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  May 6, 2015

Was it Legal to Hold Baltimore Protestors More Than 24 Hours Without Bail?

Attorney Dwight Petit and law professor Byron Warnken discuss a judges decision that upheld holding protestors without bail for up to 47 hours
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Byron L. Warnken, Esq. has been a practicing attorney for more than 30 years. He is the founding member of Warnken, LLC, Attorneys-at-Law. Also a law professor with more than three decades of experience, Warnken's career has been diverse and filled with accolades. Warnken's cases consist of criminal post-verdict matters, appellate litigation, law enforcement representation, and ethics issues. He is also an expert witness in police misconduct cases, other law enforcement and LEOBOR matters, and in criminal post conviction cases. Warnken was part of State's Attorney Marilyn Mosby's transition team. Since 1998, Warnken, LLC has represented the Maryland Troopers Association, the largest labor organization of the Maryland State Police.

Attorney A. Dwight Pettit in 2004 won the largest constitutional rights verdict in Maryland history and one of the largest in the history of the nation ($105 million). Attorney Pettit who has handled some of the highest profile criminal and civil cases in the state has been in the private practice for four decades. He current serves on the board of The Real News Network


PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I'm Paul Jay.

Hundreds of people who were arrested in Baltimore over the last week of controversy and protest were held in jail for more than 24 hours. A judge has ruled that that is legal. Is it? Now joining us is an esteemed panel. First of all joining us, from the University of Baltimore Law School, Byron Warnken. He's a professor and he's an expert on criminal and appellate law. Also joining us, Dwight Pettit. He's a civil rights attorney and constitutional lawyer in Baltimore.

Thank you both for joining us.


JAY: So I'm going to start with Mr. Warnken. What do you think of the judge's decision? The judge is Charles J. Peters. He says the extended detentions were a result of a system simply overwhelmed by the large number of arrests that occurred and not a deliberate move to hold arrestees, thus it's reasonable and okay.

BYRON WARNKEN, Esq.: I think an appellate court would probably affirm his decision. And the reason for that is yes, Maryland does have a rule that says you may be, you must be presented to a court commissioner as soon as possible, but no longer than 24 hours. However, the law's clear that if that is violated that doesn't entitle you to habeas corpus so you can get released. And the Supreme Court has held in 1991 that holding someone for 48 hours would be permissible.

I could make an argument that the 24 is an absolute strict requirement. I think the court would decide that under these circumstances where there were a lot of people out there that they would probably affirm it. You could argue it either way.

JAY: So just to be clear so everybody understands, in Maryland the way it works when you're arrested, normally within 24 hours you get in front of a commissioner who sets bail. And then the bail is reviewed in front of a judge usually within a day or two. But if you can meet the bail conditions you do get out, and these people were held longer than 24 hours. Mr. Pettit, what do you think? Correct or incorrect?

PETTIT: I agree with Warnken. A court would probably uphold it. But I do think that the 24 hours is mandatory. And I don't think there's discretion for either executive authority or judicial authority to in fact waive that. A lot of things in the law we see "it shall be". Shall means what it says, mandatory.

JAY: So what do you make of that? So he's saying--it's almost a more political argument. You're saying the appellate court will likely uphold it, but you think the correct meeting allows not to uphold it.

WARNKEN: Well, I agree with part of Dwight's analysis. And that is when the court rules, or the statues say "shall", normally that's interpreted to be mandatory and that no one has the power to get around it. However, even those things are--sometimes the courts look the other way if there's a legitimate basis. And I think that Dwight and I are both probably correct to say that notwithstanding what that rule says, because of the extraordinary circumstance during those couple days, the court would probably just decide that these people were not entitled to anything.

Now the reality is, they all eventually got things happening. So I don't think they're going to get anywhere. You know, could they sue the government for detaining them? Perhaps. Three years later, maybe they'd have a judgment. And I'm not trying to be a smartie on this, but I'm saying it's kind of a de minimis intrusion and it probably would be upheld.

