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  February 1, 2017

Trump Administration Looms Over Consent Decree Hearing in Baltimore


A federal judge citing shifting politics in Washington DC sought details from the city and the DOJ on how they plan implement a major overhaul of the police department
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TAYA GRAHAM: This is Taya Graham reporting for The Real News Network in Baltimore City, Maryland.

Since the election of Donald Trump, there have been concerns that efforts to reform policing in cities across the country would face a hostile Justice Department. Nowhere are those worries more evident than in Baltimore City. After the Justice Department issued a damning report on the Police Department here, the City entered a Consent Decree with the DOJ to push reform efforts forward.

But today in Federal Court that agreement came under the scrutiny of Federal Judge, James K. Bredar, and the question that looms over these proceedings is, how will what's going on in Washington impact the reform efforts here?

Listening to the Judge, he referenced changes in the political winds, how they might affect the Consent Decree. What do you think he was alluding to?

STEPHEN JANIS: Well, it's interesting. There was a sense of urgency in the proceedings. The Judge really wanted to get a lot of things hammered out, in terms of specifics and metrics, because as he said, you know, things are changing. He said there's political change, you know, in the air and that he knew that the court was not immune to it. Which I think was very interesting to bring up, because you know there has been a great question about what's going to happen with police reform under the Trump Administration?

And of course, the lawyers sitting at the table today for the DOJ might not be there when Jeff Sessions is appointed, and the Judge was basically saying, "Look, I need to get this hammered out. I need to get the details down. I need to know what the court's responsibilities are now." So, I think what he was saying, "So I can sign this because I don't know what's going to happen when Jeff Sessions takes over." As we know, and as we've reported before, Jeff Sessions is not someone who has been favorable to Consent Decrees.

TAYA GRAHAM: Absolutely.

STEPHEN JANIS: As you pointed out many times, that he has written--

TAYA GRAHAM: Right. It was in 2008, Alabama Policy Institute Paper, where he cited specifically that he thought Consent Decrees were overreach.

STEPHEN JANIS: Right. And you know he's been hostile to civil rights, openly hostile to civil rights. So, there's a great deal of concern today, that was aired inside the court, about what the Justice Department will do, and what the Judge could get done in the meantime, to sort of nail this down.

TAYA GRAHAM: Right. And I noticed specifically that the Judge said, that as a judge, he's not subject to the whims of the change that occur every four years, that he is beyond that.

STEPHEN JANIS: Yeah.

TAYA GRAHAM: However, he did demonstrate some concern when he said that, "I do read the newspapers. Political winds are changing."

STEPHEN JANIS: Well, he said specifically, you know, the courts respond to the law. "So, Congress can change the law, but I have to respond to the law, and I have to make sure that what I'm doing within the guidelines of this Consent Decree are within aspects of the law. So, I can't go outside it. I can't become a political instrument. I have to abide by the law."

And so, you know, I think one of the things that came up today, very quickly is that there are questions about what could happen when the Trump Administration takes over, when Jeff Sessions takes over. I see this as a very pragmatic judge. I don't see this as a far-reaching judge and if indeed they filed a motion, the Justice Department, saying you know, we believe this should be changed, I don't think he'll ignore it.

TAYA GRAHAM: The Mayor was here and she appeared in court today.

STEPHEN JANIS: Uh huh.

TAYA GRAHAM: What did she have to say?

STEPHEN JANIS: Well, the Mayor was there specifically to address what was a big concern throughout the entire hearing, which was, the fiscal concerns. The judge is very concerned about if the City had committed to money, how much is it going to cost, and if the City had the money to follow through on it? So, he wanted the Mayor to speak to that, and he asked the Mayor specifically about that. We caught up with the Mayor shortly after she made the appearance and here's what she had to say about that.

MAYOR PUGH: No, what I said to... No, the Judge asked if I would appear, and I appeared because the Judge had questions as it relates to the financial aspect of this agreement. And so, that we put in here and what I explained to the Judge, as I think that David Ralph, our City Solicitor explained, is that in all of this we have in the agreement financial responsibilities. And we will be financially responsible. But what the Judge said is if he were to issue an order that said that we needed to get the Cadillac as opposed to the Chevy, would we comply? And the answer would be yes, we would comply.

STEPHEN JANIS: Do you have an estimate of cost, a better estimate of cost?

