George Liebmann: The conflict between Mr.Malley and Mr. Clark


BALTIMORE – The recent opinion by an especially distinguished panel of the Court of Special Appeals in Clark v. O’Malley allowing a fired police commissioner’s suit to go forward should have come as a surprise to nobody.

An 1860 statute dictating that the police commissioner of Baltimore City can be discharged only for just cause still stands. Professionalizing the police force and insulating officers from corrupt mayoral administrations was its purpose – still a worthy goal. It also provided the city police with status as a state agency, as well as immunities whose disappearance would be costly for the city. Oversight of the police shifted from the governor to the mayor in the 1960s, but the just cause part of the law did not change.

This Maryland law was not exceptional. Everywhere in the English-speaking world, efforts have been made to insulate policing from politics, while leaving police chiefs responsible in case of abuse of their powers. As for the nation’s four largest cities, only in Philadelphia does the police chief serve at the sole pleasure of the mayor, and the Philadelphia police department of Wilson Goode and Frank Rizzo has not been renowned for its skill and integrity. In New York City, the mayor’s discretionary power of removal is checked by a similar power in the governor; in Chicago and Los Angeles there are complicated systems for appointment and removal involving police boards and city councils. The director of the FBI doesn’t serve at the pleasure of the president; one of the post-Watergate reforms fostered by Attorney General Edward Levi was a 10-year fixed term for the FBI director.

The relevant English history is recounted in two thick volumes by the historian Leon Radzinowicz. While the head of the London Metroplitan police can be removed by the home secretary under the law supported by Robert Peel in 1829, the British Conservatives, led by Benjamin Disraeli and Lord Brougham, refused for thirty years to allow the creation of county police forces unless they were responsible only to locally-appointed police committees, not prime ministers, home secretaries, or elected mayors. This principle survives to the present time, despite assaults by both Conservative and Labor governments.

We want police to be responsible, but we do not want them to be the pliant tools of politicians. The principle of the 1860 law is a quasi-constitutional principle which, City Solicitor Ralph Tyler to the contrary notwithstanding, cannot be varied by contract because the mayor would like to vary it. The mayor’s efforts to micro-manage the police department have given us seven police commissioners in seven years (Thomas Frazier, Bert Shirey, Ronald Daniel, Edward Norris, John Mc Entee, Kevin Clark and Leonard Hamm.) His claims are no more supportable than those of the sycophants of the Bush administration about a “unitary executive”or “inherent executive powers.”

Neither the 1860 law nor American or English practice contemplates that chiefs of police are to be directed by political commissars or the unconfirmed friends or relations of politicians in power. They are to be appointed carefully to fixed and substantial terms, subject in most places to legislative confirmation and are generally removable only for just cause, not including disobeying the Mayor’s whims.

George Liebmann, a Baltimore lawyer, is the volunteer executive director of the Calvert Institute for Policy Research and is the author of “The Common Law Tradition: A Collective Portrait of Five Legal Scholars,” recently reissued in a paperback edition by Transaction Publishers. He can be reached at

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