Jones’ Heavily Amended Police Reform Bill Hits the House Floor

    House Speaker Adrienne A. Jones (D-Baltimore County) presides over the last day of the 2020 General Assembly session. Photo by Danielle E. Gaines

    The Police Accountability Act of 2021, a major law enforcement reform measure sponsored by House Speaker Adrienne A. Jones (D-Baltimore County) hit the House floor for an initial airing Tuesday morning.

    And while the Senate spent weeks in high-profile sessions finalizing its police reform package, Jones’ bill was quietly worked on in the House Judiciary Committee.

    The Judiciary Committee’s final product had nine sweeping amendments — including several measures that were outside of the scope of the House Workgroup to Address Police Reform and Accountability in Maryland — rendering the bill nearly unrecognizable from what was presented before the committee just weeks before.

    In a statement Tuesday afternoon, Jones said that her bill puts “citizens squarely in charge of officer discipline.”

    “I am proud of this legislation, which places oversight of these public assets in the hands of Maryland residents, and I look forward to it passing the full House later this week,” she said.

    But, as they did with the original bill, advocates say Jones’ legislation doesn’t go far enough to protect Black and Brown people from the disproportionate effect of policing felt in their communities.

    “Racial justice is primarily about giving Black and Brown people the power over the institutions that govern our lives. It’s about shifting power into the hands of the community,” said Dayvon Love, director of Public Policy for Leaders of a Beautiful Struggle. “While HB 670 does some good things, it is far from racial justice.”

    So, what’s been added, and, in some instances, taken away? And how does this change the House’s approach to legislating police reform this session?

    Maryland Matters broke down the amended bill:

    No-knock warrants

    Under Jones’ bill, officers could apply for no-knock warrants with approval from a state’s attorney and police supervisor on the basis that there is clear and convincing evidence that the life of the executing officer or another person may be in danger. To prove this, applicants need to provide an affidavit that includes a description of the investigation that determined the danger, an explanation of why less invasive measures would be unsuccessful and whether or not the warrant can be executed during the day.

    These warrants are only able to be served between 8 a.m. and 7 p.m. unless there are “exigent,” or indisputably dangerous, circumstances.

    The no-knock warrant application must also include a list of other people who live on the premises, including their names, ages, genders and if they have any identified physical or mental disabilities.

    The warrant would be voided unless it is executed within seven days after it has been issued.

    Officers who execute search warrants must be identifiable as police by wearing a uniform, badge and tag with their name and identification number. Body cameras are also required.

    Use of force

    Jones’ amended bill defines “lethal force,” as force that “creates a substantial risk of death or serious physical injury, whether or not intended to cause death or serious physical injury.”

    Under this definition, lethal force would include:

    • Discharging a firearm at someone;
    • Using an object to strike someone on their head, neck, sternum, spine, groin or kidneys;
    • Hitting someone’s head against a hard object;
    • Kicking or kneeing a person’s head;
    • Striking someone’s throat;
    • Knee-dropping someone in a vulnerable position about the head, neck or torso;
    • Restricting someone’s oxygen or blood flow through maneuvers such as chokeholds, strangleholds, neck restraints, neck holds and carotid artery restraints;
    • Any contact with someone’s neck that inhibits breathing or blood flow;
    • Discharging less-lethal projectiles at someone’s neck, head, chest or back; and
    • Shocking someone with an electronic control device more than once.

    To prevent the unnecessary use of force, officers would be required to undergo training to determine when it is and is not appropriate to draw their firearm or point a gun at someone, and would be given training on de-escalation techniques and alternatives to force.

    Under the amended bill, officers can only use force if it’s necessary and proportional to prevent an imminent threat or arrest someone the officer has probable cause to believe has committed a crime — with the caveat that they take the seriousness of the crime into consideration.

    Force can only be used if all other options have been exhausted, and officers can only exercise force until the person is under control, no longer poses a threat or the officer determines that it is no longer an effective avenue to achieve their objective.

    Officers would be prohibited from exercising lethal force unless it is used as a last resort to prevent serious physical injury or death to another person, there is no risk of injuring a third party and all alternatives have been exhausted.

    Officers who use unnecessary lethal force that results in death may be charged with murder. The use of unnecessary lethal force that doesn’t result in death may result in charges of assault or reckless endangerment.

    Victims of police brutality in the state may seek relief in the courts.

    Maryland Police Training and Standards Commission

    The Maryland Police Training and Standards Commission (MPTSC) would be afforded new powers and responsibilities under Jones’ bill, including establishing a statewide curriculum for entry-level officers that includes training regarding the use of force, cultural sensitivity and diversity and assisting those with developmental disabilities.

