Legal gray areas hinder police surveillance

By Paul Kiefer

Three years after state lawmakers celebrated the passage of the Maryland Police Accountability Act, the rollout of the new police oversight systems has proven slow, inconsistent and fraught with disagreements over how to implement the new oversight process – challenges that frustrate critics and administrators alike.

However, the Maryland General Assembly showed little interest in revising the law, leaving many of the unresolved questions about the new police oversight systems to local governments.

A Capital News Service investigation found that about a quarter of Maryland jurisdictions had not made their police oversight systems operational before the July 2022 deadlines set by the state legislature. The new boards of supervisors in Baltimore City and Dorchester, Cecil and Kent counties did not meet until 2023.

Even in jurisdictions that met the deadline, some administrators had difficulty dealing with ambiguities in the law. In one county, three people who later filed misconduct complaints had to face counter-accusations in court that they filed false reports and wasted police resources.

The Maryland Police Accountability Act of 2021 established three levels of police oversight system This, in theory, overhauled the state’s longstanding rules governing police misconduct investigations and gave civilian agencies the authority to receive complaints of misconduct, review internal police investigations and issue disciplinary action. The reforms were Maryland lawmakers’ most prominent contribution to a nationwide wave of police oversight reforms following the killing of George Floyd by a Minneapolis police officer a year earlier.

Maryland House of Representatives Majority Leader David Moon (D-Montgomery) was a member of the Maryland General Assembly’s Police Reform and Accountability Working Group and a leading voice in support of the Police Accountability Act in 2021. He says state lawmakers generally expects local governments to be proactive in making the new police oversight systems work, although he does not always support this approach.

“If there are real problems, of course the state can intervene to clarify, but we are essentially still in the early stages of letting implementation flow through local governments,” Moon said.

Police Accountability Boards (PABs) form the basis of the new system. The panels are responsible for receiving civilian complaints and forwarding them to the appropriate law enforcement agency for internal investigation.

State lawmakers set an unenforced timeline for creating new county-level police oversight bodies: Each of the state’s 24 jurisdictions, including Baltimore City, would establish a PAB by July 2022, and each PAB would release an annual report on its activities this year .

But a half-dozen districts have struggled to maintain their PABs and refer complaints for investigation before that deadline, generally due to administrative hurdles, a lack of volunteers or simply the size of the task.

Moon says state lawmakers expected these setbacks but chose to set a shorter timeline for establishing the new regulators rather than stall the process for the benefit of smaller jurisdictions. “We ultimately decided to move forward with the implementation process, even though there were delays and problems,” he said.

In many districts, a lack of outreach and preparation meant that board positions “often went to people who were already in the loop,” said Yanet Amanuel, public policy director for the ACLU of Maryland.

These delays have consequences. Joshua Harris, chairman of the City of Baltimore’s PAB, says the first board meeting was postponed until February of last year due to administrative red tape, at which the city’s Office of Justice and Civil Rights fielded more than 300 complaints on behalf of the board; The city did not form its Administrative Charing Committee (ACC) until July 2023.

“(At the time of its first meeting), our ACC already had a backlog of cases,” Harris said. “If cases are not reviewed within one year and one day (of their filing), the decision of the Police Department Integrity Office is essentially final. That could mean there are problem officers staying on the streets.”

Harris said the committee continues to receive cases for review that have little time before the 366-day deadline, forcing them to expedite their review or risk leaving discipline to the police department’s discretion .

Meanwhile, district attorneys and PAB administrators in other states have expressed concerns that the rules for reviewing police misconduct and imposing disciplinary action are riddled with ambiguity.

A prime example of this is the Worcester County District Attorney’s Office’s decision to file criminal charges against three people whose complaints of police misconduct were deemed unfounded.

“The law currently provides no protection for people who file complaints,” says Amanuel of the ACLU.

Worcester County has charged three people — including the first person to file a complaint about the county’s PAB in 2022 — with filing a false report after filing complaints about Ocean City police officers.

The District Court in Ocean City has not yet sided with the district attorney’s office on the issue; The judges dismissed all three cases, saying that while the complaints themselves were unfounded, they were not criminal.

“I have never seen a case where the police brought a criminal complaint against a person who wanted to be heard about their views on police conduct,” said Judge Richard Collins, who presided over the first trial, in his closing remarks. “I think it would be to tell people, ‘Don’t complain to the police because they might decide to open a criminal investigation into your different opinions about the behavior of these officers.’

Messiah Burrell, a Pennsylvania resident and the second person to be charged after filing a complaint of misconduct in Worcester County, believes his experience calls into question the value of the new oversight system himself.

“I could have known what I was getting myself into,” he said. “I never had the opportunity to speak to anyone on this (Police Accountability) Board. I only spoke to the Ocean City Police Department.”

The Worcester County District Attorney’s Office did not respond to inquiries about the cases.

However, Worcester County District Attorney Roscoe Leslie noted other glaring ambiguities in the Maryland Police Accountability Act, including the definition of “police misconduct” itself.

The law defines misconduct as “deprivation of persons’ constitutionally protected rights, violation of criminal law, and violation of law enforcement standards or policies.”

“The way it is written leaves it open to the interpretation that all three – depriving people of their constitutional rights, violating criminal laws and violating agency policy – ​​must be considered misconduct,” argues Leslie. “I haven’t adopted that interpretation, but it’s still possible.” Prince George’s County’s PAB expressed similar concerns, and the Maryland attorney general’s office intervened last April to clarify that counties use the broader definition of police misconduct should use.

Lawmakers in Annapolis considered a proposed change to new police oversight system this year: one from Del. Malcolm Ruff (D-Baltimore City) introduced a bill that would have given subpoena authorities the authority to conduct investigations concurrently with law enforcement agencies’ internal reviews.

Jim Gormley, a former member of the Howard County PAB and founder of the Howard County Police Accountability Task Force, argues that granting subpoena power would encourage agencies to take a more active role in police oversight. At the moment, he said, most panels are serving as “letterboxes,” in part because of uncertainty about the extent of their role in recommending reforms.

“State law states that PABs should work to ‘improve matters of policing,'” Gormley said. “What does it actually mean to work to improve police work? That means nothing, but unless we have the legal mandate to take an active role, we will have a lack of clarity, a lack of energy and a lack of drive for accountability.”

But law enforcement advocates countered that the ACCs already have subpoena powers — whether they use them or not — and that adding another investigative step would unduly complicate an already complicated process.

“Across the state we are talking about hundreds of cases,” Clyde Boatwright, president of the Maryland Fraternal Order of Police, told the Maryland House Judiciary Committee. “We still found the one case that says the internal investigation should have been conducted differently. How many bites of the apple do we have to have?”

Ruff’s bill ultimately failed to advance past the House Judiciary Committee, ending consideration of changes to Maryland’s police accountability system system this year.

There’s no interest in the General Assembly in revising the Maryland Police Accountability Act — or a lack of confidence in some counties to expand the state law independently of the General Assembly — Howard County’s Gormley says those who want to improve what’s new are system are “somewhat stuck”.

But Moon contends that state lawmakers designed the Maryland Police Accountability Act to leave much of the decision-making to the state’s 23 counties and Baltimore City.

During the drafting of the bill, “I think everyone accepted that a lot of decisions would be made locally,” Moon said. “We put a framework in place and local governments had to fill in the gaps.”

Tommy Tucker contributed to this report.

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