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BPD violates the Constitution and federal law, DOJ finds

Mayor Stephanie Rawlings-Blake and Baltimore Police Commissioner Kevin Davis respond to the Department of Justice report.
Mayor Stephanie Rawlings-Blake and Baltimore Police Commissioner Kevin Davis respond to the Department of Justice report. (Kim Hairston / Baltimore Sun)

The Department of Justice released its 163-page report on Baltimore policing last week. It is arguably the most damning of the 67 produced so far in cities and towns around the country. Dense with anecdotes and heavy with statistics, it relentlessly documents the lived terror and humiliation of thousands of Baltimore residents—mainly African-Americans who live in the city's poorest neighborhoods.

As is the DOJ's practice, it does not name victims or perpetrators. It just establishes, as the law says, "a pattern or practice"—and the report documents so many allegations of misconduct, excessive force, racism, and incompetence that it is difficult to parse.

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City officials say they welcome the report and the chance to reform the approximately 3,000-member police department. "Much work remains to be done, and change will not happen overnight," Mayor Stephanie Rawlings-Blake said at a press conference after the report was unveiled. "But our efforts have started the necessary process of change and reform in Baltimore."

She and Commissioner Kevin Davis say they intend to work with the Department of Justice to craft a court-enforceable consent decree , a process that will take months. The DOJ praises the cooperation it has gotten so far from the Baltimore Police. But the details in the report hint at difficulties investigators encountered getting documents—"BPD was never able to find and produce case files for all deadly force investigations from this time period" and was "unable to locate the files for twenty firearms discharges from the time period," the DOJ complained—and seem almost crafted to generate lasting outrage.

"One officer informed us that she stops and disperses youth standing on sidewalks because 'it looks bad,'" the report recounts. "The same officer, while responding to a call about a gang fight, stopped to engage an African-American man and his four-year-old son who were sitting on a fence by a playground where the young boy had been playing. The officer told them that they 'couldn't just stand around' and 'needed to move.'"

"A 2011 complaint described an incident in which two white officers told an African-American man who had double-parked his car and was blocking the street to 'move this car, n****r!' The man was double-parked in order to assist his aunt into her home in Northeast Baltimore and was not charged with any offense. The man's complaint—the one complaint BPD correctly categorized as a 'racial slur' in the more than six years of data we examined—was assigned to be investigated at the command level and administratively closed six months later. The file BPD provided has no record of the investigation or any attempt to identify the officers involved."

"In sum," the report concludes, "BPD's stops, searches, and arrests disproportionately impact African-Americans and predominantly African-American neighborhoods and cannot be explained by population patterns, crime rates, or other race-neutral factors."

Davis says he is already implementing solutions which are estimated to cost $10 million a year. Much of the focus is on training to undo a culture built around the so-called "zero-tolerance" policing that peaked more than a decade ago, when the department made up to 100,000 arrests annually.

Recent years have seen more like 40,000 arrests, but there are still many civil rights violations, the DOJ concludes. Everyone involved seems to agree.

The report reads: "During our investigation, one of BPD's top officials told us that 'stop and frisk killed the hopes and dreams of entire communities.' The City's and BPD's recognition that its zero tolerance policing strategy has had a significant, unwarranted impact on Baltimore's African-American communities has led to recent changes in the Department, including implementing the 'Fair and Impartial Policing' policy in 2015, and efforts to improve its collection of data on its enforcement activities. We commend the City and BPD for these efforts."

That said, the data DOJ did get from the police was consistently weak or nonexistent. The report says thousands of citations—the one-page forms police are supposed to give to anyone they interrogate on the street—did not exist. The department could not even show the DOJ reports for every use of deadly force by police between 2010 and 2016. Considering it took BPD more than a year to provide some of the material DOJ requested, the report authors understated the failure as "quite concerning." Some of the use-of-force records DOJ did examine were incomplete, providing "too little information about the circumstances surrounding the use of force to allow our team and experts to determine whether the force was reasonable."

Still, the DOJ concluded that, in many cases, the officer escalated benign encounters into violent arrests.

