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by Peter Moskos

August 30, 2016

Will a Consent Decree Help or Hurt Baltimore City Police Officers?

[This is a guest post by Jacob Lundy. He has ten years of law enforcement experience including street crimes, homicide, academy instruction, and consent decree compliance. He wrote this for Copinthehood.com in the hope that Baltimore can learn from what he and the City of New Orleans have gone through. The selective bolding is mine, but what follows is Jacob's. He writes here as a policy advisor to the New Orleans Fraternal Order of Police.]

An absurdly concise title for a piece tackling one of the most expensive, sprawling, and lately, ubiquitous endeavors most major police agencies will navigate. This question -- frequently posed to me by legislators, criminal justice professionals, and citizens -- is certainly on the minds of Baltimoreans in recent weeks.

The answer, as you might expect, is not so concise.

I believe the more appropriate question may be “are consent decrees necessary?” My short answer to this questions is, perhaps surprisingly, usually. My assessment should not be taken as a slight to police officers who work tirelessly day and night in Baltimore and elsewhere who may feel that a consent decree is an indictment on your service. Certainly DOJ’s recently published investigation of the Baltimore Police Department was not flattering, but such reports are equally if not more overtly critical of overextended leadership, outdated policies, and political machinations that manifest in the problems documented by Justice.

Consent decrees are a mixed bag, to be sure; I believe the real debate lies in how long they should last, how invasive they should be, and how compliance teams, officers, and Justice might get started as collaboratively as their relationship will eventually become. Below I have tried to outline some of the most salient matters facing Baltimore police officers.

In my view, two major problems lead to the conditions we see facing police in major American cities today. First and foremost is the ever growing list of social problems shifted onto the backs of law enforcement. We are a country obsessed with fighting symptoms rather than tackling root causes, and nowhere is this phenomenon more visible than the front seat of a police car. Guns, healthcare, schools, drug addiction, economics, mental health -- all of these have been relegated to law enforcement with little notice.

Secondarily, policing will always be a series of competing priorities, especially as agencies continue to be pulled in so many directions. A cop in one neighborhood equals a void in another. A cop tied up with paperwork is a cop not engaged in crime abatement. Forty cops attending in-service training means forty empty police cars. On a larger scale, one million taxpayer dollars invested in a police behavior early-warning system results in a tangible deficit in overtime patrols. This is clearly a zero-sum game, which naturally dictates where precious resources are directed.

These two realities create tremendous downward pressure for street level law enforcement to maintain order by whatever means they can improvise in the field. This is where impromptu and often unconstitutional stratagem are born, such as “clearing corners.” With a dearth of root cause solutions, field officers know that “clearing corners” may alienate residents but reduce shootings in twenty-minute intervals. As Peter Hermann in the Washington Post recently pointed out, Western District Baltimore reported 66 murders in its 2.8 square miles in 2015. Police officers in urban America have been triaging violent crime block by block for years.

Once a consent decree is implemented in the affected jurisdiction, the near immediate upside for law enforcement tends to be a reprieve from this relentless and unsustainable pace. While consent decrees are well known by now for their sweeping reforms to agency policies, use of force training and investigation, general oversight (typically layered and civilian), detention and arrest demographic reporting, community policing and engagement strategies, and constitutional policing generally; what is less well known are the considerable benefits to the rank and file.

Consent decrees direct resources to officers in the form of extensive job training and professional development, support services, and incidentally, a more orderly and professional workplace. Many large police departments in recent years have become pressure cookers of untenable workloads which naturally results in job stress that is passed on to the public. The Department of Justice notes in nearly every consent decree that substantive discipline is lacking -- most cops will acknowledge that malicious extrajudicial discipline is rampant. Such practices tend to naturally wane with the outsider presence.

While I see a number such improvements in New Orleans’ consent decree era, I will admit that even I was surprised when in a recent police forum an overwhelming majority of colleagues present described their workplace as “dramatically improved” over the past few years.

In the next two years Baltimore officials will likely (hopefully) be surprised by how collaborative and productive their relationship with DOJ will be. Admittedly, Justice is seen by field officers as an occupying faction in the initial months. And while field officers will lament the increase in administrative tasks for years to come; they often are equally surprised by their eventual relationship with Justice. While every city presents unique challenges, an early key to success is embracing the inevitable change and being proactive -- Baltimore officials have clearly adopted this strategy.

Consent decrees come with predictable drawbacks as well as some unexpected consequences peculiar to each jurisdiction. Chief among complaints are substantial costs [ed note: $11 million per year in New Orleans] and a distraction from basic crime control. Calls will take longer and result in longer wait times. Many also see the precipitous increase in administrative burdens as excessive, which compounds these problems.

While there is a lack of any major corpus of data on the effects of current and former consent decrees in these areas, I believe one clear effect is their tendency to shine a glaring light on deficiencies in domestic policy and highlight some of the truly fundamental issues facing the future of policing in America. Wherever the reader chooses to point blame, these significant problems exist and need to be addressed. Baltimore and Chicago are struggling through one of the most violent years in decades.

Rank and file officers can expect to see a slightly emboldened criminal population; many will feign vindication in light of DOJ’s report and challenge local law enforcement’s legitimacy during interactions. Defense attorneys will wave printed copies of the DOJ report on Baltimore in open court as general evidence of your “corruption.” Officers should also prepare for major changes to the handling of citizen complaints and discipline in general. Most complaints will essentially be taken at face value until disproved. Discipline will almost certainly be widespread and strictly applied until there is inevitable pushback, and then Baltimore and Justice eventually find a compromise. All of this will predictably take a toll on morale, the acute symptoms of which are temporary. All Baltimore area police labor groups should be proactive in approaching DOJ early on and getting a seat at the table. Baltimore officials should view New Orleans’ dedicated and invested compliance team and its relationship with the monitoring team as a model for progress.

To DOJ’s credit, the agency openly acknowledges that consent decrees evolve, and with each passing year they learn from experience and actively work to improve the process for all involved. I think it is impossible to deny that the initial drain on resources creates a vacuum in crime control and increases in response times. I believe this is a primary area where we should expect improvement. Local crime is not the responsibility of DOJ per se, but any negative impact on crime control affects local populations; an increase in crime is contrary to both agencies’ long-term goals. A potential solution to this very real concern may involve historical analysis followed by an agreed upon strategy to minimize the potential for such scenarios prior to implementation. I also believe future monitoring teams should reach out to and engage rank and file officers either directly or through labor groups early on. New Orleans’ monitoring team are transparent and honest about their goals and expectations and are quite easy to work with, but it took longer than necessary in my opinion for field officers to feel confident in this fact.

Whether the observer believes DOJ is infringing on the autonomy of state and local governments -- who are merely struggling to control violent crime within their borders -- or rightly stepping in to enforce the nation’s primary source of law; one immutable fact every similarly situated city has discovered is that arguing the legal merits of intervention is largely a waste of time. Consent Decrees appear to be here to stay; existing consent decrees are likely the best reference for any city wishing to avoid one.

August 24, 2016

Enough with the "Fakery"

John McWhorter on the developing taboo of using the phrase "black-on-black crime." (Spoiler alert: "We need to nip the burgeoning of this new and useless taboo in the bud with all deliberate speed."):
"What’s wrong is to refer to black on black crime as evidence of something uniquely pathological about black people.
...
[But] to instead classify the term “black on black crime” as a slur, period — and this is what is happening of late — is illogical. Moreover, it detracts attention from genuine concern for black communities.
...
And finally, treating “black on black crime” as a new “bad word” will only create fakery, and the way we discuss race in this country already has enough of that. Enlightened people’s impulse to avoid causing offense to black people and to always demonstrate that they are not racists will force a certain attendance to the pox on saying “black on black crime.” It will become a cocktail party cliché to dutifully observe “But white people are more likely to be killed by whites!” and shrug, with the implication that anyone who doesn’t understand that is “one of them,” unenlightened, and likely willfully so, impeded by their inner racists from giving black people are fair shot.

But under the radar, plenty of people will always know that this taboo doesn’t really make sense, and that it even seems to pull attention away from what real black people living real lives think of as their real problems.

We should, to the extent we can, use language with clarity and honesty. Pretending it’s always wrong to refer to something called “black on black crime” is antithetical to that mission, and we need to nip the burgeoning of this new and useless taboo in the bud with all deliberate speed.
I came across this at the same time I was responding to a request for some data. Somebody asked if there was any hard data backing up an assertion I made that blacks want more (not less) police presence.

A quick search with the ol' googlay found this 2015 Gallup poll: 38 percent of blacks want more police presence (and this compares to just 18 percent of whites). Only 10 percent of blacks want less police presence. Wanted more police and wanting fewer bad police are not mutually exclusive, of course.

