Shortly after the death of Freddie Gray drew national attention to Baltimore and the strained relationship between local residents and police, the Maryland General Assembly established a task force to study ways to improve police accountability and transparency.
The General Assembly’s Public Safety and Policing Work Group recently completed work on two proposals to reform state oversight of police operations, including recruitment, training, as well as the use of civilian videos in officer misconduct cases.
But criminal justice–reform advocates argue that the work group’s proposals do not address the most important reform that needs to be made—giving civilians a meaningful role in police brutality investigations. Instead, advocates fear that state legislators may be ceding even more powers to the Maryland Fraternal Order of Police, a union that represents more than 20,000 active and retired officers in the state.
The Maryland debate is just one example of a larger shift taking place in the national debate about police brutality. While some reformers have focused on measures that would enhance the public image of law enforcement agencies, others are turning their attention to the internal procedures of police departments.
Police unions are under increased scrutiny as these battles unfold. Once an unassailable presence in law enforcement circles, a growing number of reformers argue that police unions do more than protect officer rights; they use state-mandated officer protections to shield officers from disciplinary actions or civil and criminal prosecution.
In Maryland, reformers are particularly concerned about the lack of substantive changes to the state’s Law Enforcement Officers’ Bill of Rights, a 42-year-old slate of protections that applies to local police, state troopers, and other law enforcement officers. The law, advocates argue, gives officers certain procedural advantages over civilians in misconduct cases and relies heavily on internal policies that have largely escaped public notice.
Under current state law, only law enforcement officers can interrogate other officers and serve on the hearing boards that review misconduct cases and recommend disciplinary actions. Some activists say that this practice blocks accountability. “The [officers’ bill of rights] creates cultures of silence,” says Lawrence Grandpre, research director for Leaders of a Beautiful Struggle, a Baltimore think tank that wants civilians brought into the mix.
The work group’s proposals would reduce the amount of time that an officer has to secure legal representation from ten days to five days; give residents about a year to file police brutality complaints, up from 90 days; and remove the requirement that complaints be notarized before they can be investigated by a law enforcement agency, which can deter some people from filing complaints.
Civilians who receive training on the officers’ bill of rights provisions and police departments’ internal disciplinary procedures would be able to participate in officer hearing boards for non-brutality misconduct cases. The proposals would also open hearing boards to the public.
But the legislation does not allow civilians to participate in more serious cases involving excessive force or brutality. Instead, the proposals would establish a separate hearing-board framework for brutality cases and would allow the accused officer to select some of the people who would oversee the case. Hearing board members would also be subject to certain provisions in union collective-bargaining agreements that stipulate that if an officer and police department leaders cannot agree on who should be appointed to hear a brutality case, the matter would be turned over to a union-approved outside arbiter. That arbiter would have the final say in the case.
“You’re giving control over the [administrative hearing] process to the Fraternal Order of Police, the organization whose goal is to defend its officers,” says Sara Love, the public policy director for the American Civil Liberties Union of Maryland. “It undoes every other positive thing that this bill does, because it ensures that officers will not be disciplined.”
After the U.S. Supreme Court ruled in Garrity v. New Jersey (1967) and Gardner v. Broderick (1968) that law enforcement officers have the right to be free from self-incrimination, the Maryland Law Enforcement Officers’ Bill of Rights was enacted in the early 1970s as a way to codify specific legal protections available to officers. Other states quickly followed suit in the 1980s and 1990s.
Currently, there are more than a dozen states that have adopted some version of a law enforcement officers’ bill of rights. Samuel Walker, a University of Nebraska Omaha criminologist, says that officers’ bills of rights and police union contracts work in tandem to shield officers from accountability by embedding protections at the state and municipal level.
“What is difficult is [that] the terms of the Baltimore police union contract are also in the state law,” says Walker. “[The officers’ bill of rights] makes it hard to change [police union] contracts.”
The Maryland Fraternal Order of Police has vigorously opposed attempts to reform the bill of rights. At a February hearing before the House Judiciary Committee, union representatives told state lawmakers that most civilians do not have a deep enough understanding of police work and so cannot serve as effective decision-makers in disciplinary proceedings.
The union also opposed the plan to open up officer hearings to the public, saying that it would give victims the ability to gather information that could be used in a civil lawsuit and would compromise the safety of undercover officers who might be required to testify in certain cases.
Attorney Frank Boston III, a law enforcement lobbyist who works for the Maryland Fraternal Order of Police, was blunt. “We stand here today to tell you that there is no problem,” he told state lawmakers. “The [bill of rights] works, has worked, continues to work.”
Critics say that civilian participation in disciplinary hearings does not necessarily improve accountability. But a 2015 U.S. Department of Justice assessment of the use of deadly force by the Philadelphia Police Department recommended that the city police force work with an external review agency to investigate shootings of unarmed civilians by officers. Federal officials argued that civilian engagement in the process would increase public faith in the department.
“We are asking for basic best practices when it comes to police accountability,” says Grandpre. “The one group that is not being respected in this process are the people that have the most to lose.”
The legislative task force has been quick to respond to these concerns. At a recent Senate Judicial Proceedings Committee hearing, State Senator Catherine Pugh, co-chair of the policing work group, said that she wants to remove the provision creating a separate hearing board structure for brutality cases.
Maryland State Delegate Jill Carter, a Baltimore Democrat, has introduced a separate police reform bill that would permit residents from an accused officer’s patrol area to sit on the hearing boards. “Police work for the people and thus, should serve at the pleasure of the people,” Carter said in a statement provided to the Prospect. “There should be zero tolerance for any abuse of that privilege or the responsibility to serve and protect.”
The Maryland push to add civilians to officer hearing boards is influenced by broader concerns about transparency in a state that has seen several incidents of excessive use of force by police officers. In a 2015 study, the ACLU of Maryland found that from 2010 to 2014, 109 people died in encounters with police officers throughout the state: 41 percent of them were unarmed. A Baltimore Sun investigation found that Baltimore has paid $5.7 million since 2011 to settle more than 100 lawsuits alleging police brutality, false arrest, and false imprisonment.
“We need to restore a balance so that officers are reined in,” says Love of the ACLU. “Given the powers of law enforcement, they should be subject to scrutiny by the civilians they protect.”
The Maryland Fraternal Order of Police did not respond to multiple requests for comment.