“The changes in this package increase accountability and transparency, and in turn can keep someone else from having to lose their life in a police encounter” – LaToya Holley, sister of Anton Black, a Black Maryland teenager who was killed in 2018 after being chased and subdued by police.
“Duty to intervene, duty to report, accountability in body-worn camera procedures – these are all fundamental, sound principles of policing…I am glad Maryland is taking the steps to codify these principles and have uniformity across all State agencies.” – Ken Williams, a former Boston-area homicide detective and one of the leading use of force experts in the country.
March 1, 2021
Dear Friend,
Back in June, I wrote to you regarding the fierce and urgent need to improve the relationship between law enforcement and the communities they serve. In particular, the lack of transparency and accountability in our system has led to a lack of trust and has served to perpetuate the already tenuous relationship between law enforcement and communities of color. I promised you that I would use my position as chair of the Judicial Proceedings Committee to bring about real and long-lasting change. Today, I wanted to update you on these efforts.
Last week the Senate Judicial Proceedings Committee passed the most comprehensive and consequential policing reform package in our state’s history. Our package, the Maryland Police Accountability Act of 2021 (“MPAA”), is comprised of nine reforms that cover all three stages of policing and community relations: screening and training; standards of conduct in the performance of duty; and the disciplinary process. This package ensures that our system will be more transparent and that those who engage in misconduct will be held to account. While so much more remains to be done, I am confident this package will save lives and begin to rebuild trust between law enforcement and the people they are committed to serving.
The remainder of this letter will walk you through the package and explain why I voted to include certain amendments in committee. This is a slightly longer message than I normally send because I think it important for me to explain some of the nuance that would invariably get lost in a social media post. As I have said on numerous occasions, this package is no panacea, but it represents transformative progress, and I am proud of the work we have done thus far.
The Maryland Police Accountability Act of 2021
Senate Bill 178 – Public Information Act – Personnel Records – Investigations of Law Enforcement Officers (Anton’s Law)
- Expands access to records of police misconduct under the Maryland Public Information Act (“MPIA”)
- Specifically, Senate Bill 178 amends the MPIA to state that records relating to an administrative investigation of misconduct by a law enforcement officer, including an Internal Affairs investigatory record, a hearing record relating to a disciplinary decision are subject to disclosure under the MPIA.
- This is a critical and necessary step to ensure transparency. If an officer is dismissed from duty in one jurisdiction, they can apply for employment with another law enforcement agency and receive it without their record of disciplinary action being brought to the new agency’s attention.
- Additionally, for those individuals seeking remedy after being subjected to alleged misconduct the current law makes it difficult, if not impossible, for them to obtain records in the pursuit of justice. Senate Bill 178 fixes this by ensuring these records are subject to disclosure so that our community has confidence that the appropriate action has been taken.
Senate Bill 71 – Police Officers – Testimony – Presumption of Inadmissibility
- Initially, Senate Bill 71 only provided that the knowing and willful failure by a police officer to activate a body-worn camera created a rebuttable presumption that any testimony from the officer sought during a criminal prosecution related to the incident that was not recorded would be inadmissible.
- As amended, the bill also requires Anne Arundel County, Howard County, and Harford County (the next three largest jurisdictions without body cameras) to have body cameras by 2023. The bill also requires the rest of the state to have body cameras by 2025. I realize this is a while away, but this is the fastest we can mandate recognizing the cost and complexities that it takes to create a body camera system that works effectively.
- Body-worn cameras have become a key part of establishing and maintaining trust between law enforcement and the community in which they operate. By wearing such cameras, law enforcement signals to the community that they have nothing to hide in their interactions with the public. Senate Bill 71 will ensure one of the most critical tools for transparency and accountability will be implanted in every jurisdiction in the state.
Senate Bill 600 – Independent Investigations – Office of the State Prosecutor
- Senate Bill 600 ensures independence and transparency for investigations regarding officer-involved deaths. Under this bill, each potential incident involving the death of a person caused by a police officer, the State’s Attorney having jurisdiction to prosecute the matter must transmit a copy of the investigatory file and any other relevant information to the Office of the State Prosecutor within 10 days after the State’s Attorney’s decision not to prosecute.
- If, after conducting a review of the investigatory file and completing any additional investigation the State Prosecutor determines that prosecution is appropriate, the State Prosecutor may prosecute the officer.
- The bill also creates a task force to develop a blueprint for independent investigations of potential incidents involving the death of a person cause by a police officer and report its findings to the General Assembly by 2022.
Senate Bill 627 – Law Enforcement Officers’ Bill of Rights – Repeal and Replace
- The repeal and replacement of the Law Enforcement Officer’s Bill of Rights establishes fair, transparent, and accountable standards and procedures for handling police misconduct.
- The new procedure has three core components:
- Establishes a clear line of accountability by empowering the Chief to take disciplinary without having to first go through a charging board.
- Restores civilian oversight by creating a non-binding hearing board comprised of two civilians and one law enforcement officer of equal or higher rank as the officer subject to the proposed disciplinary action. The board reviews the facts and makes a non-binding recommendation to the Chief. The findings of fact are binding.
