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Families, Advocates Plead With Workgroup To Repeal Law Enforcement Officers’ Bill of Rights

“I am the sister of Emanuel Oates, who was killed by the Baltimore County Police on February 19, 2019.” — Shamaiah Oates

“I am the sister of Anton Black, who was killed by police officers and Caroline county on September 15, 2018.” — Latoya Holley

“June 7, 2015 … 41 days after the death of Freddie Gray at the hands of the Baltimore City Police Department, my husband, Keith Davis, Jr. was wrongfully pursued, shot at over 30 times and wounded three times by Baltimore City Police.” — Kelly Davis

Approximately 100 members of the public testified before the House Workgroup to Address Police Reform and Accountability in Maryland Thursday, many sharing painful stories of their loved ones’ brushes with law enforcement.

Each was given two minutes to make a case for sweeping police reform, many describing an overwhelming urgency to repeal the Law Enforcement Officers’ Bill of Rights, provide officers with de-escalation and mental health training, and to reform the Maryland Public Information Act to make police misconduct records public.

As was restated over and over by those who lost loved ones to police violence, two minutes was not enough to express the harm bad actors in policing have thrust upon their families.

“On January 27, 2020, William Howard Green was shot six times handcuffed in the front seat of a police cruiser driven by Officer Michael Owen. Murdered. And you could have saved his life,” said Nikki Owens, Green’s cousin. “Thank you for giving me 120 seconds of your day to tell you the story of William Green.”

Ahead of the four hours of emotional public testimony, the workgroup heard similar arguments from a panel of experts who spoke about the state’s lack of consistency surrounding use of force standards.

Kristina Roth, a senior advocate for Amnesty International’s criminal justice program, told lawmakers that Maryland is one of nine states, along with Washington, D.C., that does not have a state statutory law limiting use of force standards — a question asked of Maryland Police Training and Standards Commission leadership by Del. Gabriel Acevero (D-Montgomery) at the workgroup’s first meeting in June.

Neither Charles County Sheriff Troy D. Berry (D), the commission’s acting chairman, nor Albert L. Liebno, the acting executive director, were able to answer Acevero’s question.

“Police Departments may have policies to provide standards for how less-than-lethal and lethal force can be used and there may be training on the use of deadly force, as well, but neither of these things carry the force of law,” Roth explained.

Because Maryland does not have a use of force standard, she said, the policy falls to “default national state standard” set by two Supreme Court cases: Tennessee v. Garner and Graham v. Connor.

In Tennessee v. Garner, the court ruled that the use of deadly force was unconstitutional unless it is required to stop a felon from fleeing or a law enforcement officer perceives a risk to herself or the public.

The court ruled in Graham v. Connor that the “reasonableness” of the use of force should be determined by an officer present at the scene.

“The quintessential function of law enforcement is to preserve life — and by that, I don’t exclusively mean their own — but Maryland must enact a use of force statutory law to prioritize a person’s right to survive an interaction with a police officer by limiting the use of deadly force to unless necessary as a last resort to prevent an imminent threat to life after exhausting reasonable options,” Roth asserted.

‘A prerequisite to community trust’

Since the death of George Floyd in late May, Maryland demonstrators have rallied behind the call to abolish the Law Enforcement Officers’ Bill of Rights, which provides safeguards to officers in investigatory and disciplinary scenarios.

David Rocah, a senior staff attorney for the ACLU of Maryland, told workgroup members that no other public employee enjoys these protections, except for correctional officers who were granted “copycat legislation” in 2014.

“A central feature of those special rights is that officers cannot be disciplined unless they are convicted in a mini-trial, generally judged by other officers,” he said. “That is simply no way to run an agency, and it is certainly not required by any of the constitutional protections of due process which all public employees, whether a law enforcement officer or not, are entitled to.”

Maryland is one of 16 states to have a Law Enforcement Officers’ Bill of Rights. Rocah described the statute as “regressive,” adding that it “never should have been enacted.” Should it be repealed, he said, the law would not need to be replaced because officers would still be subjected to due process.

“Most states in the vast majority of states in the United States do not have such a law, and the sky has obviously not fallen in those places,” Rocah said.

“Bills of rights are rights given to people to protect against government abuse. The LEOBR is a Bill of Rights intended to protect government actors against accountability to the people that they are supposed to serve. It has turned the idea of a Bill of Rights on its head, and it is long since past time for it to be repealed.”

He also argued that repealing the Law Enforcement Officers’ Bill of Rights will not end the state’s problems with a lack of police accountability because its terms are often baked into local ordinances and collective bargaining agreements. 

“But unless and until we repeal the straight jacket that is the LEOBR, we cannot even begin to address these problems on a local level, and unless and until we repeal the LEOBR, we cannot even begin to create alternate methods of police accountability that allow for greater civilian control,” he said.

Rocah also pressed the need to repeal a portion of the Maryland Public Information Act that prohibits law enforcement agencies from disclosing officer disciplinary records because they are classified as “personnel records.” He said Maryland is “in the minority of states” to withhold them in this way.

“Without reform of the PIA, there is no mechanism for communities to know that officers are properly being held accountable because there is no transparency,” Rocah stated.

Both of these officer protections make it very difficult, if not impossible, for civilians to investigate instances of officer misconduct. When civilians do try to participate in police disciplinary procedures via civilian review boards, they are often blocked by the Law Enforcement Officers’ Bill of Rights and the Maryland Public Information Act from pursuing any meaningful investigation.

Tiera Hawkes, a member of the Baltimore City Civilian Review Board, told lawmakers during the public testimony portion of the meeting that the law prohibits the body from questioning and subpoenaing officers during their misconduct investigations, “render[ing] the CRB virtually toothless to hold police officers accountable.”

Hawkes added that because the Maryland Public Information Act prohibits the disclosure of police disciplinary records, it makes that administration of the city’s civilian review board “unwieldy and often unworkable.”

“Transparency is a prerequisite to community trust,” she said. “Complaints against officers will not be filed if citizens feel that the one board designated to help them is restricted in the information is privy to and what it can discuss.”

Jenny Egan, chief attorney for the juvenile division of the Maryland Office of the Public Defender, told lawmakers that until there is more transparency in police misconduct investigations “no one with the oversight responsibility for law enforcement can say with any authority they know what police are doing in our state.”

“I would love to tell you the name of an active-duty officer who has been credibly accused repeatedly of using his car to ram into children and run over citizens of Baltimore,” she said. “But I cannot because of LEOBR.”

Egan said that she often has painful conversations with her young, Black clients, “some who[m] have been brutalized, bloodied and beaten by police,” explaining to them that they should not file complaints against officers out of caution for their own safety.

“The officer will not face any repercussions for what he did to you, and in the meantime, he may harass you; he may arrest you; he may harass your family; and he may hurt you again,” Egan said. “And no one — not me, not the courts, not your parents — can protect you, because of LEOBR.”

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Families, Advocates Plead With Workgroup To Repeal Law Enforcement Officers’ Bill of Rights