Amid a national epidemic of violence involving police officers and unarmed young black men, the city of Baltimore’s swift prosecution of six police in the alleged murder of Freddie Gray has been seen as a glimmer of hope. Following controversial grand jury decisions not to indict police in similar cases in Ferguson, Missouri, and New York, as well as a prosecutor’s decision not to pursue charges in Madison, Wisconsin, trust in the criminal justice system among African Americans seemed to have reached new lows. Recent polls suggest as many as 8 in 10 believe that police have different standards based on race; nearly 7 in 10 hold similar beliefs about the courts. By contrast, many have perceived the dramatic decision by Baltimore chief prosecutor Marilyn Mosby to charge six officers in Gray’s death—charges since upheld by a grand jury—as a new resolve to restore faith in the law.
But the truth is, the Baltimore case, which has only just begun, will not change very much. First there is the unavoidably political nature of the prosecution itself, which, in a city with deep economic and racial divisions, threatens to overtake the underlying legal issues. Meanwhile, with so much riding on the prosecution, there are also serious questions about whether a fair trial can even be staged. Yet the larger problem is that, even if convictions are secured, the case will do very little to address the legal barriers to holding police officers accountable for the kinds of abuses that Gray’s death so glaringly exposed. In fact, though the special laws that inhibit the investigation of police misconduct have long been targeted for reform, entrenched interests in the state of Maryland have successfully defended them as recently as this spring and continue to do so now.
As has been widely reported, Freddie Gray, a twenty-five-year-old African-American man, died on April 19, having fallen into a coma after sustaining a spinal cord injury. He had been arrested by police a week earlier, for alleged possession of a switchblade, and it is clear that he suffered the fatal injury while in police custody, shackled in handcuffs and leg irons. Most experts suspect that he was driven erratically across particularly rough roads—a brutal tactic known as the “rough ride.” Not buckled in a seat belt, he suffered a head injury shaped like a bolt found in the back of the police van.
What happened to Gray was shocking, but the abusive tactics involved were unsurprising to those familiar with the Baltimore criminal justice system. In recent years, the city has faced nearly two hundred lawsuits each year relating to some form of police misconduct. Since 2011, the city has paid more than six million dollars to settle civil complaints alleging brutality by the Baltimore police, many of them involving African-Americans.
In 2006, the NAACP filed a class-action suit alleging that police regularly conducted baseless arrest of citizens. As a part of these arrests, the NAACP alleged, Baltimore police regularly subjected men to humiliating strip searches that often included visual body cavity searches. In fact, the year before that lawsuit, Baltimore police arrested an estimated 76,497 citizen without warrants; of those, prosecutors declined to pursue charges in 25,000 cases, because the charges were “legally insufficient.” The City eventually reached a comprehensive settlement that included police retraining and an $870,000 payout.
In fact, the federal and state courts in Baltimore receive a steady stream of civil complaints concerning cruelty by police; many of these involve use of excessive force in response to alleged minor offenses. In 2010, in a case remarkably similar to Gray, a jury awarded $7.4 million to the family of Dondi Johnson, a forty-three-year-old African-American man who suffered a fractured neck while in police custody and died two weeks later from complications of his paralysis. The jury concluded that Baltimore officers had taken Johnson for a rough ride after arresting him for public urination. The driver of the police van remains a member of the Baltimore Police Force.
In 2013, Christine Abbot, a twenty-seven-year-old librarian working at Johns Hopkins, filed a federal lawsuit alleging police brutality. According to the civil complaint, the police arrived at her party to respond to a routine noise complaint. The officers began to harass Abbot’s boyfriend, and after Abbot complained, the responding officers threw her to ground with such force that her dress tore, exposing her underwear and breasts. The police refused to allow Abbot to cover-up, instead, the male officers packed her into the back of a police van and took her for a rough ride. All charges against her were dropped, and her civil suit remains pending in federal court.
With police violence so commonplace in Baltimore and so rarely investigated, the decision by Mosby, the city’s prosecutor, to pursue charges against six police for misconduct in Freddie Gray’s death has generated national attention. But what should be most striking about the Gray case is not that charges are being filed, but rather that such a prosecution is so rare. Of course there are inherent conflicts of interest that arise when Baltimore police and prosecutors investigate one of their own which may tend to limit the scope of such investigations. But far more to the point are the special set of rights that accused police officers enjoy in the state of Maryland. In force for more than four decades, these rights are collectively known as Law Enforcement Officers Bill of Rights, or LEOBR, and often make it extremely difficult to prosecute police for misconduct.
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Among other protections, LEOBR gives accused police officers a ten-day grace period during which investigators can not question them about the alleged misconduct. Unlike with other suspects, the police protections also strictly limit the ways and methods that accused officers may be interrogated. For example, they must be interviewed at “a reasonable hour, preferably when the law enforcement officer is on duty,” and “each session of interrogation shall … be for a reasonable period.” The interview must also take place in an office, and the accused officer is entitled to “personal necessities and rest periods as reasonably necessary.”