People -- particularly black people, particular people more likely to be victimized by violent crime -- want more police. So when you hear people say blacks are over-policed and want less policing, you might wonder for whom they speak. Meanwhile, the Movement for Black Lives (which is or overlaps heavily with Black Lives Matter) released a platform that is more concerned with the problem of Israel(?) than black-on-black crime. (Did I miss it? Is there really nothing in this platform about crime when not perpetrated by cops?) Fear of crime and criminals always trumps fear of police and over-policing.

A short while back another person with knowledge of crime issues asked me if it were really true that blacks are more likely than whites to commit serious violent crimes. It's good not to highlight this point out of context (lest racists go to town) since poverty and other variables account for much of the racial disparity, but indeed, yes.

In 2014 (latest UCR numbers, when homicides were fewer) 6,095 blacks and 5,397 whites were murdered in America. There are 42,749,0000 blacks and 247,814,000 whites in America. That comes out to a black homicide rate of 14.3 and a white homicide rate of 2.2 per 100,000. [Just FYI, last year the homicide rate in Baltimore's Eastern District was 100 per 100,000.] This is a huge disparity. Blacks are 6.5 times more likely than whites to be killed. I kind of thought this was common knowledge. But maybe I'm in too deep.

So this goes back to the usage of "black on black crime." I don't care to engage in semantic debates when lives are at stake. I won't be silent. But if it helps move the discussion toward solutions, I'm very willing to drop "black on black crime" and talk instead about black homicide victims or something. But talking about black homide victims begs the question of who the killers are. And since most crime is intra-racial, we're left with a certain circular logic that goes back to "black on black" crime! [And look, I just combined three questionable phrases in one paragraph! Along with "black on black crime," I'm not really certain if I did "beg the question" or if my logic was "circular." But my point is to get my point across.]

Not so long ago a friend of mine commented on the phenomenon of white folks who complain they can't use the "n-word." His point was "Why? You gotta ask yourself, why do you want to use it? What are trying to express that demands using this work?" (He was using the abstract "you" and not referring to me, just FYI.) If your point is simply to offend, then maybe it's best to keep your trap shut. See, the value of political correctness isn't to march in lockstep with some ideology, it's to not be an asshole.

So it's fair to ask, "Why do you want to use the phrase 'black-on-black crime'?" And the answer is because too many people are trying to distract from a real problem. Like too many cops, I've seen the carnage of "black on black crime" first hand. Last year the homicide rate in Baltimore's Eastern District was 100 per 100,000. I, like many police officers, too often feel that we are the only people who actually give a shit. Murders don't make the papers; victims won't even tell you their names. Who else (apart from EMS, nurses, and doctors) spends most of their waking hours trying to save lives? Now this sentiment may not be true, but when you get home after hearing gunshots, canvassing for witnesses, and riffling through the bloody clothes of another young black male victim, it's an understandable sentiment.

Call it what you will, but rather than make another phrase taboo, we should, as McWhorter says, pay more attention to "what real black people living real lives think of as their real problems." Sometimes those voices are too hard to hear.

August 19, 2016

John Timoney

A nice homage to John Timoney in the New York Times. Among other things:
In 1972, New York officers fired 2,510 bullets and killed 66 people. By 2014, there were 288 shots fired and eight people killed.

What happened? Mr. Timoney said that in 1972, the department put restrictions on when officers should shoot their weapons. Within a year, officers were firing about half as many shots.

August 17, 2016

“Imma start a riot like it’s Baltimore"

Turns out the cop who once rapped "Imma start a riot like it’s Baltimore" turns out to be prophetic!

But all joking aside, this cop who shot and killed an armed and dangerous man was from the community.
More than 1,000 people have circulated a 2014 image, shared by the Milwaukee Police Department, identifying and lauding Officer Dominique Heaggan-Brown as the rookie cop who helped a homeless woman find a warm meal during frigid weather.
...
“I was aware that he was an officer like most people,” he added. “When we did have a chance to hang out it was pure kicking it, or he would pop up at some of my shows in support sometimes.”
...
Smith’s sister, Sherelle Smith, said the officer and her dead brother knew each other from their high school days.
And then some people started listed his home address. There were death threats. Officer Heaggan-Brown -- from the community he policed, doing his job, involved in a justified shooting -- is now in hiding.

"Policing is differentiated from other occupations by the use of coercion"

My colleague Eugene O'Donnell, former cop and prosecutor, writes in The Crime Report about "The 'Post-Policing Era' in America: How Will We Cope?" I don't actually think we are entering "a post-policing era," but it's certainly likely we're going to see police responding to forces asking them to do much, much less of the coercive actions that justify the need for police in the first place:
[Let us discount] the notion that if the police are nice to everyone the world will truly shine. In fact, when the police are doing the enforcement duties that differentiate them from other civilian occupations they are enmeshed in conflict, undertaking work that is adversarial and frequently leaves people smarting.
It's worth quoting this article by O'Donnell at length:
“The policeman is denounced by the public, criticized by the preachers, ridiculed in the movies, berated by the newspapers, and unsupported by prosecuting officers and judges. He is shunned by the respectable, hated by criminals, deceived by everyone, kicked around like a football by brainless or crooked politicians.”

---August Vollmer, police reformer and chief, Berkley, California, 1929.


This is the dawn of the post-policing era in America, and the nation needs to come to grips with how to maintain safety and secure order with cops playing a dramatically reduced role. From coast to coast there is an acute shortage of men and women seeking to be police officers.

Half a century ago, the Kerner Commission envisioned policing as a profession, with baccalaureate- carrying cops. But almost no police department in the county requires, or plans to require, a four-year degree for hiring. It is absurdly out of reach.

In fact, departments with even the most minimal requirements struggle to recruit new officers.
...
It is dawning on police officers and institutions that the police job is presently undoable in our far too violent and armed nation, and is rapidly becoming utterly impossible without a willingness to shoulder enormous physical and psychic risks and exposure to dire, possibly incarcerative consequences.

To discharge the duties of a job that involves using force, even lethal force, on others in unscripted situations, while a camera records one’s improvised, clumsy and sometimes terrified decision-making for dissection by battalions of armchair second guessers makes this a career choice easily shunned.

(Some reforms are overdue and necessary but cannot be reconciled with the need to find humans to do the work.)
...
Once individuals have identified their political persuasions, than all issues are framed, and solutions filtered, through those orthodoxies. In fact, political philosophies are pretty useless when trying to accurately identify what a community’s problems are, and fashioning solutions.

Thus, at present, an absurd partisan conversation about who is “pro-police” and who isn’t is a feature of this year’s presidential election. This team-police versus team-citizen approach avoids serious issues and the need to make choices. Only a political knave or a novice offers an affirmative blueprint for keeping the public safe from crime and terrorism: The rewards all flow to they who critique the best and express in the loudest voice the need for empathy and a view of humanity that is distinction free.
...
Policing’s Hard Truths

Policing is differentiated from other occupations by the use of coercion; thus it is fair to say policing is not infrequently lawfully brutal, but relatively rarely crosses the crime to criminally brutal. To say this in today’s environment is to utter words that are construed as almost hate speech, and subject the speaker to the loudest approbation.
...
Policing is expected to be the one and only profession that can achieve a fairness that is elusive in every aspect of a market economy. Thus far in Chicago out of nearly 300 homicide victims, almost all are black and a handful, nine, are white. No fairness there. Some construct arguments about the police that omit these shockingly disparate facts, ignoring that these numbers are potent weapons in the hands of the most divisive figures in public life. (And it is worth looking at the faces of the lives snuffed out by this long-running genocide)
...
The unstated idea that the police are no longer needed has become a mainstay, amongst many elites including those who pen editorials for the New York Times and the Washington Post. Enforcement and incarceration are regarded as evils per se. Last week’s Department of Justice report on the Baltimore police nowhere mentions the toxic implications of allowing shooters to shoot and remain free in their own communities.
...
Community policing---which is ill defined and amorphous--is once again being offered up as an ameliorative in the midst of our current crisis. It is never quite clear what it is or how it works in a poor or high-crime community, but it advances the notion that if the police are nice to everyone the world will truly shine. In fact, when the police are doing the enforcement duties that differentiate them from other civilian occupations they are enmeshed in conflict, undertaking work that is adversarial and frequently leaves people smarting.
...
The “police problem and criminal justice systems needs fixing” debate over the past few years has consumed a staggering amount of time, but precious little in the way of solutions that will take us forward into the future--a future where the police will play a much, much reduced role.

"The Light's Better Here"

A nice critique of quantitative data over at City Observatory. It's about transportation planning, but the lesson can be applied to anything, especially policing:
Reliance on data to solve complex problems is subject to what’s sometimes called the “drunk under the streetlamp” effect: An obviously intoxicated man is on his hands and knees on the sidewalk, under a streetlamp. A passing cop asks him what he’s doing. “Looking for my keys,” the man replies. “Well, where did you drop them?” the cop inquires. “About a block away, but the light’s better here.
If anything, we have too much data on arrests, response time, clearance, even (sometimes) use of force. These are easy things to count. That doesn't make them particularly useful or qualitatively significant. Things you can count won't lead us to solutions that involve foot patrol, discretion, and positive interactions with the public. In policing, a job well done is just too hard to count.

