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by Peter Moskos

December 3, 2015

[Not Following] General Orders

You want to know why cops are always bitching? You want to know how cops can feel like they're the victims? You want to know what it's like to be on trial for violating a General Order? (In the NYPD this in known as the Patrol Guide. Same thing.)

Sun columnist Dan Rodricks is unfairly dismissive of the ignorance defense when he writes:
Not knowing the law -- not noticing the speed limit on a street or stretch of highway, as a simple example -- is usually not an acceptable excuse. A police officer not knowing a policy (or missing the memo about one) isn't much of one, either.
In terms of breaking the law, it's important to point out that General Orders are not laws. Also, speed limits are posted.

And yet it seems reasonable to expect cops to know the rules of their. organization. But it's not. It's impossible. Blame the organization. But what is well meaning cop supposed to do?

This is going to be boring, OK? But if you want to understand police, I'm going to take you into the weeds. Because the devil is down in these weeds.

[Actually if you can figure out why cops are always bitching, let me know. Because I've never figured that one out.]

I wanted to look up the Baltimore City Police Department's General Order on seat belt regulations for prisoner transport. Why, because it seem like Officer Porter might go to jail for ignorance of this one.

First I had to go to my school office because that's where I keep my old binder of G.O.s. The binder is too big to carry with you. So as a cop you don't have it on you for reference. Mine was last updated in June of 2001. Fourteen years later it would be even thicker. Things go into the G.O.s; they never come out.

I easily found the binder and discovered with it a folder of loose things that I was given during my brief career that I couldn't or didn't file in the binder.

Now keep in mind, it's been awhile since I've done this. So I might be a bit slow. But hell, I do have a PhD from Harvard and graduated Magna Cum Laude from Princeton. What I'm saying is that even if I'm not a rocket scientist, I'm not dumb. And I'm a good researcher! And yet it took more than half an hour from the start of my quest to the start of writing this. And I got lucky. Almost unbelievably so.

So where does one start? [A professor just came to my office and told me students today don't even know what a table of contents is. Or an index. Whoa. That's mind blowing, but off subject...] Except the book of General Orders has no index. Hell, it doesn't even have page numbers! But there is a Table of Contents:

I'm going with Section K: Adult Arrests. Flipping forward a few pages my bet is on K14, persons in police custody. G.O. Number 06-92. So I flip open to K. My binder actually has tabs with writing on them. Because I'm nerdy and organized like that. Or maybe they made us do that in the police academy. I don't remember.

So I open to K and K-1 is something about Career Criminals Program of 1982. I couldn't care less. I assume it's long irrelevant even in 2000. But how would one know? It modifies the Career Criminals Program of 1976. Signed by Commissioner Battaglia? He doesn't even ring a bell. He must have not been in for long.

And then you just start flipping. After K-1 comes Annex A, Annex B, then K-2. The top of the page doesn't say which K you're on. And there are lots of "Annex." It's easy to get lost. Eventually I find K-14. Signed by Commissioner Edward Woods. He signed a lot of these.

Note the "Rescission" section to remove from the manual. How would you even find Memorandum 2-82? I have no idea.

Is this it? Annex A on Custodial Safety and Welfare of Persons in Custody.

It doesn't say anything about seat belts. Does that mean there is no G.O. on seat belts? In this case I know there is. But what if I didn't? How would you know? There is no index. But I think I need to find a section on prisoner transport.

Oh, here's a doosy from 1985, amending an order from 1977.

"Make the following pen changes to Annex D, Section I, page D-3: Paragraph 1, lines 3&4 -- Delete: [blah blah blah]." You know it's old because it's signed by Commissioner Bishop Robinson. First black commissioner. I always liked his name. Pomerleau is the oldest one finds in the G.O.s. But he was commissioner from the Mayflower till 1981.

There are 18 pages of K-14. I go through them. Nothing seems to concern seat belts.

I don't know what to do. So I go through my G.O. Supplement folder. Slim chance. But you never know.

I see the pages on ethical conduct.

