On Monday, we saw a renewed attack on the Law Enforcement Officers Bill of Rights (LEOBR) here in Maryland. Once again, well intentioned advocates for police accountability are misdirecting their energy toward something that will have no meaningful impact on the problem at hand: unjustified and/or excessive uses of force by police and growing community mistrust.
LEOBR is not the problem. Proposals to water down LEOBR are nothing more than a red herring. They draw attention from the real problems contributing to unnecessary and excessive uses of force by police that have created the growing rift we are seeing today between police and the citizens they serve.
In the wake of incidents such as the shooting death of Michael Brown in Ferguson, Mo., and the death of Eric Garner at the hands of police in New York City, we have seen a growing mistrust of local police. In Baltimore, this wave of mistrust was compounded by the April 2015 death of Freddie Gray while he was in police custody, and the riots that followed.
LEOBR affords Maryland law enforcement officers certain rights in personnel investigations. Tampering with the provisions of LEOBR will not produce the intended result, that of curbing excessive and unnecessary uses of force by our police. What it will do is drive a wedge between those who protect and serve and those who govern, further exacerbating the “us versus them” sentiment already dividing police and community leaders.
At the center of the calls for change, there seems to be a misunderstanding by some when it comes to questioning an officer who is the subject of an investigation. An officer, like any other citizen, cannot be compelled to answer questions during a criminal investigation. LEOBR does not play a role in investigations that determine whether to bring criminal charges against a police officer.
LEOBR only comes into play during administrative or personnel investigations. During these investigations, the officer can be compelled to answer questions, but any information gleaned cannot be used in the criminal investigation. This is an important distinction.
LEOBR does limit the chances of arbitrary firing or disciplining an officer, affording some protection from toxic leadership. It provides for an independent hearing board to determine if an officer should be disciplined or fired.
LEOBR does not prevent police chiefs from selecting hearing board members of their choice from within or outside the agency or increasing the penalty recommendations of a hearing board. However, these management prerogatives are sometimes given up in contract negotiations between political leaders and police unions. That is not a weakness in the law but a weakness of political will during contract negotiations.
If we are to be successful in addressing the current crisis in trust and confidence in our police, it will not be with knee jerk reactions like attacking LEOBR. The assault on LEOBR is analogous to attacking Miranda warnings and the exclusionary rule in order to reduce crime. The true measure of success will be the absence of unnecessary and excessive uses of force. It will not be measured by how incidents are dealt with in the aftermath.
To be successful it will be necessary to identify the conditions that lead to unnecessary and excessive uses of force by police. Most are not difficult to recognize. Bad tactics often lead to bad outcomes.
The over-utilization of SWAT teams, the indiscriminate use of Tasers, training that produces a hyper-vigilance over officer safety, and the increased militarization of local police are all contributing factors in need of close examination.
The answer to reducing unnecessary and excessive uses of force lies in the hiring, training and supervision of our police officers. It lies in good leadership at all levels and sound policy executed in a professional manner. It lies in recognizing the destructive aspects of the police subculture, such as viewing the public as the enemy, and working to eradicate those aspects of the subculture.
Those proposing the watering down of LEOBR are accomplishing nothing more than pitting political leaders and police against each other in an unnecessary fight, further widening the gulf between police and the communities they serve. We need our political leaders and police professionals to collaborate in crafting workable solutions to reduce excessive and unnecessary uses of force and restore community trust and confidence in those who serve and protect. We don’t need them to erect new barriers to progress.
Karl W. Bickel retired as a senior policy analyst with the U.S. Department of Justice and is a former chief of law enforcement operations for Frederick County, where he was guided by LEOBR. His email is KarlBickel@comcast.net.