There are theoretical concerns and then there are practical considerations.  The announcement by Councilman Nick Mosby that he will run for mayor gives Baltimore voters an opportunity to weigh a theoretical concern against a practical consideration bearing upon the well-being of the criminal justice system in the city.

On the theoretical side the candidacy of Councilman Nick Mosby, husband of State’s Attorney Marilyn Mosby, raises a concern arising from the checks and balances on governmental power put in place by the Maryland Constitution.  The independence of the prosecutor’s office from the police department is intended to promote the objectivity of prosecutorial decisions and is universally considered to be an important safeguard against abuse within the criminal justice system.  There is a legitimate question as to whether that independence is compromised and the safeguard weakened if the mayor, who controls the police department, is married to the state’s attorney.

On the practical side is the fact that Nick Mosby is the only announced candidate who has stated that reform of the Baltimore Police Department (BPD) will be one of his primary objectives and who is unlikely to be intimidated by the Fraternal Order of Police (FOP).  There is nothing more important to the criminal justice system in Baltimore than getting rid of bad cops and changing the culture of the BPD.  That is not a theory; that is reality.

Nick Mosby will not bother trying to curry favor with Lodge No. 3 of the Fraternal Order of Police (FOP); that ship has already sailed.  Lodge No. 3 represents the rank-and-file police officers, sergeants, and lieutenants in the Baltimore Police Department (BPD).  Mosby’s wife, State’s Attorney Marilyn Mosby, has been vilified by members of the union.  Union president Lt. Gene Ryan went on Fox News in May to blast her for not supporting his members, stating that she “rushed to judgment” in charging six officers for their alleged involvement in the death of Freddie Gray and was acting like the “judge, jury, and executioner” in their cases.  Ryan even blamed her in part for the spike in violent crime that followed the April riots, stating that her lack of support for police officers made them hesitant to carry out their duties because they were fearful of being charged by her with crimes.

Mosby’s candidacy puts in question the future of Police Commissioner Kevin Davis, who was strongly endorsed by the FOP.  Ryan testified in glowing support of Davis at his confirmation hearing before the city council’s Executive Appointments Committee, describing Davis as a “cop’s cop” who learned by listening to his officers.   It seems likely that the strong support of Davis by the FOP means that Davis will not make the same “mistake” as his predecessor, Anthony Batts, did by admitting that the BPD was stuck in a “cycle of scandal, corruption and malfeasance” and in need of “wholesale change” and by predicting that more officers will face arrest as reforms are implemented.  In fact, Davis has said nothing about the need to reform the dysfunctional disciplinary process of the BPD other than to state generally that discipline needs to be “swift and certain.”

Nick Mosby was one of only two members of the City Council to vote against confirmation of Davis as the permanent police commissioner.  It seems likely that Mosby would replace Davis with a commissioner more strongly committed to reform.  One of Mosby’s opponents is State Senator Catherine Pugh.  Pugh has been a staunch supporter of organized labor and the FOP during her years in the senate.  Her candidacy is likely to be much more favorably received by the FOP.

This election will determine how strongly reform of the BPD will be pursued.  There are some clear differences among the candidates on that issue.

October 26, 2015

Two recent stories in The Baltimore Sun drew me back to the issue of the dubious performance of the Office of the State’s Attorney for Baltimore City.  The first story included tangible evidence of the damage done by State’s Attorney Marilyn Mosby when she fired a large number of experienced prosecutors upon taking office.  The second story shows how much of a high-wire act it was for Ms. Mosby to decide to file charges against the six police officers allegedly involved in the death of Freddie Gray:  She made her decision without reviewing the results of an exhaustive investigation carried out by a thirty-member task force put together by the Baltimore Police Department (BPD).

A week after The Baltimore Sun published my op-ed article on the problems plaguing both the BPD and the State’s Attorney’s Office [“Gaffes put court cases in jeopardy,” The Sun, October 2, 2015] the newspaper reported that gun charges had been dropped by the State’s Attorney in January of this year against Dontae Small, who allegedly was driving a stolen vehicle when it crashed at Ft. Meade on October 7^th.  The vehicle had been stolen at gunpoint from a man in Fells Point several days earlier, and Small now has been charged in the robbery.  [The Sun, October 9, 2015.]

Small has a lengthy criminal record, and The Sun reported that he has been in and out of prison since 1993.  The drug and firearms case against him was dropped in January because the Office of the State’s Attorney was unprepared to go to trial against him after a request for postponement was denied by Judge Barry Williams.  The case had been scheduled to be prosecuted by former Assistant State’s Attorney Grant McDaniel who had been fired two weeks before the scheduled trial date by incoming State’s Attorney Marilyn Mosby.