These were my favorite. I used to check them off one-by-one when I violated them. I'm hilarious that way. But this matter because if they can't pin anything else on you, they can always get you for "conduct unbecoming."

I may have missed a few, but of the first 31 rules of conduct, I checked off all but 12 as violated. And I was a good cop, an honest cop. And yet in less than two years on the job I managed to violate the majority of good conduct rules. My favorite was "Section 7: Members of the department, while riding gratis on any type of public conveyance, are not permitted to be seated while other passengers are standing." This is off duty, mind you. And it doesn't say "give up your seat if the bus is full." Nope. If anybody is standing, you must stand.

Some of the rules, of course, you need to violate in order to do your job. (Section 2, for instance, prohibits use of slang while talking to the public. I never did violate Section 28 by playing cards, which I could have done.)

Now at this point I, like you, am distracted and have kind of given up. And right then... I'll be damned at what literally flutter from the folder. This very sheet: "The Police Commissioner's Memorandum 19-99, Subject: Seat Belts."
Like Mana from fucking heaven!

This came out before I was hired. So there's no reason it's not in the binder. But it's not and I have no idea where it should be filed. It's not like it says K-14 part 3 or anything. Is there a special section for "Memorandum"? I don't know. One can't know. And that's my point.

But there it is, halfway down (while on the back of the sheet is something unrelated about dog bites):
• Use a seat belt when operating or riding as a passenger in any departmental vehicle.

• Ensure that all other occupants of a departmental vehicle that you are operating use a seat belt or a federally approved child safety seat when applicable.

• [Don't use child safety seats in the rear of cage cars.]

• Ensure that prisoners transported in prisoner transportation vehicles are secured with a seat belt. [emphasis added]

• Use extreme caution when transporting anyone in departmental vehicles. [Thanks for nothing.]
This one is signed by much-hated Commissioner Thomas Frazier. He was just before my time but was the guy who initially approved my research! (The best thing that ever happened to Frazier's reputation was Commissioner Batts.)

So that is it, right? Buckle up prisoners. No exceptions. That's certainly what I thought the rule was. But maybe I was wrong. Supposedly there was a rule saying you didn't have for officer safety. But maybe that happened after 2001. And the new 2014 G.O. was going back to the old May 1999 G.O.

I don't know, and there's no way to find out!

And I still haven't found the section on prisoner transport, assuming there is one. But there must be. Unless there isn't. And then what if I did find it and there are two General Orders that conflict with each other? Then what?

When I quit the police department, one of the things I told myself was that if I could change the system of General Orders, I would be the unsung hero of police officers who had never heard my name. With this little change, I could make the world a better place and die a happier man. But how does one change the system? Better people than I have run police departments and yet General Orders and Patrol Guides get worse and worse. Can we blame it all on lawyers?


LV Taylor said...

I'm sure there's a contradictory entry in there somewhere in regards to the seat belting of prisoners. The G. O's cannot be an all inclusive guide to regulating Police conduct on the job, because there is no way to accurately predict human behavior. Example : The 21 ft rule. Not in the G.O's, but you get my drift. So, if you can't provide Officers with explicit guidance on when and when not to use deadly force...i.e 21 ft. Rule...it stands to reason that an Officer can reasonably articulate instances when belting potentially violent prisoners in the enclosed confines of a wagon should be discretionary. That said, when they're trying to charge you, they can find anything in the G.O's...inclusive of The Golden Fleece, Blackbeard's Treasure, and Jimmy Hoffa.

Stephen Cusulos said...

I think you might be onto something here..... but regarding violating this seatbelt business. Here in Mpls, we had to intoxicated Native Americans thrown into a trunk of a squad car and taken to the the detox center. The issue here was a seat-belt violation but rather the violation of human decency. If the "drunk" had been a high powered lawyer or businessman or they would not be treated this way. Three problems with the police are (1) that they too often use excessive force (2) the used it disproportionately against persons of color and (3) there is no accountability (in part because of a police culture that protects its own kind). Yes on face value, the rule book looks to be a complete screw-up. But the problem were are facing with the police today are not rules but rather a police culture that has gone off the rail. To many "thumbers" who are not held accountable. Given the fact that you have been a police insider have both the knowledge and the intellectual acumen to write about this problem of police culture, this is where you might be much more effective as a kind of public intellectual.

