2015 Libertarian Legislative Watch-Criminal Justice

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The first in a series, Eric Blitz reviews legislation relating to criminal justice reform, introduced (as of 2/10) in Maryland’s 2015 General Assembly session. Any opinions expressed are those of the author and not official positions of the Libertarian Party of Maryland.

SWAT Teams

Leading off the hit parade is a bill that puts constraints on the deployment of SWAT teams in Maryland. SB173 limits the deployment of a SWAT team to instances where there is a significant imminent threat to human life, welfare, and safety and the use of regular patrol officers is insufficient to meet that threat. It requires a supervisor to create a written report supporting the determination that these factors exist (and whether pregnant women, children or the elderly are suspected of being present) before deploying a SWAT team, except when doing so would substantially endanger the lives of civilians or police personnel. The bill also imposes substantial reporting requirements on police forces that use a SWAT team, which should help with the transparency problems associated with such deployments. There is a hearing scheduled in Senate Finance Committee on 2/12 at 1:00 p.m. The bill is cross-filed in the House as HB338.

Police Body Cameras

HB308 provides authorization for the use of body cameras for police officers while on duty (except detectives). It requires the storage of data from the body cameras for 30 days. The bill also provides that the body camera’s interception of oral communications is not a violation of the Maryland law which prohibits the interception of oral communications. It is this last provision which presents some concern, as it may be over broad. Exceptions to the general prohibition against intercepting oral communications already exist to protect law enforcement officers, under the Maryland wiretapping and electronic surveillance provisions of §10-402 of the Courts and Judicial Proceedings Article. Those exceptions are sufficient. The blanket exception in this bill would seem to expand lawful interception of oral communications beyond the recognized exceptions. One wonders if officers can be used as mobile Trojan horse, to expand (beyond the warrant requirement) interception of communications captured by their body camera that do not involve communications with the officer (especially if their presence is hidden from view or the officer is not otherwise identified). On the other hand, video tapes by law enforcement officers are already included in the 10-402 exceptions and body cameras could be viewed as a very similar technology (though mobile). While I generally support body cameras on police officers as a means of ensuring transparency in the use of force and general official conduct, I have some concerns that over time they may lead to the erosion in the legitimate expectation of privacy in all instances in which police officers are present and on duty. HB308 has 8 co-sponsors in the House but is not yet cross-filed in the Senate. A hearing in the House Judiciary Committee has not yet been scheduled.

Police Conduct

The next three bills I really like, which no doubt dooms them to never get out of committee. The first two are sponsored by Delegate Curt Anderson and the third is sponsored by Delegate Conaway (and Senator Muse in the Senate).

HB363 provides that the commission of a misdemeanor or felony (that have an incarceration penalty of a year or more) by law enforcement officers while in the course of their duties constitutes misconduct in office. That misconduct in office is a separate offense that can lead to up to a 10 year sentence, to be served consecutively and not concurrent to the underlying offense. There are 4 co-sponsors. No hearing is yet scheduled.

HB365 shifts all felony prosecutions of police officers (both state and federal) for violations during the course of their duties from the local office of the States Attorney to the office of the Attorney General. There are 7 co-sponsors. No hearing is yet scheduled. My one concern with this bill is that the investigatory phase is still conducted by the State’s Attorney’s office, as the referral to the Attorney General’s office only occurs after a statement of charges or criminal information has been filed. It would be preferable if the Attorney General’s office handled the pre-charging investigation of all allegations of felony police misconduct. However, in cases that involve the death of an individual by an action or omission of a police officer, that investigation loophole is solved by the next bill.

HB 112 provides that the State Prosecutor may investigate the death of an individual who dies as a result of an action or omission of a police officer (while on duty or for off-duty, if the activities are within the scope of the officers duties) if the State’s Attorney for the jurisdiction in which the death occurred does not file an information or seek a grand jury indictment in the case. This provides an important secondary review in these cases and my only suggestion is that it may need a time requirement to know when a State’s Attorney’s predicate actions (or lack thereof) trigger the State Prosecutor’s authority to investigate. This bill is cross-filed in the Senate as SB653. No hearing is yet scheduled.

Note that Delegate Rosenberg has introduced a similar bill, which would apply to any use of force by a police officer, which is HB438. That bill grants the State Prosecutor the authority to investigate immediately, which would seem to be a concurrent authority with State’s Attorneys. That bill has no other co-sponsors and no hearing has yet to be scheduled.

Restoration of Voting Rights after Felony Disqualification

SB340 removes parole and/or probation from the period of disqualification so that citizens are only disqualified from registering to vote because of a felony conviction only during their period of incarceration. The bill also requires notice to prisoners of their right to vote and opportunity to register as they are discharged from incarceration. This bill is similar to the kind of reforms that Rand Paul has been promoting in Congress. Only Senator Conaway is a sponsor so far and it is scheduled for a hearing in the Senate’s Education, Health and Welfare Committee on 2/26 at 1:00 p.m.

Asset Forfeiture

HB360 is a bill reforming asset forfeiture laws relating to controlled dangerous substances (CDS) offenses. The party program calls for ending pre-conviction asset forfeitures. Considering its sponsors, this bill has a reasonable chance of passage. It does not end abusive asset forfeiture, but nonetheless provides some good (if minor) reforms. The bill provides:

  • Currently the owner of property bears the burden of proving that they had no knowledge of the CDS violation in certain CDS asset forfeitures. The bill shifts that burden back to the State with respect to “innocent owner” claims involving CDS violations when the assets involve vehicles, real property and assets used in the purchase of CDS (or traceable to the exchange).
  • Places a minimum of $300 on many CDS asset forfeitures, removing some of the small money claims.
  • Removes a provision that allowed forfeitures when assets are in close proximity to CDS, paraphernalia, and a few other items, which should require prosecutors to prove asset forfeiture authority under other more relevant indicia of a relationship to a CDS offense.
  • Property must be immediately returned to the owner if the owner is not charged with a CDS violation in connection with the property within 90 days of the seizure.
  • Seized property cannot be transferred to federal law enforcement unless the case is prosecuted in federal court.
  • Changes the burden of proof by removing a rebuttable presumption that the property can be forfeited, if the state meets a burden of establishing, by clear and convincing evidence, certain CDS offenses.
  • Establishes a reporting scheme to track asset forfeiture in the state.

A hearing is scheduled in House Judiciary on 2/17 at 1 p.m. The bill is sponsored by Delegate Vallario (and 19 others) in the House. The companion bill in the Senate is SB 528, with 10 co-sponsors.

Segregated Confinement

HB301 requires state correctional facilities to file detailed annual reports on segregated confinement in excess of 22 hours per day. It builds transparency with respect to the use of segregated confinement. The bill has 12 co-sponsors in the House. The bill is cross-filed in the Senate as SB414 (8 co-sponsors). A hearing is scheduled in the House Judiciary Committee on 2/17 at 1:00 p.m.

Race-based Traffic Stops

HB339 requires police departments to report information for traffic stops that track race and requires the development of a model policy against race-based traffic stops. It is cross-filed in the Senate as SB413. A hearing in the House Environment and Transportation Committee is scheduled for 2/19 at 1:00 p.m.