From the statements attributed to him by The Sun Judge Williams was taken aback that a veteran prosecutor with about 200 active cases was abruptly terminated without regard to what would happen to his caseload, and apparently without regard to the speedy trial rights of defendants.  Judge Williams properly denied the postponement request (as a previous judge had done) and the State’s Attorney was forced to drop the charges against Small.  Although no one knows what the outcome would have been had the case against Small gone to trial in January it is fair to say that it may not have been necessary to return Small to the streets if Ms. Mosby had not fired McDaniel without a plan how to manage his caseload.

In August former Assistant State’s Attorney Roya Hanna warned that reckless personnel actions taken by Ms. Mosby immediately upon assuming office had damaged the ability of the State’s Attorney’s Office to prosecute crime.  [“Marilyn Mosby has a role in City’s violence increase,” The Sun, August 12, 2015.]  In her commentary Ms. Hanna accused Ms. Mosby of jeopardizing prosecutions by firing six experienced prosecutors immediately upon taking office and leaving felony prosecutor positions vacant while she added staff to her media and “community outreach” teams.  According to Ms. Hanna the brain drain continued with the departure of ten more trial attorneys.

Allegations such as those made by Ms. Hanna often are dismissed as those of disgruntled former employees.  Disgruntled or not, Ms. Hanna made a point worth making:  Prosecution of serious crime requires experience gained under competent supervision, and the loss of a large number of competent, experienced prosecutors within a short period of time is a cause for concern.  Moreover, we now have evidence that the turmoil described by Ms. Hanna had a very real impact on at least one case, forcing a prosecutor who was unprepared to go to trial to drop charges against a defendant with a lengthy prison record who went right back to the streets and allegedly committed another crime.

This week The Baltimore Sun published a detailed and absorbing account of the nine days in April that its reporters spent “imbedded” with the members of the BPD investigating the death of Freddie Gray.  [“Grueling task, little return,” The Sun, October 11, 2015.]  The most striking aspect of the story was the fact that the extensive investigation conducted by the police department had little or nothing to do with the charges brought against the six police officers; the charges resulted from the “parallel” investigation done by the State’s Attorney with the assistance of the Baltimore City Sheriff’s Office.  According to the article, although prosecutors were briefed every few days on the status of the investigation being done by the police department they asked few questions about the investigation, which police commanders found highly unusual and troubling.  In hindsight, the reason for the prosecutors’ lack of interest in the investigation was that the department’s investigation had no bearing on what the State’s Attorney intended to do.

To appreciate how far out on a limb Ms. Mosby has gone in the Freddie Gray cases you have to understand that there is no comparison between the resources and investigatory skills found within the BPD and those in the State’s Attorney’s and Sheriff’s Offices.  If the BPD is the varsity, then the State’s Attorney and the Sheriff are not even the junior varsity.  They are the middle school team.

That is not to say that the cases cannot be successfully prosecuted as they stand, depending on the evidence.  My guess is that the cases themselves will be surprisingly simple, in the sense that they will rise or fall on the testimony from a handful of witnesses, the officers themselves, and one or two experts on police procedures.  If any of the officers are acquitted on all counts, however, Ms. Mosby has no defense against the criticism that she acted without utilizing the best investigatory tools available to her and that she charged the officers without considering all of the available facts.

Standing alone, Ms. Mosby’s decision to charge Officer Caesar Goodson, Jr. with second-degree murder raises its own questions about her judgment, as discussed in a previous post.  If Officer Goodson is not found guilty of that charge Ms. Mosby will have to live with the fact that she charged a man with murder without bothering to read the police investigation on the incident.  What justification can there be for that?

One matter that the extensive investigation done by the police department does bear upon is the obligation of the prosecutors to turn over to the defense attorneys for the charged officers any investigatory material that may be relevant to the defense of the cases.  The “discovery” obligation includes information gathered not only by the State’s Attorney and Sheriff, but also by the BPD.  The cooperation between the BPD and the State’s Attorney Office in satisfying this requirement has been problematic for many years, and the lack of attention paid by the State’s Attorney to the BPD investigation into the death of Freddie Gray makes a difficult situation even harder.  It is clear from the motions filed to date in the criminal cases that prosecutors are struggling to identify the investigatory material that must be turned over to the defense attorneys.  The State’s Attorney can ill afford a mistrial or overturned conviction in one of the Freddie Gray cases caused by another discovery violation of the type described in my op-ed article earlier this month.

If the prosecutions of the six officers charged in the death of Freddie Gray are successful the series of rash actions taken by Ms. Mosby since her term began in January will be forgotten.  If the prosecutions are not a success, however, there will be no net to catch Ms. Mosby as she tries to explain why she gutted the office of experienced prosecutors and why she chose not even to consider the extensive investigation conducted by the most experienced homicide detectives in the BPD before deciding to file charges against the six police officers allegedly involved in the death of Freddie Gray, including charging one of those police officers with murder.

October 12, 2015

The opposition expressed by Dr. Ben Carson to a Muslim serving as President places the situation of Kim Davis in context.  Davis is the County Clerk of Rowan County, Kentucky, who refuses to issue marriage licenses to same-sex couples because such marriages are inconsistent with her religious beliefs as an Apostolic Christian.  She defied a federal court order to issue the licenses stating that she was acting “under God’s authority.”