- Addressing the issue of the police union’s ability to collectively bargain to protect their members from accountability. According to Baltimore native and Harvard Law Professor, Benjamin Sachs, the data as it relates to police union collective bargaining tell us that the introduction of collective bargaining rights for police officers between the 1950s and 1980s led to modest increases in police compensation, insignificant impacts on total crime, and substantial increases in police killings of civilians with disproportionate impact on racial minorities. I encourage you to read some of Professor Sachs’s work here: https://onlabor.org/police-unions-its-time-to-change-the-law/
How I voted on the amendments:
Some of you have asked for an explanation of my committee votes regarding the 8 amendments offered during one of our voting sessions on the bill. I voted for the amendments I felt would strengthen the bill by protecting rank-and-file officers who have been subject to discrimination in the past. I supported a number of the other amendments because they reinforce notions of basic fairness.
Amendment number 1: An amendment to give off-duty officers the same rights to engage in political activity as other public employees; Secure officers’ right to secondary employment; Restrict law enforcement agencies’ ability to require officers to provide income or property disclosures; Protect officers from being fired, disciplined, demoted or denied a promotion or transfer for exercising their constitutional rights or protections offered under the bill; And prohibit agencies from denying officers their right to file a lawsuit for incidents that arise while on duty.
I voted yes on this amendment. I did so because of the history of racial discrimination within the profession and because of internal tactics that have been employed to discipline officers who may espouse different political views than those higher up in their chain of command. Two recent and high-profile instances of alleged discrimination [“Report Details Racism Allegations in Prince George’s Police, Tells Why Ex-Chief Left”, “Maryland State Police accused of racial discrimination”] prove this isn’t simply a vestige of the past but a contemporary reality.
Amendment number 2: Sworn law enforcement officers or civilians may conduct misconduct investigations. In order for civilians to oversee misconduct investigations, they must undergo officer misconduct training sessions provided by the Maryland Police Training and Standards Commission.
I voted yes. This seemed relatively straightforward to me. Everyone participating in such important proceedings should have, at the very least, a base-level understanding of the process.
Amendment number 3: If an officer is under investigation, they are to receive a free copy of their investigatory file from their chief.
I voted yes. I am unaware of any other administrative process in which the person subject of the investigation has to pay for the investigatory file against them. Anyone subject to an allegation should be provide the information regarding the charge(s) for free.
Amendment number 4: Officers may request to have formal complaints expunged from their records if they were exonerated, the charges were unsustained or unfounded or a hearing board dismissed the charges or acquitted the officer. At least three years must have passed since the hearing board’s final decision before any record can be expunged. Formal complaints are not admissible as evidence in administrative or court proceedings if the officer was exonerated, the charges were unsustained or unfounded
I voted yes. Throughout my legislative career, I have championed the expansion of expungement opportunities for people who have been convicted of committing a crime. This amendment would provide an officer the opportunity to expunge records if they were exonerated, the charges were unsustained or unfounded or a hearing board dismissed the charges or acquitted the officer after three years. In addition, SB178 – Anton’s Law – which I mentioned earlier, allows for the permissive disclosure of all officer disciplinary records. This amendment seemed fair.
Amendment number 5: An amendment to strike a portion of the bill that would have allowed jurisdictions to adopt local laws to establish civilian oversight boards. These boards would have the same powers and responsibilities in disciplinary matters as a police chief.
I voted against this amendment. I believe in strong civilian oversight and involvement in the process. However, I must acknowledge that the adoption of this amendment would have been inconsistent with the goal of a single line of accountability. The amendment would have made the creation of the oversight boards optional, thereby creating another inconsistency with the goal of providing for a uniform disciplinary process throughout the state.
Again, although I am for civilian oversight boards, I recognize their limitations and understand some of the challenges they can pose for accountability. (See. Activists Push For Police Firings, But Elected Officials Don’t Have Power To Do That)
Amendment number 6: Clarifies a previously adopted amendment to allow officers to bypass investigations if they were convicted of a crime or sentenced to probation before judgment. Chiefs may exact punishment without conducting investigations if an officer is convicted of a crime that calls their “credibility, integrity or honesty” into question, or is sentenced to probation before judgment.
I voted yes. I struggled mightily with this one. The original language allowed for a Chief to discipline an officer without any due process for any crime they committed. We don’t do this for any other state employee. When looking at the number and range of crimes on our books I came to the conclusion the original language was too broad. For example, misdemeanors in Maryland range from a mere moving violation to first-time possession of child pornography. Can you imagine if an employee with 20 years of faithful service to our state could be fired for a simple speeding ticket? This is too much power in the hands of one individual, and I felt the amendment brought us back to what was more appropriate.
Amendment number 7: Provides that facts found by the hearing board cannot be altered by the chief.
I voted yes. This amendment simply provides that the civilian lead hearing board’s findings of fact cannot be altered by the Chief. Under the current language of the bill Chief still maintains the ability to implement disciplinary action.
