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Civilian overseers of Baltimore police look for a way forward

Civilian overseers of Baltimore police struggle to find its way forward.

Michael Ryan spent 15 years at Baltimore's Civilian Review Board as an investigator charged with looking into resident complaints of misconduct against police officers.

Only Ryan, himself a former city cop, stopped leaving the office about five years ago.

Ryan, now 70, refused to travel to Baltimore's streets to talk to the complainants, seek witnesses or look for evidence because he feared for his safety, and his boss had told him that, as a city-paid employee, he couldn't take his personal gun with him on the job. Ryan, for years the board's sole investigator, retired last year.

Baltimore's board, which investigates complaints of excessive force, abusive language, harassment and false arrest, has long been considered feeble. The Department of Justice concluded in August that the board "has never been provided with adequate authority or resources" as part of a sweeping investigation of the Baltimore Police Department that found civil rights abuses. And the board's recommendations in police discipline cases are routinely disregarded.

From the time the board organized in 1999 until this year, not one police commissioner has ever heeded the board's recommendation to impose tougher discipline on an officer. The board can only recommend sanctions and hope that the commissioner agrees.

"There were some cases where the department might say, 'We've looked at the issues you've raised,'" said Alvin O. Gillard, director of the civilian board from its inception until 2014. "But there was not one instance that I know of where they said, 'You got it right and we got it wrong.'"

Baltimore's board was meant to be a check on police misconduct by providing outside review in addition to the Police Department's Internal Affairs division. The board's mission is critical, Gillard said, because it investigates police encounters, such as traffic stops and arrests, that can lead to allegations of profiling or excessive force and a "break in the trust" between community and police.

Civilian oversight has grown nationwide, as the number of such review boards has increased fivefold since 1990 to more than 200, and police departments are increasingly turning to civilian-led bodies to investigate high-profile misconduct cases.

But those boards have struggled over the years to be relevant, and many — like Baltimore's — have been "rigged to fail," said Udi Ofer, who has researched civilian oversight of police and serves as deputy national political director of the American Civil Liberties Union. Baltimore is "one of the weakest" boards, Ofer said, as it lacks authority to discipline officers, resources to conduct investigations and independence.

For many years, Ryan was the board's only investigator. Even now, it has two investigators, or about one for every 1,300 city police officers. By comparison, similar boards in New York and Washington, have about one detective for every 300 officers.

The board's budget in Baltimore amounts to less than one-tenth of 1 percent of the Police Department's budget, whereas spending for boards in Washington and New York are 10 times that size when compared to their overall police budgets.

A number of efforts are underway to reform the Civilian Review Board here.

The Justice Department, as part of an agreement being negotiated with the city to resolve problems uncovered by federal investigators, is expected to address civilian oversight.

Baltimore City State's Attorney Marilyn Mosby wants to increase the board's power by making it part of a "collaborative team" that also includes her office, Maryland State Police and city police to investigate incidents in which officers use lethal force.

And Kisha Brown, the board's director since last year, has hired more staff, including the second investigator, and sought to raise the board's profile. After her first 100 days on the job, she told Mayor Stephanie Rawlings-Blake the board was akin to a "hot mess" and secured additional funding. She also worked with the Police Department to ensure it shares complaints about officer misconduct with the board, as required by law.

"When I first started, I wanted to shout from the hilltop 'We are here!'" Brown said about her enthusiasm to make a difference. "But then I realized we needed to get our internal house in order."

Some community activists want to bolster the board's authority even further, but many of those changes would require a rewrite of state law and buy-in from the police union, including granting the board's investigators the authority to subpoena the accused officers. They now only have the right to subpoena officers who were witnesses.

And the union recently sued the Civilian Review Board to stop it from examining police disciplinary records. That lawsuit is pending.

More than a year into Brown's new administration, the board's recommendations are still largely disregarded.

Police Commissioner Kevin Davis did agree for the first time this summer to reverse an Internal Affairs finding — that didn't sustain a citizen complaint — based on a recommendation from the Civilian Review Board.

But the complaint was filed by a citizen who didn't know the officer's name, and investigators weren't able to determine the officer's identity, according to Brown and Rodney Hill, chief of the Office of Professional Responsibility within the Baltimore police force. So, in the end, the officer was marked in the case file as "unknown," and no discipline could be meted out.

New York reformed

Three hundred miles north, on the 10th floor of a lower Manhattan skyscraper, is the New York Civilian Complaint Review Board. Like Baltimore's, the agency had been criticized for years as being ineffective.

"For lack of a better word, it was a joke," said Mina Malik, the board's executive director, who took over in January 2015. Its investigations were too long, its staff inexperienced, cases not taken seriously, she said.