Adam said...

This 1997 version of G.O. K-14 says "Whenever a person is taken into custody: [ensure that] The arrestee is secured with seat/restraint belts provided. This procedure should be evaluated
on an individual basis so not to place oneself in any danger."

Even assuming the current G.O. says something to that effect, I don't know how it would help the officers in this case. Does the personal safety exception apply here? Freddie Gray wasn't combative when he was arrested; hell, he was pretending he couldn't walk.

Adam said...

I think the link failed, sorry. http://www.aele.org/law/2009all10/baltimore-transport.pdf

Peter Moskos said...

Adam, does the 1999 version trump the 1997 version. And then what about what Cutchin mentions.
It's all so messed up.

On the plus side, an innocent man is going to be acquitted.

Adam said...

I dunno ... too confusing. But even if Porter violated BPD policy, what does that prove in this case? How reckless was it to not use the seat belt when neighboring police jurisdictions don't even *have* seat belts in their transport vans? Not to mention, as I said in the other thread, that according to the M.E., Gray suffered his injury before Porter checked on him. The seat belt issue just seems irrelevant.

Porter's culpable conduct, if any, is his failure to get on the radio and call an ambulance. But if he told Goodson and his sergeant that Gray needed a medic, if he anticipated that they would be driving Gray to the hospital in the van, and if he had reason to think Gray was faking injury (given Gray's history and earlier conduct that day), then Porter's omission, though dumb and negligent, seems to fall well below the level of callous indifference required for a manslaughter conviction.

john mosby said...

Back to the original question of how messed up GO's are:

- When the 'real' laws are so messed up, why is it surprising that the 'fake' internal laws are messed up? Think of relatively simple crimes that probably fit under 3 or 4 overlapping statutes. Let alone malum-prohibidum offenses such as drugs and guns, that wind up subject to lots of conflicting statutes at the federal, state, and local levels (e.g., toke up on the campus of the University of Michigan and see if you get ticketed under Ann Arbor ordinance or arrested under Michigan state law). And of course there's the "3 felonies a day" phenomenon. And all of these laws require a legislature, sometimes bicameral, to vote them in, and then require an executive to sign them. GO's just require the chief to bless off on someone's GFI.

- GO's are nearly useless in view of constantly-changing statutory and case law. How many PDs' GO's allow you to shoot fleeing felons in situations that either the state statute or federal constitutional law prohibit? More to the point, what act allowed by a GO is going to be found feloniously unconstitutional by the courts tomorrow? If we make you Chief and you write the perfect GO book, what's to say any of it will keep any officer out of prison or the poorhouse? Or will you try to anticipate the courts by restricting your officers more than current case law does?

- on my last rhetorical question, I have seen PD's do this in the area of plain-view search doctrine. The GO requires you to go back and get a second warrant if, for example, you are searching a house for child porn and you see an illegal gun over the fireplace. Huh!? This of course creates a body of 'current police practice' which will eventually become case law when some poor detective neglects to get the second warrant.

- I wonder if it's possible to run a PD without GO's. Or more accurately, limit GO's to truly administrative matters such as uniforms, form numbers, report deadlines, pay rules, etc., while for any tactical/operational matters, you just say "MOS shall interact with offenders in a manner consistent with current city, state, and federal statutes and constitutional law." Since that's the standard they will be held to anyway....


Peter Moskos said...

And if the injuries didn't happen until after Gray was in the van, as the prosecutor has said, then how in the world are the arresting officers guilty of anything?

Peter Moskos said...

In the early 1990s(?) New Haven CT did something related to a better Patrol Guide, also related to Broken Windows and police discretion.

Adam said...