Carson’s statements reflect the Islamophobic fear that it is the collective goal of Muslims to impose sharia law in countries within which they reside, meaning that the tenets of Islam governing the conduct of citizens would supersede the provisions of civil law.  In other words, Islamophobes fear that a Muslim would do exactly what Kim Davis has done:  Refuse to perform a duty imposed upon her by civil law because it conflicts, in her opinion, with the requirements of religious “law” as set forth in the Bible.

A universal requirement for elected and appointed officials of the federal, state and local governments is that they take an oath of office committing them to obey the Constitution of the United States.  The oath underpins the rule of law in this country, including the Establishment Clause and Free Exercise Clause of the First Amendment to the Constitution that were described by Thomas Jefferson as creating “the wall of separation between Church & State.”  That wall is what has allowed Protestants, Catholics, Jews, Muslims, members of other religions and non-believers to live in harmony and to make the United States the nation it is today.

I grew up in the Pennsylvania Dutch country.  Old Order Amish choose, as a matter of their particular variation of the Christian faith, not to hold civil office.  The principled choice available to Davis would have been to resign her office if she believed that its duties conflicted with her religious beliefs.  Had she done so would have been entitled to the same respect afforded to others such as the Amish who make sacrifices in the course of adhering to their religious values.

On the other hand, her decision to violate her oath and the support that she has received for doing so from current and former elected officials, such as Governor Bobby Jindal of Louisiana and former Governor Mike Huckabee of Arkansas should sent a chill up and down the spines of all Americans.  The proposition that a government official can deprive a person of a legal right because that right conflicts with the personal belief of the government official is a direct threat to the rule of law.

September 22, 2015

Mayor Stephanie Rawlings-Blake wants to make Interim Police Commissioner Kevin Davis the permanent Police Commissioner of the Baltimore Police Department (BPD).  Davis has stated that he wants the position but wants to be appointed for the remainder of the six-year term of former Commissioner Anthony Batts.  A shorter term would “stall” progress in the department, according to Davis.  [The Baltimore Sun, September 17, 2015.]

Before Davis is confirmed as the permanent Police Commissioner, however, the City Council should seek a commitment from him that he will join Mayor Stephanie Rawlings-Blake in actively seeking reforms to the Law Enforcement Officers’ Bill of Rights (LEOBR) and to the Maryland Public Information Act (MPIA) during next year’s session of the Maryland General Assembly despite the strident opposition to such reforms by the Fraternal Order of Police (FOP).  There is no basis for assuming that Davis will support efforts to secure the necessary changes to the law unless a commitment to do so is obtained from him prior to his appointment.  Reform is less likely without the leadership and support of the incumbent commissioner.

In describing his plans for improving the department Davis mentioned foot patrol  training,  history courses on race relations and faith communities in the city for all new officers, better recruiting of city residents, and stronger incentives to get current officers to move into the city and veterans to remain on the force.  He said nothing about strengthening the process by which police officers are disciplined or about making that process more transparent.  [The Baltimore Sun, September 16, 2015.]

Lt. Gene Ryan, President of Lodge No. 3 of the FOP announced last week that the BPD is “headed in the right direction” under Davis.  This tacit endorsement of Davis by the head of the labor union that represents police officers in the BPD up to the rank of lieutenant gives the City Council cause for concern.  It would a stunning turnaround for the union to support a candidate for permanent commissioner who the union believed was intent upon reforming the police disciplinary process.  Does Lt. Ryan know something that the public does not?  That question must be answered.

It is naïve to believe that the FOP has anything other than the narrow interests of its members at heart when it speaks through its president, and Lodge No. 3 of the FOP in particular is not shy about throwing around its political weight in order to protect its members.  Lt. Ryan publicly blasted the settlement with the family of Freddie Gray approved by the Baltimore City Board of Estimates on the basis that it reflected negatively on his membership without regard to whether the settlement reasonably protected the city from greater financial loss.

In May Lt. Ryan sent a letter to State’s Attorney Marilyn Mosby demanding that she recuse herself from the decision whether to charge any of the officers involved in the death of Freddie Gray in order to avoid a violation of the Maryland Lawyers’ Rules of Professional Conduct.  In the letter he gratuitously assured her that “none of the officers involved are responsible for the death of Mr. Gray.”

The FOP’s greatest disdain has been reserved for Mayor Rawlings-Blake and former Police Commissioner Anthony Batts, outspoken advocates for reform within the department.  A month before his termination Batts stated that “our reform efforts will very likely see more police officers arrested [and] we will have more officers who are forced out because their outdated, outmoded views of policing do not match the standards the community expects and demands.”  That was not music to the FOP’s ears, and the union was elated to see Batts go.

