Stop demanding the impossible of police

A former Baltimore cop turned lawyer says the city has problems policing because we demand the impossible.

The events surrounding Freddie Gray's death all but shattered what remained of Baltimore's confidence in its police department. The department's relationship with the community did not break down overnight. It eroded gradually, as a result of overzealous police tactics that left many residents feeling oppressed by those sworn to protect them. Before attending law school, I spent three years as a Baltimore patrol officer and saw the troubling effects of those practices firsthand. Why do officers use methods that alienate and offend the communities they serve? In large part, the answer is because the public majority pressures them to do so. Elected officials, supported by voters, require police to shoulder an impossible burden — they must not only respond to crimes as they occur but prevent crime from happening in the first place. But in an effort to prevent crime, the police employ aggressive tactics that may do more harm than good.

We can no longer afford to turn a blind eye to the way that our demands shape officer actions. To meaningfully improve police/community relations, we have to change what we expect officers to do.

Most Baltimore residents, city politicians included, consider it normal to praise the police commissioner when the crime rate goes down and criticize him when it goes up. Subordinate police commanders, appointed by the commissioner, know that their job security depends upon their ability to prevent crime — especially violent crime. Absent considerable luck, however, it is impossible for cops to intercept criminals just before they strike. As a result, commanders pressure their officers to prevent violence indirectly, either by arresting potential perpetrators for gun or drug offenses, or by controlling the very movements of suspected criminals, such that they do not have the opportunity to do harm. Officers are told to generate enforcement statistics (primarily by making arrests) and to keep their designated patrol areas "under control." Constantly making arrests and controlling their assigned beats, however, requires officers to use precisely the tactics that so many Baltimore residents find offensive.

Finding guns and drugs is difficult work, and sometimes officers engage in practices that go beyond what the law allows. The most irresponsible officers stop and search people without any legal justification at all. Sometimes they target known gang members and drug dealers, but at other times they target whoever (in the officers' imperfect if not biased judgment) looks like they're "up to no good" — usually groups of younger men hanging out on the corners or walking down the street.

Other cops follow the letter of the law, but their tactics nonetheless strike many as unfair. For example, both the U.S. Supreme Court and Maryland courts have held that police have the authority to chase and briefly detain someone who flees upon sight of an officer in a high crime area. The police do this regularly, as they did in Freddie Gray's case. Another common practice is to approach pedestrians, pepper them with questions, and request consent to search. The courts deem these encounters consensual (and therefore legal) because the citizens are technically free to say "no" and leave. In reality, most people are intimidated and don't feel they have any choice but to let the officers search them.

Another common (and perfectly legal) tactic is to use minor traffic violations as a pretext for uncovering serious crime. There are so many traffic offenses on the books that officers have their pick of petty violations to use in order to stop any driver they deem suspicious. They can then peer into the cars and look for contraband or request consent to search. The cops get lucky occasionally, but mostly, the practice alarms and annoys innocent motorists and results in class and racial profiling.

When it comes to maintaining order, as a lieutenant once explained to me, police commanders believe that by keeping people from hanging around or congregating on the streets, they can quash squabbles and keep known enemies from crossing paths, thereby preventing violence. Cops are constantly pressured to "clear the corners." From their time in the academy, officers are told that when they order people hanging out on the corners to disperse, there must be consequences for non-compliance.

But standing on the corner isn't a crime, so cops get creative. Those who defy the police are often arrested for any crime the officers can find. Sometimes the arrests are for legitimate but petty offenses, such as public drinking. At other times, as the ongoing Department of Justice investigation will likely reveal, officers make arrests for minor offenses even though the elements of the crimes aren't really met. Charges for loitering, disorderly conduct and trespassing, for example, are sometimes immediately dismissed because prosecutors find that the defendants' conduct did not merit such charges.

While the public is right to demand accountability for individual officers who commit misconduct, we should be careful not to demonize these officers. The pressure that encourages cops to engage in these practices is constant, and civilians aren't the only ones who resent it. I remember, on one occasion, several of my colleagues bristling when a district commander instructed officers to stop "every person who is walking" in a particular high crime area. Another colleague was banished to an unfavorable detail because she went a whole month without arresting someone. And it is not lost on Baltimore police officers that their tactics disproportionately affect lower-income African-Americans. Police commanders' belief in violent crime prevention at all costs means that officers are deployed heavily — and told to be most aggressive — in the poor, black neighborhoods where crime rates are the highest.

We can do better, and almost everyone believes that we should. Many of Baltimore's rank-and-file officers are just as ready for change as the public is. We should start with the following reforms:

•Overhaul performance metrics. Stop judging officers by the number of arrests they make and the quantity of guns and drugs they seize. Give officers more time to investigate crimes against persons and property. Credit them for assisting detectives with investigations of serious felonies, or for working the minor cases for which they are the sole investigators. Additionally, judge officers by how competently they handle calls for service, and by their efforts to build relationships with community members and learn of concerns. Lastly, judge the success of the police department as a whole not by the city's crime rate, but by the department's record for solving crimes and the public's level of satisfaction with the service it receives from officers.

•End pretextual traffic stops and consent searches. Instruct officers to enforce traffic laws only when faced with an immediate safety concern such as a drunk or erratic driver. Red light and speed cameras (despite their flaws) are better mechanisms for fairly enforcing the traffic code. Cops should also cease routinely asking motorists and pedestrians for consent to search.

•Suspend street-level enforcement units. Stop the use of specialized units, usually consisting of plainclothes officers, dedicated to searching the streets for people carrying guns and dealing drugs. These crews, sometimes called "knockers" or "jump-outs," make regular use of aggressive police tactics. Those officers should be assigned to the overburdened patrol division or to the backlogged detective units that investigate crimes against persons and property. Drug enforcement should be narrowly focused — aimed at dismantling criminal organizations that are known to be violent or at providing support to proven interventions such as Ceasefire, which uses prior notice of targeted enforcement, community engagement and social service support to convince violent criminals to alter their lifestyles.

•Curtail order-maintenance enforcement. When officers are on patrol, they should focus on monitoring for crimes against persons and property and should investigate victimless public-order crimes only when prompted to do so by a citizen complaint. When officers arrest people for these crimes, such as misdemeanor drug possession or loitering, the department should post the arrest reports online, so the public can scrutinize how the officers exercised their discretion.

These reforms would provide the public, as well as rank-and-file officers, with much-needed relief. This is not to suggest that individual officers should not be held accountable for wrongdoing. Robust, impartial investigations into police misconduct, along with the arrival of body cameras, are important parts of the solution to the current crisis. But real change won't occur unless Baltimore's political leaders move to end overly aggressive policing. This will not be an easy change to make. These tactics do, to some extent, quell violence and deter crime. But the benefits of these practices are not worth the costs to individual privacy and liberty. Moreover, regaining the public's trust will be a more effective long-term crime prevention strategy than the current approach. With renewed public confidence, we can expect to see crime rates decrease as communities lend much-needed support to a police agency that they trust. The mayor and City Council should call for these reforms and start Baltimore down the road to meaningful change.

Adam Braskich is a graduate of Harvard Law School and an attorney at Miller & Chevalier, a Washington, D.C. law firm. He served as a Baltimore police officer from 2007-2011. His email address is abraskich@jd14.law.harvard.edu.

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