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ACLU challenges FOP lawsuit attempting to limit civilian review board access to files

Baltimore police
(Karl Merton Ferron / Baltimore Sun)

The American Civil Liberties Union of Maryland is challenging a lawsuit brought by the Baltimore police union to block a civilian review board from examining police disciplinary records.

In a brief filed in Baltimore Circuit Court this week, the ACLU and the Baltimore Campaign for Justice, Safety, and Jobs call the suit "a transparent attempt by the [Fraternal Order of Police] to shut down any possibility of civilian oversight of police in Maryland."

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"I hear a lot of rhetoric about transparency and accountability from the FOP," said David Rocah, senior staff attorney for the ACLU of Maryland. "But it is beyond insulting to say you are for that and file a lawsuit about this."

He said the suit shows "how institutionally averse the police union is to the most minimal standards of accountability and transparency. It shows a level of contempt that is breathtaking in scope."

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The FOP referred a request for comment Thursday to its attorney, who did not respond.

The civilian review board was established by the Maryland General Assembly in the late 1990s to investigate complaints against Baltimore police officers.

The board has limited powers, and its recommendations can be overridden by the police commissioner, which some observers have said made it ineffectual.

The FOP complaint was filed in March by Gene S. Ryan, president of the Fraternal Order of Police Lodge No. 3, and Detective Kimberly M. Starr. Starr is being investigated by the Baltimore Police Department's internal affairs division.

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Starr's attorney, Michael E. Davey, learned that certain personnel records were being sent to the review board, Ryan and Starr said in the complaint. Those records include unredacted information on hiring, promotions, discipline and past administrative violations, which they say violates the Maryland Public Information Act. They say the law does not permit the release of personnel records.

By releasing internal affairs records to the review board, the FOP says, the Police Department is violating the Law Enforcement Officers' Bill of Rights, which precludes officers from being investigated "by anyone who is not a sworn law enforcement officer," the attorney general or a designee of the attorney general.

"The Department, by delivering [internal affairs records] to the [civilian review board], fosters an unwarranted invasion of the Plaintiffs' and all accused Officers' personal privacy," they wrote.

They name the Baltimore Police Department and Commissioner Kevin Davis as defendants. A Police Department spokesman declined to comment, citing the pending litigation.

Kisha A. Brown, who heads the civilian review board, did not respond to a request for comment Thursday.

City Solicitor George Nilson said Thursday that he doesn't think the FOP will win its lawsuit.

"We don't think it has merit," he said.

The ACLU filed its brief Tuesday in support of the Police Department's motion in May to dismiss the suit. The Police Department said plaintiffs "essentially request this Court to invalidate the statute which established the CRB (effectively abolishing the CRB) and prohibit the BPD from complying with that statute."

The Police Department argued in its motion that it is required to provide the review board with its investigative records, and that doing so does not violate the Law Enforcement Officers' Bill of Rights. The department said the board isn't involved in investigations or interrogations of accused officers, and does not have the authority to discipline officers.

Rocah said the argument that sharing records with the board violates the Law Enforcement Officers' Bill of Rights was frivolous "because it relies on a provision in the LEOBR that applies only to 'investigations by a law enforcement agency,' and the CRB is obviously not a law enforcement agency."

The Police Department argued that sharing the information with the civilian review board does not violate the state's public records law because the board is required by law to keep records confidential.

Some city leaders have expressed interest in increasing the review board's authority. The FOP has opposed the effort.

The FOP is negotiating a new labor contract with city leaders, and some social justice advocates have pushed for adding civilian members to the Police Department's trial boards, a separate internal disciplinary process. The state FOP opposes that effort.

Officers can request a trial board to contest the findings of an internal affairs investigation and the discipline recommended.

The General Assembly approved legislation this year to allow local governments to add specially trained civilians to the trial boards. But in some jurisdictions, including Baltimore, adding civilians is subject to approval by the police union.

The state FOP argued against changing the makeup of the police boards, saying the panels review internal matters that require specialized knowledge about policing.

Baltimore Sun reporter Catherine Rentz contributed to this article.

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