The repeated assertion by the FOP that the disciplinary process is working well in the BPD almost defies belief, but is consistent with the general approach taken to issues by the FOP.  The day after Mayor Rawlings-Blake announced plans to seek some minor reforms to the LEOBR Lt. Ryan released a defiant statement promising that Lodge No. 3 “stands ready to combat any attempt to disrupt the LEOBR.”  In May Lt. Ryan released a statement blaming the surge in crime in the city on the fear of police officers that they would be arrested for doing their job like the officers charged in Freddie Gray’s death, and claiming that “criminals feel empowered now [and] there is no respect.”  In other words, everything is someone else’s fault and everything would be fine if police officers were just given more respect.

It also is naïve to believe that a police chief or commissioner cannot be intimidated by the FOP.  In over 31 years in the Anne Arundel County Office of Law I worked with many chiefs of police.  Few were anxious to draw the ire of the FOP and some I would describe as so concerned with keeping the peace with organized labor that in my opinion it affected their judgment as leaders of the police department.

Even former commissioner Batts blinked in the face of a showdown with the FOP over the LEOBR.  He declined to appear before the General Assembly last spring to testify in support of changes to the LEOBR requested by Mayor Rawlings-Blake.  According to reports in The Baltimore Sun Batts’ reticence to support changes in the law surprised some legislators because Batts had made public comments about having his “hands tied” in the discipline of police officers.  Indeed, on October 6, 2014 the BPD had released a report entitled “Preventing Harm” that called for strengthening the commissioner’s role in the disciplinary process.

As reported by Roberto Alejandro writing for the Afro, Batts’ change of heart came after a private hour-and-a-half meeting between Batts and FOP representatives.  [Afro, March 15, 2015.]  Instead of going to Annapolis to testify Batts sent an email to the members of the BPD assuring them that he would not support changes to the LEOBR.  As I noted in a previous post it is not uncommon for police chiefs or commissioners to fear the collective disapproval of their officers through the FOP more than the officers fear the disapproval of their conduct by the police chiefs or commissioners.  When management is afraid of organized labor it is organized labor that controls the culture of the workforce.

The next permanent police commissioner cannot blink.  Changes to the LEOBR are vital to changing the culture in the BPD.  The absence of a fully-functional disciplinary system emboldens officers who do not share the commissioner’s vision for how citizens should be treated because those officers know that it is extraordinarily hard to get rid of bad cops.  Equally as importantly, the disciplinary process must be under the direct control of the commissioner so that the commissioner can be held accountable for the results.

Reforming the disciplinary process and making it transparent are more important than the changes proposed to date by Interim Commissioner Davis.  They are more important than him having an extended term of office.  Baltimore’s police department faces enough challenges without creating problems for itself through the behavior of its officers, and the focus on reducing the murder rate cannot serve as an excuse to ignore the need to restore the trust between the citizens and the police department that serves them.

September 18, 2015

In an article that appeared in The Baltimore Sun on August 24, 2015 a spokesperson for the Maryland ACLU expressed dismay that advocates for reform of the Maryland Law Enforcement Officers’ Bill of Rights were underrepresented on the list of speakers invited to address the Maryland General Assembly Public Safety and Policing Workgroup at the hearing on the LEOBR held that day in Annapolis.   I shared the ACLU’s disappointment and, in my opinion, the over-allocation of time to the FOP at the hearing reflected the major impediment to reform of the LEOBR, which is the inordinate influence that the FOP exerts over State and local officials in Maryland.

In an op-ed piece that appeared in The Sun in January Susan Goering of the Maryland ACLU concluded that Maryland’s LEOBR had to be rebalanced because in its current form it “imposes significant impediments to conducting an adequate investigation and takes responsibility for discipline away from police chiefs.”  There is no doubt in my mind that she is correct, but achieving a proper balance will require a paradigm shift in the way that police discipline is administered in the State of Maryland which in turn will require overcoming the opposition not only of the FOP but also of police chiefs throughout the state.

The current paradigm is a “closed system,” with the discipline of police officers administered solely by other police officers.  Police chiefs have a secondary role, with the threshold responsibility for deciding whether discipline should be imposed assigned to “hearing boards” accountable to no one.  Only police officers may investigate police officers and only officers may sit in judgment of police officers as members of the hearing boards.

Citizens not only are excluded from the process they also are not privy to the outcomes, a point reiterated by Court of Appeals in Dashiell v. Maryland State Police.  Maryland’s LEOBR is a manifestation of the “us vs. them” culture in which police officers believe that they are entitled to be governed by a set of rules that is different from the rules that govern the citizens that they are hired to serve.

The current paradigm needs to be replaced with a new paradigm that returns to police chiefs the power and the responsibility to maintain the discipline of their officers and holds police chiefs accountable for the results.  Nothing should require a police chief to get “prior approval” for disciplinary action; for purposes of an administrative appeal of the chief’s decision a hearing officer or tribunal with the power to set aside the discipline imposed by a police chief on the basis that it was arbitrary, capricious, or unlawful should be entirely independent from both the police chief and the police union.