MAYOR PUGH: Well, I know that... and I can get those figures for you, that we have put some money in the budget for this. We are getting assistance from other areas. For example, we do have a grant that's coming in from the Ford Foundation. And so, I know other moneys will be available. I've even asked for money in the State budget for some of the capital projects, costs, for this particular issue. So, I'm really confident that we'll be able to get this done. I want this Consent Decree signed, so we can move forward. You know, I've talked...

TAYA GRAHAM: There was a lot of discussion on what police officers could do, or not do, in low-income neighborhoods. What direction do you think the Judge was going?

STEPHEN JANIS: Well, what was really interesting is there were a lot of things in the Consent Decree about officers' discretion out on the streets. Of course, trying to address the fact that the Justice Department Report specifically cited that the Police Department targeted primarily African-American neighborhoods with unconstitutional stops and seizures. There are a lot of outlines in this Consent Decree saying, you know, if an officer wants to make a loitering arrest, they have to call a supervisor. An officer just can't stop someone because he's in a high-crime neighborhood.

TAYA GRAHAM: Right.

STEPHEN JANIS: An officer can't just stop someone because the person looks at him. Interesting echoes of Freddie Gray, and in fact, the Judge cited that. And the Judge said, "How does this jibe with current case law -- because current case law gives officers a lot of discretion. Wardlow vs. Illinois, which you've talked about many times, says if an officer is in a high-crime neighborhood they can... and the person flees... And what the Police Department said and the City and the Justice Department said, these outlines just make it very specific and make sure that you can't do one or the other. In other words, like, just because someone looks at you, you can't stop them.

TAYA GRAHAM: Right.

STEPHEN JANIS: Just because you're in a high-crime neighborhood, you can't stop them. If both happen to be there and you know the person, you can. So, there was a big, big discussion about whether or not this Consent Decree went beyond the Constitution or...

TAYA GRAHAM: Right, or whether or not it was trying to change the legal precedents actually.

STEPHEN JANIS: Yeah. Yeah, the case law basically. It was, you know, because according to the Judge, the case law gives officers a lot of discretion. They talked about the Rend Decision, which means, you know, if you stop someone for a taillight, it has to be for a taillight. Not because you think they have drugs. And again, you know, the Judge was saying well, you're kind of saying they can't do that anymore.

TAYA GRAHAM: One big concern for the Judge was money.

STEPHEN JANIS: Uh huh.

TAYA GRAHAM: What kind of commitment did the City of Baltimore make today?

STEPHEN JANIS: Well, that is another issue we talked about with the Mayor. The Mayor was asked about money, and the Judge was saying specifically now, you know, there's no price attached to all this stuff. Do you know what the price is again? City Solicitor, Mr. Ralph referred to that they'd made some estimates, but did not speak specifically in court. And I think the Judge was saying, "Well, what happens if you're saying I can't comply with this because I can't afford it? The Justice Department says you're not doing X, Y and Z. You need to spend more money."

TAYA GRAHAM: What action am I supposed to take as a judge?

STEPHEN JANIS: Do I have your commitment right now that you're going to do what it takes? And interestingly, the Mayor actually said, "Well, you know, if we can't get it from here, we'll get it somewhere else." She was referring mostly to a grant that has already been forthcoming from the Ford Foundation, giving the City $1 million to implement this. She's also gone to Governor Larry Hogan and asked him for money. So, the Judge was very, very concerned the City wouldn't have the money.

Now, there is one thing in this Decree that the budget for the monitor, which is a person who will be selected by both parties, to monitor the City's progress, will cost about $1.4 million. But you know, as you saw, the Judge was also talking about specifics about reporting. The City is going to have to report on almost every arrest they make and every stop they make in a poor African-American neighborhood. And there were concerns the City wouldn't have the money to do that. And if they didn't do it, what was the Judge supposed to do with this? And the Mayor basically made the promise, "We'll do whatever we have to do to pay for this."

TAYA GRAHAM: What did the Judge have to say about public input?

STEPHEN JANIS: Well, public input is going to be a part of this and it's really interesting because it's not just about people coming, as he said... Remember, you made a comment about this? About it's not going to be open mic night.

TAYA GRAHAM: Exactly.

STEPHEN JANIS: But he will have public input in written form, and then testimony. And then he said, "Well, look I said I just can't take this public input as like, people just expressing their opinion. This has to be considered as actual evidence that could influence how I sign this Consent Decree or how I alter it."