After complaints from the public, the board instituted reforms including beefing up staff, sending teams to quickly collect evidence at the scene and taking over the administrative prosecution of disciplinary cases alleging serious misconduct.

Today, the New York board includes 110 investigators, a data team, a policy team, and an operations team that arranges logistics for investigators. The investigators operate in "squads" with managers who work to ensure that the investigations — often done in lieu of internal affairs inquiries — are thorough.

Last year the board created a "field team" that drives to scenes to gather any cellphone video from witnesses or private surveillance footage before it is deleted or recorded over, Malik said. Such video evidence could be key to proving or disproving a civilian's allegations.

The New York board considered video in just 1 percent of cases that closed in 2012. Last year, 12 percent of cases included video.

Investigators who found video were more likely to conclude misconduct did occur. In September 2015, for example, the board upheld more than 50 percent of complaints against police when the evidence included video, compared to 22 percent of cases in which there was none and the testimony often conflicted.

The board's new administrative prosecution unit takes on the most serious administrative misconduct cases against police. These civilian prosecutors prepare and try cases against the officers before an administrative law judge.

Typically, police department lawyers prosecute misconduct cases that can lead to internal discipline or termination. Community activists have criticized this setup, saying it's a conflict of interest.

Malik said the board is now developing better cases this way. In 2012, before the board took over prosecutions, more than 40 percent of cases were dismissed by an administrative judge. That fell to 8 percent in 2014.

At the same time, more officers are going to trial and prosecutors are getting more guilty verdicts. In 2012, four officers stood trial as a result of the civilian board's investigations, of whom three were found guilty. In 2014, 81 went to trial and 49 were found guilty. Many cases aren't disputed — the board sustained about a quarter of complaints last year, and police imposed discipline in the majority of those cases.

In Baltimore, Internal Affairs detectives sustained 8 percent of civilian complaints against officers over more than three years through March 2016. Discipline varies. Many officers were punished with loss of accrued vacation leave or letters of reprimand; they were rarely terminated.

The civilian board's parallel investigations are conducted independently of police.

Baltimore history

Following complaints about police brutality against black residents, Baltimore's Complaint Evaluation Board was created in 1965. Gillard, who worked with the board in the 1980s and 1990s, said that board had no power to conduct independent investigations and no subpoena authority. It could only review civilian complaints and make recommendations to police.

Almost from the start, it was criticized as ineffective.

It was replaced with the Civilian Review Board after another series of police brutality complaints in the late 1990s. The volunteer board includes civilian representatives selected by the mayor and approved by City Council, and it oversees a small paid staff.

In the eyes of civil rights leaders, including Gillard and John B. Ferron, who sat on the Complaint Evaluation Board, efforts at civilian oversight failed for decades.

While most police officers are "good and professional," Ferron said, "the bad eggs have a shield around them."

But the work of the board, which often had vacancies, also has come under fire.

Until recently, the board only sent recommended dispositions to police without explanation, according to Rodney Hill, chief of the Office of Professional Accountability. That could explain, in part, why police ignored the board's recommendations.

Ryan, the investigator and a former vice president of the local police union, said he feels the board fulfilled its mission to oversee police. "I did my investigation and my own recommendation," he said.

But he also said he curtailed his visits to the community, especially when he lost his city-owned vehicle amid cutbacks and had to use his personal car. He worried about not being armed in city neighborhoods and said he feared residents would think he was a police officer, and that would make him a target. He concluded it was too much of a risk.

"I personally feel like for me to go into neighborhoods ... was a lose-lose situation," Ryan said.

Polls show public dissatisfaction with police accountability. A Pew Research Center survey found two years ago that only 30 percent of Americans believed police departments nationwide do an excellent or good job holding police officers accountable when misconduct occurs. The rest believed they do a poor or fair job.

Richard Rosenthal, who has served as an independent monitor of police departments following Justice Department reviews, said the trend has been to outsource police misconduct investigations, especially when the department is "eviscerated" by criticism from the public and federal officials.

"One of the first steps is getting this out of the hands of people who the public don't trust," said Rosenthal, who is working on a Justice Department study of civilian oversight agencies around the world that conduct criminal investigations of police.

The Justice Department, after its civil rights investigation in Baltimore, found that the Police Department lacked adequate civilian oversight and that the disciplinary process lacks transparency.

State legislation enacted this year requires police to be more transparent. The department now must post data about civilian complaints online and open its internal discipline hearings to the public.

Public information varies

New York's civilian board works under similar restrictions as Maryland's, where police discipline records are kept private because of state law. In states such as Florida that have stronger "sunshine" laws, citizens can obtain the internal affairs files related to their complaints. Not so in New York or Maryland.

