A Municipal Moment Worthy of Orwell

25 Feb
February 25, 2009
Reprinted from the Baltimore City Paper
February 25, 2009
(Image by MEL GUAPO)
Police work, it is said, is only easy in a police state.

So welcome to the city of Baltimore, where a police officer who uses lethal force and takes human life is no longer required to stand behind his or her actions and suffer the scrutiny of the public he or she serves, where the identity of those officers who use lethal force will no longer be known, where our communities are now asked to trust in the judgment of those who clearly don’t trust us.

A 61-year-old Baltimorean is dead, shot by a Southeastern District Officer Feb. 17. His death may well be a reasonable, if tragic outcome. It may even be good police work, though any veteran city prosecutor will acknowledge that having a shooting ruled “justified” by the state’s attorney’s office should in no way be mistaken for such an assessment.

But if we let stand Commissioner Frederick Bealefeld’s new policy of withholding the identities of officers who use lethal force, make no mistake, there will not be any independent public oversight of such efforts ever again. From this point forward, we are in the dark.

Discussions about what an officer did or did not do prior to taking a human life, reflections on the professional history of that officer, an accurate accounting of any other incidents, however many or few, that involved the use of deadly force by that officer—all of this now disappears behind a self-serving and Orwellian veil of secrecy.

The commissioner, backed by the police union, wants you to believe this is about a rash of dangerous threats against his officers. They testified about just such an epidemic to a City Council subcommittee that asked few questions and seemed to blandly acquiesce to the new policy.

And further, to secure the new secrecy in which his officers will now police our communities, the commissioner assures us that in the event he personally perceives that an officer may have done something illegal or against departmental codes in the taking of a life, he will decid—unilaterally and without review—to reveal the officer’s name.

On a legal note, this is remarkable, because it leaves the city’s top law enforcement officer violating the law. By statute, the Baltimore police commissioner doesn’t determine what is public information in this state, nor does the City Council or even the mayor.

The Maryland Public Information Act is a state law and changing it requires an act of the state legislature. Absent that, the Maryland Court of Appeals ruled long ago that initial incident reports—the so-called “face sheet” of any police accounting of a reportable event is—are, in the whole and without any redaction, public records. Meaning, everything that belongs on that face sheet—including the name of known assailants, which are the officers in any police shooting—cannot be withheld from any citizen seeking such.

But ignoring the legal niceties, which seems of no real concern to Commissioner Bealefeld, let’s focus on the substance of this new policy.

We, the public, are to trust that the commissioner—and all who follow him in the post—will be entirely and forever honest with the responsibility of deciding what we are allowed to know about police officers who kill citizens in our city, that they will freely provide information embarrassing or problematic to the department, that in making statements that can no longer be verified by an independent press, they will tell the whole truth.

It’s nice to think that the good judgment of one man can so easily replace the free exchange of facts and ideas. But there are words for that mode of government and they sound unkind to the modern ear. Still, rather than dwell on the totalitarian impulse here, perhaps we should simply look at how honestly the commissioner and his surrogates have performed on this issue thus far.

At no point on this issue has the whole truth been in evidence. Far from it.

In his letter to City Council President Stephanie Rawlings-Blake, the Commissioner cited as justification for the policy 23 reported threats against officers in 2008. There were such threats, true, but the lie is one of omission, because the commissioner did not tell the council precisely this:

None of those threats involved any substantive threat against any officer in retaliation for a police-involved shooting, according to sources within the department. Not one. Nor was the number of threats against officers in 2008 in any way notable, according to those sources; there has been no significant increase in such threats in recent years.

Told of this, Councilman Jack Young (D-12th District), chairman of the public safety subcommittee, said he felt deceived. He came away from the commissioner’s testimony believing such threats were in some way related to police shootings: “How in the hell,” he asked, angrily, “am I supposed to do my job when they are lying in my face?”

Councilman Jim Kraft (D-1st District) was similarly surprised to learn in detail the limited nature of the manner in which police-involved shootings are investigated. After hearing police officials testify, he said was under the impression that first the department itself and then the state’s attorney’s office undertook separate reviews of such shootings.