TAYA GRAHAM: Right, that would seem really important, because initially those lawyers were saying, "Well, this is context for you." And he said, "Well, it's either evidence. It's either factual. It's either admitted, or it's not."

STEPHEN JANIS: Another is, he doesn't want this to be an exercise in just public self-expression. He wants to use whatever the public says and he says, "I can take what the public says, and apply it to how I eventually sign this Consent Decree Agreement, whether it be a supplement to the Agreement or not." Which I think is actually kind of heartening for the community. That means there's like a real incentive for people to contact the court. They can either write or they can show up.

TAYA GRAHAM: Everyone talks about the power of the FOP of the Police Union. How often were they mentioned today in the court? How important were they to this process?

STEPHEN JANIS: Well, they were mentioned constantly, because constantly the Judge was asking, you know, can you do X, Y and Z, very specifically, having civilian participation on internal trial boards, which are internal disciplinary boards? And the Judge was saying, "Well, can you really... You committed to this in this Consent Decree." And in fact, in the Consent Decree, the City says yes, there will be civilians on police review boards. They absolutely will be there. But the Judge was saying, "Well, I don't know, can you do that?" And the FOP, you know, has because of the State law, which says, yes. It also has to be collectively bargained. The FOP has to say yes, it's okay. And he was saying, "Can you make the FOP do this?" basically.

TAYA GRAHAM: Right.

STEPHEN JANIS: And the City was like, "We're going to do our best." But there was no absolute, you know, indication that they could get that done.

TAYA GRAHAM: Right. I mean, the Mayor did commit to having civilian oversight on the Internal Disciplinary Board, right?

STEPHEN JANIS: They both did, they committed to it in the Consent Decree. And the Judge was skeptical. I wouldn't say he was skeptical, but he was questioning them pretty strongly about whether or not they would do that. Now, Gene Ryan, who's the President of FOP, actually appeared outside the courtroom and you know our photographer, Cameron, talked to him. So, let's hear what he had to say.

CAMERON: Do you feel that with this change in administration in DC, that you may get some support that you didn't have before?

GENE RYAN: I don't know. I don't really want to comment on that because, you know, things are new. I mean, it's just like the Judge said, you know there are different players, so, the sands shifting, as he put it. So, I just have to... I wait and see, just like everybody else. Just like I recommend, I don't like rushing through anything. Sometimes you've got to take a couple steps back and take a deep breath. I'm certainly not going to rush through it either.

CAMERON: So, what do you think? I mean do you think it's been a rush job to get it done by final days?

GENE RYAN: Absolutely. I think it, and some of the politicians that went on record to sign saying, they wanted to get it done before our next President got sworn in. So, I definitely think it was rushed.

CAMERON: Are you worried about how this will affect the rank and file members of your department?

GENE RYAN: Yes, absolutely.

CAMERON: And what concerns you about it?

GENE RYAN: Well, like I've just said, and you missed it. We're not afraid of reform. We put out the blueprint, as you very well know, four or five years ago. So, we know there needs to be some changes. We're okay with that. We worked with the DOJ. We didn’t have a seat at the table at the very end, and I wish we did, but we still gave them important information and they did use some of it. So, it's going to be beneficial. Some of the policies we disagree with though.

TAYA GRAHAM: So, Stephen, what do you think the timeline is, going forward? What's going to happen next?

STEPHEN JANIS: Well, right now the Judge, once he reviews these, you know, it's about a five to six-page document, about all the things he wants to review. Once he finishes them, he should be in the position to sign this Consent Decree and make it part of a Court Order, that would then join the Justice Department and the City. I think what's interesting is if Jeff Sessions is confirmed, will the Justice Department file a quick motion to seek another hearing?

I think the people you saw in the courtroom today were all leftovers from the Obama Administration. I don't think you had new lawyers in place in the Civil Rights Division. And so, I think right now we are in very tenuous, tenuous times, in terms of whether or not this Consent Agreement will be used, or go forward exactly as people think it will. I think it's really up in the air, more than people think.

TAYA GRAHAM: Right. And I think the Judge really signified that, when he said there are political winds that can really affect what's going on here.

STEPHEN JANIS: Yes. Yeah.

TAYA GRAHAM: Okay. This is Taya Graham and Stephen Janis reporting for The Real News Network in Baltimore City, Maryland.

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