I assume the main charges against the arresting officers (not the bullshit false arrest charges) are premised on the fact that they loaded Gray into the van without belting him in and later helped shackle Gray's legs and place him face down onto the floor of the van.

Here are the original charging documents.

The narrative says that after initially loading Gray into the wagon, "Lt. Rice then directed the BPD wagon to stop at Baker Street. At Baker Street, Lt. Rice, Officer Nero, and Officer Miller removed Mr. Gray from the wagon, placed flex cuffs on his wrists, placed leg shackles on his ankles, and completed required paperwork." They "then loaded Mr. Gray back into the wagon, placing him on his stomach, head first onto the floor of the wagon."

Originally, Nero and Miller were charged only with assault, false arrest, and misconduct -- all seemingly related to the not-so-false arrest. At the grand jury phase, as an afterthought, Mosby threw in reckless endangerment, which is the only charge that makes even a little bit of sense.

bacchys said...

Freddie Gray wasn't the first guy killed by Baltimore cops this way. He's not even the twentieth guy injured in the ten years prior to his death from a "rough ride."

They weren't ignorant of the policy.

"Originally, Nero and Miller were charged only with assault, false arrest, and misconduct -- all seemingly related to the not-so-false arrest."

The knife they arrested him for was legal. The officer even quoted the Baltimore ordinance in the arrest report, and the description of the knife and the definition of prohibited knives don't match. Mosby didn't pursue the charges because they've made thousands- if not tens of thousands- of arrests for such knives and gotten people to plead guilty because it's either that and getting release from that shithole they call a jail or spending months upon months in it awaiting trial.

Peter Moskos said...

I'm still under the impression the knife was spring-loaded and thus illegal. Mosby didn't pursue the charges against Gray because she wanted to go after the officers. And also because Freddie Gray is dead.

Or do you mean the illegal arrest charges against the officers? Mosby would go after these cops for criminally spitting on the sidewalk, if she could. Those charges aren't being pursued because the arrest was legal.

I'm curious if the actual knife will ever be seen. While it may now be irrelevant to the criminal trials, I think the legality of arrest matters tremendously, given that Gray died in police custody.

Adam said...

Even Justin George, the Baltimore Sun reporter embedded with the investigators, said the knife was illegal. When asked "Is there any doubt that Gray's knife was illegal under city law?" he responded "Reading the City Code, it's hard to see how the knife was legal."

From the statement of charges: the city ordinance prohibits possession of a knife with "an automatic spring or other device for opening," and the charges describe it as a "spring-assisted, one hand operated knife."

Even the prosecutors have all but acknowledged that the knife was legal and have resorted to a hare-brained back-up theory to support their bogus false arrest charges.

And Mosby did not decide to stop pursuing the false arrest charges. She presented them to the grand jury and they refused to indict. Still, Mosby *is* pursing the false arrest theory. The arresting officers are charged with misdemeanor assault and misconduct in office. There are 1,001 ways to commit assault and misconduct, and Mosby's theory is that the officers assaulted Gray and violated their official duties by arresting him without probable cause. So unless Mosby changes her mind again, this issue will come up in the trials of the arresting officers.

bacchys said...

Being "spring loaded" doesn't make the knife illegal. The definition of what constitutes a prohibited knife isn't vague. A spring-assisted knife doesn't have an "automatic spring or other device" to open it. You have to push on the blade to open it. There's no "switch" to make it a switchblade. Once you open the blade to a certain point the spring assists in opening it further. There's nothing "automatic" about it.

There was nothing bogus about the false arrest charges except this: they've been prosecuting people for possessing legal knives for a long, long time, and cops and prosecutors are allowed to be ignorant of the law.

Your Justin George link, Adam, came back with a 404 error.

Peter Moskos said...

As soon Mosby was asked to pony up the knife to the defense, she dropped all the charges related to illegal arrest. Given that, we really have to assume the knife was illegal. Remember, this is the same woman who first tried to peddle the idea that cops couldn't legally chase and stop Gray for running from a drug corner.