Such comforts contrast with the practices routinely used on ordinary suspects, who, too often, face lengthy and confrontational interrogations at all hours of day or night, and often inside interrogation rooms designed to be cold and intimidating. Questioning lasting days, during which suspects are denied food or water or rest, are not uncommon in jurisdictions across the country; frequently it is these lengthier, more aggressive, interrogations that often lead to some form of confession.
To complicate matters, the Maryland LEOBR also prohibits investigators from using some interrogation tools typically used on regular suspects, including the ability to lie to a suspect and to include an element of surprise. Unlike regular suspects, accused officers are entitled to receive, in writing, a summary of the nature of the investigation. Gone, too, is the investigator’s classic, yet common, good-cop, bad-cop routine, because LEOBR limits any interview of an accused cop to a single investigator. In fact, the bad-cop routine may not even be an option, because, under LEOBR, “the law enforcement officer under interrogation may not be threatened with transfer, dismissal, or disciplinary action.”
Maryland’s LEOBR is the oldest in the country, but over the past few decades, such special protections have spread to many other states. When Maryland became the first state to enact a LEOBR in the early 1970s, police departments no doubt felt threatened by a slew of federal court decisions that had strengthened protections for criminal suspects. In the 1966 Miranda case, for example, the Supreme Court decided that criminal suspects, in police custody, must receive fair warnings of their constitutional rights. Since then, fourteen other states have enacted similar LEOBRs; and another eleven have these privileges now under consideration. Several states, including Maryland, have expanded their LEOBR to include prison guards and other correctional officers, legislation commonly known as COBR. In states where the legislature has resisted enacting a LEOBR and a COBR, police and correctional-officer unions often write these protections into collective bargaining agreements with the state and local jurisdictions.
The risk that such protections could encourage abusive behavior by police has long been known. Notably, the cities and states where police and correctional officers receive special protections include several communities—such as New York City and Wisconsin—where lack of accountability for police violence has garnered national attention in recent months. And in Maryland itself, there was widespread recognition well before Gray’s death that the LEOBR legislation was contributing to a culture of impunity by police forces in the state. In March 2015, a month before Gray’s death, Baltimore’s Mayor, Stephanie Rawlings-Blake, appealed to the state legislature for modest reform, and offered the prescient warning that Baltimore could be “one incident away from being a Ferguson, or a Madison, or a New York.” Police unions opposed any changes, claiming such reforms were wholly unnecessary, and the Maryland legislature declined to act.
Following Gray’s death, many assumed that the Maryland legislature, under pressure, would reconsider and adopt one of several bills designed to bring a greater transparency and balance to the investigation of police officers. These bills, championed by the civil-rights community, proposed a series of common-sense solutions: creating strong civilian oversight boards, eliminating conflicts of interests by giving the state attorney general powers to prosecute allegations of excessive force, establishing a new felony for police misconduct. But each of these proposals quickly failed; instead, the legislature has passed a watered-down bill, with such anemic measures as encouraging the state to collect more data about police brutality.
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The police unions and their lobbyists received a fair share of the credit for defeating the reforms. But, even absent these unions’ efforts, the reforms were unlikely to pass. Poll after poll suggest that white Americans overwhelmingly trust the police. In fact, a recent survey found that, nationwide, a record number of whites, 52 percent, have a great deal of confidence that their local police treat blacks and whites equally. This fact suggests that, while white Marylanders may shake their heads at the abuse that seems to have led to Gray’s death, they’re unlikely to support broader efforts to reform police practices and provide more robust accountability for misconduct.
Still, while reform stalls at the state level, can’t the federal government take steps to prevent, investigate, and punish unlawful police violence? After all, state bills of rights for accused officers would not tie the hands of federal investigators. But no lesser an authority than former Attorney General Eric Holder, the first African American to hold that office, has suggested that the current federal statutes are woefully inadequate to bring about convictions in police violence cases. The Department of Justice, which declined to bring charges against an officer in the Ferguson shooting, enforces a handful of statutes designed to combat police brutality, but those statutes generally require prosecutors to overcome almost insurmountably high barriers: proof that the officer intended to use excessive force, or proof that the officer was motivated by racial animus.
Instead of prosecuting officers, Holder and his successor, Loretta Lynch, have charged their investigators to scrutinize the police departments themselves, in search of evidence that these departments routinely violate the constitutional rights of citizens. Last week, the Justice Department reached a settlement with the city of Cleveland after federal investigators conducted an eighteen-month investigation that concluded that Cleveland police engaged in a pattern and practice of excessive force. The agreement seeks to remedy common excessive-force tactics by imposing new rules governing the use of chokeholds, pepper spray, and tasers. But as long as police are granted special privileges in any investigation of unlawful behavior, it is unlikely that new rules will bring about accountability to a system in which abuses can all too easily be ignored.
The arrest of the six Baltimore officers might have provided an opportunity for the kinds of reform that would prevent the abuse or death of future Freddie Grays. But by failing to match prosecution with LEOBR reform, the officer’s indictment and possible conviction is likely to be little more than a symbolic act of accountability to calm fed-up African-Americans. In the long run, until Congress and state legislatures revisit the laws used to protect and prosecute police who engage in misconduct, none of us, white or black, should expect very much to change.
