By Eric J. Blitz, Director of Legislative Affairs, Libertarian Party of Maryland.
It is sad, even perplexing, that it takes a series of well-publicized abuses by law enforcement personnel to bring about greater transparency, reasonable limitations on the use of force by police, limitations on dangerous procedures such as no-knock search warrant raids, civilian review of police use of force cases, and better statutory guidance on police department training, supervision and management. Notwithstanding our frustration that it has taken this long, the Libertarian Party of Maryland applauds the Maryland General Assembly for a series of important policing reforms enacted this session. These are important first steps towards reorienting the culture of policing in Maryland and could serve as a model for other states that want their policing to protect and serve everyone. Some elements of the police reform bills that I will review should especially please Libertarians, as they have long been at the forefront in advocating for such changes.
Perhaps the most important reform is the statutory codification of a state-wide use of force policy. That policy establishes what most citizens should reasonably expect from their police. The Maryland Police Accountability Act of 2021 (SB 71) establishes a use of force statute which provides that:
- A police officer may not use force against a person unless, under the totality of circumstances, that force is necessary and proportionate to prevent an imminent threat of physical injury to a person or to affect a legitimate law enforcement purpose.
- The use of force by a police officer must cease as soon as the person to which the force is applied is under the control of the police officer, when that person no longer poses an imminent threat (to the police officer or others), or the police officer determines that force will no longer accomplish a legitimate law enforcement purpose.
- Requires de-escalation of conflict when time, circumstances and safety permit.
- Requires police officers to intervene to prevent or terminate an unauthorized use of force under the use of force statute.
- Requires officers to provide basic first aid to a person injured by the use of force by police.
- Fully documents and makes transparent all significant use of force incidents.
It could be that a more objective standard is needed for the last clause in 2 above (police officer determination of the cessation of a legitimate law enforcement purpose) rather than a subjective standard. Time will tell. The obligation of intervention in 4 above will assist in developing a better policing culture, as simply deferring to another police officer when there is a clear violation will no longer be tolerated. There are also important provisions for training and supervision with respect to these use of force standards.
The Maryland Police Accountability Act also provides for an expansion of body-camera mandates. A task force is established to study the viability of expanding that to the rest of the state and this is an understandably complex and difficult rollout. By 2025 the mandate will be statewide for the county police forces, but one can expect tinkering with this idea over the next few years. Long-term rollouts of reform mandates have a way of being eroded, so this is an area where we’ll just have to watch and hold our elected officials accountable.
A less glamorous but equally important element of the legislation is that the use of force statute is integrated with training, counseling, and departmental policies which will hopefully make the weight of these changes fall equally on the police departments responsible for the supervision and management of individual officers, rather than just on individual police officers. Individual problems in policing can become systemic problems in criminal justice when there is a lack of public accountability. Public transparency is necessary for public accountability and ensures that institutions are held equally accountable for just outcomes.
The second important bill (SB178) passed this session was Anton’s law, a bill which the Libertarian Party of Maryland had worked on for years and which increases transparency when misconduct complaints are made against police officers. Due to an unfortunate ruling of Maryland’s highest court, the disposition of misconduct complaints made against police officers were being treated as personnel records rather than as investigatory records. Under the Maryland Public Information Act, personnel records fall within a mandatory exclusion from the documents that can be made public by the police department’s custodian of records, whereas the investigatory records exception limits disclosure according to a balancing test with a set of enumerated factors that only prevents the disclosure when it will harm an investigation or sources. This bill restores the proper balancing of interests and stops the wholesale sweeping of misconduct claims and their disposition behind a veil of secrecy (though the opponents did get an exception added to exclude “technical violations of rules”).
SB178 also provides some protections against no-knock search warrants, a topic which Libertarians have been interested in due to the death of Duncan Lemp (and others before him). A no-knock search warrant allows police to enter the premises or place to be searched without giving notice of the police officer’s authority or purpose. The bill amends the process for requesting and obtaining no-knock search warrants. While it contains some limitations on the grounds for justifying a no-knock search warrant (such as information that shows that property or evidence would be destroyed or that there is information showing that the life or safety of the executing officer or another person may be endangered), the limitations do not go far enough. There are advantages to the bill’s provisions, especially with respect to the information and review by the judge executing the warrant, but more work in this area is probably going to be needed. One good aspect of the bill is a set of provisions to require record keeping and transparency with respect to police departments’ use of no-knock search warrants.
Another bill passed this session was HB670, which repealed and replaced the LEOBR (Law Enforcement Officer Bill of Rights). LEOBR had provided a very one-sided protection of police officers and has been cited as a significant barrier to the accountability for police misconduct. The bill requires each County to establish a civilian Police Accountability Board to receive complaints of police misconduct (such complaints can also be filed with the police agency itself) with an administrative charging committee element that sets forth an orderly and fair process for addressing police misconduct claims. It requires written findings and opinions in the administrative disposition, requires findings if there are any failures of supervision that contributed to the police misconduct, and develops and deploys a statewide disciplinary matrix, which has the virtue of creating uniform statewide standards for misconduct cases. The process maintains important due process protections for the police officer(s) accused of misconduct, while eliminating the provisions that made it so one-sided on behalf of the police. There will still be disciplinary trial boards (open to the public), but they will operate within the new system. Police officers may be required to submit to a battery of drug/alcohol tests. The bill also allows the appointment of a victim advocate to represent the victim in the context of the disciplinary complaint resolution, which is mostly to guaranty transparency but also prevents conflicting evidence from being easily ignored. One of the early concerns about removing the LEOBR system was that police unions would be able to enact the same one-sided protections through collective bargaining agreements, but this law prevents that from occurring.
Notably there is a good whistle-blower protection provision to facilitate good cops disclosing violations of policy, mismanagement, waste of government resources, etc. by police departments. The bill also preserves the right of police officers to participate in political activities that was in the original LEOBR, which is laudable as police officers should not lose their rights to free expression and association.
Another strong element of the bill not discussed much in the press is that it requires the existing Maryland Police Training and Standards Commission to hold local police departments accountable for violations of the use of force standards enacted in the previously described bill. This will be an important institutional check and facilitate the equal treatment of citizens through the equal enforcement and interpretation (including rulemaking) of police officers, supervisors, management, and the agencies themselves. The Commission can also enforce their rules through the police certification process. If the Commission does its job, this could bring the statutory requirements to reality with an efficacy often lost in other police reform efforts.
Another provision that Libertarians will applaud is that prior cannabis use is not a disqualification for certification as a police officer. Another element is something the Libertarian Party of Maryland also worked on for a number of years, which was re-establishing the SWAT team reporting requirements which had lapsed due to a legislative sunset provision. In the past the police unions had argued that this reporting transparency should not be re-established because, according to them, nobody was interested or used that information. While the Libertarian Party would prefer strict statutory standards for the deployment of SWAT teams including strong limits on their use for exercising general warrants (absent clear evidence of dangerous conditions), re-establishing transparency as to the use of SWAT teams in Maryland will facilitate future legislative efforts.
Finally, of note is SB599, which would have prevented the purchase of some specified surplus military equipment by police departments, passed the Senate but was not taken up on the floor of the House. Therefore, we’ll have to return next year to advocate for this bill as it is an issue important to Libertarians. The bill would have prevented the purchase of weaponized aircraft, vehicles and drones, destructive devices, firearm silencers and grenade launchers by Maryland police departments. That is a start, but the use of military-grade equipment to suppress and deter protests will remain a concern and the purchase and use of such military surplus equipment should also be limited by the General Assembly.