In fact, the state’s attorney’s office has no independent investigators to undertake its own investigation—they necessarily rely on the department’s own investigation of itself before a senior prosecutor reviews the file and recommends action. That prosecutor or the state’s attorney can recommend additional investigation, but again, the work is done by city detectives—the department probing itself.

Furthermore, if a shooting is ruled “justified” by prosecutors, as most are, it in no way reflects a judgment that the use of lethal force constituted good police work. Legally, justification for a police shooting can result if an officer made a reasonable judgment to use lethal force in the belief that the officer, his fellow officers or citizens , his colleagues or citizens were in imminent danger.

If that reasonable judgment was wrong? If the suspect was not in fact armed, but appeared to be? If the officer’s own actions introduced more risk to the situation, or contributed to an escalation of the conflict? If the officer failed to follow certain procedures, or to undertake an action that might have minimized the risk? None of that is directly relevant to the state’s attorney’s decision to legally justify a shooting.

Says a veteran prosecutor involved in such reviews: “I’ve told the department on several occasions that while a shooting was legally justified, it should not be referred to as a ‘good shooting,’ that there was nothing at all good about it.”

As to the internal review by the department itself, rarely, if ever, does this result in departmental charges against an officer whose actions have already been sanctioned by the state’s attorney, but for a wholly different reason: Veteran investigators in the department privately acknowledge that the risk and costs of exposing the department to civil liability by finding even modest fault with officers in use-of-force cases make the internal review problematic.

“I see,” Kraft said on actually having the full process explained to him. “If that’s the way it’s done—and I did not know any of this —then I can see why there might be some concern with the new policy.”

But again, at the hearing itself, the council members asked few questions and took the commissioner’s representations—and omissions—at face value. Just as reporters were asked to take departmental representations at face value in the wake of Tuesday night’s fatal shooting.

Police spokesman Anthony Guglielmi insists, even against state law, that he has every right not to reveal the identity of the officer who shot and killed an unarmed 61-year-old man, and further, that the public loses little of its right to know by being denied the name of the officer.

“You can still report everything except the name.”

Again, a lie of omission: Without the name, there is no conceivable way for a news organization, or a community group, or an individual citizen to evaluate the quality and consistency of that officer’s performance, to learn whether there is a recurring pattern of problematic behavior involving an individual officer, to even find out—independent of a police spokesman’s unverifiable say-so—whether this is the first life taken by an officer or the tenth.

Only after being asked directly if the 29-year-old officer involved in Tuesday’s incident, five-year veteran Traci McKissick, had been involved in any prior incident of which the public ought to be informed did Mr. Guglielmi offer what can only be categorized as a sanitized and misleading version of same.

Officer McKissick had, the spokesman said, been involved in “one other police-involved shooting. She was dragged by a car and she fired one shot. There were no injuries and the shooting was ruled justified.”

Where there any other details that the department could provide?

“No.”

By that basic reading, the officer’s performance in that earlier incident was sterling and heroic, raising no issue as to her capabilities as a street officer. Yet here is what police sources provide of the 2005 incident in which Officer McKissick fired her weapon:

During a traffic stop gone awry, the officer for some uncertain reason entered the suspect’s vehicle when the suspect was not properly detained. The suspect then drove away with the officer in the passenger seat and, as Officer McKissick had drawn her handgun, the suspect was able to seize the weapon. In the struggle, a shot was fired and the bullet was discharged into the rear of the car. The suspect threw the gun out of the window; it was never recovered.

And Tuesday night’s incident? Well, yes, the same officer—who sources describe as physically diminutive—was again in a struggle with a larger, unarmed suspect and at some point she was in danger of losing her weapon for a second time. Whether she again drew her weapon first on an unarmed suspect, or did so prematurely, is unclear, sources close to the investigation acknowledge.

During the struggle, a sergeant arrived and fired one shot, fatally wounding the suspect. Officer McKissick, still in the grip of the suspect, regained control of her weapon and fired as many as 15 shots, emptying her weapon into the suspect’s leg. All are grouped contact wounds.

