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by Peter Moskos

December 8, 2015

Backdated seatbelt memo?

The Sun on that BPD seat belt policy:
Chief Deputy State's Attorney Michael Schatzow said Porter showed a "callous indifference for life" when he deviated from department policies. Defense attorneys have said other police officers routinely break such policies, but Schatzow said those officers should not be considered "reasonable."
What's interesting is that the "new" policy, says the department, came out on April 3. Yet a source, a person I trust, says that policy didn't actually come out till after Freddie Gray's arrest, on April 12. The department backdated the memo. I wouldn't put that past them. According to reports, the April 3 memo "went out on April 9, just three days before Porter’s encounter with Gray in Sandtown-Winchester." Wouldn't that be convenient. But it was never read in roll call. Nobody seems to have seen it until after Freddie Gray died. There should at least be an email trail, that 80 page attachment. When did that arrive in the in-boxes?

Of course even if there were no 2015 update, the 1999 memo should still be in effect. Or maybe there was another update in policy between 1999 and 2015? I don't know. How could anybody know? The whole damn system is messed up. I suspect the department didn't know about the 1999 memo and assumed the 1997 policy was still valid. (Which I can't find but nobody seems to doubt.)

So it's possible that in 2015 somebody in the Baltimore City Police Department backdated a new policy to screw the officers involved in the death of Freddie Gray, unaware that the policy they were updating was actually identical to what the new memo said. (The 2015 memo might say the year of the policy it is updating, right? I'd be curious to see it.)

Either way, based on 1999 general orders or 2015 policy, all prisoners should be seatbelted. And also no police officer: "while riding gratis on any type of public conveyance, [is] permitted to be seated while other passengers are standing." One questions at hand (the other is about delayed medical care) is whether violating the seat belt policy can be a crime (because Freddie Grey died) It seems like a reasonable person might have doubts.

6 comments:

fh said...

Prof,
What do you THINK is going to happen; not what you WANT to happen. The prosecution has put a solid case on based on the live tweet reports. You keep on thinking an talking like a West Baltimore BPD FOP member. That is not the jury. Just to give you one example where your viewpoints diverge. You may not be aware of how stark that interior to the van looks - totally unpadded. That's just the way it is as far as you are concerned and no one is going to suggest that luxury transportation is appropriate, but the jury is going to register all those hard surfaces and think, "what, no seatbelt". I bet that's not even on your radar.

Andy D said...

I don't know about Peter, but I think the trial is a total crap-shoot at this point. It depends what issues the defense raises at trial and whether the jury has already made up their mind to an extent that the Defense cannot overcome their pre-formed opinion. I have heard a few legal experts who are watching the trial say that they feel like Porter should have been at most a witness rather than a defendant and that they are surprised that he was charged based on what they have seen so far.

Peter Moskos said...

It's on my radar, certainly. But you need 12 people to convict. I do not think he will be convicted on any felony charges.

But who knows? Not me. Jury trials are always crap shoots. But usually the surprise verdicts are of acquittal. I don't think the jury members went in there with pre-conceived notions of guilt. Certainly not all of them. But who knows?

And the reason nobody should guess with any confidence is not only are we not there, but also the jury actually has to decide on specific legal issues. It's not just "did he do it?" You got your elements of a crime and your parts of the legal code. And in this case they need to be linked. And I think in that linkage a jury is going to have a tough time convicted without reasonable doubt.

And while a Baltimore City jury won't be the most pro-police, there will still be individuals on the jury who give police the benefit of the doubt. One thing Porter has going for him is that he is a local boy made good. All you need is one person saying, "he looks just like my sweet nephew" and the best the prosecution can hope for is a mistrial.

Concerned citizen said...

After viewing a photo of the narrow tunnel-like transport area of the BPD paddy wagon, it doesn't seem reasonable to me that officers are expected to cram themselves in there multiple times a day to place seatbelts on prisoners who may not be a great mood to cooperate.

To those who respond "that's what they're paid to do," I reply that we protect construction workers and other members of the working classes with OSHA regulations to ensure that they aren't subjected to unreasonably unsafe working conditions. To me, getting into a close embrace with an arrestee in order to apply a seat-belt in the tight confines of the BPD wagons constitutes an unsafe working condition.

Concerned citizen said...


The NYTimes reports that Porter testified that he didn't buckle Mr. Gray into the van because the wagon compartment was so tight that it could have put his gun within reach of a prisoner. “I seatbelt people inside my vehicle, my personal cruiser, but never the wagon,” he said

Prof Moskos, legalities aside, does this pass the commonsense test, in your opinion? To me, it does.

Peter Moskos said...

It does pass my commonsense test. Though I also think there's a bit of "I don't give a damn" involved, too.

When I was there there was no divider between left and right sides of the wagon, and it was still cramped. The divider makes it even more cramped. So yeah, to be hunched up and reach over somebody who can twist and grab (or spit, or bite, or headbutt), there's is a legitimate concern for personal safety.

What are the odds? But you have to to do it hundreds and even thousands of times. And do you want to roll those dice?