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by Peter Moskos

August 11, 2016

The DOJ's War on Broken Windows?

This flew in over the transom:
As someone who also works in a department with a consent decree in place, I found the DoJ's report on Baltimore very interesting.

It seems like a lot of what the DoJ objects to is not actually a constitutional violation, but rather a public policy decision to have "zero tolerance" policing. The words "zero tolerance" are used a lot (phrase used 32 times). There is much written about loitering (word comes up 35 times) stops and arrests.

My jurisdiction has no loitering law, and no major problem with open air drug dealing in residential areas. Trespassing arrests are a rarity, to the point that citizens and business owners have become very angry with our lack of action at times. Technically, if someone (myself or a property owner or a posted notice) says that trespassing is prohibited, and someone trespasses after receiving verbal notice, they can be stopped and arrested. A property owner says "I told that guy to leave and he didn't" - boom, we have PC. In practice, we almost never do this, because our supervisors and prosecutors don't want us to and because we all know the DoJ is watching and dislikes this kind of police work.

The DoJ's objections to enforcement of these laws is written in such a way that the strict enforcement of these laws is then juxtaposed with extreme examples where officers probably violated Terry. In any significantly large department, if you look long enough, you will find Terry violations, including some pretty stupid ones. And there are some damn stupid ones in this report. But it's not clear to me that loitering and trespassing arrests as a crime prevention strategy are inherently unconstitutional. Trespassing and loitering laws can be strictly enforced in a legal way, if you have supervisors and training that adequately address what is needed to establish probable cause and reasonable suspicion (which BPD may indeed lack).

But it does seem to me that what the DoJ actually objects to is the policing strategy of low level pedestrian stops and enforcement. The DoJ's message here is pretty clear: broken-windows policing is over, and if you do it, we will come at you for every Terry violation and make it out to be a pattern and practice brought about by a public policy decision to emphasize low level enforcement. "Broken Windows" policing might be a good or bad public policy, but it seems like an innovation for the DoJ to now claim it is inherently unconstitutional.


LizardBreath said...

I don't think that's a fair reading of the report. The report seems to be clear in saying that 'zero tolerance' led to pressure to have high numbers of low-level pedestrian stops and arrests, and that then on examination an unacceptable percentage of the stops and arrests where the facts were available were improper, like the one you commented on two posts down, where a guy was arrested, probably for trespassing, despite not having been on the posted private property.

If the objection was to high numbers of legitimate low-level arrests, the second step wouldn't be necessary.

Peter Moskos said...

All departments place too much emphasis on stats. That is not unique to Baltimore. But why the whole obsession on "zero tolerance" and blaming O'Malley? And arrests are way way down. Illegal arrests, too! There's another motive (or perhaps it's just a concession to the current mayor for inviting the DOJ to Baltimore).