Comments on Proposed Baltimore City Police Consent Decree
I make these comments only because I have been a public critic of this ‘Consent Decree’ and do not wish silence to be taken as acquiescence.
I shall not appear at the April 6 hearing, unauthorized by the Federal Rules of Civil Procedure, since, like others before it in this Court’s Housing case, it is so structured, and is being promoted, as a pep rally for advocacy groups. Such ‘hearings’ mis-educate the public as to the functions of, and appropriate influences upon, courts, whose central function is the protection of individual rights, including those of unpopular individuals. For similar reasons, I find objectionable the public meetings provided by Paragraph 19 and 444 and the annual survey in paragraph 23.
The showing of current or recent constitutional violations by the named defendants that is a necessary predicate for federal jurisdiction and the decree is absent. The unsworn and unsigned Report attached to the Complaint recites few recent incidents, none chargeable to the current Mayor and Police Chief, and no improper directives by them. FRCP 65(d), a protection for members of labor organizations derived from the Clayton Act forbids ‘John Doe’ injunctions, The leading case under it is Alemite v. Staff, 42 F.2nd 832 (L. Hand,J.):
“No court can make a decree which will bind anyone but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large no matter how broadly it words its decree. It is not vested with sovereign powers to declare conduct unlawful. Its jurisdiction is confined to those over whom it gets personal service, and who therefore can have their day in court…If the defendant is not involved in the contempt, the employee cannot be. It is by ignoring such procedural limitations that the injunction of a court of equity may by slow steps be made to realize the worst fears of those who are jealous of its prerogative.”
This is a City in which any number of Mayors, Councilmen and Police Chiefs have been black, as is at least 40% of its police force. Whatever the misconduct of a few individuals, the charge of racism is one that should not be lightly entertained, let alone sanctified, on slender or non-existent evidence, in a decree of a United States District Court. Such a finding is a jurisdictional prerequisite; the disclaimer in paragraph 5 that the City does not agree with the Findings in no way obviates the jurisdictional need for them. Their falsity and exaggeration is welcomed by the original sponsors of the decree because it feeds not only into a decree but into a political narrative supportive of electoral mobilization and identity politics.
The decree is transparently collusive—an alliance of two lame duck administrations to victimize unrepresented interests, those of the police unions and their members and those of the State, which will be pressured to provide money for reforms, the BPD being at least nominally a State agency. Nor is the United States Attorney anywhere to be found. See “Obama Races to Overhaul Police in Baltimore and Chicago Before Trump Era,” New York Times, January 10, 2017. The assumption that decrees, once signed, or even entered, are impervious to subsequent political change is a mistaken one. See Rufo v. Inmates of Suffolk County Jail, 502 U. S. 367 (1992); Frew v. Hawkins, 504 U. S.437 (2004); J. Rabkin and N. Davies, Avoiding Government by Consent Decree, 40 Stanford L. Rev. 205 (1981); D. Schoenbrod and R. Sandler, Democracy by Decree: What Happens When Courts Run Government (Yale U. P., 2003). Article III of the Constitution limits court jurisdiction to “cases and controversies”, an important limitation. Moore v. Charlotte-Mecklenburg, 402 U. S. 47 (1971);
Chicago and G.T.R. Co. v. Wellman, 143 U. S. 339(1892). There is none here; the parties have avowed since before this case filed their intention to enter a consent decree. Given the apparent lack of enthusiasm of the current Justice Department, entry of the decree will deliver public policy into the hands of advocacy groups. It is inconceivable that even the recent and current City administrations would have conceded control of the police to advocacy groups, including some with a declared agenda in favour of federal control of local law enforcement.
The vague and sweeping injunction contained in paragraph 8 can thus be enforced, if at all, only by contempt fines falling on City taxpayers and fustian from the bench. The Court, to be sure, will have the aid of a credulous press. Notwithstanding an express finding in the Report that the facts found on handling of sexual assault complaints did not establish a constitutional violation, the lead story by Sheryl Gay Stolberg and Jess Bidgood in the next day’s New York Times, August 16, 2016, page 1, column six at the top of the page bore the headline in the print edition: ”Baltimore Police Fostered a Bias Against Women.” The Court in its Agenda for Counsel accurately characterized the decree as “aspirational, general, lacking in deadlines” as well as lacking in information about “standards to be applied, resources, costs.”