    Additionally, the MPTSC would be the body to hold agencies and officers accountable to adhering to the statewide use of force standard established under the bill.

    Under Jones’ amended bill, the commission will have the ability to decertify officers who have been convicted of a felony or misdemeanors related to truthfulness, or anyone who was fired or resigned while under investigation for misconduct or excessive force.

    The MPTSC would create a database to track decertified officers, and would also be instructed to create guidelines for all police departments and create data-based early warning systems to provide officers who have been identified as likely to use excessive force with training, reassignments or behavioral interventions.

    By March 1 of each calendar year, all law enforcement agencies will be required to submit a report to the commission with all information surrounding use of force complaints, including whether the officers were exonerated or administratively charged or if the complaints were unfounded. The MPTSC is to publish that information on its website by mid-July.

    If a department fails to submit the data to the MPTSC by July 1, the Governor’s Office of Crime Prevention, Youth and Victim Services will withhold grant funding from that agency.

    Independent investigations

    Under Jones’ bill, use of force incidents are to be investigated by an unspecified independent unit of state government. Both civilians and sworn officers can serve on this body.

    When such an investigation is complete, the independent investigative agency will submit a report with its findings to the state’s attorney’s office, who will decide whether or not to prosecute the officer.

    Once the state’s attorney has decided whether or not to move forward with the case, the investigative agency will publish its report.

    Officer discipline

    The amended bill creates police accountability boards in each county. These bodies will receive misconduct complaints and appoint civilians to trial boards and charging committees.

    Police officers are not permitted to sit on these boards.

    Additionally, every jurisdiction would be mandated to have an administrative charging committee that includes the accountability board chair, non-employee designees from the state’s attorney’s and public defenders’ offices, the county attorney and one additional civilian to review the findings of misconduct investigations.

    There is also to be at least one statewide charging committee to cover agencies like the Maryland State Police. This body will be made up of one non-employee designee from the Attorney General and the Office of the Public Defender, a representative of the governor’s legal counsel, a governor-appointed civilian and one civilian jointly appointed by the House speaker and Senate president.

    Members of both the local and state boards will receive training from the MPTSC and are required to keep cases confidential until they are decided.

    When police misconduct investigations are completed, investigatory files will be forwarded to the charging committee, which will review the findings and determine if the accused officer should be charged. If members determine that the findings were inconclusive, the committee can request that subpoenas be issued or additional information be provided by the investigative body.

    If the committee decides to charge the officer, it must issue a written opinion of its findings and recommend discipline to the agency’s chief within the disciplinary procedure index created by the MPTSC.

    All law enforcement agencies are to adopt the MPTSC’s disciplinary matrix.

    The charging committee will be required to make its decisions within one year and one day after a complaint was filed.

    Officers have the right to legal representation under this process, but may be compelled to testify or submit to polygraph examinations, blood alcohol, blood, breath or urine tests.

    Chiefs must render their discipline decision that is equal to or of greater caliber than the charging committee’s recommendation within 15-days of receiving its recommendation.

    If the officer chooses not to accept the chief’s disciplinary measure, they would be able to appeal to a trial board comprised of a retired circuit or district court judge, a civilian appointed by the accountability board and an officer of equal rank of the accused.

    Members of the trial board are also to receive training from the MPTSC.

    Trial board proceedings will be open to the public except in circumstances that risk personal records, child witnesses, victims’ identities, confidential sources or investigative procedures, and unless appealed within 30-days, trial board dispositions are final.

    Decisions would be able to be appealed to the jurisdiction’s circuit court. If the trial board is from a state agency, the decision will be appealed to the Anne Arundel County Circuit Court.

    Under the bill, chiefs can suspend officers without pay for up to 30 days while waiting for a decision from a trial board, charging committee or investigative body.

    Officers charged with felonies or misdemeanors committed while on duty or that relate to domestic violence, dishonesty, theft, fraud or misrepresentation will be suspended without pay while waiting for trial board, charging committee or investigatory decisions. If they receive probation before judgments for or are convicted of these crimes, they will be fired.

    Officers who are cleared of their charges are entitled to backpay.

    In accordance with the state personnel and pensions article, officers may be required to forfeit their pensions as a disciplinary measure if they have been convicted of a felony crime or perjury or another misdemeanor related to truthfulness or veracity.

    Complainant rights

    All law enforcement agencies will be required to publish instructions for filing a misconduct complaint and requesting records in a “prominent” location, and investigative bodies are required to review civilian complaints immediately.

    Under the bill, law enforcement agencies will be required to have a victims’ rights advocate act as a liaison between the agency and the public during misconduct investigations.

