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DOJ commits to Baltimore police reform regardless of 'political winds'; city promises to pay

Department of Justice Attorney General Loretta Lynch announced that the DOJ and Baltimore City has reach a consent decree agreement. (Kevin Richardson/Baltimore Sun video)

Despite a change in administration in Washington, the U.S. Department of Justice assured a federal judge Wednesday that it remains fully committed to the sweeping police reforms in the consent decree the city agreed to under the Obama administration.

"It endures across shifting political winds," said Timothy Mygatt, the department's deputy chief of special litigation for civil rights. "It allows there to be surety for all parties involved that there's going to be consistency."

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Mayor Catherine Pugh and top attorneys for the city and the Police Department said they were equally dedicated to the deal, despite the potentially high cost.

"I'm really confident that we'll be able to get this done," Pugh said. "I want to get this signed so we can move forward."

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The sides spoke during a three-hour hearing before U.S. District Judge James K. Bredar at the federal courthouse in Baltimore.

Bredar's questions reflected concerns from reform advocates that the administration of President Donald Trump or the city would try to back out of the deal.

The judge said the court does not "operate on a four-year cycle," but on long-standing laws, and that he would be hesitant to issue a court order approving the deal without commitments from both parties to seeing it through.

Bredar sought to clarify the role of the court in the process.

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He had asked both parties to come to the hearing prepared to discuss the cost of the consent decree, when and how they expect it to be implemented, the roles they see the court and the public playing, and how it relates to the collective bargaining agreement between the department and its officers and to established legal precedent on policing.

"I want to make sure those lines are crystal clear before we launch into this marriage," he said.

Later, he said there was a problem with the marriage analogy: once the consent decree is signed, there is "no opportunity for divorce."

The consent decree follows a lengthy investigation by the Justice Department into police practices in the city.

Investigators found last year that officers routinely violated residents' constitutional rights, particularly in poor, predominantly black neighborhoods; used excessive force; mistreated protesters, youths and those with mental disabilities; and dismissed sexual assault complaints improperly, among other failings.

The consent decree, filed jointly by the Justice Department and the city as a proposed settlement, calls for sweeping changes in how officers engage with individuals on the street, exercise their authority and are trained.

On Jan. 20, the day of Trump's inauguration, Justice Department lawyers sought and were granted a delay of the hearing for more time to brief "new leadership."

Attorney General Loretta Lynch left office with President Barack Obama. On Monday, Trump fired acting Attorney General Sally Yates, an Obama holdover, after she instructed Justice Department attorneys not to defend his order to suspend refugee admissions and ban all arrivals from seven mostly Muslim nations for 90 days.

While the sides met in Baltimore, a key Senate committee voted Wednesday to send the nomination of Sen. Jeff Sessions to serve as attorney general to the full Senate.

Jonathan Smith, a former chief of special litigation in the Justice Department's civil rights division under Obama, said the department's continuing support for the process in court Wednesday was a "fantastic" sign for advocates of reform.

"This would have been the moment in time for them to express any change of view," Smith said.

David Rocah, a senior attorney with the ACLU of Maryland, was also encouraged.

"It's clear the judge was seeking on-the-record commitments from both DOJ and the city — the DOJ given the change in administration, and the city given the scope of the undertaking," he said. "Having those commitments on the record from both is important."

Rocah said Bredar was also "clarifying on the record the scope of his authority under the consent decree, so that there cannot later be complaints about activist judges exceeding their authority in holding the parties to the agreement that they made."

Mygatt and attorneys for the city and the Police Department — including David Ralph, the acting city solicitor, and Glenn Marrow, chief of the Police Department's legal affairs division — appeared to be in lockstep as they answered a series of questions from Bredar.

The sides spent months negotiating the agreement, and repeatedly noted the collaborative nature of that work in court.

Ralph said "financial feasibility was paramount" to the city throughout the negotiations, and is baked into the agreement.

Throughout the implementation of the deal, he said, there may be times when the city disagrees with the Justice Department and the yet-to-be-selected federal monitor over costs — particularly if it believes it is being forced to purchase "the Cadillac" version of equipment when a cheaper, equally sufficient version is available.

Still, he said, the city will honor any decision the judge makes on what it has to do.

Specific costs were not outlined, and the parties did not provide deadlines for when changes would be made. Mygatt said those details would be decided after a monitor is selected to oversee the implementation of the deal.

Bredar asked whether the consent decree goes beyond established legal precedents, including as they relate to officers' authority to stop individuals on the street.

Mygatt, Ralph and Marrow said the consent decree holds officers to a strict interpretation of those standards — in part so the Police Department can "protect its officers from walking right up to that constitutional line," Mygatt said.

For instance, officers might be within their rights to stop a person in a high-crime area who runs unprovoked, but officers in Baltimore will have to consider additional factors. Is the person a youth? Do they have a mental disability?

The consent decree would place additional restrictions on stopping people for minor crimes such as trespassing and loitering, they said.

Bredar asked about the recommendation in the consent decree that civilians be allowed to serve on police trial boards that review officer misconduct. The collective bargaining agreement bars such civilian participation.

Bredar asked whether the consent decree would supersede the union contract. Ralph and Mygatt agreed that it would not, but Ralph said the city is prioritizing removing the provision preventing such civilian participation in current negotiations with the union.

Mygatt said the Justice Department would not consider the city to be in violation of the consent decree if it failed to remove that language, but would if it agreed to any new collective bargaining provisions that conflict with the consent decree.

Bredar asked both parties whether allowing the public to submit comments on the consent decree would mean they suddenly have standing in the case.

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Both said no, but that public input should be collected and used by the judge to inform his own determinations in the case.

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Bredar agreed, and said he intends to allow written comments by the public and schedule a public hearing. He said he would meet with the parties in private to determine how and when that would occur.

There was only one aspect of the consent decree — access to individual officers' disciplinary records — on which the parties did not appear in agreement.

City attorney Suzanne Sangree said that state law defines such files as personnel records that are not to be divulged.

Mygatt said the Justice Department would need access to those records to assess trends, and assumed the consent decree, as an order of the court, would allow for the records to be shared with the Justice Department and the monitor.

Bredar said there needed to be more clarity on the issue. He gave the parties until Feb. 10 to submit a supplement to the agreement to better outline how the sharing process would work.

Rocah, of the ACLU, said the exchange showed the "absurdity" of Maryland law treating disciplinary records as personnel records exempt from public records laws, an issue lawmakers in Annapolis also are trying to change.

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