If a civilian review board is constituted by a jurisdiction in order to monitor how well a police chief is doing in maintaining the discipline of his or her officers the board should have full access to investigatory and personnel files.  All citizens should be entitled to disclosure of the outcome of disciplinary action for what Judge Watts described in her dissent in Dashiell v. Maryland State Police as “misconduct that arises out of contact with the public.”

Resistance to a paradigm shift will come from two sources.  The first source is an obvious one; the second may be less obvious.  The FOP will of course resist any dilution of the LEOBR.  The second source of resistance will come from police chiefs because few police chiefs in Maryland appear to want more responsibility for the discipline of their departments, and I believe that their reticence also is largely attributable to the political power of the FOP.  Police chiefs are as intimidated as elected officials by the FOP, if not more so.

The FOP’s opposition to reform of the LEOBR is just old-fashioned trade unionism at work; the FOP’s actions are typical of organized labor, and few labor unions make concessions on the terms and conditions of employment unless absolutely compelled to do so.  In the private sector market forces sometimes compel concessions; there are no analogous forces at work for police unions:  Crime is not going away nor is the tax money that supports police departments.  The only “market force” at issue is political muscle, and the FOP has plenty of that.

As I noted in a letter that I sent to the Workgroup on July 15, 2015 Maryland’s LEOBR is less about fairness to police officers than it is about  throwing as many obstacles as possible in the way of effective disciplinary action by police chiefs.  This imbalance was created by design, and reflects the longstanding influence of the FOP over the Maryland General Assembly.

The Workgroup invited eleven separate FOP lodges to present their points of view on the LEOBR but only a handful of groups interested in reform.  Was the Workgroup surprised when none of the FOP representatives did anything other than toe the union line and profess that the LEOBR should not be changed because it is absolutely necessary to protect conscientious officers from frivolous complaints and vindictive police chiefs?  I hope not, because that is how a labor union operates when it is confident that it is holding all of the cards.

The apparent consensus of the police management representatives who testified was that the LEOBR was working fine, although they conceded that the ten day suspension of interrogation should be eliminated in order to restore public confidence in the law.  Their position has all the earmarks of a potential “compromise” intended to throw a bone to advocates for reform.

Although I agree that the ten-day rule should go, I would never accept removal of that provision alone as a reasonable “compromise.”  As anyone with any experience with the LEOBR knows, it is the LEOBR’s removal of authority from a police chief to initiate discipline that needs to be undone.

It may seem hard to believe that the FOP persuaded the General Assembly to go down a rabbit hole and take the responsibility for police discipline away from police chiefs where it plainly belongs.  That happened only because the Maryland Chiefs of Police Association and the Maryland Sheriffs’ Association did not oppose the abrogation of their authority when it was enacted into law.

In over 30 years in the Anne Arundel County Office of Law, the last two as County Attorney, I had the opportunity to work with many chiefs of police.  Few were anxious to draw the ire of the FOP; some I even would describe as completely intimidated by the FOP and overly concerned with “keeping the peace” with the FOP because of the FOP’s access to the County Executive and members of the County Council.

Former Baltimore Police Commissioner Batts refused to appear in Annapolis this spring to testify in support of changes to the LEOBR requested by Mayor Rawlings-Blake.  According to reports in The Baltimore Sun Mr. Batts’ reticence to support changes in the law surprised some legislators because Mr. Batts had made public comments about having his “hands tied” where discipline is concerned.  Instead of going to Annapolis to testify Mr. Batts sent an email to the members of the BPD assuring them that he would not support changes to the LEOBR. If Mr. Batts was worried that his support of changes to the LEOBR would result in a threatened “no confidence” vote by the FOP he would not have been the first head of a police department to back down in the face of a confrontation with the union.

The decision to terminate or even suspend an officer often is a controversial one, and I believe that many police chiefs are just as happy that they do not have to take full responsibility as the decision makers.  Not being the primary decider makes it less likely that a chief will become a target for retribution by the FOP for a disciplinary action with which the FOP disagrees.  The problem of course is that this arrangement violates the fundamental proposition that unless a police chief is given adequate authority to maintain the discipline of his or department, he or she lacks control over that discipline and cannot reasonably be held accountable when discipline breaks down.

The commentary written by Karl Bickel that appeared in The Sun on August 26, 2015 illustrates the mindset that the advocates for reform of the LEOBR are up against.  Mr. Bickel, most recently an unsuccessful candidate for Sheriff of Frederick County, argued that the LEOBR is not a problem, and that attempts to reform it result in antagonism between police officers and their elected leaders.  He stated that the LEOBR in its current form works well and that attempts to reform it do no more than upset police officers and result in “further widening the gulf between police and the communities they serve.”

