Supporters of local control of the Baltimore Police Department agree that the city’s elected officials, not the state’s, should be the ones with the ability to pass laws governing the law enforcement agency.
Exactly where that power begins and ends, though, will likely present a legal gray area for the foreseeable future. Inaction by the Maryland General Assembly has left lingering questions over what constitutes the Baltimore police commissioner’s powers, and how and whether those can be legislated by the City Council.
Could a majority of council members pass a law dictating police deployment, for example? Or on personnel matters within the department? What about restricting the use of body-worn cameras or new rules for the use of facial recognition technology?
The murky status quo has prompted warnings from lawyers about the potential for litigation, and sets up a complex dynamic for the city moving forward. Both the city and some advocates say it may still require action by the General Assembly to resolve.
“I think, at this point, if we got to a point where there was a piece of legislation that we wanted to move and we wanted to include the police department in it, that’s just a decision the council would have to make. If we should be challenged ... so be it,” said Democratic Councilman Mark Conway, chairman of the council’s Public Safety and Government Operations Committee.
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Since a voter-approved charter amendment took effect Jan. 1, local control of the police department has been the law in Baltimore. The amendment ended a more than 160-year span under state control, spurred by the General Assembly’s lack of faith in the ability of the mayor and City Council — controlled by the violent Know-Nothing Party in 1860 — to maintain order.
Almost immediately after the amendment took effect, however, city law officials raised concerns that more language needed to be repealed from the city charter for the mayor and City Council to have complete authority over the department. Bills introduced in the state House of Delegates and state Senate proposed removing a line that prohibits anyone from impeding the powers of the police commissioner, language that attorneys argued left the city open to litigation.
The legislation became mired in arguments about how far the repeal should go. Some legislators were content to cut the line entirely. Others wanted to see certain powers of the commissioner preserved, including management and personnel decisions — language backed by Baltimore Police Commissioner Michael Harrison.
Ultimately, the proposal died last week with the end of the General Assembly session. While the House approved the measure, the Senate never acted.
Now, Baltimore must figure out what that means moving forward. A legal opinion from the city law department found that without the repeal of the language about the commissioner, city lawmakers would be extremely limited in their ability to set policies for the department.
“For the good of the city, the legislation amending Section 27 should reflect the future structure and operations of the department and what functions are subject to legislation as opposed to being under the auspices of the executive authority,” wrote Elena DiPietro, a city solicitor, in a March 6 memo.
A separate legal advisory found that the City Council and mayor have legislative authority over the department, but certain ordinances may open the city to the possibility of being sued.
“A risk exists that someone will challenge a future local ordinance as conflicting, impeding, obstructing, hindering, or interfering with the powers of the police commissioner,” wrote Sandra Benson Brantley, an attorney from the Maryland Attorney General’s Office who works with the General Assembly.
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Baltimore Solicitor Ebony Thompson acknowledged the threat of litigation. That’s why the city plans to push again next year for state legislators to repeal the wording and clarify the council’s powers. Because the repeal would address the “express powers” of the state, only the General Assembly, not voters, could make the switch, she said.
Until then, the city law department believes the City Council can legislate on issues not within the commissioner’s purview.
City code spells out some of the commissioner’s specific powers, but also notes they are not limited to those expressly outlined. Specific powers range from deciding the form and organization of the department to assigning duties to officers and personnel matters, such as determining ranks, regulating attendance, training or discipline, and creating a performance evaluation system.
The code also grants the commissioner the power to “adopt all other reasonable rules, regulations and orders as he may deem necessary” to discharge the agency’s duties. He or she also can “suspend, amend, rescind, abrogate or cancel” any rule or regulation.
Advocates have raised concerns that many things could fall under that umbrella. During a hearing before the House Judiciary Committee in March, David Rocah, a staff attorney for the American Civil Liberties Union of Maryland, argued that the City Council should have authority over certain investigative tactics, such as facial recognition or warrantless searches.
Harrison told members of the committee that he considers body cameras and facial recognition software to be technology or tools rather than strategies or deployment decisions, which are more likely to fall under the commissioner’s powers.
At a panel event at the University of Baltimore earlier this month, Harrison said he’s supportive of local control, but said it shouldn’t mean “the City Council or any other elected official manages the police department.”
The commissioner described that distinction as important for the city to hire and attract leaders to “actually do the job that the police commissioner’s here to do, and not be told through legislation how to deploy, how to create, how to investigate, how to supervise, monitor, promote, demote, fire and discipline.”
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“We’ve been in Baltimore long enough to know that the potential for that always exists,” Harrison said.
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Democratic Councilwoman Odette Ramos, who advocated on the issue for the council, said her concerns about the city’s legal liability depend on what issues the council tries to tackle. The council has been sued before by landlords over eviction legislation, she said. It’s possible others with law enforcement interests, like the city police union, would try to sue over restrictions on police, she said.
“The law department’s job is to let us know what opens us up for liability, and I have no doubt they will do that,” Ramos said. “It’s going to be interesting to see how it plays out. At some point, it’s going to have to be sorted out in the charter.”
Conway called it “disappointing” state lawmakers didn’t make legislative authority over the police department “crystal clear.”
“We need to make it obvious that we have the same authority that the state had. For us to be in limbo of sorts, where I guess technically we have authority ... but we could be sued for pretty much any law that we write on the police department, in my personal opinion, just wasn’t really helpful,” Conway said.
State Del. Caylin Young, a sponsor of one of the bills proposing further refinements to the charter, said he won’t return next session with new legislation. If another member of the city’s delegation wants to take the issue on, the Democrat said he would be supportive — within the parameters he set this year.
“Council is going to have to test the limits on their own on a case-by-case basis,” Young said. “The law department will be there for them, and they have their own general counsel. I think it’s a stretch for it to get challenged in the first place.”