1 The Abell Report Published by the Abell Foundation March 2019 Volume 32, Number 2 The Baltimore Police Department: Understanding its status as a state agency by George A. Nilson Executive Summary remove the Commissioner remained with the Governor. In 1976, the General Assembly In recent years, the Baltimore Police Department transferred the appointment and removal has come under intense scrutiny following the powers to the Mayor of Baltimore. However, in-custody death of Freddie Gray in 2015 and the Maryland General Assembly left intact the the ensuing Department of Justice investigation, State Agency status of the Police Department. which resulted in a Federal Consent Decree. Many This means the General Assembly rather have started calling for turning control of the than the City Council is the legislative body Department back to the City from the State as a responsible for any legislative enactments way of increasing accountability. This report seeks governing the Baltimore Police Department. to understand the history of how the Department became a State Agency 158 years ago and the Throughout this 158-year history as a state implications of changing it now. agency, the funding of the operations of the Police Department has remained almost entirely By 1860, the Know-Nothing Party had taken the responsibility of the City of Baltimore. complete political control of Baltimore City and was abusing its power. The Maryland General While the Mayor and City Council are Assembly reached the conclusion that the Mayor constrained by the remaining Public Local and City Council had proven themselves incapable Laws establishing the Department’s continuing of maintaining order in Baltimore and accordingly status as a State Agency, the Mayor is able enacted Public Local Laws making the Baltimore to impact the conduct of the Commissioner Police Department a State Agency. through the power to appoint and terminate and to control funding for the Department’s These Public Local Laws required that the operation and initiatives. The City Council has Baltimore Police Department be managed by a some influence in the appointment process board of four Police Commissioners appointed (as it has recently demonstrated) and in the by the General Assembly. The authority to budget process. appoint and remove the Commissioners was turned over to the Governor in 1900. In 1966, If the Public Local Laws establishing the Baltimore when the City moved to having a single Police Police Department as a State Agency were entirely Commissioner, the power to appoint and repealed, there would be several impacts. Abell Foundation www.abell.org @abellfoundation P: 410-547-1300 March 2019 2 First, the City Council and Mayor would be This report seeks to shed light on the free to legislate or micromanage (for good or following questions: ill) policing in the City of Baltimore. Second, Police Department employees would become • How, why, and when did the City employees rather than employees of a Baltimore Police Department become State Agency, and they would be subject to a State Agency? City—rather than State—ethics and other laws and regulations. Third, the Baltimore • Are there reasons to change this status Police Department would lose the current so that the Department now becomes protections which exist under State sovereign a City Agency? immunity, which would likely be costly to the • Are there good reasons for the City and its taxpayers. Department to remain a State Agency? I. Introduction II. How the Baltimore Police The Baltimore Police Department is the Department became a state agency eighth largest municipal police department in America. It employs nearly 3,000 The Know-Nothing movement began in personnel, including approximately 2,500 the early 1840s in New York and spread sworn officers, about half of whom serve throughout the Northeast and Mid-Atlantic.1 in the patrol division. The Department The Know-Nothings in Maryland began as is responsible for safeguarding life and a secret club in the early 1850s; restricted property, and for promoting public safety membership to white, male, native- through enforcing the law in one of the most born Protestants; and demanded stricter violent cities in the country. immigration and naturalization laws. The Know-Nothing party was avowedly political in The public safety challenges in Baltimore purpose and relentlessly secret in the conduct have grown since the in-custody death of of its business. Members earned the party Freddie Gray in 2015 and the unrest that its name by repeatedly answering, “I know followed. The City and Baltimore Police nothing,” when asked about their meetings Department are subject to the stringent and internal workings. oversight of a Federal Consent Decree. The Department has had four Commissioners In the 1852 Presidential election, the Know- in as many years and has been without a Nothings emerged on the national stage and permanent leader for over a year. gained national