August 16, 2016

"Three Years of Nights"

Very good piece by Peter Nickeas in Chicago magazine. "Three Years of Nights: Violence convulses the city after dark. Reporting on it leaves its own scars." It sure does. Same for policing (though for some more than others). And just another 17 years of the same and he's have the career of a copper:
It was the beginning of a three-year stint working overnights at the Chicago Tribune, covering any violent event that happened in the city after dark. I’d wanted a job at the paper, and this was the one they had. I was 25 years old.
...
Earlier in the night, two guys had fired an AK-47 and a revolver into a park where people were hanging out and playing ball. They wounded 13, including a 3-year-old.... A park had been sprayed with bullets. Not in a war zone. In this city. Stretcher after stretcher was wheeled away. A rare bit of emotion in a dispatcher’s voice on hearing that a 3-year-old had been shot in the face: “Jesus Christ. Ten-four.”
...
Sometime that summer -- I have trouble recalling exactly when -- the bursts of exhilaration that had been keeping me going started to peter out. I had trouble staying awake and was stealing sleep in the car between shootings. I spent slow nights in a sort of tape delay, neither awake nor asleep, stirring only when I heard something on the scanner. My senses were dulled. The adrenaline valve wasn’t opening like it used to. I responded to intense scenes -- bystanders screaming at police, a paramedic wrestling an air mask onto a victim’s face -- with a weird calm. Jason felt it, too, and described it as the feeling you get just after you dive into a pool, your body weightless, your muscles relaxed, sounds muted, your mind focused. At ease.

And yet the shootings that followed that Fourth of July weekend were some of the most harrowing I’d ever covered. A kid killed at a slumber party. A 3-year-old shot on the block with his mom. Jason and I spent hours one August night in Englewood listening to relatives of a dead 16-year-old girl wail with grief. Hours of shrieking. A detective had confirmed the mother’s fear that it was her daughter lying dead down the street by walking up and starting the conversation with “So, uh, she has a tattoo on her left hand?”
...
I looked like shit. Few people told me, but I knew. I’d gained weight, and I’d taken on this gaze I couldn’t shake. My right eye twitched. I hadn’t been sleeping, and I looked mean when I was relaxing.

When my shift was done that morning, I went to the Billy Goat and drank Jameson with friends. We drank more at Rossi’s. I went home, ordered Mexican food, and passed out before I could eat it. It was a celebration for me.

I never really left overnights. I still work them here and there. More over the summer, when it’s busy.
For three years, I’d inhabited a world separate from the one my friends lived in. On the train into work on summer Fridays, the other passengers dressed up for a night out in Wicker Park or Lake View, I’d sit there preparing for my shift, checking Twitter to see where people were getting shot or where people were calling in gunfire. I’d vacillate between wishing I were out with my wife and just wanting to start working.

There’s not a relationship in my life that is stronger now than it was when I started covering violence. I don’t remember when I stopped giving honest answers when people at dinners or parties asked, “How’s work?” The truth is a conversation ender. I’d start a story, see things getting awkward, then power through it, apologizing at the end. It’s an isolating job. Part of leaving nights has been learning to move past that, or deciding whether to even try. Maybe it’s not healthy, but writing about violence feels like what I should be doing. It feels normal. It’s what I want to do. I want to help the city understand a little. That’s important to me.

The DOJ is Right (4): The actual department is a mess (3/3)

[Continued from previous posts 1 and 2.]

F) And then there's the problem of recruitment and retention:
It appears BPD’s staffing shortage will not be resolved in the short term. We heard from officers, supervisors, and command staff that many officers join BPD to gain experience in a high-activity environment, and after three to five years, leave the Department for less-demanding and higher-paid positions with neighboring agencies.... This is a significant drain on the Department’s resources, as these experienced officers, if they remained, would be the future leaders of the Department, and critical to the success of the Department’s law enforcement efforts. The Department also appears to be confronting challenges in recruiting qualified officers -- it has only met a fraction of its goals for the 2016 Academy class. At least one of the Department’s background check processes -- its psychological testing -- has been investigated for allegedly rushing those evaluations, sometimes conducting psychological evaluations for aspiring officers in as little as fifteen minutes.
I totally aced that test. I still remember my doctor's name was "Doctor Outlaw," which I still think is a cool name for a doctor interviewing cops.

G) And equipment issues are more key than outsiders may suspect:
Officers suffer from being supplied with outdated, broken, or in some cases, no equipment. As one officer noted to the Fraternal Order of Police in a focus group, “How am I supposed to pull someone over for having a taillight out when my car has two?”

Officers have no computers in their cars, forcing them to return to the district station to type reports, and even those computers are often not working.... Taking officers off the street to type reports at the district takes away from time that could be spent on law enforcement or community building activities. It also creates inefficiencies for officers who often must write reports on paper in the field while their memories of incidents are fresh, and then type the same information into computer databases after arriving at the district station at the end of their shift.
H) There's good news and bad news about how easily some of these things can be solved:
Despite its budgetary issues, the City of Baltimore will need to make an investment in its public safety facilities and resources to ensure that officers have the tools necessary to properly serve the residents and businesses of the City.
The answer is money. Baltimore doesn't have too much of it.

Here's the thing. Cops work in a shitty environment. They know that. But accountability ends above the civil-service ranks. Why is that? Where is the leadership and accountability on high? Nobody blames the bosses -- the mayor and police commissioner in particular -- for the dysfunction of the department they control. This does so much to lower morale. It matters. Low morale is so much of the reason some cops become burnt-out assholes on the street. Where does the buck stop? Certainly not with the lowly patrol officer.

Now if your job were that shitty, you'd walk off. But police can't. The show must go on. No matter how bad things get, police have to go out there and make the best of it. Radios die, car transmissions don't work, your car gets a flat and there's no spare, computers are down, your uniform splits at the seams, and now body cameras are another can of things that can break. Despite all of that, one thing is certain: cops will go and answer the next call.

You can't fight City Hall. Cops get blamed for bureaucratic nightmares that not only do they have no control over. This dysfunction screws good cops and there's nothing they can do about it. You think cops like working with (the very small minority of really) bad cops? Hell, no. But the system has no way to get rid of them. So you make do. You have to. And then you get pissed off when one bad cop who should have never made it out of the academy, should have been fired, should not have been promoted -- this guy? He actually admits his racist crimes, and somehow people consider him the good guy and blames everybody else who was forced to work through his misdeeds.

I defend most police officers because I've been there. I've had to drive shifts with a car that couldn't go faster than 20 MPH. I've had to fill out forms. I've had to deal with citizens calling 911 to lie about me, I've had to work with cops I wouldn't trust as far as I can throw.

So fix it, dammit. Good cops want to, but they can't. They're tools in this system. And yet every day they get up from their bad dreams and go to work. It doesn't matter how bad things get, police will do their job, most of them professionally. If one thing is true is for police, it's that cliche: "the show must go on."

Maybe this DOB report will improve the department despite itself. Though I might be wrong, I doubt it. I suspect people will ignore this key section and just focus on eliminating discretionary proactive policing that saves lives. If policing has taught me nothing else, it's taught me that things can always get worse. Or, as has been said: "I have never seen a situation so dismal that a policeman couldn't make it worse."

The DOJ is Right (3): The actual department is a mess (2/3)

[See posts 1 and 3]

C) It's not like most police don't want to make things better. They can't. A lot this is systemic to any large bureaucracy in a poor city. But it's not like cops haven't tried to improve things. People care. But nothing seems to get better. The organization is dysfunctional:
Individuals throughout the Department have highlighted that the Department needs to significantly improve its training program. For example, in 2012, the Fraternal Order of Police’s Blueprint for Improved Policing in Baltimore includes an entire section focused on training issues and recommendations. See FOP Blueprint for Improved Policing (July 11, 2012), at 6–8. More recently, BPD’s July 2015 Training Academy Needs Assessment provides a program analysis, describing major issues in personnel, curriculum, equipment and structures, and budgeting. It also notes that the Academy has been working to address some of these issues.
And we don't know what is happening because:
Serious deficiencies in BPD’s supervision of its enforcement activities, including through data collection and analysis, contribute to the Department’s failure to identify and correct unconstitutional policing.
D) And then we get to a failed discipline process:
The system has several key deficiencies. First, BPD sets thresholds of activity that trigger “alerts” to supervisors about potentially problematic conduct that are too high. Because of these high thresholds, BPD supervisors often are not made aware of troubling behavioral patterns until after officers commit egregious misconduct. Second, even where alerts are triggered, we found that BPD supervisors do not consistently take appropriate action to counsel the officer, consider additional training, or otherwise intervene in a way that will correct the behavior before an adverse event occurs. Third, critical information is omitted or expunged from the EIS that could help address officer training or support needs or help prevent future misconduct.
...
It is clear that the Department has been unable to interrupt serious patterns of misconduct. Our investigation found that numerous officers had recurring patterns of misconduct that were not adequately addressed. Similarly, we note that, in the past five years, 25 BPD officers were separately sued four or more times for Fourth Amendment violations.
You might call that a red flag.