Amendment 8: Amends the bill’s language to allow officers under investigation to request a hearing board rather than the agency’s chief.
I voted yes. The original language of the bill gave the chief the power to recommend discipline and decide whether to go to a hearing board. In the interest of raw fairness, I supported this amendment. The officer in question should have the ability to go to the majority-civilian hearing board and receive an independent assessment and recommendation.
I hope this helps to provide some clarity regarding my position. While not every amendment went my way, I strongly feel that this bill is still a tremendous step in the right direction. My view is that this package of reform was never about penalizing the profession or putting law enforcement officers in a disadvantaged position. It was and is about restoring transparency, accountability, and trust.
Senate Bill 626 – Use of Force – Duty to Intervene – Duty to Report, and Whistleblower Protections
- Senate Bill 626 holds officers accountable by requiring them to respect the sanctity of human life and use the minimum amount of force necessary.
- The major components of this bill include:
- A duty to intervene to prevent or stop another officer’s use of excessive force. An officer who fails to do so is guilty of a misdemeanor and on conviction is subject to imprisonment for up to 10 years.
- A duty to report – under the bill an officer must immediately report to any supervisory member of his/her agency, a State’s Attorney, the Attorney General, or the State Prosecutor if they have actual knowledge that another law enforcement officer has engaged in misconduct ranging from tampering with evidence and excessive force to homicide and sexual offenses. An officer who fails to do so is guilty of a misdemeanor and on conviction is subject to imprisonment for up to 10 years.
- Whistleblower protections – under the bill a law enforcement agency may not threaten or take retaliatory action against a law enforcement officer to disclose information relating to an abuse of authority, gross mismanagement, and or a specifical and substantial to public safety.
- Creates the crime of “excessive force” which can be charged in addition to or in leu of the appropriate existing criminal charge. An officer convicted of excessive force is guilty of a misdemeanor and on conviction is subject to imprisonment for up to 10 years.
Senate Bill 599 – Surplus Military Equipment – Prohibition on Purchase by Law Enforcement Agencies
- Eliminating access to unnecessary military equipment to increase trust between police and community members
- Specifically, Senate Bill 599 prohibits a law enforcement agency from acquiring a weaponized aircraft, drone or vehicle; or a destructive device; a firearm silencer; or a grenade launcher from the 1033 federal program.
Senate Bill 419 – No-Knock Warrants
- Senate Bill 419 limits the use of no-knock warrants to increase trust and safety in police encounters. Although no-knock warrants are an important tool to protect the safety of law enforcement officers, I felt as though there were several reforms we could enact to ensure the reduction of tragic consequences that can result from their overuse.
- Senate Bill 419 ensures no-knock warrants can only be authorized when necessary to secure the safety of police officer(s) and innocent bystanders and increases the level of scrutiny needed for no-knock warrants to be considered.
- Specifically, Senate Bill 419 requires a three-tiered approval process. A Judge, the State’s Attorney, and a member of the command staff must sign-off on the no-knock warrant application. Each member of the approval chain has veto power to deny the request.
- The application must include information pertaining to the presence of minors, vulnerable adults, and individuals with disabilities who may be encountered during the execution of the warrant.
- The bill also requires every police officer making entry into a building, an apartment, a premise, a place, or a thing to be searched during the execution of a no-knock warrant to wear a uniform or other clothing that makes the police officer immediately recognizable as a police officer at all times while the officer is participating in the executing of the warrant.
- Finally, the bill prohibits the execution of a no-knock warrant between 10:00pm and 6:00am unless specifically authorized in the search warrant.
Senate Bill 74 – Mental Health – Employee Assistance Programs
- Increasing trust in police work by promoting the well-being of officers through access to mental health services. Law enforcement officers face extremely difficult circumstances daily. They put their lives on the line to protect and serve others experiencing trauma when arriving at crash scenes; addressing incidents of domestic violence; investigating shootings and murders; searching for lost children and vulnerable adults. The cumulative exposure to stress experienced over years of service, depending upon individual coping skills and resiliency, may threaten the mental and physical well-being of an officer. Senate Bill 74 prioritizes the mental health of police officers and seeks to reduce the negative stigma of seeking mental health services commonly experienced by members of law enforcement.
- Senate Bill 74 also requires a mandatory mental health consultation and voluntary counseling for a police officer if the officer has been involved in an incident involving a serious injury to the police officer; an officer-involved shooting; or any use of force resulting in a fatality or a serious injury.
Senate Bill 786 – Baltimore Police Department Local Control
- Building trust and meaningful relationships between BPD and the community by restoring local control of BPD.
- This bill has not passed out of committee, but I plan to hold a vote and move this bill out of committee this week
As I said in June, history is replete with examples of how the unattended injustices of the day translate into crises future generations will have to contend with. This package is no panacea, but it represents transformative progress.
Know that I have put my level-best into this effort and that I have endeavored to represent you with integrity.
Please feel free to email or call with me questions and or concerns.
Until then, take care of each other and be well.
All the best,
Will