JAY: What do you think? Let's forget about whether it should be upheld or not, because that's, as I say, a bit of a political question. The question is, should it be upheld based on the reading of the law? I mean, how minimis is it to spend another 24 hours in jail? It's not so minimis if you're in the jail cell. Tremendously overcrowded. We've heard reports, I can't verify it, but for example the lawyer Doug Colbert told us that people are being fed, like, bread and slice of cheese, like the main meal of the day was four piece of bread and a couple of slices of cheese.

I mean, there is a point here--and we're going to get into this as we do other interviews on other issues. I mean, do constitutional rights matter? Or is it just all a practical issue? Oh, we could make it happen.

PETTIT: What we're saying I think, and what I think, I agree with Byron, that it's a political decision in which they will say "shall" doesn't mean what shall meant.

JAY: Shall doesn't mean must.

PETTIT: Right. But I think as a matter of law in terms of strict constitutional interpretation, it, the mandatory should be read as mandatory. And it's a violation of law to hold the people that were arrested in excess of 24 hours.

JAY: And where does it become--and the Supreme Court has said 48's reasonable. What about 52, or 69, or--.

WARNKEN: Well, the Supreme Court had ruled in 1975 that an individual must be taken before a court commissioner promptly. And in 1991 they had occasion to figure out where the outer limit of that was, and they decided that your 4th Amendment was not violated if they took you before a court commissioner within 48 hours. Maryland's always had a rule that's more favorable to defendants than that 48 hours.

JAY: Now they, they have weekends in Baltimore, I understand it, where often some people are, as many as 150 and 200 people are arrested over the course of a weekend. I mean, they seem to be set up to deal with large numbers of people, don't they?

WARNKEN: Well, but apparently the number of people--this wasn't a weekend. I guess it was Monday, Tuesday, Wednesday during the week with the curfew. I think they were just overwhelmed.

JAY: That's what I'm getting at. They didn't have the weekend normal traffic. There was a curfew. I mean, do you think it's possible that some of this holding was, let's teach these kids a lesson, if they're in jail they're not going to be back out on the streets?

PETTIT: I think definitely it was a political move to in fact censor the heart of the protest. If you put them in jail and hold them, then the more active leaders of the protest will be removed. I think that's a political decision, and I think when you go to the arguments of their continued detention over the 24 hour requirement, then that becomes subjective. And when it becomes subjective it becomes political.

JAY: And what do you think of that? Is this part of a strategy of the overall emergency police planning? We know there's such a thing in here called a fusion center. We're not just dealing with Baltimore police, we're not just dealing with National Guard. We're dealing with NSA, and FBI gets involved and Homeland Security. A lot of thinking goes into planning for these things.

WARNKEN: Whether the length of the detention was simply a function of how long it took to process this large number of people or whether there was any kind of plan saying let's, let's keep them a little longer and teach them a lesson, I have no idea.

JAY: Is there a basis here do you think, Dwight, for some kind of class action lawsuit?

PETTIT: Well, the question becomes what are the damages? And I think you put it very well. If you're the one being detained then the damages are severe, because your constitutional rights are being [offended]. And I would tend to think, I'm not sure how this was challenged, whether it was challenged by the public defender, but I'd anticipate that we might have seen something from the American Civil Liberties Union, which would have attacked it on a class basis at that point in time. I don't know whether you have sufficient damages to warrant a class action post-ruling to in fact seek any type of dispositive ruling, now that everybody--the remedy's already been provided because people are being released.

JAY: Because the problem that happens--I mean, I've talked on The Real News quite a bit about the Toronto G20, where a thousand people were arrested. And in truth most of those thousand people weren't charged. Very, very few were charged. But all thousand essentially lost their right to free assembly. They lost the right to protest. And then they're thrown back out again. But what does the right to free assembly mean if they can arrest you, hold you, and actually never charge you with anything, but they've taken you out of the protest. Where's the right to free assembly, and how does that ever get changed if it isn't through some kind of class action suit?

WARNKEN: Well, that would get changed I think through a lawsuit for false detention. For being held for no reason. I mean, I have a 4th Amendment interest in my body. Being held for no reason would create a 4th Amendment lawsuit for the civil rights--those are the things that Dwight litigates.

JAY: All right, thank you both for joining us.

And thank you for joining us on The Real News Network.


DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.


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