E) Officers feel and are unsupported:
BPD fails to support its officers through effective strategies for recruitment, retention, and staffing patterns, and does not provide them with appropriate technology and equipment.
Specifically:
First, BPD does not have a Department-wide plan to address staffing shortages in patrol; instead, each district deals with its own shortages independently. Districts address their staffing shortages by “drafting,” or requiring, officers to work additional hours after their regular ten-hour shift. Officers are “drafted” to work up to an additional ten hours after their regular shift, making for, potentially, a twenty-hour day.
...
Officers we spoke with consistently informed us of the serious negative impact that drafting has on their morale. Additionally, the potential negative impact that drafting has on officers’ decision-making skills after working for up to twenty hours is equally troubling.
This policy contributed to the death of my friend, who was killed in a traffic accident after many months of mandatory overtime and 12-hour shifts.

The DOJ is Right (2): The actual department is a mess (1/3)

Mixed in with questionable methodology, intentions, and anecdotes, there's some of God's awful truth in this DOJ report. Yes, the department is a dysfunctional organization that keeps going only because of the dedication of rank-and-file who do their best, despite it all. (pp.128-139)

A) Here's how they describe the rule book, policies, or the book of General Orders I've already tried to describe. To say G.O.'s doesn't follow "best practices" (pdf link) is an understatement:
We found systemic problems with BPD’s method of drafting, distributing, and implementing policies that has made it difficult for officers to understand proper procedures and adapt to changing rules.
This led the criminal prosecution (and acquittal) of officers.

And there's this (I know you might want to skim over this eye-numbing paragraph, but really read it to let it sink in):
The Department has historically developed and published policies and amendments in a manner that officers find to be confusing and opaque. As many officers told us, the numbering system alone is a source of confusion. Generally, BPD policies have been organized with titles that included letters and numbers. During one period, however, the letter-and-number system was replaced with a system that included numbers alone. The new system only applied to newly implemented policies, however, and the majority of policies were still classified by letter-and-number. Policies from different eras are written in different formats, and often modified by annexes, memoranda, amendments, and rescissions, instead of replacing the old policy completely, making it difficult for officers to be confident that they had the current, complete policy.
And this:
While the policy manual has a table of contents [ed note: with no friggin page numbers; there are no page numbers! (Stab self in eye)], there is no index, and new additions and revisions can quickly make older manuals difficult to navigate. In fact, during our investigation, BPD was unable to locate one of its own amendments to disclose to us.
And of course there's a lack of any input from the rank and file:
BPD likewise fails to provide officers the opportunity to provide input on the policy as it is developed. We spoke with many officers, including supervisors and others in positions of authority, who were frustrated by the lack of input they were able to have on policy development, including the policies developed in 2016. With nearly 3,000 sworn officers and another 1,000 personnel, BPD will likely receive conflicting input in addition to the helpful ideas generated if it seeks input from officers. Without seeking this input, however, BPD fails to learn critical lessons from the field, and, as importantly, it risks alienating its officers and undermining adherence to the policies it develops.
B) And then there's training:
Indeed, BPD’s former director of the Training Academy released a needs assessment in 2015 that highlighted an “internal culture of placing training second,” “expectations for ‘rushed’ training,” and “outside pressure to condense training programs” as threats to the current program. See Baltimore Police Department Training Academy Needs Assessment (July 2015), at 5. Unfortunately, after the training director sent the needs assessment to BPD leadership, he did not receive a response for months. He also organized three different meetings with patrol commanders to begin making changes based on the needs assessment, but no commanders attended the meetings.
...
Officers who had furthered their training did so because of their own personal interest or ambition, often using private funds and overcoming obstacles posed by supervisors or work schedules. Rather than encouraging additional training, supervisors view training as a peripheral activity that is consistently superseded by the need to keep officers on the street.
And consider this about the BPD academy:
The program lost about two-thirds of its staff over the past three years: training staff fell from approximately 60 in 2013 to 20 currently. During the course of our investigation, thirty classes had no primary instructor. Multiple training units, including the ones responsible for supervisor training for new sergeants and lieutenants, were entirely vacant with no personnel staffing them.
...
The Fraternal Order of Police has also highlighted this concern, noting that class sizes for new recruit training have averaged 35–50 officers.
...
BPD training facilities are in a similarly troubling state. During the course of our investigation, we were informed that BPD has only 17 computers available to train its nearly 4,000 personnel. The buildings themselves are in disrepair: water cannot be consumed from the faucets, and the buildings often lack workable air conditioning and heating. According to the Academy’s recent needs assessment:

"The decrepit state of the academy itself gives the impression of a lackadaisical and uncommitted attitude towards the necessities of training the modern police officer. Recruits, sworn personnel, visiting law-enforcement experts, and civilians get the impression that they are party to a fly-by-night, poverty-stricken department when they find themselves in a crumbling, drafty building."

[Ed Note: And this is the "new" academy! No different in the "old" academy I attended on Guilford St. But at least in the old days we could drink the water.]
You'd think the DOJ might have mentioned that a trainee was shot in the academy. I mean, it really doesn't get worse than that. At the time the academy was on its seventh head of training in the last 19 months.

[to be continued in posts 2 and 3]

August 15, 2016

The DOJ is Right (1): Too many illegal stop and searchs (though sometimes just without written articulation)

Too many officers in Baltimore conduct searches without being able to articulate probable cause. Too many people arrested for bullshit reasons illegally. This is wrong. It's been happening forever. It needs to change. Maybe this DOJ report will bring about this change.

That said, you can arrest someone for bullshit reasons legally. Bullshit means minor and perhaps to prove a point, but it's not illegal. And sometimes people need to spend the night in jail whether because they're threatened their mother, squatting on a stranger's stoop, or ignore an officer's lawful order to desist from criminal behavior (but behavior you don't have probable cause to arrest them for). The charge can be loitering (Baltimore's go-to), disorderly conduct (NYC's go-to), disturbing the peace, trespassing, failure to obey, open container. Or any even more minor violation (littering, jaywalking, spitting, cursing, it doesn't matter, as long as it's on the books) combined with "failure to provide identification." (It's much harder to arrest somebody who does carry ID, because you can't play the BS-ticket-you-don't-have-ID game.)

Such minor arrests do not and should not be prosecuted. The argument that arrests are bad because charges are dropped is absurd. As I wrote:
Along with bureaucratic BS (prosecutors march to a much different drummer than cops), the standard for conviction is "beyond a reasonable doubt." The standard for arrest is "probable cause" (which isn't even "more likely true than false." So of course good legal arrests will be dropped.

On top of that, most low-level offenses are abated by arrest. You don't actually prosecute people for loitering and trespassing on a stoop. A loitering arrest isn't bad because it's not prosecuted. It's never prosecuted. And for such minor offenses, officer have pretty low motivation to write a good report, since it really just doesn't matter.
What I don't get is so many illegal searches and arrests could be done legally, if the officer was clever and knew how to write. But where the report goes wrong is assuming that arrests and searches are evil because an officer didn't articulate good cause in the arrest report. Much of the DOJ describes is just bad writing. That or officers not giving a damn about wasting time on a report for some BS arrest that is, in fact, abated by arrest. Cops' inability to write is a major problem. But they some cops don't learn good writing skills in high-school. There's no language or writing test to become a police officer. Maybe there should be.

"I had to blame myself for a lot of things too"

This is not the usual message I'd expect from a man whose armed son was just killed by police, provoking a bit of burning in Milwaukee:
What are we gonna do now? Everyone playing their part in this city, blaming the white guy or whatever, and we know what they’re doing. Like, already I feel like they should have never OK'd guns in Wisconsin. They already know what our black youth was doing anyway. These young kids gotta realize this is all a game with them. Like they’re playing Monopoly. You young kids falling into their world, what they want you to do. Everything you do is programmed.

I had to blame myself for a lot of things too because your hero is your dad and I played a very big part in my family’s role model for them. Being on the street, doing things of the street life: Entertaining, drug dealing and pimping and they’re looking at their dad like 'he’s doing all these things.' I got out of jail two months ago, but I’ve been going back and forth in jail and they see those things so I’d like to apologize to my kids because this is the role model they look up to.

