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A most-telling consent decree

Jack LB Gohn

At this writing, we don’t know whether the proposed consent decree between the City of Baltimore and the U.S. Department of Justice will ever be approved and go into force. But its 200-plus pages are worth a read, if for nothing more than insight into the kinds of things that have gone on between minorities and police in Baltimore and probably across our country.

Sometimes it’s not so much what a document says as what it presupposes that is most telling.

The decree disclaims liability, of course, and proceeds to be very inexplicit about the crisis in Baltimore’s policing that set the stage for it. But it ordains a huge training effort, promises to rewrite major portions of a departmental website, commits to generating a large number of periodic reports, agrees to buy tons of equipment, restructures an officer discipline program, and installs a court-appointed monitor, none of them things you would do unless there was something – actually a lot of somethings – to fix.

Direct indications

Buried in passing phrases of the document are some pretty direct indications of what those somethings are.

Example: “Officers conducting a Field Interview shall do the following: a. Introduce themselves by name and rank as soon as reasonable and practicable…” No need for that unless it doesn’t always happen. And what would it be like to have an unidentified cop asking you questions? If you’re reading this paper, it may not have happened to you, but you know the answer.

Or: “Officers engaged in … a Field Interview may not use a person’s failure to stop, failure to answer questions, decision to end the encounter, or attempt or decision to walk away to establish reasonable suspicion to justify an Investigatory Stop or Detention, Search, Citation, or Arrest of the person.” Imagine how powerless the subject of a “Field Interview” must feel when he knows that just walking away may get him arrested.

How about this? “BPD will ensure that officers understand that there is no routine or automatic ‘officer safety’ justification for a Frisk or Pat Down during an Investigatory Stop.” That is not to say there may not be circumstances that justify it, as the decree spells out. But no boilerplate presumptions that justify frisking someone. Again, why would anyone insist upon this, unless it were a problem? And it’s not hard to guess what kind of problem it is.

Here’s a beaut: “BPD officers shall not conduct Frisks or searches of LGBT individuals for the purpose of viewing or assigning gender based on the person’s anatomy or genitalia.” Who would even have thought this went on? But provisions like this must have a context: they don’t come out of thin air.

And what reason could there be for a provision like this?: “BPD will ensure that officers issue a Citation or make a custodial Arrest only where they have probable cause to believe a person has committed, is committing, or is about to commit a criminal infraction or citable offense.” In my neighborhood, that principle probably goes without saying 99.9 percent of the time. A few blocks away, though, it could be another story, partly because of “Quality of Life Offenses.” These include things like gambling, disorderly conduct, and that perennial favorite: failure to obey an officer.

The decree would require a senior officer to sign off before the arrest, and that officer is supposed to check both for the discretion of the act (arrest as opposed to warning or citation) and for probable cause. You don’t build checks and balances into the system unless it’s producing arrests without cause or exhibiting some other abuse of discretion.

Police will now also need to document the demographics of each stop and each frisk. As this column has noted before, similar statistics maintained by the New York Police Department revealed marked patterns of stop and frisk aimed at minorities – and also that frisks of white folks were more likely to turn up contraband than frisks of citizens of color, suggesting that police were under-policing the (slightly) more contraband-carrying class. It’s not hard to guess that the Justice Department thinks similar demographics would turn up here.

Urgency for response

I could quote lots more. But the point is, the document suggests a world in which the police interact with parts of the public in an impolite, intimidating, and discriminatory fashion, enforcing the law with highly discretionary and unpredictable rigor, more intent upon exerting control than being fair, and predictably behaving far worse in racial and sexual minority communities than in white ones.

I do wonder whether the apparent hostility of the new administration to attempts to use DOJ consent agreements to ameliorate urban policing problems will ultimately lead to the decree’s withdrawal or, if approved, lack of enforcement. I also wonder whether, assuming it goes into force, the enormous cost compliance with this agreement would impose upon the city in staffing, training, and reporting would be tolerable. Drastic understaffing in the Baltimore police would also create its own problems even if the money were there.

To choose but a single example, taken straight from the Freddie Gray debacle: there are, as one might expect, multiple provisions specifically forbidding “rough rides,” the practice of letting unsecured suspects slide around inside paddy wagons being deliberately driven erratically. There are companion provisions requiring cameras in the backs of the wagons, and requiring medical monitoring and the providing of medical attention to transported arrestees as needed.

But the retrofits to wagons take money and time; the problem the Freddie Gray defendants complained of (how an officer secures a suspect without exposing a gun to its possible seizure) is not addressed; and the exigencies of driving a wagon directly to a lockup or a hospital amidst moment-by-moment fresh demands for its presence elsewhere have not been solved.

Whatever comes of the decree, though, the half-articulated realities glimpsed in it underline the urgency for a real response.

Jack L.B. Gohn is a partner with Gohn, Hankey, Stichel and Berlage LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at

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