As indicated in my own op-ed piece that appeared on August 18, 2015 I agree with everything said by Mr. Bickel except for his conclusion that the LEOBR does not need to be changed and his assertion that efforts to reform the LEOBR somehow are worsening the broken relationships between police officers and the communities they serve.  He is correct that the problem is broader than the LEOBR and includes the “us vs. them” culture, a culture that has as elements the blue wall of silence and the perception among officers that different rules apply to their actions.  I doubt, however, that a change in culture will occur until there is a functional disciplinary system and a paradigm shift in the manner in which police discipline is addressed.  Not every bad cop will respond to the improved training and tactics and better leadership advocated by Mr. Bickel.

Under the current paradigm, police chiefs fear the collective disapproval of their officers through the FOP more than the officers fear the disapproval of their conduct by the police chiefs.  That is a backward situation, and a recipe for the loss of discipline.   When management is afraid of organized labor it is organized labor that controls the “culture” of the workforce.

Finally, State and local elected officials must accept full responsibility for the nature of the disciplinary system administered by police chiefs, and not allow it to be bargained away or shaped by some labor arbitrator.  There are plenty of proper subjects for collective bargaining, but a police chief’s responsibility for the conduct of his or her officers and the manner of maintaining police discipline is not one of them.

The Baltimore City Police Department is in deep trouble, and the removal of Anthony Batts as Police Commissioner is not nearly enough to save it.  The Department of Justice cannot save it nor can the Police Executive Research Forum, whose assistance Mr. Batts sought before being fired.  The FOP wants to save the Baltimore City Police Department but only on its own terms, and is more a part of the problem than it is of the solution.  The Mayor and City Council want to save the department, but they have no idea how.

The challenges faced by the department are daunting.  There is a skyrocketing murder rate and the department is trying to solve and prevent crime in a city awash in handguns and drugs and beset by chronic unemployment, single parent families, grinding poverty, and violent gangs while lurching from one philosophy of policing to the next and finding itself increasingly alienated from the citizens that it is supposed to serve.  The broken relationship between the Police Department and the citizens never will be repaired until the Commissioner and his or her commanders have the power to get rid of officers who do not want it to be repaired.

Attempts by Mr. Batts to change the culture of the department and to get rid of bad officers were hindered by a trade union mentality among officers fostered by a Law Enforcement Officers’ Bill of Rights (LEOBR) that makes it more difficult to discipline a police officer in Maryland than almost anywhere else in the nation.  Any effort by the department to police itself confronts the only barrier that is more impenetrable than the stop snitchin’ mentality on the streets of Baltimore, which is the blue wall of silence within City police stations.

Just how far off the rails the department has gone was illustrated by the story reported in The Sun of the bicyclist who had been robbed of his bicycle and then was turned away at the door of a police station by an officer because the station was “closed” for the evening. Another officer later explained to him that stations closed at night for the safety of the officers inside.  The closure policy was immediately reversed by department leadership, perhaps concerned by the image of officers barricading themselves in their stations while crime victims quaked in fear outside.

The relationship with the community is not the only thing that has suffered.  It was reasonably clear in April that planning for the possibility of civil disorder in the City had taken a back seat to other priorities, but it was confirmed by an article that appeared in Bethesda Magazine on June 11^th.   The Assistant Chief of the Montgomery County Police Department told the magazine that which Mayor Rawlings-Blake and Mr. Batts only later admitted:  The Baltimore City Police Department was unprepared for the April riots.  The lack of adequate equipment, including full-length shields and body armor, was so severe that properly-equipped Montgomery County officers who came to Baltimore to help had to take over the front lines from their Baltimore City counterparts.  Even then, Montgomery County officers could not use the tear gas that may have helped disperse the rioters because the Baltimore City officers alongside them did not have gas masks.

On June 30^th Mr. Batts lamented to The Sun that he lacked sufficient officers to control the rioters, and that he got only 200 of the 1,000 additional police officers that he had requested from other Maryland jurisdictions before the protests turned violent.  Mayor Rawlings-Blake has never explained her delay in requesting that National Guard troops be called in to support her shorthanded police force other than to state that she did not wish to “over-militarize” the situation.  On July 1^st she did acknowledge that City officers lacked adequate riot gear, including shields and body armor.

In other words, when the violence erupted on the day of Freddie Gray’s funeral both the Mayor and the Commissioner knew or should have known that they were not prepared to stop the looting and burning of their city.  They knew they had too few police officers, and many of those that they did have lacked adequate riot gear.  The Mayor was unwilling to bolster that police presence with members of the Maryland National Guard.

By the time Freddie Gray died it was too late to begin preparing for civil disorder.   When was the last time that City and State officials participated in a tabletop exercise intended to evaluate the adequacy of policies, plans and procedures for quelling riots in the City of Baltimore?  And if one was not done after the Ferguson, Missouri riots in August of 2014, why not?  Was it because no one thought similar riots could occur in Baltimore?

