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by Peter Moskos

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.]


Anonymous said...

Are we talking about the Baltimore (local) loitering law which seems to actually require a warning and not simply a posting (http://baltimorecode.org/19/25/) or are we talking about a different law?

"No person shall be charged with a violation of this section unless and until the arresting officer has first warned the person of the violation and the person has failed or refused to stop the violation."

EA5 said...

The discrepancy between what police think and are trained to think the law allows and what the DOJ says the law allows is a major theme of this and several other DOJ investigations. I'd be interested to read what some other lawyers, judges, legal scholars, etc have to say about it if anyone has some good sources.

Steve Poisson said...

Still trying to read through various sections. My overall interpretation is that this is a legal document, which is in the middle ground between a political document and a scientific document. The standards for and usage of evidence differ a great deal across these types of documents. So, the VCID poster may be misinterpreted, but I would guess it is a knowing misinterpretation. They decided they can use their favored interpretation because it is plausible that it means what they say it does to at least some BPD officers, even if other alternatives are also plausible or even more likely for most BPD officers.

Moskos said...

Steve, I would really be surprised if one single Baltimore cop would see that poster in the way the report does.

And from my twitter feed, at least two smart people I know -- along with CNN -- did not get the joke.

Moskos said...

Thorn, you got me worried there. Because if I'm wrong about this being a legal arrest, then yes, there is a bigger problem than simply me being wrong (as in what EA5 is saying).

Where I was wrong was in thinking the violation was "loitering." I was thrown off because (along with being rusty on all the BS/minor charges) the damn report says he was arrested for loitering. But he wasn't. The loiterer was arrested for "trespassing." §6-401 (formally Article 27 Section 576, from which I'm copying): "...did trespass and enter upon the property [stoops are private property] of (name owner/lessee) said property being posted against trespassers in a conspicuous manner."

I also think (keep in mind it's been years) we often called such arrests loitering, which could be what the officer honestly told the observer. But the charging doc would say trespass. And more importantly it would be legal.

A sort of related note: On the previous post I didn't include part of the paragraph from the report that read, "Flex cuffs and a line at [Central Booking]. CJIS code 2-0055.” CJIS 2-0055 is the offense code entered for loitering." But it's not. I'm unfamiliar with CJIS. (Best I can figure out, it's part of the FBI's coding system?) But 2-0055 isn't loitering, it's something disorderly conduct. Just seems like something the DOJ should get right, since it's a DOJ system.

LizardBreath said...

If the arrest is for trespassing, isn't there an issue beyond the warning with the narrative description of the arrest as having been "near" the church steps rather than on them? That is, it seems wrong to me to describe standing near private property as trespassing on it.

Steve Poisson said...

To use that as evidence in a legal document, they just have to be able to convince themselves that it is plausible that a BPD officer would not see it as a joke. That standard, in my mind, is far too low for a document of this importance. But, these are lawyers, and they are trained to advocate for a position, not weigh the evidence in an impartial way. In this case, they are finders of fact, but the advocacy impulse runs throughout the report, by my reading.

Moskos said...

If he was arrested for loitering, it would not be legal (and for a few different reasons). Or perhaps the guy was never sitting on the steps.

If the cop saw him sitting on the steps, a trespass arrest would be legal. And I am assuming that the guy was on the steps, because, well, that's where loiterers loiter and steps were mentioned.

Perhaps the cop is an idiot and charged him with the wrong crime. That would be an error, but not really a "violation of constitutional due process requirements."

I suspect, like me, he called it loitering but charged him with trespassing.

LizardBreath said...

Well, from the narrative, he was 'near', not on the steps. At which point it looks to me that if the arrest was for loitering, it was a problem because there was no verbal warning. If it was for trespassing, it was a problem because he wasn't on posted property.

It's possible you've guessed right, and the narrative given was wrong in saying that he was near rather than on the steps. But if he wasn't on posted private property, it looks to me like the DOJ is right, and the arrest really was bad, rather than merely being misdescribed.

Moskos said...

A loitering arrest would also not be legit because they guy wasn't obstructing pedestrian traffic.

