Youth-led group march through Baltimore to protest George Floyd's death in Minnesota.
When video of a Baltimore police officer appearing to cough on a woman went viral in April as coronavirus cases spiked across the state, the head of Baltimore’s police oversight board had another reminder of how he and his colleagues are powerless to investigate potential police misconduct.
Melvin Currie, who heads Baltimore’s Civilian Review Board, does not have the authority to launch an investigation without a complaint from a citizen. His board cannot compel an officer to testify. Even if he and his colleagues sustained such a complaint, the police commissioner has no obligation to follow their findings.
“I feel that the police are quite confident that they can police themselves, but have shown time and again they cannot," Currie said. "What does it take for people to say we need oversight by civilians?”
Currie discussed the coughing incident in the context of George Floyd’s death in Minneapolis police custody last month, which led to nationwide protests and demands for police reform. Both incidents, he said, show the need for greater public scrutiny of police.
Several advocates and legislators in Maryland said legislative changes are needed to increase police accountability, transparency and outside oversight if the state is going to enact meaningful reforms. But that won’t be easy, in large part because of a law passed nearly 50 years ago, the Law Enforcement Officers’ Bill of Rights, which critics say goes too far in protecting police officers.
“The biggest thing that needs to happen on police reform is that we need to listen to the people and the communities that are impacted,” said Maryland Sen. Jill P. Carter, who has been advocating for police reforms in the legislature since 2009.
Too often, she said, the legislature follows law enforcement leadership.
“It’s time to reverse that and put the perspective and the need the community first,” Carter said.
Calls for reform are amplified in Baltimore because many advocates say the arrest and death of Freddie Gray in 2015 should have led to widespread reforms but came up short. Ultimately, many efforts failed or were scaled down because of pressure from opposition groups, including law enforcement leadership and unions who testified against reforms at public and legislative hearings at the time.
"The people have an expectation that when bad police behavior is brought to my attention that I will act immediately, and hold people accountable.. Sometimes, I am not able to do that by law.”
Baltimore Police Commissioner Michael Harrison
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Dayvon Love, director of public policy for Leaders of A Beautiful Struggle, a group advocating policing reforms, agreed that five years after Baltimore’s unrest the structural challenges to reforming police remain.
“Law enforcement policies that would really shift the differential are really hard to change,” including the Law Enforcement Officers’ Bill of Rights, which keeps police misconduct records shielded from the public, he said.
But many advocates hope the national momentum following Floyd’s death and two weeks of protest here and around the world will force the Maryland legislature to act.
“The politicians that have blocked policing reforms in the past have no credibility to set the agenda,” said Toni Holness, public policy director for the American Civil Liberties Union of Maryland. “The victims and survivors of police violence, the community and advocates are the ones who will be setting the agenda and deciding what meaningful police reform is.”
“I think what’s changed is the incentive. The community is wising up" and exerting more pressure, he said, noting that the officers in Minneapolis were quickly fired following Floyd’s death, which might not have occurred five years ago.
By contrast, none of the six officers charged criminally in the Freddie Gray incident were ever fired or convicted.
Baltimore Police Commissioner Michael Harrison said if Floyd’s death had occurred in Baltimore, he would not have been able to fire the four officers as the Minneapolis chief did.
"If that were to happen here, I would not be able to terminate the employees,” because of constraints under LEOBR, he said.
“There are changes that I have to advocate for, but it’s not just me. It’s the whole world that’s advocating,” Harrison said. “There has to be changes that not just allow for accountability but transparency. The people have an expectation that when bad police behavior is brought to my attention that I will act immediately, and hold people accountable. Sometimes, I am not able to do that by law.”
“The politicians that have blocked policing reforms in the past have no credibility to set the agenda. The victims and survivors of police violence, the community and advocates are the ones who will be setting the agenda."
The proposals include making complaints against police officers and disciplinary records public when they involve deaths, shootings, sexual assaults, discrimination, dishonesty or improper use of force. Right now, that information is exempt from disclosure under Maryland’s Public Information Act.
Smith’s proposal also calls for allowing “non-law enforcement public officials” to participate in the review of complaints against police officers.
Under the current system, when an officer is accused of misconduct, he or she is investigated by officers from a department’s internal affairs unit, which is separate from a criminal investigation.
If sustained, the investigators — sworn law enforcement officers — recommend potential discipline, which officers and their union can challenge before a trial board. The complainants can attend and are often called to testify against the officer, but they cannot learn the trial board’s decision.
Even if the board decides in favor of discipline, it is only a recommendation, and the police commissioner has the final say.
The Civilian Review Board has even less say in the outcome of cases it reviews, and its investigative tools are much more limited.
For example, the board does not receive information about any officer’s discipline record, because that would violate the Maryland Public Information Act. Releasing internal affairs records to the review board also violates the Law Enforcement Officers’ Bill of Rights, which precludes officers from being investigated by anyone who is not a sworn law enforcement officer.
The Civilian Review Board only has the authority to investigate five types of cases: excessive force, false arrest, false imprisonment, abusive language and harassment. But Currie said the board’s role should be expanded to include all types of cases stemming from interactions with the public.
"The moment an officer engages a citizen in a way that the citizen believes goes off the rails, it becomes what I would call ‘external affairs.’ The CRB should handle all external affairs,” Currie said.
Which brings Currie back to the video of a Baltimore police officer coughing when he was heckled by a citizen at the onset of the coronavirus outbreak.
The sergeant in the video was not formally identified by the department, and if there was any discipline or other action, the results cannot be released.
That lack of transparency in Maryland’s law enforcement system contrasts with what was quickly made available by Minnesota authorities following Floyd’s death. The public was able to learn that the first officer charged in his death had at least 17 complaints against him and that all but one were closed without any finding of responsibility.
The nature of the complaints was not made public, the Minneapolis Star Tribune reported.
“We would like to see more transparency and accountability,” said Maryland Public Defender Paul DeWolfe, whose office led a protest in Baltimore on Monday.
DeWolfe said that internal investigations should be conducted by an outside body, with the findings made public.
He said public defenders are in a unique position because they often have evidence of police misconduct, such as when a police report provides a different explanation of an event than cellphone video or body camera video.
For example, some lawyers had heard complaints from their clients about the corrupt Baltimore Police Gun Trace Task Force for years but couldn’t get concrete information. The scope of the officers’ misconduct only came to light when the group was indicted by federal authorities.
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