Before Honorable James K. Bredar
United States District Court for the District of Maryland
April 6, 2017
My name is Jenny Egan, and I am a founding member of the Baltimore Action Legal Team or BALT. BALT was formed in the wake of the killing of Freddie Gray and the subsequent Baltimore Uprising. BALT believes that centuries of state sponsored violence against Black people and specific police actions led to the events of April 2015. Unfortunately, much of that state sponsored violence is codified in our legal system. This reality requires federal, state, and local government action to effectively remedy past harms and prevent a continued pattern of state violence.
I’d first like to take this opportunity to acknowledge that this month marks the two-year anniversary of the killing of Freddie Gray. Whatever else is said today, we should remember that a 25-year-old young man had to die at the hands of BPD for us to get to this table. And not just Freddie. Tyrone West. Kimani Johnson. Tyree Woodson. An endless list of men, women, and children who have been subjected to violence and death at the hands of the Baltimore Police Department. BALT seeks a fair and equitable agreement on their behalf.
To that end, we provided a list of extensive recommendations to the Department of Justice and the City of Baltimore during the negotiations around the consent decree. We believe that community input must be paramount throughout this process. We were very pleased to see some of our recommendations included in the agreement.
BALT maintains that many areas of reform are needed, but my comments today will be focused on four critical areas: 1) unconstitutional stops, frisks, searches, and arrests; 2) infringement on individuals’ rights of free speech and assembly; 3) police interaction with young people and 4) implementation of a community-led monitoring system over BPD and the Consent Decree.
Unconstitutional Stops, Frisks, Searches & Arrests
BALT is heartened to see that the proposed agreement includes a requirement that mandates BPD record every stop of every person that it conducts and that each person will be provided with a receipt. Information related to stops – both street encounters and automobile stops – must be kept, recorded, and made publicly available.
The agreement reiterates that the BPD will comply with the existing law – specifically the limitations of Terry and its progeny. BALT strongly believes that there is a deep and profound problem with how BPD conducts stops in Baltimore.
To that end, we believe your Honor should require BPD to implement a short-term stay on Terry stops to allow widespread retraining and redeployment of the tactic as an appropriate crime-fighting tool. Given the extraordinarily low hit rates, such stays are unlikely to cause any harm to Baltimore residents. In New York City, last year, police officers decided to participate in a “virtual work stoppage” by refusing to write tickets for traffic infractions and low-level offenses like public intoxication citywide. During this time period tickets were down 94% compared to the year before, yet the overall crime rate remained low. This experiment challenges the wisdom of police departments using aggressive stop and frisk tactics to control the crime rate. This requirement alone would significantly improve police-community relations.
In addition, although the decree mandates BPD comply with already existing law, it does not establish a clear mechanism for accountability that go beyond line level supervision. BALT believes that in developing technology and reporting capability, your Honor must require BPD to create clear mechanisms for reporting stops, frisks, searches, and arrests that are later found to be illegal – by the State’s Attorney’s office refusal to prosecute or by a court. Only with a meaningful feedback loop and so that officers with a pattern and practice of illegal stops can be identified.
BALT is glad to see requirements related to policy intended to protect First Amendment protected activity – from filming police to engaging in protest. However, we think the policy requirements must be more robust. As recently as yesterday, I was contacted by a community member in regard to BPD arresting a woman for recording the arrest of her boyfriend.
In addition, we believe that community members must be involved in developing new BPD policy related to filming and responding to protest. BALT has yet to see meaningful engagement by BPD with our organization, despite the fact that we have provided le`gal observation for protests for the past two years and issued numerous complaints about the ways that BPD has engaged with protestors and residents.
Police Interaction with Young People
Ending the criminalization and dehumanization of Black Youth cannot wait and must be centered in any conversation about police reform. For that reason, BALT believes there must be separate, distinct, and extensive requirements for how BPD interacts with young people.
The DOJ findings report detailed the fact that Baltimore police officers routinely approach and stop citizens without cause, do so in a racially discriminatory way, and use excessive force against those they are interacting with, including youth. As recognized in J.D.B. v. North Carolina, a child’s age affects whether the child feels free to leave a police interaction. Children are more likely to feel they are not free to leave than adults: “A reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go.”