When they see the wrong role model, this is what you get. They got us killing each other and when they even OK'd them pistols and they OK'd a reason to kill us too. Now somebody got killed reaching for his wallet, but now they can say he got a gun on him and they reached for it. And that’s justifiable. When we allowed them to say guns is good and it’s legal, we can bear arms. This is not the wild, wild west y’all. But when you go down to 25th and center, you see guys with guns hanging out this long, that’s ridiculous, and they’re allowing them to do this and the police know half of them don’t have a license to carry a gun.

I don’t know when we’re gonna start moving. I’ve gotta start with my kids and we gotta change our ways, to be better role models. And we gotta change ourselves. We’ve gotta talk to them, put some sense into them. They targeting us, but we know about it so there’s no reason to keep saying it’s their fault. You play a part in it. If you know there’s a reason, don’t give in to the hand, don’t be going around with big guns, don’t be going around shooting each other and letting them shoot y’all cause that’s just what they’re doing and they’re out to destroy us and we’re falling for it.

40 shooting victims and 672 arrests? "That's ridiculous!"

CBS reports:
At least 52 people were shot across [Chicago] over the weekend, including nine homicides.
("At least"? Has it got so bad that we can't even keep track?)

Chicago Police Supt. Eddie Johnson, talking about the 40 victims known to police, is "sick of it":
672 arrests? That's ridiculous!
...
There's a certain segment of the community that is driving this violence. The police department is doing its job. We're arresting these individuals. Where we're missing the boat is we're not holding them accountable."
2,639 people have been shot in Chicago this year. That's an increase of more than 50 percent from last year. That really is ridiculous.

And it's even worse in Baltimore. Stephen Morgan, my Harvard squash mate -- I love saying that because, put together, those might be the four snootiest words in the English language! (That said, in grad school Steve and I did play squash once or twice, and I'm pretty sure I won.) -- anyway, Steve sent me these numbers for Baltimore:
28 days beginning Monday 6/27/16

Homicide 33
Shooting 63
Carjacking 32
Street robbery 283

28 days beginning Monday 6/29/15

Homicide 38
Shooting 84
Carjacking 31
Street robbery 327

Prior five-year average of equivalent four weeks (from 2010 through 2014)

Homicide 18.4
Shooting 38.2
Carjacking 13.6
Street robbery 210.6

If there was any doubt, murdres and shooting doubled after last year's April riot. There's a link to his updated report (and a few other things) here.

But when I bring up increased crime, I feel like half the world is gas-lighting me. First there's this inevitable rebuke: "Fear mongering! Crime isn't up. It's at all time low!". There's usually talk about the the "latest available data" as if time stopped in 2014. Yeah, back then crime was at a many-decades low. But now it's not. Who you gonna believe?

If history is any guide, liberals really should not concede crime fears to the Right. Yes, the public always thinks crime is getting worse. But now those fears just happen to reflect reality. So rather than say, "you were wrong for years" it behooves us to say, "OK, now you are right, and what are we going to do about it?"

Politically, I don't want to the only people responsive to rising crime to be Trump and the "law-and-order." They scare me. But every time anybody, myself included, dares think about what has happened in the past two years that might impact crime, you get the inevitable "correlation isn't causation" mantra. Makes me bang my head against the wall! Even Steve agrees. (And Steve, unlike me, is a quantitative stats guy.)

Correlation actually can be indicative of causation. At the very least, it's a clue. I mean, what else has changed so dramatically except police and crime? And some point, if you get enough correlation and have taken other variables into account (and reach an all too arbitrary "there's less than a 1 in 20 chance it's random"), well, that's what qualitative social scientists call "proof." And then if you don't like the conclusion, you harp on measurement error or non-random missing data.

Morgan writes (he always has sounded more academic than me. How does he do that?):
I think it is undeniable that this is a downstream effect of the “unrest” last year, but there are still a lot of unanswered (and some probably unanswerable) questions on the particular mechanism that generated the effect.
I'm more rash than Steve, quicker to point at the mechanism of decreased discretionary proactive policing as indicated by, you know, by cops telling me their do less discretionary proactive policing. (If you prefer your data more dry and processed, you could look at reduced arrest numbers.)

Let's play the counterfactual game. Pretend crime went gone down in Baltimore after April of last year but everything else stayed the same. Well, what then would be some possible reasons? People would be pointing to less proactive policing as part of the solution. They might say crime went down because of the indictment of cops. Perhaps this increased police "legitimacy." Or maybe the presence of DOJ investigaters improved policing and lowered crime. Maybe City Council President Jack Young and State Sen. Catherine Pugh's celebrated gang truce" saved lives. But none of that is true. Becuause violence doubled. We'll never have definitive proof. There will always be "a lot of unanswered (and some probably unanswerable) questions on the particular mechanism that generated the effect." But until somebody can show me something else that makes sense, I'm quite happy to Occam's Razor this baby and focus on a massive decline in proactive and aggressive policing. It really is ridiculous.

August 13, 2016

Teach your children well

Just came across this gem, that happened back when I was on the street. It's community policing, with an Eastern District twist.
While going around the block and stopped at an intersection (321 Post), two boys, 10-to-13 years old, come up near the window of my car, and one says to another: "give me the money."

"How much?"I ask.

"$50"

"How’d you get $50?" I asked.

"$50,000!"

"Whew, that’s a lot of money."

They come up to my window and one says, "lock me up!"

"What have you done?"

"Lock me up at take me to city hall!"

"If we take you to city hall, what would you tell the mayor?" I'm thinking this is a great opportunity for 'stop the violence' or 'we need more schools.'

"Tell the mayor I'll bomb his house and rape his wife!"
How does one respond to this? It's not easy to leave a cop speechless. I drove off.

On Felony Running

[From pp.58-59 of Cop in the Hood]

To meet the standards needed for a formal prosecution, one must follow the informal rules imposed by the state’s attorney. Rule number one is don’t take your eyes off the drugs. Drug charges against a suspect will not be prosecuted in Baltimore City if an officer fails to maintain constant sight of the drugs. A suspect fleeing from police will throw down drugs while running. An officer in foot pursuit must then choose between catching a suspect with no drugs and retrieving the drugs with no suspect. Officers generally will choose to follow the suspect over the drugs because— along with a personal desire to catch a fleeing suspect—arrests are a police statistic used to judge performance. Found drugs are not.

After catching the suspect, the officer will return to retrieve the drugs and charge the suspect with possession, knowing full well that the charges will be dropped if the report is written honestly. But officers are rewarded for arrests, not convictions. If the drugs can’t be found--lost in weeds, scooped up by a bystander, or never there to begin with--the officer is in a bit of a bind, left with the noncrime of “felony running.” You can’t lock somebody up for drug possession without drugs. And after a chase, even loitering doesn’t apply. But the officer will find some crime, however minor If you run and get caught, you’re probably not sleeping in your own bed that night.

[This is why Freddie Gray was arrested for a barely illegal knife].

On Clearing Corners and Drug Arrests

[From pages 65, 83, 49, and 55 of Cop in the Hood]

Clearing the corner is what separates those who have policed from those who haven’t. Some officers want to be feared; others, respected; still others, simply obeyed. An officer explained: “You don’t have to [hit anybody]. Show up to them. Tell them to leave the corner, and then take a walk. Come back, and if they’re still there, don’t ask questions, just call for additional units and a wagon. You can always lock them up for something. You just have to know your laws. There’s loitering, obstruction of a sidewalk, loitering in front of the liquor store, disruptive behavior.” Police assume that if the suspects are dirty, they will walk away rather than risk being stopped and frisked. You can always lock them up for something, but when a police officer pulls up on a known drug corner, legal options are limited.

Because of these problems and the “victimless” nature of drug crimes, most drug arrests are at the initiative of police officers. On one occasion, while driving slowly through a busy drug market early one morning, I saw dozens of African American addicts milling about while a smaller group of young men and boys were waiting to sell. Another officer in our squad had just arrested a drug addict for loitering. I asked my partner, “What’s the point of arresting people for walking down the street?” He replied: “Because everybody walking down the street is a criminal. In Canton or Greektown [middle-class neighborhoods] people are actually going somewhere. How many people here aren’t dirty? [‘None.’] It’s drugs.... If all we can do is lock ’em up for loitering, so be it.”

The decision to arrest or not arrest those involved in the drug trade becomes more a matter of personal choice and police officer discretion than of any formalized police response toward crime or public safety.

Although it is legally questionable, police officers almost always have something they can use to lock up somebody, “just because.” New York City police use “disorderly conduct.” In Baltimore it is loitering. In high- drug areas, minor arrests are very common, but rarely prosecuted. Loitering arrests usually do not articulate the legally required “obstruction of passage.” But the point of loitering arrests is not to convict people of the misdemeanor. By any definition, loitering is abated by arrest. These lockups are used by police to assert authority or get criminals off the street.