A citizen is now dead, perhaps justifiably so. But, the spokesman was asked, don’t you think it might also be relevant to the public that this officer has some history of losing her service weapon in physical altercations? Do you think the public might want to know if the department is looking into that aspect of her training and performance?

Mr. Guglielmi replied that the department has “no concerns” with the officer’s performance in either incident and, further, that the 2005 event was not relevant. You don’t consider a prior incident, he argued, when investigating the current one.

True, perhaps, in terms of the officer’s legal justification. But in terms of an officer’s training, capability, and performance? What could be more relevant than a potentially dangerous—and now lethal—circumstance that has repeated itself?

Half-truths, omissions, the grudging release of favorable details, the obfuscation of problematic facts—such a performance is, apparently, the reservoir of integrity on which citizens are to drink under the new policy. So much for Commissioner Bealefeld’s assurances that we will be told what we need to know when we need to know it.

There may be many officers—younger ones, certainly, those without a sense of the department’s history—who think the new policy beneficial. There may be officers who feel that they risk their lives, that they are vulnerable in their duties, that they are entitled to an extra measure of protection.

The service and risk of a law officer is not to be denied. But the greater and more fundamental truth is that being given the solitary right to carry a weapon and take human life as a publicly sanctioned act carries with it an essential responsibility to the public.

If you cannot stand openly in sight of the community you police and defend your actions, if your service history cannot stand a full, proper, and unregulated scrutiny by that public, and if that action and that history needs to be tailored, groomed, and cleaned by police officials who don’t trust citizens with all of the facts, all of the time, then how are you deserving of a badge, a gun, or the public’s trust in any regard?

Here is a fact: Over the last quarter century, in a drug-saturated city, dozens of Baltimoreans have been slain because they were witnesses or potential witnesses in state and federal prosecutions. Still, our city leaders insist—rightly—that to make the city safer, it is essential that citizens continue to come forward, to commit to the process, to believe authorities when they say they will be protected.

In that same 25-year span, police officials can recall exactly one police who was murdered—seven years ago—after being involved in a police shooting and then testifying against the assailants. Fraternal Order of Police officials are quick to cite the case of Officer Thomas Newman as justification for the new policy of secrecy.

But again, this is half-truth where only the full measure will do.

Officer Newman would have been targeted and killed if there had never been a newspaper published in Baltimore, if the general public had never learned his name. The officer testified in open court against his assailants and he was slain in retaliation almost a year after the trial and when he was observed as a happenstance in a bar on Dundalk Avenue. Media reports of his identity played no role in his death whatsoever and his tragic death has exactly nothing to do with the present change in policy.

Instead of anecdotal equivocations, those who support this new policy might do better to contemplate this appalling and destructive hypocrisy: If those who are authorized and trained to carry a badge, who carry semiautomatic pistols and esplatoons, who are backed by their fellow officers, who are nearly 3,000 strong, who have the power of subpoena and arrest, who have the ability to pursue and charge criminal behavior—including threats on an officer—if these men and women are now too frightened to have their identities known to the public in conjunction with the use of force, then how can anyone in Baltimore law enforcement justify asking an unarmed, unsworn citizen to testify in court as a witness?

Trust demands trust. And for any citizen of this city to be asked to consign life and limb to a system in which even the armed law officers won’t stand behind their actions is an ugly affront. It is, frankly, a question of institutional cowardice: The community standing of a once-proud and responsive police agency damaged by the sight of officers seemingly afraid to stand behind their actions in the same time-honored way that generations of Baltimore police have before them.

As for Commissioner Bealefeld, his response to any of this is proving elusive. For days on end, he has not returned repeated calls on the matter. Evidently, the temptation to avoid public scrutiny and criticism, once sampled, is habit-forming.

Police work in Baltimore is being made easy. But to anyone in city law enforcement who still understands the hard job of policing a city with precision, responsibility, and integrity, this is, of course, no real comfort. It is, in fact, both shameful and frightening.

David Simon, the author of the non-fiction narratives Homicide and The Corner, was a police reporter at The Sun from 1982-1995.

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