But it's not clear whether or not this description is observation or report reading (the methodology is always concernedly vague). My assumption, perhaps wrong, is this was based on observation. How would they know somebody was arrested "without any warning" if they weren't there to see it? The language quoted would odd and verbose for a charging document.

LizardBreath said...

In either case, whatever the source is for the description of the arrest as both without warning and “directly beside the 2501 E. Preston Street Greater Missionary Baptist Church” or “near the area of the [church’s] steps,” whether observation or report reading, if the DOJ was justfied in relying on it, they seem to me to be justified in calling it a bad arrest.

You could be right that the quoted language is implausible, and that you can therefore assume it was inaccurate and the arrestee was actually on posted property. But your original post calling the DOJ ignorant of the law seems offbase, if all you're relying on is your sense of what the real facts likely are.

Moskos said...

I may be wrong. But the reference to steps makes me pretty confident it's a trespassing arrest. Being "near steps" would be completely irrelevant to a loitering charge.

LizardBreath said...

Oh, it makes sense that the charge is trespassing, but that it's also flawed as trespassing. That is, being near or beside private property isn't the same thing as trespassing on it, and what's described in the narrative is near or beside rather than on.

The DOJ report doesn't seem to have cleared up the trespassing/loitering confusion that seems like a matter of casual usage in the BPD from your experience, but I don't think you've got a basis for saying that they only thought this was a bad arrest because they misunderstood the law. On the facts given, it was a bad arrest either as trespassing or as loitering.

Moskos said...

It just occurred me this has to be from reviewing an written report. It happened in 2011. The DOJ wasn't there, then.

But we don't know what the guy was arrested for: loitering or trespassing. I suspect the latter. In part because in a different example (from the same paragraph) the report says "officers arrested them for trespassing [and] provided no warning before arresting the men and did not charge them with any other offense." It's complaining about trespassing arrests in general.

So maybe I should have used that one as the example, but the address is given only for the one I picked. So it's the only one I can confirm regarding the sign (though there usually is a posted no-trespassing sign).

Anonymous said...

re: loitering v. trespass, gotcha. I kinda suspected that might be the case- around my parts our local loitering ordinance was taken off the books but we still use the wanton trespass state charge when applicable (and have to occasionally explain to new guys that the 'no loitering' signs outside businesses don't have real weight of law unless an agent of the property gives a trespass warning)

Moskos said...

This is what starts an East Coast West Coast feud!

But more seriously, might it explain why there is no much more street-homelessness out west? Or is is the weather?

Unknown said...

Peter, you've contributed some great stuff here this week. Thanks for all of it. Amongst other things, you wrote: "It just occurred me this has to be from reviewing an written report."

That's what DOJ does, they read reports and cherry pick without ever having stepped into the orchard or god forbid even climbed a ladder or two. My own agency was found to have a pattern of practice. DOJ supplied five reports as proof. DOJ did not contact those officers involved in the five incidents. DOJ did no actual investigation regarding those five incidents. They read the reports and found a pattern of practice all while refusing to define pattern of practice. DOJ equates poor report writing with poor policing because, that is all they know of policing, they don't like street level policing and as you mention above, the truth does not matter.

And yes, the goal of DOJ is to end street stops that lack probable cause for a non-quality of life crime. Period. No more Terry stops. No more clearing corners. None of it. Anyone who spends time wading through their decrees and does not see this has his head in the sand. DOJ creates paperwork demands that take officers off the street for any action where an officer touches a person. God forbid an officer uses force that will take all officers present and a supervisor off of the street for a couple of hours while the investigation and paperwork are done. Meanwhile, calls keep stacking up, other officers are making do with less or without cover. DOJ is successfully introducing an attitude that if an officer uses force, he's fucking over the rest of the watch. The last several uses of force I've been on scene for, officers have apologized to the rest of us because they knew it was going to leave us short staffed. And just to be clear, I'm not talking blood and bruises force here; I'm talking handcuffed guy picks up his feet because he's being an asshole and officers set him on the ground gently. In the world of DOJ, that is a take-down and a very serious 4th Amendment seizure.