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Baltimore and control of its police

ballesteros-atticus-col-sig_webAt a time when cities everywhere are reckoning with how they can fix broken policing systems, Maryland state law has Baltimore paralyzed, unable to pursue substantive changes to policing.

Under an old state law, the Baltimore Police Department is considered a state, rather than municipal, agency. This means the agency is controlled by the Baltimore Police Commissioner and the state legislature — a strange combination for a police force that has only local, and not statewide, jurisdiction.

In practice, it means the Baltimore Police Department isn’t fully accountable to the city it polices.

While the mayor and City Council of Baltimore can control BPD’s budget and make policy recommendations to the police Commissioner, state law prohibits city government from actually regulating BPD’s substantive policies.

If the city wanted to pass “Breonna’s Law,” it couldn’t do that. If it wanted to revise BPD’s use of deadly force policy, it couldn’t do that either. These changes, many of which involve pressing issues of great public interest, would only be possible at the city level if BPD were a municipal agency under Maryland law.

The Maryland General Assembly has the power to restore Baltimore’s control over the police — and it should do that, sooner rather than later.

There was a time when the Baltimore Police Department was controlled by the city government. That changed in the 1860s when the Baltimore police began helping a white supremacist political party called the Know-Nothings maintain a violent grip on power. Concerned that the city’s police were becoming a tool of corruption and political repression, the Maryland General Assembly passed a law stripping the city of its control over the police.

That law, as salutary as it may have been 160 years ago, is now stagnating efforts to pursue necessary changes to policing in Baltimore. Without full control over the police department, Baltimore can rely only on the state legislature to reform police policies (an unlikely outcome given the Assembly’s statewide focus), or the Baltimore police commissioner, whose policies, even if enacted in good faith, are unlikely to satisfy those who seek fundamental change.

Without a shift in who has control over the police, injustice is likely to fester. One example already played out in 2014, when the city council tried to pass a rule requiring officers to wear body cameras. The mayor vetoed the ordinance, arguing that BPD’s status as a state agency prevented the council from regulating BPD’s policies.

The General Assembly failed to take action requiring city police officers to wear body cameras, and it took two years before BPD adopted a body camera policy of its own.

That policy came two years too late. In 2015, Freddie Gray was killed from injuries suffered while he was in the custody of BPD officers who weren’t wearing body cameras. There was a lack of details surrounding Gray’s death; the officers involved were charged but not convicted.

Adding to the injustice, Maryland’s state courts have ruled that BPD’s unique status as a state agency gives it a special “sovereign immunity,” meaning the department is not liable for the actions of its officers when they violate state law.

Those who oppose converting BPD to a city agency claim that sovereign immunity saves the city money. While the city already pays millions of dollars each year in lawsuits over officers who violate the law, transferring control over the police to the city could add to these costs.

Of course, that argument against transferring control of the police assumes that officer misconduct would persist if the city had control.

Not only does such an assumption breed complacency with the status quo, it may simply be wrong. Whether the city would follow the path of Minneapolis to reduce the footprint of policing, or provide the current Civilian Review Board with disciplinary authority, the city government would be empowered to pursue policies that can go a long way towards eliminating police violence and enhancing accountability.

It would also be empowered to act quickly, making changes that could take years to implement if left in the hands of the General Assembly or the police commissioner alone.

The proposed law that would restore Baltimore’s control over BPD has already been written. Now is the time for the General Assembly to pass it.

Atticus Ballesteros is a J.D. candidate at Yale Law School. This summer he served as a legal intern at the Lawyers’ Committee for Civil Rights Under Law, focused on issues of racial justice and policing. Prior to law school, Atticus worked at the Capital Area Immigrants’ Rights Coalition.