Civilian review board: Baltimore police undermining oversight efforts
At a recent public hearing on the Baltimore Police Department’s compliance with the city’s consent decree with the federal government, City Solicitor Andre Davis disclosed information about a dispute that has unfortunately arisen between us, the Civilian Review Board, and one of the agencies that we oversee — the Baltimore Police Department (BPD). Mr. Davis not only shared information about the dispute but also his impressions and opinions of it. Because this important matter has now been made public, we wish to ensure that the public is accurately informed.
A little background: Baltimore City’s Civilian Review Board is an autonomous, free-standing tribunal created in 1999 by the Maryland legislature. Although our members are appointed by the mayor, we are designed to be independent of the city. And to her credit, Mayor Catherine Pugh has respected our independence. Such independence is critical to our mission, part of which is to investigate and make objective recommendations about citizen complaints of police misconduct. Plainly, we can succeed in our mission only if we are truly independent of the city, but can also count on the city — and its police department — to cooperate with our investigations.
To ensure cooperation with the board, the legislature mandated that the BPD and the other five law enforcement units that are under our oversight supply us with their official internal case files for each matter that is the subject of a citizen complaint. And, to ensure our ability to function effectively as an investigatory agency, the legislature gave us the power to issue subpoenas, which are as fully compulsory as any issued by a court of this state.
As anyone would imagine, successfully performing our public mission requires a careful balancing of the privacy rights of individuals involved in our cases (complainants as well as officers) and the public’s right to know. In balancing these interests — privacy versus transparency — we of course have sought legal counsel, which Mr. Davis has offered. However, although we have the right and, in part, the obligation to rely upon the advice of attorneys, we also have the responsibility to make ultimate decisions about these matters ourselves, a responsibility that we cannot delegate to anyone, including the attorneys who advise us.
This summer, Mr. Davis asked us to sign a confidentiality agreement that restricted significantly our ability to communicate to the public about our actions regarding BPD officers. (The agreement excluded those officers from the other law enforcement units within our jurisdiction to oversee.) The proposed agreement would restrict us far beyond the confidentiality obligations imposed upon us by statute, and so we pressed the city’s lawyers for some justification for what appeared to be an interference with our obligation to keep the public informed. Receiving no satisfactory explanation or a willingness on behalf of the city solicitor to negotiate the terms of the agreement, we determined not to sign it but assured city officials that we would honor our statutory confidentiality obligations in any event.
Upon learning of our decision to not sign the agreement, BPD stopped providing us case files. This made it impossible for us to investigate and issue recommendations, with the result that a number of complaints have now “timed out” — meaning that the deadline for any disciplinary action against the officers involved has expired. Meanwhile, many more complaints are in imminent danger of “timing out,” solely due to BPD’s inexplicable refusal to meet statutory obligations. As this crisis mounted, we eventually had to resort to the extraordinary measure of serving subpoenas upon BPD to obtain the case files it is required by law to provide. Incredibly, BPD has refused to comply with the subpoenas. That an agency sworn to enforce the law against others refused to obey the law itself is deplorable, but it perhaps serves as a cautionary reminder of why it is necessary to maintain a Civilian Review Board.
The only explanation we have been given is that BPD and the law department are piqued that we will not muzzle ourselves by signing the proposed confidentiality agreement. But, as we have many times reminded them, our obligation to maintain appropriate confidentiality is imposed upon us directly by act of the legislature, so, any confidentiality agreement we might sign is unnecessary at best and improperly restrictive at worst. In any event, BPD’s obligation to provide case files is automatic and unconditional, and the obligation to comply with a subpoena is automatic and unconditional.
We are not a political body, and we are not interested in taking on powers or obligations not imposed upon us by law. But we have a sacred duty to insist upon the power we have been granted by the legislature in order to fulfill the obligations we have been given by the legislature. At bottom, our job is to help ensure that BPD obeys the laws it is sworn to enforce. Clearly, if we yield in this dispute, we have yielded the very ground we have sworn to defend.