This is no time for politics as usual.  City and State leaders, including the Governor, the Speaker of the House of Delegates, and the President of the Senate, need to work in concert to identify what is wrong with the Baltimore City Police Department and what is needed to fix it.  Small, incremental changes will not be sufficient; it is too late for that, and the reform needs to be led from Annapolis.

The General Assembly did not turn control of the Baltimore City Police Department over to the Mayor and City Council of Baltimore until 1978, and it may be necessary to take some of the control back, at least for now.  The Mayor and City Council have not exactly covered themselves in glory by their actions and, more importantly, many of the changes needed, including reform of the LEOBR, must come from the General Assembly.  It will only be when the Governor and General Assembly accept some ownership of the problems with the Baltimore City Police Department that they are likely to do what is necessary to fix them.

July 6, 2015

On July 1, 2015 the Capital Gazette published an editorial entitled “Police misconduct info should be public.”  The Letter to the Editor from me to which the editorial referred appears below:

Dear Mr. Hutzell:

It is not particularly unusual that I find myself in agreement with the dissenting opinion in a decision by the Maryland Court of Appeals, and I again find myself in that position in the case of Maryland Department of State Police vs. Dashiell.  As reported by The Capital, the Court of Appeals held in that case that records of an internal investigation pertaining to the sustained violation of administrative rules by a police officer were “personnel records” protected from public disclosure under the Maryland Public Information Act.

I agree with the dissent that the majority took an unnecessarily expansive view of the definition of “personnel records” that must be kept secret from the public.  Accepting as we must that the majority’s view is the correct interpretation of the law, the law must be changed to allow the disclosure of sustained complaints of the use of excessive force by police officers.

The fact that citizens need to be vigilant about the manner in which the discipline and professional conduct of their police force is maintained no longer should be in dispute.  This is true even for the best of police departments, such as the Anne Arundel County Police Department.  It takes only a handful of rotten apples to spoil the barrel, and to do so very quickly.  It is difficult, however, for citizens to be vigilant about problems that are hidden from them.

On the same day that The Capital reported the Dashiell decision it reported that the Anne Arundel County Police Department disclosed that 25 of the 78 complaints investigated by the Internal Affairs Section in 2014 (32%) were sustained.  Of the 78 complaints investigated 31 involved allegations of excessive force.  The information published by the Police Department does not indicate how many of the 31 complaints of excessive force were sustained.

The Capital also reported that in 2014 force was used against 198 people arising from 141 separate incidents involving the Police Department.  In that context, 31 complaints that the force used was excessive is not an insignificant number.  The public deserves detailed information on how many of those complaints were sustained, and on the facts and outcomes of the sustained complaints.  Absent this information there is no way for the public to evaluate how effectively a Police Chief is maintaining the discipline of the department.

Because of the unique nature of their jobs police officers have been given protection from unfounded disciplinary action not enjoyed by any other governmental employees in the form of the Law Enforcement Officers’ Bill of Rights; it is not easy to discipline a police officer.  The other side of the same coin is that sustained complaints of excessive force by police officers should be disclosed to the public.  The consequences of a government clerk or laborer reporting late to work are one thing, the consequences of a police officer using excessive force are quite another.

Police officers in Maryland cannot have it both ways.  They cannot demand one of the most protective Law Enforcement Officers’ Bill of Rights in the nation and also expect to prevent the public from gaining knowledge of their use of excessive force if complaints are sustained.   Are officers who use excessive force going to be embarrassed by public disclosure?  Yes, although that is not the purpose of disclosure.  The purpose of disclosure lies in the greater good, which is the public accountability of police officers, and Police Chiefs, for the manner in which force is used against citizens.

Sincerely,

David A. Plymyer

July 1, 2015

I am a fan of soccer (football, as it is known to most of the rest of the world) and any time that I despair at the level of corruption and ordinary incompetence in government in this country I turn my attention to the world governing body of soccer, the Fédération Internationale de Football Association (FIFA), to place things in perspective.  I sent the letter below to the London Sunday Telegraph after Sepp Blatter resigned as president of FIFA in the face of overwhelming evidence that he had presided for years over a systemically corrupt organization. I do not know if the letter was published.   

Dear Sir/Madam:

The resignation of Sepp Blatter as President of FIFA affords the member associations of FIFA the opportunity to adopt systemic reforms.  Without systemic reforms the likelihood of permanently reducing the level of corruption in FIFA is negligible.

First and foremost, the regulatory and administrative functions of FIFA must be separated completely from the financial assistance programs, and given discrete governance structures.  Although the selection of tournament sites and sponsors has been vulnerable to bribes, kickbacks and other forms of corruption, it has been Blatter’s control of project and program funding that has allowed him to remain in power.

Able to reward his friends and punish his enemies, Blatter retained the loyalty of a coalition of associations that benefited from his favor.  It is neither a secret nor a coincidence that this coalition consisted mostly of associations in countries in which corruption is endemic.  Consequently, it would have been against Blatter’s personal interest to move aggressively against corruption anywhere in FIFA:  He would have been biting the hand that fed him.