Police have diverse opinions about the drug problem. I asked my sergeant if it was more effective to arrest drug addicts or to remain on and patrol the street to temporarily disrupt drug markets. He surprised me by choosing the former:
Arresting someone sends a better message. Locking up junkies makes a difference. This squad used to have more arrests than five of the districts. We used to go out every night and just make arrest runs as a squad. Start with six cars, like a train. Fill one up, then you have five cars. Continue until you’re out of cars. At 1 am, everybody on a drug corner is involved with drugs. We locked them up for loitering. Got lots of drugs, a few weapons, too. After a few weeks, everything was quiet. Eventually it got so that we had to poach from other districts. We ran out of people to arrest. You think the neighbors didn’t like that?
[Note: This happened in the late 1990s, before O'Malley's now-maligned "zero-tolerance" push.]

Use and Abuse of Terry

There are some excerpts from Cop in the Hood that seem particularly relevant in light of the DOJ's report on the Baltimore police. This is from pp.30-31.]

The 1968 Supreme Court case Terry v. Ohio gives officers the right to frisk a suspect for weapons if they have reasonable suspicion that a suspect might be armed. A “Terry Frisk” is a limited pat-down of the outer clothing for weapons. This is distinct from and less than a “search” (for which probable cause is needed).

While a limited pat-down of the outer clothing for weapons may seem benign, a frisk is very personal and intrusive. During any encounter, an officer can justify a frisk of a suspect by noting the drug trade in the area and the inherent link between drugs and violence. Legality depends on an officer’s perception of his or her own safety. And given the violence, officers in some neighborhoods have good reason to fear for their safety.

The result of Terry v. Ohio is a huge legal loophole in which people in high-crime neighborhoods, usually young black men, are stopped and frisked far more often than people in other neighborhoods. Intended or not, constitutional rights depend on the neighborhood where you live. While race-blind in theory, the Terry Frisk (confusingly also known as a Terry Stop or Terry Search) gives police the legal right to stop and frisk most individuals in a violent, high-drug area.

Technically a Terry Frisk may be used only to find weapons. But any contraband in plain view or “plain feel” is fair game, even if the found object was not the original goal. While reaching into someone’s pockets is technically and legally a search, one can easily feel drugs from outside a pocket while ostensibly frisking for weapons.

In the police academy, trainees are instructed how to use the Terry Frisk to make drug lock ups. If drugs are found on a suspect during a frisk for weapons, officers should complete their search for weapons before addressing the issue of the suspected drugs. If a police officer were to stop a frisk for weapons upon finding drugs, it would be obvious--since drugs are not a direct threat to a police officer’s safety--that the intention of the search was not really officer safety. Once hands go in pockets, a legal frisk becomes an illegal search. The Terry Frisk explicitly does not give police the right to search or empty pockets. But on the street the line between a frisk and a search is not as clear-cut as the Supreme Court wants to believe. Necessary as the Terry Frisk is, in the war on drugs, officers on the street commonly exploit and abuse Terry v. Ohio.

August 12, 2016

Baton Question

(Nothing to to with the DOJ's BPD report, just FYI)

I received a call from a deputy down in Louisiana.

He asked if I knew of any study looking at the effectiveness of various forms of baton. I do not. Does you? Leave a comment or, should you be deterred by that process, send me and email (my email address is toward the top of this page.)

Does anybody know of anything that compares the old-fashion straight wooden baton versus the asp versus the PR-24? (Extra credit if it includes the espantoon.)

I think the expandable baton took over much of policing because of little more than bad supervision ("I don't carry my baton," said too many cops), marketing, and a general cop of toys.

No baton was better than a Joe "Nightstick Joe" Hlafka espantoon.


I really wish I had one. One of my great regrets is not using an espantoon. I wasn't good enough at using one.

The DOJ is wrong (4): On Diggs and Trespassing (dig?)

[75 percent of this post was written by somebody else. As was 90 percent of the research. I double-checked, edited.]

I think the goal of the DOJ report is not about constitutional policing in Baltimore. It's about police not stopping police. Full stop. I mean, hell, even I have moral issues with "clearing corners" in a free society, but I'm telling you I never saw a corner I couldn't clear legally and constitutionally. Unlike many of my more "progressive" academic colleagues, I see police as an essential part of our free society. And until we can think of a better way to disrupt violent crime, sometimes corners need to be cleared. Sometimes criminals hanging disrespecting neighbors and police need to spend the night in jail. And we can do that when they loiter under a posted "no trespassing" sign.

Done strategically, it's an essential part of preserving police authority. And I'm afraid that when police stop being proactive -- like you see right now in Chicago and Baltimore -- the dead bodies will continue to pile up. I do hope I'm wrong.

The DOJ report cites a federal district court case (Diggs v. Housing Authority of City of Frederick Md. 1999) at the bottom of p.36. The DOJ says Diggs casts doubt on "the type of highly discretionary trespassing arrests that BPD utilizes."

This is totally BS.

The BPD does nothing like that described in Diggs, which dealt with a very specific and complicated police enforcement scheme in public housing to hand out warning citations to people, maintain a "trespass log," and only allowed pre-invited listed guests on the grounds of public housing.

Diggs was even explicit that the trespassing they were talking was not the same as trespassing under a posted "no trespassing" sign:
Maryland law, for example, permits a duly authorized agent of the housing authority to enforce the trespassing law by posting reasonably conspicuous signs.
Did they not understand what they read? Or maybe they don't care. An ideological objection to low-level proactive discretionary policing could be more important than the quality-of-life and lives of Batlimoreans. Consider that.

Quibbling over a footnote may be kind of irrelevant when Baltimore cops do conduct a lot of unlawful Terry stops. But I'll note that cops who actually bother to document their stops (and therefore can be audited by the DOJ) are almost certainly not the ones we need to worry about most.

[If you don't know Terry is, see this and this for starters.]

The pages on bullshit loitering and trespassing arrests (pp.36-38) pissed me off. Again, I'm not too mad, because let's face it -- lots of Baltimore cops arrest people for loitering when they aren't actually impeding the free flow of pedestrian traffic, and they arrest people for trespassing when they haven't warned them to move along.

BUT, the trespass warning requirement has a YUGE exception, which is when there's a fucking sign on the property that says "NO TRESPASSING." That's your warning! If you don't belong there, you can go to jail. So why all the hate on the Lieutenant's trespassing arrest template (p.38)? He's trying to show his cops what a legit trespassing arrest looks like. Isn't that what good supervisors are supposed to do? And if you've got black cops policing a black neighborhood, you know as hard as might be for some whites to understand, whites are pretty irrelevant to a lot day-to-day to policing in a minority white city and police department.

The DOJ also ignored Jones v. State (MD App 2010) which clearly states that a sign can serve as a trespass notification:
As noted above, notification of a person not to enter or cross private property is ... not present in the trespass on posted property statute.
But Jones goes so much further. It actually gets kind of crazy:
In addition, the fact that appellant may well have had permission to enter ... does not negate [an officers] probable cause to arrest appellant for trespass on posted property. ... Consequently, although a police officer may ask a suspect about any right or permission to be on the subject property, there is no requirement to do so in order to establish probable cause for arrest for trespass on posted property.
[Just FYI, I've omitted the parts about "wanton trespass" to focus on "trespass on posted property statute." Also keep in mind, this is Maryland Law. Your laws may be different! Ask your doctor if these laws are right for you.]

Think of how powerful and potentially unfair that last sentence is. You could be sitting on your friend's stoop. But if he's in the bathroom when I show up, legally and constitutionally I don't even have to give you the common courtesy of waiting for him to come back before locking you up. (This is why we need cops who understand the law and also exercise discretion and common sense.)

So it sounds like the DOJ is trying to outflank the courts here by asserting that all trespass and loitering laws are unconstitutional. And they have little problem just making things up to achieve their goal. Who wrote this report? What is the methodology? It's all so opaque. And because nobody will challenge a "voluntary" consent decree," the DOJ can say pretty say whatever they want. And leaving Baltimore aside for a moment, shouldn't we be a bit more concerned about lack of integrity and transparency in the US Department of Justice?

Here's the thing, I do have problems with illegal stops and searches and arrests and Baltimore. It's wrong. I wish it would stop. I've written about it. And if that were the point of this report, I'd be all for it.

This report is something deeper and slightly nefarious. It questions the very right of police to stop, frisk, and search people at all. Even when it's legal and constitutional.

The difference between an unconstitutional extension of a Terry Frisk and a legal search can really be as simply as me going, "Can I search you?" And yet why some officers won't utter these four fucking syllables before sticking their hands in somebody's pocket I have no fucking clue. Not once was I refused a consent search. Not once. (And had somebody said no, I suspect I still could have searched incident to arrest.)