Neither this Court nor the litigating lawyers framing the decree are authorities in police administration. As the ‘time line’ appropriately directed by the Court indicates, there are an almost comically large number of reporting requirements, the costs of which in time, manpower, morale, and response speed are not assessed. There is every reason to think that these external mandates will be resented and little in the recent history of structural decrees provides reason to think that they will be effective. Non-constructive compliance costs will be enormous, and, given paragraph 450, even the much-vaunted ceiling on monitors’ fees is bendable.
The City was vindicated in this court’s housing case after twenty years of costly litigation, the only relief granted being a cosmetic decree against the federal government affecting a few hundred families; while the case was pending, several hundred thousand minority families moved to the Baltimore suburbs without the court’s assistance. This court’s special education case was of equal length and bore fruit, as Kalman Hettleman and others have shown, in enhanced paper shuffling and no improvements in the quality of the personnel giving classroom instruction. As for nearby school desegregation decrees, the best comment was that of the late Professor Philip Kurland in a letter to Professor Alexander Bickel: “Every night, when I put my three little girls to bed, they say to me: ‘Daddy! Tell us again the story of how Judge J. Skelly Wright desegregated the public schools of the District of Columbia!’” The effective police reformers have been Commissioners, not judges: William Bratton in 1990s New York and Los Angeles, Donald Pomerleau in 1970s Baltimore.
Paragraphs 251 through 259 of the decree relating to sexual assault are improperly included as a sop to advocacy groups in the face of a Report finding “We do not, at this time, find reasonable cause to believe that BPD engages in gender-biased policy in violation of federal law.”
The provisions of paragraphs 43(b) and 61 limiting arrests for loitering, misdemeanour trespass, (important in drug law enforcement), as well as disorderly conduct, gambling, and quality of life offenses will become rapidly known and are gifts to the underworld, lowering the risks and costs of illegal drug distribution and increasing its profitability. In no way do they foster or are they equivalent to the decriminalization of drugs. The benefits of decriminalization, all absent here, include labelling, licensing, quality control, availability of drug testing without fear of selfincrimination, excise taxes, enhanced revenues from sales, payroll, income and business taxes, and the replacement of a distribution system reaching into every workplace and classroom with one operating from fixed locations. Insofar as it curbs “broken windows” and “quality of life” enforcement, the decree completely deprives the City of options the value of which is the subject of political and professional controversy, a dis-service to responsible self-government. The decree cedes power not only to the federal court and its monitor but to the federal Department of Justice itself, see paragraphs 285, 286, 298, 319, 324, 483. The merit of Justice Jackson’s view may not have been apparent in October but should be in March: “I think the potentialities of a federal centralized police system for ultimate subversion of our form of government are very great.” The decree adopts unacceptable “disparate impact” criteria on both employment and enforcement, paragraphs 43, 423 and 511 (cc). It is particularly deplorable that the last of these restrictions is buried in the “Definitions” section of the decree. Its effect, as a representative of an advocacy group has joyfully proclaimed, is to prevent police from “targeting citizens in high crime areas.” Reduced enforcement in such areas is assumed to be a public good, an insight probably not shared by the residents. Throughout history, and in nearly every society, law enforcement plays a role in socializing new and rising groups, a role not to be abandoned in favour of “defining deviancy down ” The proposed decree is not a measured, thoughtful response to social problems, but a rushed one, the product of panic and a failure of nerve by a municipal leadership running scared of an adolescent street mob and its drug-gang adult followers, who efficiently looted the City’s pharmacies. The Mayor conceded not only the decree, but time and space to ‘act out’ at the expense of innocent merchants, proposed destruction of municipal monuments, and an extravagant monetary award to the family of a prisoner not yet shown to have been wronged. The decree is not a harmless sop, but a measure whose effect on police recruitment and behaviour threatens a sudden and complete collapse of public order, or at best a long period of slow attrition as police, residents and businesses vote with their feet for jurisdictions that have not thus handcuffed themselves.
I feel sympathy, though not guilt, at the plight of Freddie Gray and his mourners. Their occupation in the drug trade and their grievances as regards police misconduct are not the product of disinterested malice or municipal public policy. They arise from a national failure to address youth unemployment as it was addressed in the Depression years and from persistence in a foolish and failed drug war. Saying this now is not, on my part, a post hoc rationalization for opposition to the decree. I have been saying it for years.
The court is being urged to enter both a political thicket and a minefield, to no good purpose. There are provisions of the decree relating to training which have merit, but no constitutional predicate. The court might consider deferring action on the decree for six months or a year until a report on changes in police training is received. Assuming, as I do, that the new Mayor is acting in good faith in emphasizing “training, training, training”, the Court can at that time dismiss the complaint without prejudice with an entirely clear conscience.
Respectfully submitted, George W. Liebmann