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Baltimore consent decree parties reaffirm partnership before federal judge

1.12.2017 BALTIMORE, MD- Mayor Catherine E. Pugh  joined by U.S. Attorney General Loretta E. Lynch to announce agreement on the Department of Justice Consent Decree concerning practices by the Baltimore Police Department. (The Daily Record/Maximilian Franz)

Baltimore Mayor Catherine Pugh, pictured last month when the consent decree between the city and U.S. Department of Justice concerning police reform was announced, told a federal judge Wednesday the city would comply with and enforce terms of the lengthy agreement that governs everything from police training to ensuring officers investigate within the bounds of the Constitution. (The Daily Record/Maximilian Franz)

The parties to the consent decree that would reform the Baltimore Police Department assured a federal judge Wednesday they would continue to collaborate despite recent shakeups at the U.S. Department of Justice.

U.S. District Judge James K. Bredar asked and received explicit assurances from federal officials and Baltimore Mayor Catherine Pugh that they would comply with and enforce the terms of the lengthy document governing everything from police training and technology to ensuring officers investigate within the bounds of the Constitution.

One of Bredar’s first questions during the hearing, which he convened to address multiple issues about the agreement, was whether the city was prepared to undertake the still-to-be determined cost of complying with the decree.

“I’m not saying this is avoidable, but the decree has a blank-check quality to it,” he said.

Pugh and Interim City Solicitor David E. Ralph said the decree repeatedly references feasibility for the city and, to the extent there is a disagreement, Bredar will have the final say.

“It is my hope that we don’t reach those impasses,” Ralph said.

“Mine, too,” the judge responded.

Bredar praised the parties for their cooperative relationship but said he has to consider the consent decree from the possibility of a total breakdown in the relationship, in which case he would be in charge of seeing compliance with the decree.

Once Bredar signs off on the agreement, one of the first steps toward compliance will be the selection of a monitor to oversee the process and the drafting of a monitoring plan. Bredar asked for more details about the schedule for selecting the monitor and what the court’s role would be if he disagrees with the monitor or plan presented to him or of the parties could not agree and came to the court.

The judge again assured the parties he was not predicting trouble but wanted the obligations and roles of the parties to the consent decree to be clear.

Questions on specifics

One potential sticking point is a new collective bargaining agreement being negotiated between the city and police union. Glenn T. Marrow, a city Law Department lawyer representing the police, said the interplay between the CBA and consent decree is “at the forefront of the minds of those from the city negotiating the agreement.”

The parties agreed the CBA controls in any conflicts with the consent decree but the city and the police department agree under the decree to use their best efforts to negotiate a CBA that is in line with the decree. Any new provisions in the renegotiated CBA that conflict with the consent decree would put the city out of compliance.

Bredar sought clarification about the decree’s provisions that refer to established rules of criminal procedure and in some cases appear to impose different duties on officers than U.S. Supreme Court precedent.

Justice Department attorney Timothy D. Mygatt said many of the provisions were meant to keep officers from “walking right up to that constitutional line” by explicitly stating the law on stops in high-crime areas and pretextual stops, but other provisions go beyond case law.
Marrow said a policy decision was made to prohibit making pretextual stops based on loitering or misdemeanor trespass or those made in a discriminatory pattern, though those stops could individually survive a Fourth Amendment inquiry in criminal court.

Public hearing

Bredar agreed to accept written comment from the public and hold a hearing on the decree at the request of the parties but not before seeking an explanation of the court’s authority to conduct such a hearing and to what extent public testimony should be used in his decision.

“I’m all in favor of transparency and substantial interaction with the public… but what’s their standing to be heard?” he asked.

Mygatt replied that while the public has no standing, in cities where there is a lot of public focus on police reform, interested parties will seek to be heard by contacting the court and requesting an opportunity to input. He recommended coming up with a formal process to allow people and groups to be heard.

Ralph said both the city and Justice Department sought public input throughout the investigation and drafting of the decree.

“The purpose of hearing from the public at this point… is (to determine) whether we have taken into account that input,” he said.

The parties agreed Bredar could take public comment under consideration when deciding whether to approve the decree.

The details of the public comment and hearing were discussed in Bredar’s chambers at the conclusion of Wednesday’s hearing and will be announced in a court order.