One example in the report mentions a call someone made to the police regarding a naked man standing in the street "speaking in religious verses and arguing with himself." Believing that the man was mentally ill, the police decided to take him to a hospital for evaluation. "There is no indication in the reports that the officers sought to have 'Christopher' go with them voluntarily, and instead they sought to place him in handcuffs, even though he was not under arrest." Nine officers were on the scene to cuff the man who police say then became "aggressive and violent." Instead of trying to verbally calm the man or de-escalate the situation, the transport driver "drive-stunned" the man with a taser several times, landing him in the emergency room. The DOJ notes that the man "had not committed any violent offense, and presented no immediate physical danger to the officers or the public at large." It goes on to state that in many instances "officers have failed to distinguish between people in crisis who are being escorted to the hospital for treatment, and people who have committed crimes and are being placed under arrest."

Further, "the fault for officers' systemic use of these heavy-handed tactics lies with BPD as an agency. Through training used for many years—some of which is ongoing—BPD teaches officers to use aggressive tactics," the report says, including pointing a gun to control a crowd, behavior that is highly dangerous at best and would be criminal in any other context.

Even the Fraternal Order of Police has criticized the "zero tolerance" strategy, linking it to the department's dependence on statistics tracked by the department's vaunted Comstat system to drive police careers. "Comstat numbers drive everything in BPD, which has led to misplaced priorities," the union said in a 2012 report, in which it begged (in vain) for policy reforms. "As a result, officers in the BPD feel pressure to achieve numbers for perception's sake," and "[t]he focus on assigning blame for less-than-satisfactory numbers during Comstat, rather than problem-solving, is completely unproductive and weakens the collective morale of the BPD."

Davis promises better training. This is in the tradition of Baltimore Police Commissioners.

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At a hearing about illegal arrests in January 2006, then-Baltimore Police Commissioner Leonard Hamm told state legislators that police were even then undergoing intensive training in the Fourth and Fifth amendments of the U.S. Constitution from lawyers with the Attorney General's and State's Attorney's offices. "We're going to reorder our priorities," he said.

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Del. Nathaniel Oaks then asked Hamm to define the Fifth Amendment. Hamm got it wrong.

The American Civil Liberties Union's Maryland chapter sued over the department's practices that same year. They won a settlement and an outside monitor in 2010. David Rocah, the ACLU of Maryland's senior staff attorney, says the number of unconstitutional arrests dropped significantly after the lawsuit. "But the intent, at least from our end, of the reforms of the settlement agreement in our lawsuit was to stop the pattern of illegal arrests for petty offenses that are documented in the DOJ's findings letter. And in that we did not succeed."

The DOJ's focus on training and the department's culture is right, Rocah says, and illustrates the difficulty of reform. "As we have seen not just from the DOJ letter but from the detailed testimony in the Freddie Gray trials, there is a culture within the BPD of completely ignoring both training and policy, which has been condoned at the highest levels," he says. "It's worth remembering that in the Freddie Gray trials you had current high-level BPD officials saying mandatory policies don't really mean what they say if an officer thinks there's a good reason to ignore it.

"The DOJ had access to records we did not," he continues. "When they document supervisors repeatedly signing off on incident reports and charging documents that are facially unconstitutional…it's the sergeants and lieutenants who are reading those. And if they're not on board, then you're at some level pissing in the wind."

Anthony Barksdale, who came through the ranks in the 2000s commanding a special squad of officers that focused on violent offenders, and served as interim commissioner, agrees with this part of the report.

"When I was deputy [commissioner], chief of legal was Mark Grimes (he got crucified for Comstat later)," Barksdale writes in an email to City Paper. "He started constitutional training; what you can do and what you can't do. And I remember the cops in training saying, 'Oh, we can't do anything now!' And Mark saying: 'This [Constitutionally-legitimate action] is solid, everything else is not.'

"And some got it. And so whoever did get it, it was a win. The rest didn't. You can't give up on them, you have to keep training."

Police do follow orders and training, Barksdale says, if the commanders show they are serious: "When cops are told, 'If you do this dumb shit, you're gonna get burned,' they'll knock it off completely. But—have you ever heard of upward discipline? This is a thing in the military, where the guys at the bottom know that if they do certain things, they can fuck-up the guys at the top."

