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Baltimore Police gives officers mixed reviews for handling First Amendment rights — especially in arrests

Baltimore Police Commissioner Michael Harrison said he is pleased with the way officers conducted themselves during recent public protests, and vowed to improve training and policies on First Amendment issues as part of the federal consent decree.
Baltimore Police Commissioner Michael Harrison said he is pleased with the way officers conducted themselves during recent public protests, and vowed to improve training and policies on First Amendment issues as part of the federal consent decree.(Jerry Jackson/Baltimore Sun)

Baltimore police officers received mixed reviews for their handling of citizens’ First Amendment rights in an inaugural assessment of such interactions under the city’s consent decree with the Justice Department.

Officers performed well at major public protests and in some street encounters, but also made several unjustified arrests and were the subject of at least six related misconduct investigations in the past year, the internal Baltimore Police Department assessment found.

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Reviews of body-camera footage from two large protests — of a proposed police force at Johns Hopkins University in May, and of President Donald Trump’s visit to Baltimore in September — found zero violations of policy related to people exercising their constitutionally-protected freedom of speech and assembly. The report described cordial, by-the-book interactions between officers and protesters.

A separate review of 30 disorderly conduct arrests thought to have a nexus with First Amendment issues found three of the arrests likely represented outright First Amendment violations, while more than a dozen more were deemed “problematic” for other reasons. Of the 30 cases, only two resulted in convictions.

In addition, the assessment noted that at least six internal misconduct investigations had been launched after people complained about officers allegedly violating their free speech rights. The report said the cases remained under investigation and therefore could not be discussed at length, but at least one led to criminal charges against a police sergeant.

The inaugural assessment, conducted by the police department itself, was filed last week in the federal court case governing implementation of the consent decree. The city entered the agreement with the U.S. Department of Justice in 2017 after a federal investigation found a pattern of unconstitutional and discriminatory policing practices — including First Amendment violations — going back years.

Police department officials noted in the review that it was incomplete in part because the agency “does not collect data specific to the exercise of the First Amendment by the public beyond its response to protests," and “protests are only one way people can exercise their First Amendment rights.”

But it broadened the scope of the review by assessing the disorderly conduct arrests and misconduct complaints, and said it “will continue to explore the best ways to evaluate these frequent and varied activities for future analysis.”

Police Commissioner Michael Harrison said in a statement that the department is “committed to protecting the First Amendment rights of everyone we serve,” and that the assessment “represents a step forward for the Department in analyzing operations in this area and identifying opportunities for improvement.”

“I commend our members for protecting First Amendment rights during recent protest situations,” he said. “We will implement new policies and trainings, in addition to other reforms and initiatives reflected in the report, to ensure that we protect these critical rights in our daily operations, as well as rebuild the relationships with the communities.”

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The police union that represents rank-and-file officers did not respond to a request for comment on the report.

The investigation by the Justice Department’s Civil Rights Division that led to the decree started after the death of 25-year-old Freddie Gray from injuries in police custody sparked widespread unrest in 2015.

The investigation found city police violated the First Amendment rights of local residents in a variety of ways, by “retaliating against individuals engaged in constitutionally protected activities,” detaining and arresting people “for engaging in speech the officers perceive to be critical or disrespectful,” and using force against people “who are engaging in protected speech.”

Justice Department officials criticized officers for trying to prevent people from filming interactions with police, which they are allowed to do by law, and criticized the department for failing to provide officers with adequate training on residents’ First Amendment rights.

The latest review includes descriptions of interactions between officers and protesters from more than 40 hours of body-worn camera footage from the Hopkins protests, and less than an hour of footage from the Trump protests. It also includes descriptions of a range of encounters leading to disorderly conduct arrests, while noting that arrests only occurred in a small portion of disorderly calls.

The descriptions reflect the nuance and variety of such encounters — with descriptions of arrested individuals trying to intercede in other arrests, warranting charges against them, but also of people arrested for yelling at officers or using profanity toward them as they walked away, which alone wouldn’t warrant charges, the report found.

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The assessment found some officers did not understand what constitutes probable cause for disorderly arrests, and some submitted poorly written reports.

It gave brief synopses of the six incidents that led to complaints and internal misconduct investigations, several of which had to do with officers confronting individuals recording the police. In one of the incidents, a complainant who recorded an incident in October alleged an officer subsequently assaulted them. In another, a complainant alleged officers confiscated their phone and deleted media off of it.

A third incident, from May 30, is already well known. Sgt. Ethan Newberg was charged with assault, false imprisonment and misconduct after body-camera footage showed him arresting a passerby who had made a comment about police making another detainee sit on a wet sidewalk. Newberg was later charged with 32 additional counts of false imprisonment, assault and misconduct in office after prosecutors reviewed more body-camera footage and uncovered what they described as a “pattern and practice of harassment and intimidation."

Newberg’s attorney has said the officer hopes to be vindicated at trial.

In the assessment, the department wrote that since the consent decree was signed, it worked with Justice officials and members of the public to develop improved policies to ensure residents’ First Amendment rights are not violated.

The department also said it is doing a better job collecting data on such incidents, including through “a misconduct allegation classification system" that identifies and categorizes First Amendment complaints.

“Moving forward," the filing said, "BPD will be able to analyze the full scope of First Amendment related misconduct cases and report on the results annually.”

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