 8, 2018.  The date of posting that appears above was backdated to place all posts in the order in which they were written.]