Nevertheless, while Baltimore's Civilian Review Board has yet to publish a report about its investigations, the review boards in New York and other cities regularly publish more information.

Washington's Office of Police Complaints and San Francisco's Office of Citizen Complaints post complaints online, with the officers' names redacted but including the misconduct allegation summaries and an investigation's conclusion.

New York's civilian board posts statistics online, including monthly, semi-annual and annual reports. A resident can go online to check the status of their complaint, though they can't get the full investigatory report. The board also evaluates police practices, such as stop-and-frisk and chokeholds.

In half of states, police officer names and any history of complaints against them are kept private.

So New York residents have no way of knowing, for example, about any previous complaints against Officer Daniel Pantaleo, who put a chokehold on Eric Garner, a black man, that led to his death in July 2014.

New York's Legal Aid Society is suing the civilian board there to force disclosure of any previous complaints sustained against Pantaleo.

Malik said they are bound by state law. But, she added: "I honestly think that transparency is probably the best course of action, particularly given the way this country is moving and the way this issue is at the national forefront of the conversation."

Gillard said that, for years, the Baltimore Civilian Review Board wasn't able to produce reports because of inadequate funding.

Then in August, under Brown, the board issued a press release announcing its first report. The board had determined that police failed to forward hundreds of civilian complaints. But the news conference and report were canceled, and days later police and the board reached an agreement to ensure that complaints are shared.

Police unions in Maryland and New York have opposed efforts to roll back privacy protections for individual police officers.

Baltimore's Fraternal Order of Police Lodge No. 3 has sued to block the review board from getting any personnel records about hiring, promotions, discipline and past administrative violations. The local union also contends that the Civilian Review Board shouldn't be allowed to investigate police.

"It speaks more than words can about how institutionally averse, at least the police union is, to the most minimal and inadequate standards of accountability and transparency," said David Rocah, staff attorney for the ACLU of Maryland.

The city law department sided with the civilian board in the lawsuit, saying that it does have the legal authority to obtain investigatory and disciplinary records of Baltimore police.

Union President Gene Ryan did not respond to requests for comment. Herb Weiner, the lawyer representing the union on the case, declined to comment.

Changes coming

Brown, the Civilian Review Board's director, notes a number of significant improvements. After her 100-day meeting with Rawlings-Blake, just after riots broke out following the death of Freddie Gray from injuries sustained in police custody, the board's annual budget more than tripled to $556,000.

Brown added a second investigator and a supervisor. The new investigators hit the streets to visit witnesses and collect evidence. And for the first time, the board has begun submitting a written analysis with its findings to police. Brown said they are working on sharing more of their investigative process and outcomes with the public.

"We're actually doing work the law requires us to do," Brown said.

Rawlings-Blake says that under Brown, "we have come a long way in a considerably short amount of time." The mayor said the plan is to provide "greater transparency" while "strengthening trust between the community and law enforcement."

Hill, head of police internal affairs, noted that most of the time the board agrees with police, but said that the law department recently hired a retired judge and certified police expert witness to review the cases in which police investigators sided with the officer but the Civilian Review Board didn't. The expert will review the cases and provide a recommendation to the commissioner, who decides discipline.

"Trained, experienced legal jurists help to show that the department is taking these complaints and investigations very serious," Hill said.

Davis also has scheduled monthly meetings with Brown.

But Brown says more needs to be done. This month she hosted a public workshop with experts of civilian oversight from cities including New Orleans, New York and Washington to have "a conversation about what civilian oversight can look like."

Some changes are expected to be outlined in a consent decree agreement with the Justice Department.

The Civilian Complaint Review Board in Newark, N.J., underwent a major overhaul after a Justice Department investigation there. The new board is appointed not just by city officials but also community groups; it now has authority to discipline officers, and it can subpoena accused officers.

As many of those changes would require changing state law in Maryland — and be fiercely opposed by union officials and others — some community activists in Baltimore are more focused on other ideas.

Some want civilians to be installed on police trial boards that hear cases in which officers appeal disciplinary action. While the state legislature enabled such a change, it still needs to be approved by the Baltimore police union, which has opposed it.

Others are calling for a new oversight group called the "Office of Police Accountability" that would investigate civilian complaints, review internal affairs files, and give input on police budgeting, policies, training and priorities. The idea has been pushed by the No Boundaries Coalition, a West Baltimore community group.

Rebecca Nagle, of the coalition, said the existing Civilian Review Board has been "completely ineffective."

But such an accountability office also would lack disciplinary authority. In fact, only six civilian review boards in he country have such authority, said Ofer, the researcher. Gillard said without that, "we will continue to get what we get."

"In many instances, that's a police department that functions with impunity," he said.

Baltimore Sun researcher Paul McCardell contributed to this article.

crentz@baltsun.com

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