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Op-ed

Maryland’s pending police reform measures ‘hinder accountability’ | COMMENTARY

Police reform legislation passed by the General Assembly, among other measures, sets limits on when police can use force against people and establishes a police disciplinary process with more civilian involvement.

Law enforcement agencies in Maryland were busy this summer hard at work not improving public safety but trying to implement legislation passed this year that has been touted as “police reform.” This is a herculean task, and working through these proposals has revealed with clarity the significant legal and practical problems presented by these new laws. Two of the most troubling new laws are House Bill 670 and Senate Bill 71. These measures are ill-advised, poorly drafted, detrimental to public safety and they will hinder accountability.

House Bill 670 purports to create a more transparent and efficient police disciplinary process by repealing and replacing the Law Enforcement Officers Bill of Rights. But the new law is so complicated and burdensome that it will paralyze the police internal disciplinary process and provide little protection to officers who may be falsely accused. Even more critically, it vests in citizens key decision-making concerning the discipline and discharge of police officers and takes that authority away from police chiefs, sheriffs and government leaders.

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While it is beneficial for citizens to participate in their government in an advisory capacity, it is undemocratic to give them unfettered decision-making authority. These citizens were not elected by the people to run the government, and under this law, are not even appointed by or accountable to any government official. House Bill 670 goes too far in ceding government responsibility to unelected citizens.

For instance, the law requires that jurisdiction-wide administrative charging committees, comprised solely of citizens, review every police internal investigation from every agency in the region and determine whether the officer should be subject to discipline and what level of discipline. This process adds a new and unnecessary level of bureaucracy and inefficiency to investigations of officer misconduct and leaves critical decision-making to persons who do not have the essential knowledge and experience of policing. No other profession in the state is overseen solely by people without experience in the profession — not medical boards, not home improvement commissions, not attorney misconduct panels.

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Moreover, there is no way to hold a charging committee accountable for its decisions. Its members report to no one, are not supervised by any government official and are not subject to government work standards and ethics codes. They are free agents, free to exercise unfettered discretion that may or may not benefit the community and the law enforcement agency. By the same token, should a committee fail to administratively charge an officer whom the chief of police opines needs discipline or termination from employment, the chief cannot take any action and the errant officer must remain employed.

The members of these charging committees are selected by a county (or city) accountability board, another entity comprised of only citizens. There is no requirement that the charging committee include any representatives from local jurisdictions. Thus, a charging committee for Montgomery County may be tasked with reviewing a police internal investigation for possible charges for, say, the Takoma Park Police Department and it is unlikely that a citizen from Takoma Park is on the committee. Thus, that community has no say in its police administration — it is subject to the whims of whomever serves on the committee. This is why, under the Maryland State Constitution, it is debatable whether a countywide charging committee can have legal authority over a municipal agency. Similarly, it is questionable whether the statewide charging committee can have authority over sheriffs, who are independently elected state officials.

The additional procedural requirements beyond the charging committee are muddled at best and will be difficult to implement. First, trial board members (also citizens) must be recruited, vetted and trained. Second, the bill requires that one member be an administrative law judge or retired court judge, who will need to be hired and trained, assuming any are willing to do this work. Such professionals do not work without compensation, adding greater expense to the process. Third, it is not even clear how and when an officer is entitled to request a hearing before a trial board. Fourth, there are no protocols or investigatory powers provided for internal investigations and no specification of who issues the final decision.

This system creates a bureaucratic process that is complicated, expensive and unfair. It will not serve either communities or officers in achieving the goals of fair and efficient discipline. The bureaucracy improperly invests in county governments regulatory power over towns, cities and villages, and State agencies with that power exercised by unelected citizens whose interests may differ from that of the electorate.

Senate Bill 71 is another “police reform” law that is deeply flawed and potentially detrimental to public safety. This new law seeks to define the limits of a police officer’s authority to use physical force in the course of his duties. The restrictions imposed by this new statute directly conflict with well-established Supreme Court precedent and will certainly create safety risks for officers and for the community.

Law enforcement officers are permitted to use physical restraint when enforcing the law. The Fourth Amendment to the United States Constitution requires that police use of force be reasonable. In the seminal case of Graham v. Connor, the Supreme Court held that determining the “reasonableness” of a seizure requires a careful balancing of the nature and quality of the force used against the government enforcement objective that is at stake.

In evaluating this balance, the Supreme Court wisely recognized that when a police officer uses force on a suspect, the use of force must be evaluated from the perspective of a reasonable officer on the scene at the moment the force is used, rather than with the 20/20 vision of hindsight. The court held that allowance must be made for the fact that “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain and rapidly evolving — about the amount of force … in a particular situation.”

Thus, when judging whether an officer’s use of force was reasonable under the law, courts must consider innumerable factors that differ in each situation. “Necessity” and “proportionality” to the objective may be just two of the relevant factors. But because of the infinite variety of situations faced by law enforcement officers, there can be no statutory definition that would capture all the factors that form the basis of reasonableness.

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S.B. 71 seeks to limit force to that which is “necessary and proportional.” But this standard does not take into account how rapidly a dangerous situation may change and how officers must react in a split-second to a volatile situation, often where the officer fears for his or her life, or the lives of others. Further, the law fails to consider the realities of potential deadly encounters that an officer may have with a suspect and the limits of the officer’s human performance under stress.

When an officer is called on to use force, the circumstances are chaotic, unpredictable and influenced by numerous factors, such as body size, weather and lighting conditions, intoxication of the subject, if weapons are displayed and so on. An officer’s neurological and physical abilities are stressed to the limit in this scenario, and to expect detached reflection as to what someone else may later view as not necessary or not proportional is simply unrealistic, unfair and dangerous.

Under this law, a Maryland police officer could be charged criminally if he uses force in good faith and without malice to protect himself or others, if a judge or jury later decides that use of force was not necessary or proportional. This means that they will be evaluating the officer’s conduct in hindsight, in the calm atmosphere of a courtroom and not under the dangerous circumstances actually faced by the officer. This standard places the officer in the untenable position of choosing either to refrain from using force and facing injury or death, or being sent to jail because the new law allows others to second-guess his critical decision-making — even if he makes a mere human mistake while doing a dangerous job.

This law will encourage suspects to resist arrest and, so, compel an officer to use force in the hopes that criminal charges against the suspect will be dropped and imposed instead on the officer, as well as to seek damages in a lawsuit. These outcomes are harmful to community safety and taxpayer dollars.

This use of force statute is an affront to our police officers, will create dangerous conditions both for them and for the citizens they protect and is bad public policy.

These difficult statutes are slated to become effective on July 1, 2022. The General Assembly must act during its 2022 Session to correct these misguided laws.

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Karen J. Kruger (kkruger@kjkesquire.com) has served as a police legal adviser for nearly 30 years and has work with State, county and municipal law enforcement agencies across Maryland.


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