At the same time there must be a review of FIFA’s wealth-distribution role.  Does FIFA’s program serve as a cost-effective means of building pitches and other football infrastructure in developing nations, or is it more effective at putting money in the hands of corrupt association leaders and their cronies?  No one would argue against the principle that developing nations should get a disproportionate amount of the financial assistance.  It also is correct, however, that even good governmental agencies and NGOs struggle to deliver financial assistance of the type given by FIFA (money for programs, projects, and facilities) to developing countries without having the majority of the money skimmed by and lost to corrupt officials and government functionaries.

On the regulatory and administrative side of the organization there must be rigorous financial disclosure requirements in place for FIFA officials in a position to vote on or influence the selection of tournament sites and approve contracts with sponsors and broadcasters.  Although it may offend FIFA’s finally-tuned sense of political correctness, it also may be necessary to withdraw some power from those developing nations that contribute little to global football in terms of financial investment and support.  Having poor countries participate in decisions for which they have no real skin in the game is an invitation to bribery.  What in theory is a democracy in practice becomes a kleptocracy.

Finally, there has to be a Board of Governors on the regulatory and administrative side with real power independent of the chief executive.  Membership on the Board should be weighted with members from traditional football countries with a history of responsible stewardship of the game.  Again, member associations have a choice between being realistic and being politically-correct.  Would the founders of any rational organization want to turn control of their organization over to officers and governors with no history of success in the organization’s enterprise?

FIFA is in need of fundamental reform.  Absent such reform, any abatement of corruption will only be temporary.

Sincerely,

/s/

David A. Plymyer

The phenomenon of the self-radicalized jihadist or home-grown terrorist who launches an attack on his or her own society cannot be understood if viewed solely as a problem with the Islamic faith.  It must be seen in its social context if is to be combated successfully, and the key to that context is that in the minds of these terrorists they are attacking not their own society, but a society that is hostile to them.

Indeed, the semantic debate over whether the terrorists who murdered the Charlie Hebdo cartoonists in Paris properly are referred to as “Islamic terrorists” or “radical Islamists” misses the point entirely.  As profiles of the terrorists emerge, they fit a pattern.  The terrorists did not grow up as particularly devout Muslims.  They “found religion” for the same reason that many people find religion:  To give meaning to lives that they found empty and meaningless.  The terrorists turned to jihad to find purposes in their lives that otherwise were absent.

There is a profound and well-documented disaffection from French society of a significant number of French citizens of North African descent.  As long as that alienation continues France will remain fertile ground for the recruitment of terrorists from this group.

As it happens, the consequences of such disaffection in a society were best described by a French sociologist, Emil Durkheim.  The signs and symptoms of what he described as a state of “anomie” are unmistakable.  With the sense that French society in general has rejected them, these unemployed, hopeless, and angry young men and women are drawn to an ideology that allows them to attack that society without remorse.  Attempts by Muslim clerics to persuade these terrorists that this ideology is contrary to Islam will fall on deaf ears because the terrorists simply do not care.

France and much of the rest of Europe were well ahead of the United States in relations among the races before the middle of the 20th Century.  Discrimination and the denial of opportunity for black Americans eventually were confronted, sometimes violently, but progress was made.  The United States, however, had an advantage not enjoyed by France.

Although Americans tend to identify certain social values as distinctly American, most tend not to suffer from the conceit that there is a singular or superior “American” culture.  As various immigrant groups arrived and were assimilated, bits and pieces of their own cultures were added to the American culture, changing and enriching it.

It was another Frenchman, Alexis de Tocqueville, who first described an egalitarian quality to American culture not present in France.  The various waves of immigrants were both allowed and encouraged to assimilate, although not always without some initial resistance from those already here, and assimilation did not mean abandoning the immigrants’ own religious beliefs and customs.

In the United States, many African-Americans may not feel like full members of American society.  In France, however, too many citizens of African descent do not feel like they are French at all.  In that context, Islam is less attractive as a belief system than as a justification for violence against French society.  It is even more attractive to second-generation immigrants, who view themselves as trapped in an unwelcoming society that they did not choose.

Terrorism has no single cause nor is every terrorist who murders in the name of Allah from the margins of society.  As the late Professor Donald Flaherty of Dickinson College was prone to point out, reality is multi-faceted but issues tend to polarize.  If the discussion about terrorism continues to polarize along religious lines we may lose sight of the reality that the main bulwark against home-grown terrorism in the United States is the acceptance and assimilation of immigrants into American society regardless of their race, religion, or ethnicity.

It is easy to blame mainstream Muslims for not speaking out against the misuse of Islam by these self-radicalized jihadists, and it does seem that Muslims across the globe react more strongly to offensive cartoons than to the senseless murder of innocent people.  The reality, however, is more complicated and the solutions include attention to the manner in which immigrant groups are treated within a society.

January 27, 2015