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by Peter Moskos

August 12, 2016

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 people. 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.


Unknown said...

"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?"

The template lists the arrestee as a black male. It's not one of the blanks to be filled in. It's just presumed to be a black male.

Adam said...


The DOJ's report, on p.38, raised two distinct issues with the lieutenant's form. The first issue -- which this post addresses -- was that the template provided a constitutionally deficient basis for making a trespass arrest. As demonstrated above, that's flat wrong.

The second issue is the one you mention. I'm underwhelmed. I would bet a large some of money that the lieutenant used one of his own arrest reports for this. He did not write a template from scratch and therefore consciously decide to write "black male" under the assumption that every arrestee would be a black man. He logged into Arrest Viewer, typed in his own sequence number, selected "trespassing" from the drop-down box, and found a decent report from one of his old arrests. He copied and pasted it into a Word document and quickly went through erasing the parts that would obviously differ in every case, such as name, address, and time of day. He skipped over "black male." Shucks. He also failed to change the pronouns to (he/she/zhe) instead of "he." Does that demonstrate some sort of subconscious bias -- that it didn't jump out at him that he should provide a fill-in-the-blank space for race and gender? Even if he's in a district like the Eastern or Western that's almost 100% black, and where almost all of the loiterers are guys? Yeah, sure, I guess it does. But for this to be front-and-center in a DOJ report accusing a police department of systemic racial bias? (It's mentioned again on p.67). Seems awfully weak to me.

Moskos said...

I wouldn't write "black male" on a template. I understand why it shouldn't be done. But come on now... would it be racist if the medical examiner put "black male" on the homicide template she made for her medical examiners? 93% of murder victims are black. It's a template. You can change it. But reality isn't politically correct.

I don't think people understand just how black Baltimore is (and particularly how black parts of Baltimore are). If you work in an all black district -- and especially if you are black -- white people just might not be on your mind. This seems strangely disconcerting for a lot of white people. This is why I said is that Vice article, "this isn't fucking Ferguson." Baltimore is not a white city or majority white police department. Whatever problems exist, the overriding factor is not white racism. There just aren't enough white people. And some of the fucked up white people Baltimore has? Let's just say they're not a threat to any dominant power structure.

bacchys said...

There are a lot of people in Baltimore getting arrested for sitting on their own stoop.