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Momentum grows to repeal Maryland Law Enforcement Officers’ Bill of Rights. But how to replace it is up in the air.

Bryn Stole

The Baltimore Sun

For years, activists and a handful of Maryland lawmakers have tried and failed to nix the state’s Law Enforcement Officers’ Bill of Rights, a 1974 act that enshrines in state law certain job protections and due process rights for police officers accused of misconduct.

Now, what long appeared an uphill battle looks increasingly likely to reach its goal: that Maryland’s General Assembly will repeal the law, which critics have said goes beyond guaranteeing due process rights to shielding dirty officers from discipline.

House Speaker Adrienne A. Jones introduced a package of criminal justice bills that includes a repeal of the law, Senate President Bill Ferguson has signaled his support for repeal and other top Democrats appear on board.

Several top law enforcement officials — police chiefs and state’s attorneys — have indicated support for repealing the Law Enforcement Officers’ Bill of Rights. Even police union leaders, long staunch defenders of the law, have struck a conciliatory tone this year. They’ve pledged to work with lawmakers to shape legislation on the issue.

As a result, the key fight in Annapolis is shaping up to be not whether to repeal it — there appears to be consensus for doing so, though it’s unclear whether Republican Gov. Larry Hogan would sign such a measure or if lawmakers could muster the votes to override a veto — but over what replaces it.

“The Law Enforcement Officers Bill of Rights has to go,” said Ferguson, a Baltimore Democrat. “The question is, from that point, though: What are we putting in place to make sure the system continues to work and we don’t have a patchwork of different policies across the state? And I think that’s where the tension will be.”

Simply striking the Law Enforcement Officers’ Bill of Rights from the books would create something of a legal vacuum, leaving it up to individual agencies to decide the rules around how misconduct complaints are handled and disciplinary matters settled.

For critics, that would open the door for police unions to include similar or stronger protections in collective bargaining agreements or for police chiefs to sign off on policies that skimp on accountability. And for chiefs and unions alike, it could create a confusing hodgepodge of systems across Maryland’s nearly 150 law enforcement agencies.

Creating a new statewide framework to replace the Law Enforcement Officers’ Bill of Rights would “make sure that when cities or counties start to negotiate [police union contracts], they can’t pop up the same bad clauses,” DeRay Mckesson, a prominent Black Lives Matter activist from Baltimore, told lawmakers Tuesday. He is the co-founder of Campaign Zero, a nonprofit advocacy group that’s campaigned across the country against similar police protections.

“I don’t just put my name or efforts behind something just to see it fail.”

House Speaker Adrienne A. Jones

Jones told The Baltimore Sun she was confident she had the votes to pass her package in the House with a veto-proof majority.

“I don’t just put my name or efforts behind something just to see it fail,” Jones, a Baltimore County Democrat, said of her criminal justice package that would scrap the Law Enforcement Officers’ Bill of Rights.

Police unions, too, acknowledged the growing consensus around the State House to repeal the law.

“We think there’s significant momentum to get this done,” said Clyde Boatwright, president of the Maryland State Fraternal Order of Police. “If there are going to be changes, we hope the changes are sensible and that we’re at the table to help craft these changes.”

Boatwright, a sergeant with the Baltimore City School Police, called the possibility of repeal “the most significant piece of legislation that’s been introduced in my policing career.” But Boatwright warned that “throwing away” the Law Enforcement Officers’ Bill of Rights without an acceptable new set of statewide standards would be “a serious mistake.”

Jones linked the shifting political climate in Annapolis to massive nationwide demonstrations last year over police killings in Baltimore, Atlanta, Minneapolis, Louisville and elsewhere.

“It is horrifying that it took the death of George Floyd and Breonna Taylor and Rayshard Brooks to bring attention to these issues across the country,” the speaker told the House Judiciary Committee at a hearing on her package.

Just days after Floyd’s death in May under the knee of a Minneapolis police officer, Jones convened a bipartisan work group tasked with drawing up a raft of proposals to improve policing in Maryland. Among its most straightforward recommendations: Repeal the Law Enforcement Officers’ Bill of Rights.

