Ever Ready. Ever Faithful. Ever on the Watch.

How will the DOJ report impact criminal law in Baltimore?

Published in 2017 Maryland Super Lawyers — January 2017

On Aug. 10, 2016, the DOJ concluded, in a 163-page report, that there is reasonable cause to believe that the Baltimore Police Department engaged in a pattern or practice of conduct that violates the Constitution or federal law, including: making unconstitutional stops, searches and arrests; using enforcement strategies that produce severe and unjustified disparities in the rates of stops, searches, and arrests of African-Americans; using excessive force; and retaliating against people engaging in constitutionally protected expression. 

The report, the product of a 14-month investigation, indicates that policies fail to equip officers with the tools they need to police effectively and within the bounds of the federal law. 

A day before the report came out, Baltimore and the DOJ entered into an “agreement in principal” to defer the filing of a lawsuit by the DOJ against Baltimore. In essence, Baltimore agreed to work with the Justice Department’s civil rights division to fix the BPD, ultimately to define a set of best practices, implement effective and constitutional policing and improve police-community relations. (This isn’t anything new. Currently more than 20 cities have entered into consent decrees or “memos of understanding” with the DOJ, usually under threat of civil rights lawsuits.) 

What effect will the DOJ’s report have on the practice of criminal law in Baltimore? As to each individual case, not a whole lot. The terms of the consent decree can be enforced, like any other court order, by contempt citations for noncompliance. But this does not mean that cases that may have violated an individual’s constitutional rights will automatically be dismissed. 

However, I believe the report will have some influence on criminal law in Baltimore: 

The Baltimore City State’s Attorney’s Office will now have to take a closer look at cases where a stop or search or arrest is indicated and determine if it was unconstitutional, or if there was an issue with racial profiling before taking it to trial.

Individuals charged with crimes can claim that their constitutional rights have been violated and these allegations will have to be taken seriously in light of the DOJ report. 

Criminal defense attorneys will have printed copies of the DOJ report and refer to it at hearings and trials as evidence of the BPD’s consistent and rampant violations of the city’s residents’ constitutional rights. This will give defense attorneys something to argue when the facts and the law are against them in a case. Like the old quote by Carl Sandburg, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” Now Baltimore criminal defense attorneys can hold the report and yell like hell. 

 

Is the DOJ report, and the resultant consent decree, enough to protect the constitutional and civil rights of the citizens of Baltimore? In my opinion, the answer is a resounding no. For there to be a true turnaround in Baltimore, three things have to happen: 

The police will need to be better trained to know when they are violating someone’s rights; that they can’t violate someone’s rights; that if they do violate someone’s rights, they will not only be disciplined but educated, too. A fundamental and working knowledge of what a police officer can and cannot do during a confrontation will go a long way to ensure that citizens’ rights are protected. 

There needs to be trust between the police and those they are policing. The only way that can happen is if the police and the people of Baltimore engage in honest, open and continuous discussions about what’s happening in the streets. 

There needs to be a system adopted that can identify when—and if—someone’s rights were violated. As they say, video doesn’t lie. On May 1, 2016, the BPD put into effect a body camera program that started with 500 officers receiving cameras. The BPD will deploy the cameras in five stages, with the goal of equipping all 2,500 officers by January 2018. In my opinion, the body cameras will have a greater impact on how the BPD polices its citizens than the DOJ report will. 

The Baltimore City Police Department’s motto is, “Ever Ready. Ever Faithful. Ever on the Watch,” which is ironic as they are now the ones who are going to be watched.

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