    This individual is responsible for explaining the investigative, charging committee and trial board process to a complainant, giving them updates as the process unfolds and providing a case summary within 30-days of the final decision.

    All departments across the state will be required to create a database that allows complainants to follow their cases as they proceed.

    Officer hiring

    Under the amended bill, officers would be required under penalty of perjury to disclose whether or not they have previously served at a different law enforcement agency. If so, they must give authorization to the hiring agency to access any personnel and disciplinary records.

    The hiring agency will be required to certify to the MPTSC that these records have been reviewed.

    Records disclosure

    While largely unaddressed during meetings of the House Workgroup to Address Police Reform and Accountability in Maryland, HB 670 has been amended to require the Maryland State Public Information Act Compliance Board to be the mediating body between records custodians and those who submit applications to review them.

    Several parts of this amendment also echo another bill sponsored by Jones that intends to reform the Maryland Public Information Act, including what records are available for public inspection, who they are able to be released to and the circumstances under which custodians can deny their release.

    Local control

    The amended bill completely strikes the provision that would re-establish local control of the Baltimore Police Department.

    Traffic stops

    Under the amended bill, officers would be required to show proper identification to the stopped individual, and give them their name, badge number, agency and the reason for the stop.

    Officers could not stop civilians from recording stops if they are acting lawfully.

    Body cameras

    Jones’ bill would require all police departments to use body-worn cameras by 2025.

    Under the amended bill, all body cameras that are capable must record and save at least a minute of footage before the officer presses the devices’ record button.

    This portion of the bill would be ineligible for collective bargaining by police unions.

    Liability claims

    Jones’ amended bill adjusts liability caps for victims of police brutality to collect damages to $890,000.

    Surplus military equipment

    Under Jones’ bill, law enforcement agencies would be prohibited from procuring armored or weaponized vehicles, drones or aircraft, as well as destructive devices, firearm silencers and grenade launchers.

    Education assistance

    Under the bill’s original language, students at public universities studying criminal law, criminology or criminal justice would be exempted from paying their tuition if they worked as a police officer for at least five years after graduating.

    The amended bill breaks this tuition exemption program down into two parts: the Maryland Loan Assistance Repayment Program for Police Officers, and the Maryland Police Officers Scholarship Program.

    The loan repayment program would require the governor to designate at least $1.5 million of the state budget each fiscal year to help police officers receive an undergraduate, professional or graduate degree from a public, in-state university.

    Upon graduation, the recipient must continue to work for a law enforcement agency in the state for at least two years.

    Under the scholarship program, students studying criminal law, criminology or criminal justice under a four-year program at a public, in-state university will receive 50% of their annual tuition from the Office of Student Financial Assistance.

    Applicants must be state residents or have graduated from a Maryland high school and sign a letter of intent that they plan to work as a police officer in the state for at least five years within eight years of graduating. If they don’t complete their obligation, scholarship recipients are to repay their awarded money.

    Should the bill be enacted, the governor would earmark $6 million for prospective officers and $2.5 million for existing officers to participate in the program and remain on the force after graduating.

    Employee assistance program

    Mirroring a bill sponsored by Del. Benjamin T. Brooks Sr. (D-Baltimore County), Jones’ amended legislation would create a mandate for all law enforcement agencies to provide employee assistance mental health programs to help connect officers to counseling and crisis services.

    Additionally, the House bill would require all agencies to offer voluntary mental health counseling for officers who were seriously injured, involved in a shooting or accident or used force that resulted in the death or serious injury of another person.

    The program is also required to provide officers support during periods of civil unrest.

    LEOBR reinsertions

    While Jones’ legislation seeks to repeal the Law Enforcement Officers’ Bill of Rights, certain portions of the existing law have found their way into the bill through amendments, including measures to:

    • Prevent officers from being fired, disciplined, demoted or denied a promotion or transfer for exercising their constitutional rights or disclosing information that exposes mismanagement or a waste of resources;
    • Prohibit agencies from denying officers their right to file a lawsuit for incidents that arise while on duty;
    • Allow officers to exercise the same right to engage in political activity as other state employees while off-duty; and
    • Permit officers to seek secondary employment.

    [Read our primer on the Law Enforcement Officers’ Bill of Rights here.]

    However, Jones’ bill would prohibit police unions from pursuing collective bargaining agreements that relate to officer investigations or discipline and does not allow for the expungement of files relating to misconduct investigations, including internal affairs, hearing or disciplinary records, which are both allowed under the current LEOBR.

    Debate on the police reform measure is expected to resume on Wednesday morning.

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