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Proposed LEOBR changes ineffective

Departments should be allowed to suspend officers without pay when they are charged with certain misdemeanors, not just felonies (5).
Departments should be allowed to suspend officers without pay when they are charged with certain misdemeanors, not just felonies (5). (Amy Davis / Baltimore Sun)

As state lawmakers consider reforms to Maryland's Law Enforcement Officer's Bill of Rights (LEOBR) this legislative session, they should be aware that several of the recommendations put forth by a Maryland task force last month would do nothing to ensure bad cops are fired expeditiously.

Before I get into them, a reminder on LEOBR: It addresses internal investigations related to an officer's employment, not outside criminal investigations into allegedly illegal behavior. An officer being interrogated after being arrested has the same legal protections afforded by the Constitution and Supreme Court decisions as anyone else — Miranda warnings, for example. Nothing more, nothing less.

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Among the nearly two dozen changes recommended for LEOBR this year, is reducing to five days the 10-day grace period an officer accused of wrongdoing has to obtain a lawyer before being interviewed regarding the allegations. This change will do nothing to meaningfully expedite an internal investigation, which shouldn't have to rely on an officer's statement to proceed, anyhow. Any half decent internal investigation should in many cases be able to sustain or dismiss as unfounded an allegation without an officer's statement.

I personally investigated and supervised allegations of discourtesy and excessive force when serving in the former Internal Investigation Division within the Baltimore City Police Department. Accused officers were the last to be interviewed — by design. Once signed statements from the accuser and all credible independent witnesses who could be identified were reviewed, the investigation was essentially complete and the "truth" known. Even if accused officers could possibly conspire with each other to "get their stories straight," it wouldn't matter. And officers acquitted in court of criminal behavior can still be held professionally liable for misconduct in accordance with the results of the internal police investigation.

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Furthermore, if an officer is ordered to give a statement under threat of professional punishment, it cannot be used against him or her in a potential criminal case (should the officer refuse to comply, he or she can request a trial board to protest any disciplinary action).

Another proposed change is extending the time a citizen has to make a "brutality" complaint from 90 days to one year. This seems counterproductive to a timely, fair and objective investigation. (Do you want a possibly violent officer on active duty for an additional nine months?) Still, any allegation of excessive force, regardless of time lapsed, should be investigated to the extent possible even if the complaint is nullified by the statute of limitations, which probably should be eliminated. Such an investigatory exercise, even if an unsustained conclusion is rendered, might be revelatory about specific officer conduct, and community relations could be enhanced.

A better change would be to replace the word "brutality" with "excessive force" in LEOBR. Brutality is savagely physical, violent, inhuman behavior against another human being. However, the legal test for excessive use of force, according to a 1989 Supreme Court ruling, is whether the police officer "reasonably" believed that the force used was "necessary" to accomplish a legitimate goal. If the force is deemed unnecessary or unreasonable and the goal is deemed illegitimate, you have unjustifiable force and a possible crime. This is the issue. Using the word brutality to describe illegitimate force is hyperbolic.

An audit conducted in 2014 of the internal investigation process found a flawed protocol demanding reforms. This is where the focus should be, at least relative to the Baltimore Police Department (BPD), where allegations of criminal conduct by officers prompted amendments of LEOBR. Any changes to LEOBR affect all other Maryland law enforcement agencies, not just the BPD.

For the BPD, all that is possibly needed is the elimination of various internal investigatory processes and a renegotiation of certain collective bargaining agreements that prevent expeditious and timely completion of misconduct investigations.

Jim Giza (jggiza@aol.com) is a retired Baltimore Police Department sergeant.

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