As a result, we believe that Your Honor should require that whenever police make contact with a child that is not a stop, officers should be required to calmly tell youth that they are not being stopped, they are free to go, and do not have to talk to them, with no caveats or modifications. In the alternative, your Honor could require that BPD end the practice of police contacting youth in circumstances where there is no probable cause that a crime has been committed.
Baltimore police officer practices uncovered in the Investigation, such as excessive force, abuse, and unlawful arrests by Baltimore police officers explains why an adolescent may run from the police to avoid all interaction, even if no crime has been committed. As a result, we believe that flight should not be the basis for a stop.
Further, as pointed out in the report, “BPD officers frequently engage in foot pursuits of individuals, even where the fleeing individuals are not suspected of violent crimes. BPD’s foot pursuit tactics endanger officers and the community, and frequently lead to officers using excessive force on fleeing suspects who pose minimal threat.” As such, police officers should not engage in foot pursuit of adolescents at all, unless a violent crime is alleged to have been committed and there is probable cause for arrest.
What the DOJ report and consent decree do not address are a number of other illegal practices regularly engaged in by BPD. BPD officers regularly stop juveniles without reason, take their photographs, and store those photographs on the officer’s personal cell phones. This practice is illegal. In addition, Md. Cts. and Judicial 3-8A-27 require that all police records concerning juveniles be stored separately from that of adults. We think that any consent decree must require BPD to adopt policies to end this practice immediately.
Finally, and perhaps most practically, BALT has a vested interest in a vigorous community engagement process. I would point your Honor to Professor Sunita Patel’s work on this matter. Patel’s article “Toward Democratic Police Reform: A vision for ‘Community Engagement’ Provisions in DOJ Consent Decrees” is critical reading.
Professor Patel deftly explains how many community members find the proposed community-policing framework to be illegitimate. Not just that, but the community policing model also may stand in direct opposition to the stated goals of the consent decree itself. Baltimore Action Legal Team agrees that the goal of any agreement should be changing power relationships not simply “improving community relationships” and crime fighting.
To that end, the traditional role of a consent decree monitor – to avoid conflict and smooth disagreement – tends to further disempower those who are affected by a pattern and practice of BPD state violence. This agreement leaves no room for the community – those who are most affected – to be an official party. There is no direct role for the residents of Baltimore. With all due respect, the DOJ does not represent the myriad group interests of Baltimore. Such a role is required for the democratic legitimacy of this process. For that reason, we believe this court to should craft a solution that allows for community groups non-parties to have enhanced status. The Portland DOJ consent decree provides a model that is one way forward. The community should have more than just a chance to speak at community forums semi-annually. The community – grassroots organizations, social workers, public defenders, civil rights advocates, homeless folks, previously incarcerated individuals – should have a central role in developing BPD policy, implementing reforms, and evaluating their success. A community representative should be in every meeting the parties hold with the monitor. All reports that are made to the monitor must be included in the reports provided to the court.
In addition, the Court must be aware that the communities and people most impacted by illegal and discriminatory policing are often disenfranchised by that discrimination and unable to organize effectively. The resources being brought to bear to correct these issues cannot simply be used to enhance police technology and buy police new gear. The process should ensure that funds go toward building community capacity and community engagement. That the funds are not just used to pay the monitor, but actually deployed to build up community infrastructure so that your Honor gets real feedback from real Baltimore residents.
In addition to an enhanced role for Baltimore communities, we believe the agreement must include more robust and community-oriented outcome assessment. In overseeing this agreement, the Court must be clear that the problem with BPD is not lack of community trust; this is not a PR issue. The problem is a profound, long standing, and deep seeded practice of discriminatory, racist, and illegal state action. The solution is not to convince the community to accept the status quo – it is to radically redistribute power and place it back in the hands of the residents of Baltimore. We ask your Honor to find more equitable and fair solutions than are being currently proposed that are rooted in the experiences of Baltimore residents most affected by BPD’s practices. Thank you.