Barksdale, who is African-American, questioned some of the anecdotes in the report, and the focus on race. A poster the DOJ cited, in which the Violent Crime Impact Division, his old squad, was pictured leading a man away and captioned "VCID: Striking fear into loiters [sic] City-wide" was meant to insult the VCID, not praise it. "They're saying they make poor cases," he says. "The best cases in the city from 2007-2012 came from VCID. The homicide and shootings went down because of their deployment and relationships with other detectives. They're determined to blame VCID but I ask you to look at the city without them."

People in communities have long complained about this unit, which has gone by several names but is often called "the jump-out boys." Barksdale says the recent iteration of the squad is not as effective because it no longer reliably targets the right people.

He said targeting violent people in the violent places is depicted as racially-biased policing in the DOJ report, mainly because of misunderstandings. "What the DOJ didn't do is overlay the crime map on those stop maps," he says.

But a DOJ spokesman counters that, saying that the department did absolutely correct for crime rates.

Citing an anecdote in the report in which a district shift commander told the patrol officers to "lock up all the black hoodies," Barksdale says the DOJ interpreted this as a racist reference to the young black men who hung out on corners and missed the real meaning. "In cop talk, I know that means, 'Look for the guys wearing black hoodies, because we've had those guys wearing that doing crimes,'" he says.

"Black hoodies," of course, are ubiquitous. Almost every man under 50 has one, so if police were to round up everyone wearing one, the streets would be nearly empty.

The report puts the "black hoodies" order in the context of clearing corners, a long-standing habit the DOJ says is facially unconstitutional: "Still, many BPD supervisors continue to reinforce zero tolerance enforcement. Officers patrolling predominantly African-American neighborhoods routinely receive orders to 'clear corners' by stopping or arresting African-American youth standing on sidewalks. This practice has continued despite concerns raised by officers themselves, who have told BPD leadership that these actions lack legal justification, are time-consuming, and counterproductive."

To convey the scope of the problem, DOJ draws on a 2014 audit to estimate the BPD "made roughly 412,000 pedestrian stops that year alone…in a city with only 620,000 residents."

"In some cases, [when supervisors] have issued explicitly discriminatory orders, such as directing a shift to arrest 'all the black hoodies' in a neighborhood," officers who pushed back were punished.

"When the sergeant objected and refused to follow this order, she received an 'unsatisfactory' performance evaluation and was transferred to a different unit," the DOJ report noted, referring to a particular instance. "The sergeant filed a successful complaint about her performance evaluation with BPD's Equal Opportunity and Diversity Section, but BPD never took action against the lieutenant for giving the order to target 'black hoodies' for enforcement."

The lack of accountability extends to every level, from small infractions to large. In the department's Internal Affairs files, the DOJ found 6,571 allegations of police officers failing to appear in court to testify in the cases they made. In 1,698 of these cases, there was no disposition, although the investigation had supposedly concluded. The department "administratively closed" another 1,142 of these cases, meaning that in 43 percent of the complaints the department took no action against its officers skipping court. "Without the arresting or witnessing officer's testimony," the report notes, "many of these cases lack adequate evidence to proceed, and are dismissed."

The department's Internal Affairs neglected three times to properly investigate a cop who was having sex with prostitutes in a squad car. The officer—not named in the report—was finally forced to resign this year after another police department investigated him. "It is unclear from BPD's files whether any state authorities were notified of the officer's sexual misconduct," the DOJ report says. "We found other complaints of this nature were also not properly investigated."

The department did sustain charges against officers in one of the 60 allegations of public strip-searches the department received since 2010. Police stopped a woman on North Avenue because her headlight was out, and then ordered her out of the car, ordered her to remove her clothing. "The woman asked the male officer in charge 'I really gotta take all my clothes off?' The male officer replied 'yeah' and ordered a female officer to strip search the woman," the DOJ report recounts. "The female officer then put on purple latex gloves, pulled up the woman's shirt and searched around her bra. Finding no weapons or contraband around the woman's chest, the officer then pulled down the woman's underwear and searched her anal cavity. This search again found no evidence of wrongdoing and the officers released the woman without charges."

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As with others cited in the report, the police officers are not named.

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