prominence. In Baltimore, the openly Know-Nothing candidate was Among the many questions and challenges elected Mayor, and Know-Nothings gained that face the Baltimore Police Department is majority control of the City Council and the whether the Department is better off remaining General Assembly. a State Agency or if it should become a City Agency. This report examines this particular The Know-Nothings endured longer in issue and provides historical context as to how Baltimore than elsewhere, in part due to the the Baltimore Police Department was abruptly misuse of the Police Department to keep the taken from City control and made a State party in power. Throughout the 1850s, the Agency 158 years ago. Know-Nothings took their political battle to the streets of Baltimore City with the very unsubtle support of street gangs led by the notorious 3 Plug Uglies and Blood Tubbers and the tacit urging his supporters to stay home to preserve approval of the Police Department. Violence on their safety. Know-Nothing Mayor Swann was behalf of the Know-Nothings in the 1856 election re-elected, but the party lost its control of the had reached greater levels than had ever before General Assembly in 1859. been experienced in the City, including a dozen killed, 300 wounded, and hundreds more picked In response to the violence in Baltimore, up off the street, held in confinement, and then the Maryland General Assembly, no longer forced into repeated, alcohol-induced voting, a controlled by the Know-Nothings, enacted the practice known as “cooping.” Police Act of January 1860. This Act removed control of the Baltimore Police Department Baltimore remained solidly under Know-Nothing from the City and transferred it to a panel of political control through the municipal elections four Police Commissioners appointed by the of 1858, which were even worse than previous Maryland General Assembly. elections. Having secured his election in 1856, Mayor Thomas Swann quadrupled the size of the The City, still in the hands of the Know- Police Department, and the officers dedicated Nothing party, swiftly challenged the validity themselves to keeping the Know-Nothings in of the Act in the courts. Later that same year power. Several Democratic candidates for City the Court of Appeals ruled against the City, Council withdrew from the 1858 race and urged holding that because the City was a creature their supporters to stay home for their own of State government, and its police powers safety. Swann’s Democratic opponent for Mayor derived from State powers, the General conceded defeat at noon on election day, noting Assembly had the constitutional authority to that attempts to vote for him promised “loss of enact the Police Act and reconfigure control of life and the general disorder of the City,” and the Baltimore Police Department. A Timeline of the Baltimore Police Department as a State Agency 1784 Baltimore Police Department created 1852 Know Nothings Come to Power BPD becomes state agency, run by multiple commission- 1860 ers appointed by the General Assembly 1900 Power to appoint commissioners is given to the Governor Power to run BPD invested in a single commissioner, 1966 still appointed by the Governor 1976 Mayor given ability to hire and fire the commissioner 2008 Mayor’s discretion to fire commissioner strengthened Abell Foundation www.abell.org @abellfoundation P: 410-547-1300 March 2019 4 III. Funding and oversight remained at six years and appointment was responsibilities subject to advice and consent of the Baltimore City Council. Despite this change, the Police The Baltimore Police Department was Department remained legislatively designated established as a State Agency by Subtitle 16 as a State Agency. of the Public Local Laws of Baltimore.2 The Mayor’s power to hire and fire the • Section 16-2 provides that the Police Commissioner provides him or Police Department of Baltimore her considerable authority over how City is established as an agency and the Department operates and sets its instrumentality of the State of Maryland. priorities. While the power to hire is somewhat constrained by the need to • Section 16-4 states that the affairs and obtain confirmation from the City Council, operations of the Department shall the General Assembly initially tempered the be supervised and directed by the power to fire by requiring that it be exercised Commissioner of Police. only for cause. However, following the 2008 decision of the Court of Appeals that Mayor • Section 16-7 gives the Commissioner Martin O’Malley exceeded his termination the power to run and manage the authority in firing Commissioner Kevin Clark Police Department. It is the Police without establishing “cause” under the Public Commissioner who has the power to Local Law,3 the General Assembly amended issue rules, regulations, orders, and the Law, allowing the Mayor to terminate a other departmental directives under Police Commissioner under the terms of their the local law.