George Floyd Aftermath: Baltimore City State’s Attorney Mosby Pushes Back On Police Reform Measure Advanced By Key Lawmaker

State’s Attorney Marilyn Mosby during a 2016 press conference about Freddie Gray. (Screenshot YouTube)

Baltimore City State’s Attorney Marilyn Mosby is pushing back against a major police reform measure that would fundamentally change how law enforcement misconduct investigations are handled in Maryland.

The proposal, advanced last week by Senate Judicial Proceedings Chair William C. Smith, Jr., calls for the Office of the State Prosecutor to investigate use-of-force complaints, officer-involved deaths, and racial profiling, among other potential allegations.

Mosby, instead, favors legislation that would create separate investigatory agencies, or units, in state’s attorneys’ offices across the state. Under Mosby’s plan, local prosecutors, including Mosby, would become authorized to investigate serious misconduct cases independently of the police by being granted the same authority as police, known as police powers.

A number of police reform bills, and ideas, are now at center stage in the aftermath of the officer-involved death of George Floyd, 45, who died on the streets of Minneapolis in late May. Legislative efforts attempting to overhaul a controversial police investigation system with little transparency and questionable accountability have failed in Maryland’s Democratic-led state legislature in recent years.

Smith outlined a number of police accountability policy proposals on June 4 in a letter to his legislative peers and the public.

“I support the intent of these bills – to ensure accountability for law enforcement officers that break the law,” Mosby said. “However, Independence is needed at the investigation phase and the focus of the legislation should be on the creation of independent investigatory agencies to eliminate incomplete investigations, sabotage, and the clear conflict of interest that is posed when fellow officers are forced to investigate their own colleagues.

“In other words, real-time independent investigators are needed to ensure police accountability, not prosecutors that are politically appointed and not accountable to the community,” Mosby said of the State Prosecutor’s Office.

Currently, only a handful of local prosecutors in Maryland possess the power to both investigate and prosecute serious police misconduct cases. The result, oftentimes, is police investigating police, Mosby said.

Smith said he expects there to be pushback from all ends of the spectrum on his proposal for the state prosecutor to handle misconduct cases, primarily because the measure would take away authority from localities.

Harford County Sheriff Jeffrey R. Gahler said it is his responsibility to his constituents to investigate all claims of police misconduct.  However, he also supports a parallel investigation by an independent agency in instances of police shootings and in-custody deaths or an independent review of his office’s investigation.

“As an elected Sheriff, the citizens of this County have elected and entrusted me to conduct these investigations when called upon,” Gahler said. “One might think this would be an easy decision for an elected official; to pass the responsibility and duty of the office to another person and to wipe one’s hands clean of any negative findings. In truth, the citizens of Harford County did not elect the head of the State Police or another county’s sheriff or police chief and have no way to hold these officials accountable. To abdicate the responsibilities of the Office of the Sheriff for Harford County is not something that I support.”

In Harford, the sheriff’s investigative findings are sent to the county State’s Attorney Office for a determination of charges.

Concurrently, Gahler said a parallel investigation is conducted by the Office of Professional Standards, an Internal Affairs unit in the sheriff’s office, to determine if all actions in the investigation were in compliance with office policy.

“This investigation is separate from the investigation reviewed by prosecutors as its purpose and scope are distinctly different,” Gahler said.

Changing of the guard

Smith, a new appointee to the Senate Judicial Proceedings Committee, has called for hearings to begin this fall. The Democrat from Montgomery County and lieutenant in the U.S. Navy reserves said he wants to get a jump start on the 2021 legislative session.

“I have never been more keenly aware of how much more work remains and the fierce urgency with which that work must be accomplished,” Smith said in a June 4 letter that outlined major police reform initiatives.” . . . Our system is broken and we cannot continue to do what we’ve been doing. Although we have made progress in recent years, it is far past time for us to reflect upon why it has taken the murder of yet another precious black soul in 2020 to muster the political will to push for meaningful reform.”

Smith said Saturday he is determined to pass meaningful police accountability legislation and said there is already enough anecdotal and statistical information to move forward.

The lawmaker is in the process of drafting legislation that calls for the disclosure of law enforcement personnel records through Maryland’s Public Information Act, new use-of-force and implicit bias police training, capping police insurance liability payouts and repealing a clause in the Law Enforcement Officers Bill of Rights (LEOBR) which requires an investigation or interrogation of a law enforcement officer to be conducted by a sworn law enforcement officer or the Attorney General’s office.

Under new leadership, Del. Adrienne A. Jones (D-Baltimore County), Speaker of the House of Delegates, announced the creation of a legislative workgroup intent to redefining police accountability in Maryland, following Floyd’s death. The workgroup, headed by Judiciary Committee vice-chair Del. Vanessa Atterbeary (D-Howard), held its first session Tuesday on a Zoom conference call.

The goal of the workgroup is to lay the groundwork for the 2021 legislative session, which begins in January. Lawmakers used the session to get caught up on policing guidelines and standards put in place by the passage of a 2016 omnibus bill following Freddie Gray’s 2015 death in Baltimore.

One of the biggest takeaways from the session is while basic guidelines involving the police department, use-of-force, and body camera guidelines are in place, there appears to be little-to-no accountability for implementation. Not all law enforcement jurisdictions in Maryland use body cameras. For example, while the cameras are currently not in use in Howard County, the local government is trying to find funding in their current budget for them.

In recent years, several police accountability laws that could address these issues have died in the Democratic-led state legislature.

For example, several bills were born out of the officer-involved death of Anton Black, a black teen who died in police custody in Greensboro, Md., in September 2018. Following a police pursuit by three white police officers and a white civilian that led to Black’s front porch, Black died shortly after being handcuffed and shackled by the men.

One of the involved officers, Thomas Webster, was on probation. He came from Dover, Del., where he was no longer allowed to work as a law enforcement officer after a legal settlement involving second-degree assault charges against a black man in his custody.

“Anton’s Law,” SB1066, would allow misconduct complaints against law enforcement agents to be available through a public information act request and allow complainants to receive a copy of the investigation file. The bill would also repeal a clause in the LEOBR which only allows sworn officers to investigate police. The legislation failed to advance in both House and Senate committees for two consecutive years.

The Law Enforcement Trust and Transparency Act, HB983, which also failed to advance in the 2019 legislative session, would require investigations of officer-involved deaths to be conducted by an independent agency outside of the jurisdiction of the law enforcement officer. The results of the investigation would be turned over to the state prosecutor for consideration of prosecution. The investigative file would be made public if there was no prosecution.

A similar bill, Independent Investigation of Law Enforcement-Involved Death, HB1251, died in a House committee this session. It called for the attorney general to conduct an independent investigation of an officer-involved death and for a prosecution to be held outside of the county where the death occurred.

Personnel and Investigatory Records – Complaints Against Law Enforcement Officers, HB 1221, sponsored by House Judiciary Committee Chair Luke Clippinger, would make any record relating to a formal complaint against a law enforcement officer, including an investigation record, a hearing record, or a disciplinary decision, available under a public information act request.

The bill advanced with amendments in the House before the legislative session was cut short because of the coronavirus. It died in committee in the Senate.

“The Maryland state legislature has announced a new task force on policing and the City Council is about to be infused with fresh faces,” Mosby said. “The public must push legislators to seize this moment and rethink public safety and policing.”