Baltimore Police Commissioner Kevin Davis sent the wrong message last week when he sought to downplay the seriousness of recently released body camera footage showing officers mishandling drug evidence, according to several legal analysts and civil liberties advocates.
They said one video in particular captures serious misconduct — and possibly criminal behavior — whether the officer was “re-creating” a legitimate discovery of drugs, as Davis has suggested might be the case, or planting evidence, as the public defender’s office has alleged.
As such, it should be treated with the utmost seriousness, the analysts and advocates said, particularly given the potential implications in a city where many citizens already are skeptical of police and the cases they bring into court.
“If there is ever a case where we want to send a message of unacceptable behavior, it should be this one, because the entire criminal justice system relies on our being able to rely on the evidence,” said David Jaros, an associate professor of criminal law at the University of Baltimore. “They should be condemning it to high heaven so that every officer knows that that will not be tolerated.”
“The violation was not a mistake. It was deliberate,” said David Rocah, senior staff attorney for the American Civil Liberties Union of Maryland. “And failing to see that and call it that is a fundamental and unforgivable failure of leadership and accountability.”
“Attempting to put out what looks like a pre-emptive excuse doesn't help,” said David Harris, a law professor at the University of Pittsburgh who studies policing. “It’s hurting already.”
The comments are the latest feedback to comments Davis made last week, when he urged members of the public not to rush to judgment after watching body camera videos from drug arrests in November and January..
Davis declined through a spokesman to comment for this article, citing continuing investigations into the videos.
The public defender’s office released footage last month in the January arrest, alleging it shows an officer planting drugs while two other officers look on. In the video, a police officer can be seen placing alleged drugs in a trash-strewn backyard, walking to the street, activating his body camera — which automatically retained footage of the 30 seconds before activation — and then returning to the alley and recovering the drugs.
Officer Richard Pinheiro, whose camera was recording and who was handling the alleged drugs, was suspended. Two others, Officers Hovhannes Simonyan and Jamal Brunson, have been placed on administrative duty. The three could not be reached for comment.
The police union, on the officers’ behalf, also has cautioned against a rush to judgment. “Everyone needs to take a deep breath, take a step back, and let the investigation run its course,” said Lt. Gene Ryan, president of Fraternal Order of Police Lodge 3. “It’s a very short video. It doesn’t tell the whole story,” he said.
Last week, a second set of videos, from a drug arrest in November, came to light. The public defender’s office again alleges the videos show drugs being planted. The analysts and advocates say they raise similar concerns to the first.
In those videos, also under investigation, multiple officers are seen searching a car without finding drugs before turning off their cameras without explanation. Later, after turning their cameras back on, an officer leans into the vehicle and almost immediately pulls out a bag of alleged drugs.
The videos in both cases were submitted to the court as evidence, landing in the lap of public defenders through the discovery process without any acknowledgment or notice from police that they were anything other than real-time recordings of the discovery of drugs.
The Baltimore State’s Attorney’s Office dropped drug charges against two men and a woman who had been charged in connection with the videos. State’s Attorney Marilyn J. Mosby said her office also has dropped charges in more than 40 additional criminal cases that relied on the testimony of the officers in the first video, and is reviewing over 50 more. It also has dropped a handful of cases that relied on the testimony of officers in the second set of videos, and postponed a few more.
Davis and Mosby have said they will withhold judgment pending the outcomes of the two investigations. But Davis called a news conference last week to assert that in both cases, drugs were legitimately discovered after probable cause was properly established. He also said Internal Affairs investigators are looking into whether the videos show officers re-creating legitimate drug discoveries that were not properly caught on camera.
“It would be premature of me to stand in front of you and reach a conclusion as to exactly what happened,” Davis said. “But I do know that it’s not healthy to jump to a conclusion that police officers did something criminal.”
Rocah said he believes what was captured on video, even if a re-enactment, is a crime under three different statutes barring the corrupt obstruction of justice, the fabrication of physical evidence, and the creation of a materially false report that a crime has been committed.
He said additional crimes, such as misconduct in office, may also have been committed. And beyond criminal statutes, the officers involved certainly violated administrative rules within the police department, he said.
And he scoffed at comments by Davis and Mosby that the footage indicates “growing pains” the department is experiencing in the rollout of the new body camera technology since last year, calling the phrasing “part of a continuing effort to minimize flagrant misconduct as somehow a failure of training or policy.”
“It shouldn’t take a policy to make clear to an officer that you don’t secretly re-create evidence, and there is nothing difficult to understand or follow about a rule that says you turn the camera on when you’re engaged in any investigative or enforcement activity, and you don’t turn it off until you’re completely done,” Rocah said.
Jaros said he agrees with Rocah that what was captured on video was inexcusable and likely illegal.
Regardless of how officers are trained to use body cameras, they all know the importance of evidence, he said. They are trained extensively on finding it, bagging it, sealing it, labeling it and maintaining a chain of custody for it in every case, he said.
“They know [prosecutors] have to authenticate it, that it has to be the thing that they claim it is,” Jaros said.
With all the questions raised by the body-camera videos, “every prosecutor's ability to put somebody away got dramatically more difficult,” he said.
Harris said the fact that the video was not just created but submitted as evidence in a court case without any warning that it was a re-creation means the police department has a serious problem on its hands.
“If you're going to re-enact something on video, you cannot submit it as evidence of something that actually happened,” Harris said. “That’s just not allowed.”
He said Mosby’s decision to drop dozens of cases linked to the officers in the videos shows the seriousness of what was captured on camera.
“There’s nothing that a prosecutor can do that’s stronger than dropping cases that would otherwise sail through the system, so if she is doing that, she at least realizes that what was on those recordings creates substantial credibility problems,” he said.