As to what is illegal (from the Sun): Baltimore City code says a person can't carry or possess any knife "with an automatic spring or other device for opening and/or closing the blade, commonly known as a switch-blade knife."

bacchys said...

As soon as Mosby was reminded that getting a conviction for a false arrest based on that knife being legal would open up a big can of worms for the city she dropped that charge. She was under no obligation to hand it over to the defense at that time.

I know what the ordinance says. A spring-assisted knife- which is what the arresting officer described the knife he took off of Gray as being- isn't a switchblade. It doesn't have an "automatic spring or other device" to open it. You have to use your hand on the blade. The ordinance doesn't cover spring assisted knives. Now, either the cop is stupid and doesn't recognize what he was describing on the arrest report, or it was a legal knife. Perhaps if they hadn't been abusing the law for decades this wouldn't have happened either.

Adam said...

Here's Justin George's Q&A: http://live.baltimoresun.com/Event/Inside_the_Freddie_Gray_investigation

That statute isn't a model of clarity. Do they really mean "opening and/or closing", such that a knife that only *closes* with the assistance of a spring is illegal?

@bacchys, I understand the distinction you're making, but the knife doesn't have to open automatically for it to be illegal under city law. The word "automatic" modifies the word "spring." The spring has to be automatic, and the "automatic spring" has to help "open[]" the knife. Not being a spring expert, I'd imagine that means the spring operates without your having to manually compress it and then let it expand. That's exactly the case with the type of knife you describe -- the spring kicks in after the operator manually opens the knife just a little bit, usually by pushing on it with his thumb. I don't see any Maryland caselaw interpreting this city ordinance, and I think the officers' interpretation is perfectly sound. And even if the officers are wrong, their interpretation is reasonable, given the ambiguity in the statute. A stop/arrest based on a reasonable misinterpretation of the law doesn't even violate the Fourth Amendment, much less subject the officer to criminal liability.

Adam said...

baccyhs: Having thought about it some more (and having taken the time to swallow my pride), I think your interpretation makes sense and may even be the better reading of the statute. But I think reasonable minds can differ on this. (See my arguments above and the Justin George Q&A). The most important point -- at least for purposes of these criminal trials -- is that a cop does not commit a crime when he makes an arrest based on a good faith mistake of law. As I said, (under Heinen v. NC) a police officer doesn't even violate the Fourth Amendment when he acts based on a reasonable misinterpretation of law.

Peter Moskos said...

Are we all really talking about the legality of knife when we don't know what the knife was? Since the reason we don't know now is all in the hand of a prosecutor who is trying to get the cops, I think we have to assume the knife is not at all incriminating in terms of an illegal arrest.

For some reason I'm under the impression it was a press-the-button-and-the-knife-comes-out knife (though I have no idea why I think that). That kind of knife would definitely be illegal.

If the knife were legal, I think we would have a clear picture of the knife, since that was the original plan of the S.A.

All that said, Adam, you're right. The legality of the arrest depends on a reasonable officer's interpretation. Personally, I don't think that a knife that just snaps into place is illegal. I mean, either you have to open a knife or it does so (entirely) spring assisted. The former is legal the latter isn't. But A) since the knife is being covered up by the prosecutor who is putting cops on trial, and B) since charges of illegal arrest were dropped, and C) since it may not matter at all, we just need to assume the knife was a crime and the arrest was legit. That is the way this trial is proceeding.

If the knife were legal, of course Mosby would be putting it on the table.

campbell said...

they've been prosecuting people for possessing legal knives for a long, long time, and cops and prosecutors are allowed to be ignorant of the law.

That statute is decades old. Spring assisted folders aren't new. Do you really think no defense attorney has ever thought to try the argument you're making? Judges interpret the law. The minute a judge upholds a switchblade charge on an assisted folder then that is the law until a higher court overturns it. I think it's improbable nigh to impossible that a judge has never ruled on this. If the local courts are upholding the charges then the cops aren't making a good faith mistake or any mistake at all.