So illegal searches do piss me off. Not so much for the semantic omission of four syllables, but because 90 percent of illegal stops and searches (at least in the Eastern where I policed) could be done legally and constitutionally if only cops weren't lazy or dumb. There's no excuse for police not to play by the rules because, despite what cops might even believe, the game is rigged in favor smart police. Or at least it used to be.

How do you define "reasonable suspicion" and "probable cause"?

It's not easy. Trust me. And I was cop, have a PhD, and teach criminal justice. United States v. Humphries, (4th Cir. 2004):
The Supreme Court has repeatedly admonished that the standard for probable cause is not “finely tuned” or capable of “precise definition or quantification into percentages.”
Well that's not helpful. But yeah, it's a bit unfair to overly fault cops for not meeting a definition you can't define.

But, uh, what is probable cause. I'm telling you there's no answer. But a working definition I've used and cops will know ("reason to believe...") is actually not that good because "reason to believe" implies more than 50/50 chance. It's less than that! Dig this, from US v. Humphries (4th Cir. 2004):
Similarly, we have stated (United States v. Jones, 1994) that the probable-cause standard does not require that the officer's belief be more likely true than false.
Well, damn. That was sort of news to me. (Which is why I'm posting this.)

So less than 50 percent is clear. And "reasonable suspicion" is clearly (though only partially) defined as "less than probable cause." So we're talking a pretty low bar here. But I mention in terms of the low "hit rate" cited in the DOJ Report. What's good enough? 10 percent? 25 percent? It depends. But if the hit rate gets anything close to this level, you can't argue there's prima fascia evidence of unconstitutional policing.

And the argument that arrests are bad because charges are dropped? It's absurd. Along with bureaucratic BS (prosecutors march to a much different drummer than cops), the standard for conviction is "beyond a reasonable doubt." The standard for arrest is "probable cause" (which isn't even "more likely true than false." So of course good legal arrests will be dropped.

On top of that, most low-level offenses are abated by arrest. You don't actually prosecute people for loitering and trespassing on a stoop. A loitering arrest isn't bad because it's not prosecuted. It's never prosecuted. And for such minor offenses, officer have pretty low motivation to write a good report, since it really just doesn't matter.


[In my intro classes, I just want students to know that "reasonable suspicion," based on Terry, is the legal standard to justify a stop and/or frisk; probable cause, based on the 4th Amendment, is the legal standard needed for a search or arrest. And even this is a tough sell.]

[Thanks to somebody else for all the research and some of the writing here]

August 11, 2016

Oh, yeah, Bratton resigned

Hey, it's been a busy few weeks in police events. Go read Lenny Levitt on the abrupt resignation of NYPD's Commissioner Bill Bratton.

The Noble Lie: The truth does not matter

Kim Hendrickson works on police and mental health issues and has this take:
I am influenced by Plato so understand the importance--sometimes--of the noble lie. There is much to criticize in the investigations that lead to consent decrees. And they are often horribly unfair in the particulars. But in the Seattle context the process has done more good than bad even though the price has been high for many people (including taxpayers).

Do I wish change would happen without scandal, lawsuits, gross mischaracterizations and federal scrutiny? Yes. But it typically doesn't.

The DOJ is wrong (3): That damn kid on a dirt bike in 2007

Picture a seven-year-old on a bike. From pp. 86-87 of the report:
Allegations of BPD’s unreasonable use of force against juveniles are not new. BPD has a history of problematic encounters with youth that pre-date the period of our review. For example, in 2007, officers arrested a seven-year old child for sitting on a dirt bike during an initiative to confiscate dirt bikes.
It became a minor scandal: A cop grabbed a 7-year-old off his bike for no reason right in front of his mom! Well that's how the false narrative grew. The paper somehow left off the seemingly important detail that it was a motorized bike. That kind of matters, doesn't it?

Long story short: 7-year-old is rolling down the street on a illegal motorized ATV. The keys are in the bike. Yes, that's what (some) 7-year-olds in Baltimore ride motor bikes with with parental encouragement. A cop sees what is going on and about to happen and does, well, what mom should have done. He takes the kid off the bike. Nobody is hurt. But mom-of-the-year files a complaint against the officer saying police assault her kid. She then (naturally) files a lawsuit for money. But the city (and this isn't natural) doesn't settle. The case goes to court, and the city wins hands-down.

I wrote about this in 2008:
Police had the nerve to stop the 7-year-old from driving an A.T.V. down the street. He wasn't "riding," says the mom; the motor was off. He was just "rolling down the street." The kid was 7. On a motorized ATV that can start with a key. So the police do their job and take the kid off the bike.
People blamed about "zero-tolerance" policing, by the way.

This was bad parenting and good policing. It should not be Exhibit A in "unreasonable use of force against juveniles." See, back then this case bothered me because it was still kind of rare in 2007 for a cop to be attacked for doing the right thing. And I bet those who wrote this report make their kids wear a helmet before they can even get on a pedal bike.

The DOJ is wrong (2): the N-word

From Vice Magazine:
Of course, some former Baltimore cops take issue with the tone of the federal report, which cited 60 complaints of racial slurs against black people.

"The BPD is not a bunch of white officers calling blacks n****rs," said Peter Moskos, a former Baltimore cop and professor at John Jay College of Criminal Justice. "I didn't hear the word used once by a white officer. Not once. I'm not saying it's never been used, but this isn't fucking Ferguson. I suspect much of the usage they talk about is from black officers. Doesn't that matter? But the report doesn't tell us."
[Vice actually printed the whole n-word, which I still find bold. Too soon for me.] Ah, you say, but I wasn't there for long. True. Or maybe nobody used the word around me. Maybe. I hope that's the case, because if all it takes is one cop to totally change police culture, man, that is great news. No. I didn't hear white cops call people n****r because white cops don't call people n****r in Baltimore.

[Just as a reality check, I did ask one black cop if he ever heard a white cop use the word in public. He said "no." (Somewhat reluctantly, I kinda thought.)]

The report cites race in just one case. And it's white using the word; we know this because his partner filed a complaint. Good. See, even if some whites wanted to use the word (I'm sure some whites do), you don't hear white cops in Baltimore calling blacks n****r because, even if for no other reason, there are too many blacks around! Whites are a minority in the city and the police department.

Now did I hear black cop from black neighborhoods calling another blacks n*****s? Oh, did I. Is this objectionable? I don't know. Seems so to me. (And apparently it is to the citizens who filed complaints about it!) But far be it for me to white-man-splain to a black cop that his non-standard English using isn't up to my college-educated standards. But no matter where you fall on this usage issue, blacks being rude to other blacks is not a sign of systemic racism in the department.

"Communities don't commit crime; people commit crime"

I love when other people do my writing for me! Thank you and keep these coming:
On the racial disparity stuff, at least the DOJ is claiming they controlled for crime rates. (see p.63). But did they really? The report is full of boneheaded statements like "Despite making up only 41 percent of the Northern District's population, African Americans accounted for 83 percent of stops in the district." (p.65, n.72). Gee, how much of the violent crime in the Northern District is being committed in Greenmount [ed note: poor black] as opposed to Roland Park [rich white]?

And people always talk in terms of higher crime rates in certain "communities" -- as I just did. But communities don't commit crime; people commit crime. Saying black people live disproportionately in high-crime neighborhoods is a euphemistic way of saying black people commit a disproportionate amount of crime. (And we're talking about violent crime here, which is what drives street-level proactive enforcement). [Last year 93 percent of Baltimore homicide were black]

If they tried to control for crime rates by focusing on the rates of crime in different communities rather than the rates of offending by black and white residents, isn't that problematic? (Genuine questions here; I'm no statistician) [Ed note: Yes]. Doesn't this all come down to how the DOJ drew the boundaries for the neighborhoods they studied? What did they use? Police districts? It seems like it. Look at p.63 (referring to disproportionate stops of African Americans despite "significant variation in the districts' demographic characteristics and crime rates").

Let's say the fictional North Central district is 100% white, and the fictional South Central district is 100% black. The crime rate is twice as high in the South Central, and people in the South Central are twice as likely to get stopped by police. I assume that would pass muster with the DOJ. But, of course, real districts in Baltimore don't look like that. They're mixed and largely segregated. They look like the Northern District, with lots of crime in black neighborhoods like Greenmount and hardly any crime in white neighborhoods like Roland Park. They look like the Southeast district, with far less crime in largely white Sector 1 than in Sector 2 (bordering the Eastern), where the population is mostly black. It seems to me this messes up any attempt to control for crime rates if they're only looking at things at the district level. Better would be to break it down by individual neighborhoods, though that leaves room for error, too. Even better would be to study actual rates of offending by black and white residents. What percentage of robbery suspects were reported as black? What percentage of shooting suspects in cases that had eyewitnesses? What percentage of suspects from "CDS outside" complaints were described by the callers as black?