Jones’ resulting bill would require police departments to replace a disciplinary process outlined in the Law Enforcement Officers’ Bill of Rights with one that’s “open and transparent.” Among its provisions: Officers accused of misconduct would retain the right to take their cases to a trial board to weigh the evidence and decide their case, but at least a third of the board members would be civilians. Currently, trial boards nearly everywhere in the state are made up of police officers.

A competing Senate bill to abolish the Law Enforcement Officers’ Bill of Rights, introduced by Baltimore Democratic Sen. Jill Carter and backed by a coalition of groups led by the ACLU of Maryland, would ditch trial boards. Instead, it would give police chiefs and sheriffs the authority to review evidence and mete out discipline after an investigation.

“I think this is the year. It’s going to happen,” said Carter, who described a series of tweaks and changes in previous years to the Law Enforcement Officers’ Bill of Rights as inadequate half-measures that didn’t address serious, underlying issues. “There’s no transparency, there’s no accountability. I think it’s shameful that the legislature needed the national outcry when Maryland itself … has had many, many notorious extrajudicial killings.”

Both bills would allow chiefs and sheriffs to fast-track discipline for any officer facing criminal charges and suspend them without pay.

Chiefs could also fire any officer convicted of a crime without going through a disciplinary process. Currently, such powers are limited to when officers are convicted of a felony, even though a range of serious offenses — including perjury, misconduct in office and fabricating evidence — are misdemeanors under Maryland law.

Baltimore Deputy State’s Attorney Janice Bledsoe pointed to two recent cases where Baltimore Police Department officers remained on the force and continued to collect paychecks for more than a year despite convictions for perjury and fabricating evidence.

“It’s very difficult to regain the trust of the community with law enforcement when we have officers who have been convicted of integrity issues — perjury and fabricating evidence — and yet they still remain at BPD,” Bledsoe said.

Among the protections in the Law Enforcement Officers’ Bill of Rights: Internal affairs investigators have to wait at least five days to question officers accused of wrongdoing; citizens face strict time limits to file complaints about misconduct; and a jury of fellow police officers ultimately decides guilt.

Samuel Walker, a retired professor of criminal justice at the University of Nebraska Omaha who’s written extensively about police union contracts and law enforcement bills of rights, said Maryland was the first in a wave of 16 states to pass such laws. Walker, a critic of the protections, said the state’s law — alongside a similar law in Rhode Island — is the strongest.

Some of the sharpest opposition so far of the speaker’s bill has come not from the police unions, but from advocacy groups that have long campaigned for the repeal. Dayvon Love, a Baltimore activist and policy director for the advocacy group Leaders of a Beautiful Struggle, called getting rid of the Law Enforcement Officers’ Bill of Rights “particularly important” because officers have been “insulated from public pressure and accountability.”

But because it would keep trial boards in place instead of handing responsibility for deciding misconduct cases to a police chief or an oversight board with civilian members, Love said, Jones’ bill would allow officers to continue “controlling the process of discipline.” He said that “is not meaningful police accountability and reform.”

“We shouldn’t have a system where a chief or an external oversight body can’t discipline an officer unless and until a jury composed of at least a majority of fellow officers says it’s OK,” said David Rocah, senior counsel for the ACLU of Maryland. The group supports Carter’s Senate bill, rather than the speaker’s package.

Rocah argued that placing all disciplinary decisions in the hands of the chief or sheriff would allow a community to hold a single official responsible for how misconduct is dealt with at an agency — especially if the General Assembly also passes a proposed slate of changes to open records laws that would give the public some access to personnel and disciplinary records.

Police unions have blasted the idea of putting discipline in the hands of one official. In their view, stripping rank-and-file officers of a trial board would undermine their due process rights and leave them vulnerable to a rogue police chief. Boatwright, the state FOP president, also pointed to a history of discrimination against minority officers at Maryland police departments and contended that losing extra job protections might leave them more vulnerable.

“There’s no oversight, there’s no transparency, there’s no accountability for anyone other than the chief making these decisions,” said Mike Davey, a union lawyer with the Maryland State FOP, of the proposal in the Senate bill.

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