Baltimore police contract hurts accountability, study says

Criminologist is critical of Baltimore's contract with Fraternal Order of Police.

The contract between Baltimore and the Fraternal Order of Police contains several impediments to accountability, according to a report from a criminologist who often examines policies for the U.S. Department of Justice.

In an 11-page report, Samuel Walker, a professor at the University of Nebraska at Omaha, said the role of police union contracts has been ignored amid the nationwide debate and protests that erupted last fall over police and community relations.

Walker said "offensive provisions" in the union contract, a three-year pact expiring next year, violate "best practices" across the country and should be revised to boost professionalism in the Baltimore Police Department.

"In Baltimore, and in other cities and counties across the country, police union contracts contain provisions that impede the effective investigation of reported misconduct and shield officers who are in fact guilty of misconduct from meaningful discipline," Walker wrote.

The report comes as tension swirls around the Police Department in the wake of Freddie Gray's death.

Six officers have been charged in Gray's death from spinal injuries sustained in police custody. Meanwhile, the U.S. Justice Department has opened a civil rights investigation into his death, as well as a broader probe of alleged misconduct in the department.

Among the provisions Walker cited include the "do not call list," the expungement of internal records and the makeup of hearing boards.

The contract states that officers cannot be disciplined if prosecutors place them on the "do not call list" — a list of officers who are not called to testify due to credibility issues. The Maryland Law Enforcement Officers Bill of Rights, which provides procedural protections for officers accused of misconduct, also prohibits officers from being disciplined for being on the list.

"Police officers possess the awesome power to deprive people of their liberty through arrest and to take human life," Walker wrote. "The highest standards of integrity and honesty must be expected of all officers."

Walker said the union contract also allows officers to have unfounded, exonerated or unsustained complaints expunged after three years, violating "new best practices."

The Fraternal Order of Police Lodge 3 declined to comment on Walker's report. In the past, it has said that contract provisions protect officers against frivolous complaints and ensure that they receive due process when being investigated for wrongdoing.

Del. John Cluster, a Baltimore County Republican and retired county police officer, said officers should have the right to expunge unfounded complaints. He compared it to citizens' ability to have criminal records cleared in certain situations.

"If it's unsubstantiated and unfounded, why wouldn't you want to take it off the record?" Cluster said. "If you [as a citizen] get charged with something and you are found not guilty in the court of law, they can expunge that."

Cluster, who opposed changes to the Maryland Law Enforcement Officers Bill of Rights, also took issue with Walker's criticism regarding the "do not call list."

Cluster said that when an officer is placed on the list — commonly known as "the Brady list" after the landmark 1963 U.S. Supreme Court case Brady v. Maryland — their supervisor typically puts them in a job where they won't be required to testify in court.

"They're basically being taken off the streets," he said. "They're not given the premiere jobs in the department anymore, which is the right thing to do. So in essence, they are being disciplined."

The American Civil Liberties Union of Maryland, which has been critical of Baltimore police practices, plans to help disseminate Walker's report across the state.

Police leaders have already made changes that address perceived problems with hearing boards, another issue noted by Walker.

The boards now consist of two command staff members and a lieutenant, instead of a command staff member, a lieutenant and a person of the same rank as the accused. Convictions have increased since leaders made that change, records show.

Walker's report follows Mayor Stephanie Rawlings-Blake's failed efforts this year to change the Law Enforcement Officers Bill of Rights.

Rawlings-Blake asked the General Assembly for legislation that would make it easier to discipline officers. She pressed for a bill that would have created a new felony "misconduct in office" charge for officers, and for another that would have made it easier to discipline officers without them having the right to appeal.

The mayor could not overcome lobbying from the Maryland Fraternal Order of Police and groups representing police chiefs and sheriffs across the state.

General Assembly leaders recently appointed a group to study the issues, but the work has not yet started.

Critics of existing law say it's unfair to allow officers 10 days to remain silent before being questioned about incidents that could lead to discipline.

Police unions have backed such delays, saying they are needed to allow officers to obtain legal advice. Cluster said it is no different than every American's constitutional protection against self-incrimination.

"You have the right immediately when you're locked up as a civilian to not talk," he said. "You have the right to remain silent. You have a right to an attorney. That's given to every citizen when they're charged with something."

Cluster also pointed out that in the Gray case, five of the six officers who were eventually charged spoke with investigators right away.

A spokesman for Rawlings-Blake said she is aware that such legal impediments create an impression that officers receive preferential treatment. The mayor will push for changes again in 2016, spokesman Howard Libit said.

Walker stressed that officers are entitled to due process, but called the delay "unacceptable and unreasonable." It's now a "best practice" in policing to question officers as soon as possible when force is used or suspects receive injuries, Walker said. Delays should occur, though, when an officer is distraught after a shooting, he added.

That practice has been defined in agreements reached between the U.S. Department of Justice and police departments in Los Angeles, New Orleans, Seattle, Albuquerque, N.M., and Portland, Ore.

"In the folklore of contemporary policing there is a widespread joke that the police union representative arrives on the scene before an investigator from internal affairs does," Walker wrote.

As police unions seek protections for officers, city and county leaders often focus on cost-saving measures, not accountability, Walker said.

"But it also involves a concerted effort to educate the mayor of Baltimore about the relevant provisions of the contract and to obtain a commitment to seek removal of the objectionable provisions in the next round of contract negotiations," Walker concluded.

The union contract is a product of many rounds of negotiations, and the city has negotiated some changes to the discipline process, Libit said.

He added, "We will review this report and see whether there are changes we might seek in future contract negotiations."

Baltimore Sun reporter Alison Knezevich contributed to this article.

mpuente@baltsun.com

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