Wouldn't it be a powerful illustration to just look at the gender of people stopped? Men presumably account for about 50% of Baltimore's population. Surely they make up a much higher percentage of those stopped and arrested. And I'm sure the disparity persists even if one attempts to control for crime rates in different "communities." (I doubt the male/female ratio differs all that much district-to-district). Is that evidence that BPD cops are profiling men, and have an anti-male bias? Or are cops focusing on men because, well, men commit most of the crime in the city, and therefore it's mostly going to be men who exhibit suspicious behavior that prompts officers to stop them?

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.

A pattern of abuse?

Today, no police department should be surprised by what the Department of Justice is looking for,” said Chuck Wexler, executive director of the Police Executive Research Forum, which has extensively studied such investigations.
I'm not a lawyer and don't think like one, so I'm a bit slow in realizing how the DOJ goes about its business. It's not enough for them to say "there are problems and here's what needs to be done." The goal is a consent decree (in this case one that shifts blame to long-gone mayor from over a decade ago), and this is a necessary precondition. The DOJ has a kind of template for this report:

Provide anecdotes of bad policing. (Some of these will be true.)

Highlight worst practices.

Throw in some (dubious) statistical analysis to "prove" racism about use of force, bias, or unlawful searches and seizures.

And voila! A "pattern" of "unconstitutional" and racist policing. Here's one critique of this business from Matthew Hickman, a professor and former DOJ statistician, about their 2012 Seattle report:
The Department of Justice investigation of the Seattle Police Department was launched over concerns about eroding public trust and confidence in the Seattle police, but I am far more concerned about whether DOJ deserves our trust and confidence. The public release of DOJ’s report highlighted two empirical findings that stretch credibility beyond its limits, and DOJ is presently trying to force the city to institute reforms without DOJ revealing the methods that produced its findings. If Seattle does not push back, DOJ will end up causing more harm than good.
...
I’m frankly shocked that DOJ went public with such a ridiculous statistic; it’s totally inconsistent with the available research literature on police use of force, and stands in defiance of reason. I can only conclude that DOJ had no other goal than to incite the public and build popular support for a baseless political cause.
...
If they had invested in collecting these data on a systematic basis, they would have the larger context that might make their “pattern or practice” investigations more meaningful. As a consequence, we simply don’t know if Seattle’s data are “too high,” “too low,” or “just right.”
...
In sum, there are legitimate questions about the quality of DOJ’s analyses here in Seattle as well as the expertise of those who produced them. As of this writing, DOJ has failed to provide the details of its methodology. It is doing so in hopes that Seattle will voluntarily enter into a costly consent decree without questioning DOJ’s highly questionable findings.

Yet there is ample evidence that DOJ has built a house of cards in support of a political agenda. The empirical findings of its investigation simply don’t pass the “smell test” and will not stand up to legal or scientific scrutiny. The city of Seattle should call DOJ’s bluff, and settle for nothing less than a formal apology.
And when an agency did call the DOJ's bluff, the DOJ lost.

August 10, 2016

The DOJ is wrong (1): Trespass

There's a lot of good in this report. I'll get to that eventually. It's a hard report to comment on in its entirety because there are different authors and different sections. Some are well documented and spot-on. Others are bullshit and fluff. But the parts that bother me most are the legal errors. I expect better more from the friggin' Department of Justice.

Let me get these off my chest. Late last night I wrote this to somebody:
As a description of police culture and day-to-day to policing, the report too often just doesn't get it. I found errors based on a few things I know or could fact check from home. And given that I know a few of the stories are bullshit, it makes me question all of them. This is the DOJ, not some anti-police rag. They need to make sure everything they say is true. And it's simply not.
Page 37 of the report describes a loitering arrest that "violates constitutional due process requirements":
The officer then--without any warning--arrested the men for trespassing.... In September 2011, a BPD officer similarly arrested a man “loitering directly beside the 2501 E. Preston Street Greater Missionary Baptist Church.” The officer made the arrest after asking the man “why he was in the area” and learning that the man “had no business near the area of the [church’s] steps.” Each of these arrests violates constitutional due process requirements because the arrested individuals lacked notice that their apparently innocent behavior was unlawful.
This is the DOJ. These are serious charges. They need to be right.

The loitering law does indeed state (among other things) that a person must be warned before being arrested. [The bigger violation among police in making loitering arrests is ignoring the essential "in such a manner as to interfere with the free passage of (pedestrian/vehicle) traffic" part of the law. But that's another story.]

[It's why, if you've ever been to Baltimore, there are so many "no loitering/no trespassing" signs on stoops. Those signs tell cops, "Yes please, go right ahead and keep people from sitting on my steps." Now whether or not we want police to make any loitering or trespass arrests is a another issue, but many residents (and churches) in Baltimore don't want to come home from work and find drug dealers on their stoop. Honest people may not want to leave their house and have to ask drunks to step aside. Huh? Imagine that. But the DOJ doesn't mention that a lot of low-level police enforcement is initiated by citizens and politicians. What are cops supposed to do? Ignore calls for service because it's "just" a minor crime hardly worth enforcing?]

Well I don't police that block anymore (never did much, actually, it was Sector 3), but we can all zip over to 2501 E. Preston on google streetview! (What a world we live in) There's a "no loitering/no trespassing" sign right there, clearly visible (if blurred out). Police do not have to issue a verbal warning for this trespass arrest, because the sign provides the warning. This is covered under §6-401 (formally Art 27 Sec 576, from which I'm copying): "...did trespass and enter upon the property of ______ said property being posted against trespassers in a conspicuous manner." This arrest is clearly not a violation of "constitutional due process requirements." How can the Department of Justice be ignorant of the law?



[Originally I said "loitering" when I meant trespassing. That makes me a bit ignorant, too. But along with being a bit rusty on all the BS charges, I was thrown off because the damn report says he was "loitering." Indeed, you arrest a loiterer for trespassing. I also think we would sometimes colloquially call such arrests "loitering." But the actual charge is "trespassing." I've updated the post a bit to reflect this.]

Can't you take a joke?

One of the beliefs common to many conservative cops is that liberals can't take a joke. I don't think this is true (how many comedians are conservative?), but I hate when conservaes are right. From page 25 of the DOJ report:
Indeed, many BPD supervisors who were trained under the prior enforcement paradigm continue to encourage officers to prioritize short-term suppression, including aggressive use of stops, frisks, and misdemeanor arrests.
That's something a bit sad and desperate about this report's (and city leaders) constant attempt to blame today's problems on 16 years ago.

The report goes on:
A flyer celebrating loitering arrests was posted in several BPD districts. The flyer depicted three officers from one of BPD’s specialized units known as Violent Crime Impact Division, or VCID, leading a handcuffed man wearing a hoodie along a city sidewalk towards a police transport van, with the text “VCID: Striking fear into loiters [sic] City-wide.”

People, this is not a motivational poster. It is not celebrating loitering lock ups. It is... a joke. It is making fun of -- mocking even -- a specialized unit for making bullshit loitering locks up.

I find it funny. Do you have to be a cop to get it? I don't know. But couldn't they find anybody with a clue to read a draft and red-flag this? "It's obviously a joke," my liberal-with-a-sense-of-humor wife spells out for the humorously challenged, "because it's using the template of the fake corporate motivational poster." Get it?

But if the DOJ observes don't get this basic level of police culture (or humor), I question a lot of their observations. (I don't know how much you can learn in "dozens" of ride along in "all the districts." Because that means about 3 ride-alongs per district. Does it even equal one complete shift? I don't know.)

Chapter Three of Cop in the Hood does start with a "motivational" speech at roll call:
All right you maggots, let’s lock people up! They don’t pay you to stand around. I want production! I want lockups! Unlike the citizens of the Eastern District, you are required to work for your government check.
The sergeant even made a little sign out of the last sentence and put it up in our sector cubical. Personally, I thought it was funny. In the end, he was told to take it down. Seems like nobody can take a joke.

Update: Over on twitter, I was trying to explain to a Sun reporter who also didn't get the joke. David Simon, who speaks Police and Journalistic, stepped in to help translate:
The office poster we're talking about is actually a subtle and appropriate critique of bad policing.

Everything I know about cop humor says that poster is there as sarcasm, to which cops are entitled.

Poster not motivational, but a critique of weak arrests; station house humor to which cops are entitled.

Every profession uses humor to critique lesser standards, affirm for better.

Cop humor. And in the context of stationhouse ball-busting, rather funny. Not affirmation.

The snark about bad journalism that used to be on the walls of The Sun was affirmation for better.

One Xmas, Homicide unit pasted wings on morgue photos of dead gangsters & hung on tree.

For attorney: "Anyone can convict the guilty. For an innocent man, you need a great lawyer." Cynicism serving ethic.

Fuck that much self-righteousness. Every profession is entitled to its own interior wit. Especially the tough ones.